State v. Dees

¶1concurring.

¶2I concur. However, I have a slightly different analysis than that expressed in the majority opinion concerning why the Dickson evidence was admissible. For that reason I file this concurring opinion. Ms. Dickson was a single woman living in the apartment complex with her young son. However, at the time of the incident in question, her fiance spent the night with her. When they arose the next morning, they discovered her apartment had been entered through the bathroom window. There were muddy footprints in the bedroom, kitchen, and, as she put it, “all over the place”. These footprints included tracks on the stairs and into her upstairs bedroom. Her clothing, which had been on the floor by her bed, was found downstairs by the patio doors. $20 was missing from her purse which she had left downstairs. The state’s evidence was to the effect that chips of mud, or footprints, in the Dickson apartment could have been made by the defendant’s shoes, although they did not have sufficient individual characteristics to permit positive identification as having been made by those shoes. As noted in the majority opinion, there was a footprint between the apartment building in which Ms. Dickson lived and the apartment building in which Ms. Ogborn lived that was positively identified as having been made by the defendant.

¶3The rule in Missouri concerning the admission of evidence that involves another offense committed by a defendant is most frequently said to be the exclusionary rule set forth in State v. Hancock, supra; State v. Wing, supra, cited in the majority opinion. The affirmative statement of the rule is that such evidence is admissible if it tends “logically, naturally, and by reasonable inference to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense”. People v. Peete, 28 Cal.2d 306, 169 P.2d 924, 929 (1946). Compare State v. Tallie, 380 S.W.2d 425 (Mo.1964); State v. Fisher, 302 S.W.2d 902 (Mo.1957); State v. Iaukea, 537 P.2d 724 (Haw.1975). The two rules are discussed in Iaukeain which the court observed that the use of the exceptions under the exclusionary rule is to determine the relevance of the evidence in question. That court observed that some courts have applied the exceptions “to come almost full circle back to the affirmative statement of the rule”. Iaukea, supra, at 730. I do not believe it was error to admit the evidence in question under either statement of the rule.

¶4To be relevant it is not necessary that evidence be conclusive upon a given issue. There is a distinction between evidence being admissible and evidence being sufficient to support a verdict. Evidence is “relevant if it logically tends to prove a fact in issue or corroborates relevant evidence which bears on the principal issue”. State v. Mercer, 618 S.W.2d 1, 9 (Mo. banc 1981). If there is doubt concerning relevance, that doubt is to be resolved in favor of admissibility. State v. Williams, 566 S.W.2d 841 (Mo.App.1978). A determination of relevance made by a trial court will be disturbed only if an abuse of discretion is shown. State v. Wood, 596 S.W.2d 394 (Mo. banc 1980).

¶5The principal issue in this case is the identification of the man who attacked Ms. Ogborn and took $10 from her purse. The defendant emphasized this issue by his alibi of having spent the entire evening and night with his girl friend. Any evidence, even though that evidence may be connected with another offense, which places the defendant in the immediate vicinity of the Ogborn apartment the night in question is relevant. It is relevant to overcome the tendered issue of alibi. It also “tends to establish ... the identity of the person charged with the commission of the crime on trial”. State v. Wing, supra, 455 S.W.2d at 464.

¶6The defendant contends that he is not sufficiently identified with the footprint at the Dickson apartment for the evidence in question to be admissible. This is not the case. There was evidence to establish that this footprint could have been made by the shoe of the defendant. This makes evidence of that footprint admissible to estab*161lish the presence of the defendant in the vicinity of the Ogborn apartment. This is true even though that evidence is not conclusive of his presence and would not alone support a verdict of guilty. Positive identification of that footprint was not required to make such evidence admissible. State v. Kelly, 111 Ariz. 181, 526 P.2d 720 (banc 1974); People v. Robbins, 21 Ill.App.3d 317, 315 N.E.2d 198 (1974). The fact the two entries were related by the closeness of time and distance and the intervening footprint more clearly makes the Dickson footprint relevant on the issue of identity.

Given the proximity in time and place and the similarities of the crimes the evidence of the City robbery was admissible as evidence that the defendant and his companions had embarked upon a common scheme to rob school children at both sites and that the robberies in the County were committed by the same people identified in the City. State v. Adail, 555 S.W.2d 672, 675 (Mo.App.1977).

¶7Compare State v. Peterson, 543 S.W.2d 566 (Mo.App.1976); State v. Granberry, 530 S.W.2d 714 (Mo.App.1975).

¶8The fact there were other footprints in the area positively identified as having been made by the shoe of the defendant does not render the footprint in the Dickson apartment inadmissible. The admission of relevant evidence is not error because it is cumulative or corroborative of other evidence. “However, other evidence will not prohibit use of demonstrative evidence which has probative value in establishing conditions and corroboration of witnesses on the issues of the case.” State v. Mucie, 448 S.W.2d 879, 887 (Mo.1970).

¶9The admissibility of the footprint in the Dickson apartment may be demonstrated by comparing the evidence of the footprints to visual identification. The footprint that could have been made by the defendant’s shoe is the equivalent of a general physical description. The footprint identified by individual characteristics as having been made by the defendant’s shoe is the equivalent of a definite identification. The testimony of a witness that on the night in question he saw a man whose general description fit the defendant enter the Dickson apartment would not be made inadmissible by the testimony of another witness that he saw the defendant at a point between the two apartment houses.

¶10In addition to contending that he was not sufficiently connected to the footprint in the Dickson apartment, the defendant contends the evidence in question should have been excluded because the prejudicial effect thereof outweighed its probative value. This argument will be considered even though the scope of the limitation of prejudice upon the admission of relevant evidence is not clearly defined. Compare State v. Holt, 592 S.W.2d 759 (Mo. banc 1980); State v. Williams, 602 S.W.2d 209 (Mo.App.1980). To support this contention he cites the argument made by the state which is quoted in the dissenting opinion. In view of the rule concerning a pattern of action in sex offenses hereafter cited, it is probable that argument was proper. In any event, the defendant is not entitled to rely upon that argument to establish prejudice. The defendant did not object to that argument. Further, that argument was invited by the defendant. The defendant in his closing argument asserted the improbability that he would take $10 at 3:00 a. m. when he had over $2,000 in the bank. The state legitimately responded to that argument.

¶11The defendant further argues he was prejudiced because he was not sufficiently identified with the Dickson offense. This argument has been answered in demonstrating that such evidence was relevant. However, even assuming that it was not, that would be no reason for reversal. “If the latter contention is correct, the testimony probably was not relevant, but a judgment is not to be reversed because of the admission of irrelevant and immaterial evidence which is not prejudicial to the defendant.” State v. Parker, 476 S.W.2d 513, 515 (Mo.1972).

¶12The defendant then argues evidence of the Dickson entry did prejudice him by tending to cause the jury to believe that he *162committed both offenses. In speaking of the Dickson footprint, that footprint did prejudice the defendant by tending to establish his identity as being in the vicinity. But, that is not the type of prejudice that is to be considered as militating against admittance of relevant evidence. That is the very purpose in admitting the evidence even though it involves another offense.

¶13The defendant’s real argument seems to be that, aside from the footprints, the details of the offense at the Dickson apartment are so similar to the details of the offense at the Ogborn apartment as to cause the jury to believe he committed both offenses. This argument does not establish the trial court erred. First, the defendant objected to all evidence relative to the Dickson apartment. He did not specify any portion thereof. The trial court was not required to sift through that evidence to determine the inadmissible portions thereof.

¶14Second, the two offenses are remarkably similar. In each offense the apartment of a young single woman was entered; in each the offender made his way to the upstairs bedroom; in each the only thing taken was a small amount of money; and in each the offender wore the same type of tennis shoes which could make the same footprint. It could be found that the Dickson offense involved sexual overtones as that offender for some unexplained reason carried the young woman’s clothes downstairs. The defendant’s argument in this respect is self-defeating. A pattern in the commission of offenses, or a modus operandi, may cause evidence of the commission of one offense to be admissible as proof of the identity of the offender in another offense. Wharton’s Criminal Evidence § 243. This is particularly true of offenses involving sexual activity. Annot., Evidence — Similar Sexual Offenses, 77 A.L.R.2d 841 (1961); State v. Williams, supra; Lingerfelt v. State, 147 Ga.App. 371, 249 S.E.2d 100 (1978). For the reasons stated, I believe the admission of the evidence concerning the Dickson apartment was not an abuse of discretion by the trial court.

¶15dissenting.

¶16I respectfully dissent.

¶17The principal opinion considers ten points raised by the defendant and holds that all ten are invalid. I concur fully in nine of those rulings. My dissent is confined to the ruling on defendant’s fourth point. In my opinion that point is a valid one and the trial court committed reversible error in admitting, over defendant’s objection, evidence concerning the burglary of Kathryn Dickson’s apartment on November 26,1980.

¶18The state argues that the evidence was admissible as tending to identify defendant as the rapist of Kay Ogborn. The principal opinion agrees with the state. I disagree.

¶19“When admitting evidence of other crimes, it is important that the trial court consider not only the rule of exclusion but also the matter of discretion. Some courts proceed on the assumption that the decision of admitting or not admitting such evidence turns solely upon the ascertainment and application of the rule, in other words, whether or not the evidence comes within a certain category which constitutes an exception to the rule of exclusion. This should not, however, be a matter of pigeonholing, but one of balancing, on the one hand the actual need for such evidence, and on the other the degree to which a jury may be prejudiced against the defendant by hearing such evidence. The matter should be one of careful discretion on the part of the trial court. This is especially true when the ultimate purpose of the State is to prove the identity of an accused.” State v. Burr, 542 S.W.2d 527, 531[4] (Mo.App.1976). See also State v. Cheesebrew, 575 S.W.2d 218, 223[9] (Mo.App.1978); State v. Hamell, 561 S.W.2d 357, 360 (Mo.App.1977).

¶20The state’s expert witness, Dr. Briner, testified that in his opinion defendant’s right shoe produced the marks on the piece of mud found in Miss Ogborn’s bathroom. Dr. Briner also testified that defendant’s shoe produced the shoe print behind Apartment A near the northwest corner of 421 Sheridan and the print in the piece of mud found at the edge of the patio of Apart*163ment C of 415 Sheridan.1 Dr. Briner’s opinion was that “no other shoe of the same size and same brand could have caused those shoe prints.” Significantly Dr. Briner was unable to provide specific identification with respect to the mud chips collected from the Dickson apartment.

¶21As the principal opinion points out, Dr. Briner’s testimony would justify the inference merely that the mud chips “could have” come from the same shoe which left mud in the Ogborn apartment. In other words, the physical evidence in the Dickson apartment contained only “class characteristics,”2 while the evidence inside the Og-born bathroom and the two outdoor prints had “individual characteristics.”

¶22The state’s evidence showed that a specific shoe, that of the defendant, produced the markings in Miss Ogborn’s bathroom and the two outdoor prints. That was strong evidence indeed on the issue of the identity of the rapist. On the contrary, the physical evidence collected from the Dickson apartment possessed only class characteristics which added nothing on the issue of identity. The state does not claim that the evidence was sufficient to show that defendant committed the burglary of the Dickson apartment. Evidence of the Dickson burglary contributed nothing to the state’s burden of proof.

¶23In State v. Strickland, 530 S.W.2d 736 (Mo.App.1975), the residence of one Lee was located “next door” to the townhouse apartment of Murray. Defendant was charged with burglary of the Murray apartment on November 14, 1973. The state introduced evidence of pry marks found that day on the door of the Lee residence. Defendant was found in a nearby alley. Near him was found a tire iron which fitted snugly into the marks on Lee’s door. Defendant was not linked by fingerprints to the tire tool nor was it ever seen in his possession. The court of appeals held that the trial court erred in receiving evidence of the attempted burglary of Lee’s apartment because defendant was not connected with the incident at Lee’s door.

¶24In State v. Mathis, 375 S.W.2d 196 (Mo.1964), defendant was charged with the burglary of a store room located at 1210 Truman Road in Kansas City on August 29, 1962. The state, over defendant’s objection, introduced evidence that after midnight on that date a policeman found defendant sitting in a car parked at 1401 Truman Road. The state’s evidence showed that the building at 1401 Truman Road had been broken into, that it had recently been painted, and that at the time of his arrest defendant had paint on his hands similar to that on the building. The court rejected the state’s argument that the break-in of the building at 1401 Truman Road was part of the “res gestae.” It pointed out that commission of the burglary at 1201 Truman Road “was necessarily a completed transaction separate and apart from the commission of a second burglary or unlawful breaking two blocks distant.” At p. 199[4] the court said:

¶25“The state contends that the evidence which admittedly tended to show that defendant broke into the office building at 1401 Truman Road was properly admitted over objection because it tended to establish intent, absence of mistake or accident, a common scheme or plan embracing the com*164mission of two or more crimes so related to each other that proof of one tended to establish the other, or the identity of the defendant. We cannot agree. The crimes were not related, and the fact that defendant may have broken into a building at 1401 Truman Road could not tend to show his intent to commit an unrelated burglary at some previous time two blocks away at 1210 Truman Road. Neither could it tend to show absence of mistake or accident in breaking into the building at 1210 Truman Road, or the identity of the one who did so.”

¶26Under the foregoing authorities, evidence of the Dickson burglary was inadmissible. That the error was prejudicial is demonstrated by the fact that the prosecutor, in his final argument to the jury, said: “I’ll call your attention to the apartment down the street, he got 20 bucks out of there too, but, when he dragged those muddy footprints up those stairs and saw that some young lady in Apartment J had a big man with her, then he went down a half a block away and got into Kay Ogborn’s apartment and she did not have a man there. His intention was to rape.”

¶27In my opinion defendant’s fourth point is meritorious and the judgment should be reversed and the cause remanded for new trial.