State v. Clemens

CLEMENS, Senior Judge. Defendant’s only point on appeal of his conviction for robbery challenges admission of the state’s rebuttal evidence. Defendant here contends the trial court erred in permitting two rebuttal witnesses for the state to testify that defendant had been in the victimized liquor store five months before the date of the robbery and fifteen months after. In the state’s case in chief the victims testified: On September 4, 1981, defendant at gunpoint forced victim Ruth Foster into a back room and waited until victim Michael Dolan returned from cashing a $14,-200 check to use in cashing customers’ payroll checks. Defendant took the money and as he fled ordered the victims to stay in the back room. At trial both victims identified defendant as the robber. Defendant testified he did not know whether he had been in the store on September 4, 1981, the date of the payroll robbery, but that he could have been. By the challenged rebuttal Kathleen and Barrett Dolan, mother and brother, respectively, of the liquor store proprietor, testified that they saw defendant in the store on dates before and after the robbery. Barrett stated defendant was in the store on a date four months before the robbery, while his mother said she saw defendant in the store fifteen months after the date of the crime. The now challenged rebuttal testimony tended to show defendant was in the area of the store for some twenty months, that he knew when the payroll money was to [282] arrive and he could have been present at the time of the robbery. We deny defendant’s contention the trial court erred by admitting this rebuttal testimony. The admission and scope thereof is generally discretionary with the trial court. State v. Garrett, 682 S.W.2d 153[10, 11] (Mo.App.1984). Its precise scope is within the trial court’s discretion because it may directly or impliedly disprove defendant’s evidence. State v. Cameron, 604 S.W.2d 653 [9, 11] (Mo.App.1980). Affirmed. CARL R. GAERTNER, P.J., and SNYDER, J., concur.