Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF WEBSTER COUNTY Honorable Kenneth F.
E. SCOTT, J.
Harris appeals from his bench-tried conviction and probation
for misdemeanor stealing. He challenges the admission of
other-crimes testimony and the sufficiency of the evidence to
sustain his conviction. We affirm.
advertised that he crafted and sold custom wood furniture. He
quoted a Ms. Poole $600 for a custom bed, including $400 up
front which Ms. Poole paid. The estimated delivery date came
and went with no bed and Harris offering serial lies and
excuses for non-delivery - the bed got damaged and needed
repairs; it had been stolen; Harris was tied up at his other
job; his friend died in Texas; Harris and his wife were hurt
in a car wreck; his wife was in critical condition for a
couple weeks; she eventually died. Ms. Poole offered to pick
up the bed from Harris's shop, but he declined. Harris
never delivered the bed and did not voluntarily refund Ms.
Poole's money. Harris was charged with stealing by
deceit, waived a jury, and was tried by the court.
state's trial witnesses included Ms. Poole and, over
Harris's objection, a Mr. Hensley. Mr. Hensley testified
how he had seen Harris's ads and paid him to build a
custom bed during the same timeframe as Ms. Poole. Harris
never delivered Mr. Hensley's bed; offered similar
excuses and lies as told to Ms. Poole; sent Mr. Hensley
pictures, purportedly of his completed bed, but which Harris
actually had pulled from an unrelated woodshop's website;
blocked Mr. Hensley's communications; and would not
voluntarily refund Mr. Hensley's money. These events had
given rise to a separate criminal charge against Harris.
testified on his own behalf, admitting that he had lied to
Ms. Poole and that he made her go through a
credit-card dispute process rather than voluntarily refunding
her money. At the conclusion of the bench trial, the court
found Harris guilty of stealing by deceit.
Testimony (Point 1)
claims the trial court abused its discretion in admitting Mr.
Hensley's testimony. Generally, it is unconstitutional to
admit evidence of a defendant's other criminal acts
purely to show criminal propensity. State v.
Vorhees, 248 S.W.3d 585, 586 (Mo. banc
Vorhees also notes, this ban is far from absolute.
Exceptions "'are as well established as the rule
itself' and include: (1) motive; (2) intent; (3) the
absence of mistake or accident …." Id.
at 588 (quoting State v. Sladek, 835 S.W.2d 308, 311
(Mo. banc 1992)). Stealing-by-deceit cases illustrating the
intent exception include State v. Tidlund, 4 S.W.3d
159, 164-65 (Mo.App. 1999), and State v. Inscore,
592 S.W.2d 809, 811-12 (Mo.App. 1980).
Mr. Hensley's testimony was admissible to show
Harris's intent to deceive Ms. Poole. To prove stealing
by deceit, the prosecution had to show that Harris "had
the intent to cheat or defraud at the time he made the false
representation to cause the victim to part with his or her
money." Tidlund, 4 S.W.3d at 164. Otherwise,
Harris may have committed a breach of contract, but not a
criminal act. Id. Indeed, that was Harris's
defense at trial - that this was merely a civil case, a
contract dispute, but no crime.
"is rarely open to direct proof, " but can be
established circumstantially. Inscore, 592 S.W.2d at
In particular, to prove intent to defraud based upon a
promise, the State may introduce evidence of similar
incidents whereby the defendant obtained money from other
victims by making some sort of promise. The theory which
underlies admission of such evidence is that if a defendant
consistently makes the same promise to a number of victims
and, after obtaining the victim's money or goods,
consistently fails to perform, it may be fairly inferred from
the pattern of behavior that no mischance could reasonably
explain all the failures of performance. Thus, the inference
is raised that the defendant must have intended not to
perform in any instance and particularly in the situation in
which he has been charged.
Id. The trial court did not abuse its
discretion in admitting Mr. Hensley's testimony. Point ...