¶1ON MOTION FOR REHEARING OR TRANSFER TO SUPREME COURT OF MISSOURI
¶2In a “Motion for Rehearing or Transfer to the Missouri Supreme Court,” the State avers this court, in declaring that the Defendant presented no evidence, overlooked testimony adduced by Defendant’s lawyer from the State’s witnesses on cross-examination. Such evidence, says the State, included testimony that (a) Defendant did not identify himself when he phoned Grace in response to the page, (b) the officer who searched Grace before she went to Defendant’s apartment on the occasion in question made only a superficial search, (c) no officer accompanied Grace to Defendant’s apartment on that occasion, hence no officer saw Grace enter or exit Defendant’s apartment, and (d) Grace was getting a reduction in sentence in exchange for testifying against Defendant.
¶3The State insists that the testimony itemized in the preceding paragraph tended to show Grace set up Defendant in order to get a reduction in her sentence. The State maintains that inasmuch as Defendant’s lawyer elicited the above testimony, this court erred in holding that Grace’s testimony about buying cocaine from Defendant “probably eight or ten times” prior to the subject sale did not rebut or contradict any evidence presented by Defendant.
¶4This court, of course, did not overlook the evidence catalogued by the State. Indeed, items “(a)” and “(c)” appear in this court’s opinion.
¶5Moreover, the State fails to explain how Grace’s testimony about her earlier purchases of cocaine from Defendant tended to rebut Defendant’s contention that Grace set him up in order to get a lesser sentence. Had Defendant’s lawyer presented evidence — either by cross-examination of the State’s witnesses or by direct examination of witnesses called by Defendant — that Defendant was unaware that the substance he sold Grace on the occasion in question was cocaine, or that he never had possession of, or sold, cocaine anytime during the ten days preceding the occasion in question, Grace’s testimony about her earlier purchases of cocaine from Defendant would have rebutted such evidence.
¶6However, Defendant’s lawyer presented no such evidence. Consequently, Grace’s testimony about her earlier purchases of cocaine from Defendant rebutted'nothing.
¶7The sole effect of Grace’s testimony about her earlier purchases of cocaine from Defendant was to demonstrate that Defendant had a propensity to sell cocaine. As explained in Bernard, 849 S.W.2d at 13, evidence of uncharged criminal behavior by an accused is inadmissible to show his propensity to commit the crime charged.
¶8The State’s post-opinion motion is denied.