State v. Powell

CRIST, Judge,

concurring.

I concur with the majority opinion. However, I believe the admissions of the defendant and his cohort that:

“(1) they had just ‘lined up’ a boat and motor and it would be ‘for salé’; (2) the night before they had forcibly ‘ripped off’ a television set by assaulting the owner; (3) they had just ‘eased’ a bank where office machines could be stolen; (4) they had a ten-year-old car and tires and a battery charger for sale; (5) they ‘got’ another old car the night before; (6) also, they ‘could get’ a late model Cadillac.”

are admissible for another reason. Such admissions tend to prove defendant was guilty of stealing the clock/radio. It points to a course of conduct so intertwined that it is relevant to the stealing of the clock/radio.

The defendant and his cohort were talking to a fence. Defendant presented a clock/radio to the fence for. sale. During this conversation, defendant and his cohort discussed other items acquired, or to be acquired, illegally, which they would bring in for sale to the fence. The entire subject matter of the conversation dealt with items to be sold to the fence. The method of acquisition of other items to be sold raised a reasonable inference that the manner of acquisition of all items discussed was the same — theft. A permissible inference was raised that defendant and his cohort used the same method to acquire the clock/radio as was, or would be, used to acquire other items to be brought into the fence. The fencing operation with defendants was a continuing activity. The admissions were relevant to prove the crime in question. State v. Trice, 575 S.W.2d 739, 742 (Mo.App.1978). The admissions had a legitimate tendency to directly establish defendant’s guilt of the charge for which he was on trial. There was a common scheme or plan for defendant to burglarize, steal and sell to the fence in question. State v. Connor, 585 S.W.2d 294, 299-300 (Mo.App.1979); and State v. Meek, 584 S.W.2d 168, 169 (Mo.App.1979).

In Connor, a pandering case, there was no error in showing that several weeks prior to the date of the pandering charged, defendant had solicited a male for the purpose of prostitution. The court found “other crimes” of prostitution admissible as showing intent, motive and a common scheme or plan embracing two or more crimes so related to each other that proof of one established the other. The court based its decision upon evidence that defendant worked for Dateline. Dateline’s business was prostitution. Crimes relating to this prostitution business were admissible. Likewise, in the case at bar, the admissions relating to the fencing operation are admissible to show a common scheme or plan to burglarize, steal and sell to the fence.

In State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954), cited in both the majority and dissenting opinions, the crime was unrelated in that the proof of an unre*17lated holdup had nothing to do with a murder. Reese, and related cases, are not dis-positive of a fencing operation case like the one in question. The state, in the absence of the admissions contained in the tape, was relying upon the presumption arising from possession of recently stolen property to prove that defendant was the burglar and thief. The admissions created, at least by inference, an additional evidential base to support the change. Such admissions were relevant and that relevance outweighed the prejudice involved.