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08/17/93 STATE MISSOURI v. RONNIE SIMMS

August 17, 1993

STATE OF MISSOURI, PLAINTIFF-RESPONDENT,
v.
RONNIE SIMMS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the City of St. Louis. Honorable Thomas M. O'Shea.

James A. Pudlowski, Judge, Paul J. Simon, Presiding Judge, and Albert J. Stephan, Jr., Judge, Concur.

The opinion of the court was delivered by: Pudlowski

On June 19, 1991, defendant, Ronnie Simms was convicted by a jury of burglary in the second degree, § 569.170, RSMo 1986, and possession of cocaine, § 195.202, RSMo Supp. 1989. With regard to both convictions, the trial court found defendant to be a prior and persistent offender, § 558.016, RSMo Supp. 1989, and a class X offender, § 558.019, RSMo Supp. 1989, and sentenced defendant to consecutive terms of fifteen years for the burglary and five years for the possession of cocaine. We modify and affirm the judgment. Defendant raises four points on appeal: 1) defendant alleges the trial court plainly erred by finding him to be a class X offender under § 558.019 with regard to his conviction and five year sentence for the possession of cocaine, § 195.202; 2) defendant claims the trial court abused its discretion by admitting evidence of other crimes committed by defendant; 3) defendant avers the trial court erred by overruling his motion to dismiss, or in the alternative, to stay the proceedings because the grand and petit jury selection procedures failed to comply with the declared policy of § 494.400 to 494.505, RSMo Supp. 1989; and 4) defendant challenges the "reasonable doubt" instruction modeled on MAI-CR3d 302.04.

I. Sentence for Possession of Cocaine

Defendant alleges the trial court plainly erred by finding him to be a class X offender under § 558.019, RSMo Supp. 1989, with regard to his conviction and five year sentence for the possession of cocaine, § 195.202, RSMo Supp. 1989, because § 558.019 applies only to certain class A, B, or dangerous felonies, and because the possession of cocaine under § 195.202 is not a class A, B, or dangerous felony.

Section 558.019 provides minimum prison terms for certain repeat offenders. Under that statute, the class X offender provision requires the offender to serve an eighty percent minimum prison term of his or her sentence. However, the minimum term provisions of § 558.019 apply only to certain class A, B, or dangerous felonies as stated and defined in the statute. State v. Flenoid, 838 S.W.2d 462, 466 (Mo. App. E.D. 1992). The possession of cocaine under § 195.202 is not a class A, B, or dangerous felony. Id. Therefore, the class X offender provision under § 558.019 does not apply to defendant's class C conviction and sentence for the possession of cocaine under § 195.202. The state in its brief concurs that the trial court erred and requests the judgment be modified.

Under Rule 30.23, we may finally dispose of a case unless Justice otherwise requires. Id. Because the finding of defendant as a class X offender affects only the mandatory minimum time to be served and not the sentence imposed, id., we may modify the judgment by removing the finding that defendant is a class X offender with regard to his conviction and sentence for the possession of cocaine. Our decision does not, however, modify the finding that defendant is a class X offender under § 558.019 with regard to his conviction and sentence for the dangerous felony of burglary in the second degree. We therefore order modification of the judgment in accordance with this opinion.

II. Other Crimes Evidence

Defendant alleges the trial court abused its discretion by overruling defendant's objections to 1) testimony concerning defendant's statement to police that he did not "want to go back to Gumbo"; 2) commentary during voir dire that the court would determine punishment; and 3) testimony by a police fingerprint expert that a fingerprint found at the scene of the crime was run through a police fingerprint computer. According to defendant, all three statements were inadmissible because they made reference to other crimes, which did not bear any relevance to the case and served only to prejudice the defendant. We disagree.

Questions respecting the relevance and admissibility of evidence are within the trial court's discretion and will not be overturned on appeal absent an abuse of discretion and a showing of prejudice. State v. Burns, 795 S.W.2d 527, 531 (Mo. App. W.D. 1990); State v. Henderson, 826 S.W.2d 371, 374 (Mo. App. E.D. 1992). Defendant bears the burden of showing that a statement constituted evidence of other crimes. State v. McMillan, 593 S.W.2d 629, 632 (Mo. App. S.D. 1980); State v. Leady, 543 S.W.2d 788, 790 (Mo. App. E.D. 1976).

Evidence of other crimes is generally inadmissible unless the evidence has a legitimate tendency to establish defendant's guilt of the immediate crime charged. State v. Trimble, 638 S.W.2d 726, 732 (Mo. banc 1982); see also Henderson, 826 S.W.2d at 374. A party may not offer evidence of other crimes merely to show bad character or a Disposition to commit a crime. Id. at 371.

Many exceptions exist to the general prohibition of other crimes evidence. Generally speaking, evidence of other crimes is competent to prove the immediate crime charged when it tends to establish 1) motive; 2) intent; 3) the absence of mistake or accident; 4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; or 5) the identity of the person charged with the commission of the crime on trial. State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992). This list of exceptions is not all inclusive; acts, conduct, or declarations of an accused that tend to show a consciousness of guilt may also be admitted. State v. Williams, 600 S.W.2d 120, 122 (Mo. App. S.D. 1980); see also State v. Girardier, 801 S.W.2d 793, 796 (Mo. App. E.D. 1991).

To determine the admissibility of other crimes evidence, the trial court tests for whether the evidence is logically relevant to the particular above-excepted purpose for which it is sought to be introduced. Sladek, 835 S.W.2d at 311. If the evidence is logically relevant, it must not be rejected merely because it incidentally proves the defendant guilty of another crime. Id. Moreover, evidence of other crimes should be admitted as an exception only when its probative value outweighs its prejudicial effect. State v. Hamilton, 817 S.W.2d 8, 11 (Mo. App. W.D. ...


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