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State v. Proby

Court of Appeals of Missouri, Southern District, First Division

July 28, 2014

STATE OF MISSOURI, Respondent,
v.
JOSEPH WILLIE PROBY, Appellant

APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY. Honorable Fred Copeland, Judge.

For Appellant: Samuel Buffaloe.

For Respondent: Chris Koster & Adam Rowley.

DANIEL E. SCOTT, J. - OPINION AUTHOR. JEFFREY W. BATES, J. - CONCURS. WILLIAM W. FRANCIS, JR., C.J., P.J. - CONCURS.

OPINION

Page 376

DANIEL E. SCOTT, J.

A jury found Joe Proby guilty of victimizing a Wal-Mart store -- four burglaries and four thefts during 2012. He complains that trial references to his 2009 thefts from the same store were " not legally relevant" in that " the probative value of the evidence was outweighed by its prejudicial effect."

An accused's prior misconduct, while not admissible to show propensity, is admissible if otherwise relevant both logically (tends to show guilt) and legally (probative value outweighs prejudicial effect). State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993).

Logical relevance is not at issue. In 2009, after those thefts, Wal-Mart warned Proby in writing that he was " banned" from Wal-Mart property and could be prosecuted for trespassing if he returned. This and related evidence tended to show, as required by the jury instructions on burglary, that Proby knowingly entered Wal-Mart unlawfully in 2012.[1]

Proby thus challenges legal relevance, urging that such proof was more prejudicial than probative. We need not reach that issue.

" If it is easier to dispose of a claim for lack of prejudice, a court should do so," Hardy v. State, 306 S.W.3d 159, 161 (Mo.App. 2010), to quote common parlance in

Page 377

post-conviction cases. Reason and law lead us to do the same here, since " on direct appeal, this Court reviews the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Forrest, 183 S.W.3d 218, 223-24 (Mo. banc 2006) (footnote and internal quotation marks omitted).

Specifically, error in admitting evidence of other crimes " will not be reversed on appeal absent a showing of prejudice." State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997). No relief lies unless such error " prejudices the entire proceeding against the defendant." State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997). A defendant must persuade us that improperly admitted evidence " so influenced the jury that, when considered with and balanced against all of the evidence properly admitted, there is a reasonable ...


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