State v. Adams

• Decision Date: 23 September 2014
• Docket Number: No. ED 100639.,ED 100639.
• Citation: 443 S.W.3d 50
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Plaintiff/Respondent, v. William ADAMS, Defendant/Appellant.

443 S.W.3d 50

STATE of Missouri, Plaintiff/Respondent

v.William ADAMS, Defendant/Appellant.

No. ED 100639.

Missouri Court of Appeals, Eastern District, Division Two.

Sept. 23, 2014.

Rosalynn Koch, Public Defender's Office, Columbia, MO, for appellant.

Robert J. Bartholomew, Jr., Assistant Attorney General, Jefferson City, MO, for respondent.

PHILIP M. HESS, Judge.

Introduction

William Adams (Defendant) appeals the trial court's judgment entered after a jury found him guilty of first-degree tampering with a motor vehicle, § 569.080, RSMo.¹ He was sentenced as a prior and persistent offender to nine years' imprisonment. Defendant claims the trial court abused its discretion by (1) sustaining the State's objection to cross-examination testimony; and (2) admitting evidence of uncharged misconduct. We affirm.

Factual Background

Viewed in the light most favorable to the jury's verdict, the evidence shows that on Sunday, May 13, 2012, Scott Theole, the vice-president of County Asphalt Paving Company (County Asphalt) in St. Louis County, received a phone call from his sister notifying him that the front gate to the asphalt facility was open. Theole drove to the facility and noticed that a padlock used to secure the gate had been cut through. Inside the fence, Theole observed that one of the company's trucks was hooked up to a trailer and that a white Chevy pickup truck was gone from the lot. Theole called the police.

Later that afternoon, Officer Richard Sand, who was on patrol nearby, observed a white Chevy pickup truck driving towards the County Asphalt facility. Officer Sand was aware of the possible auto theft occurring at County Asphalt, and, knowing that businesses in the area were closed on Sundays, he followed the truck. Officer Sand continued to follow the Chevy truck until it stopped at County Asphalt. When Officer Sand pulled up to the facility, he saw Defendant standing by the front gate. After asking Defendant for identification, Officer Sand told him that he was investigating a report of a possible stolen vehicle. Defendant told the officer that he worked for County Asphalt and was returning the truck. Officer Sand ran a computer check and found that Defendant had outstanding warrants. He then informed Defendant that he was under arrest. At that point, Defendant fled the scene on foot. Officer Sand called for backup units and proceeded to run after Defendant.

A short time later, officers located Defendant behind a nearby car lot and arrested him. During a search, Officer Sand found two keys in Defendant's pocket. The Defendant volunteered to Officer Sand that the keys were for his van and house. Officers checked the keys and found that one key fit the ignition to the Chevy pickup. The other key fit the ignition of a Ford truck parked on the County Asphalt lot. Officers later discovered that the Ford truck had been reported stolen. Officers also found a set of bolt cutters inside the Chevy truck.

Defendant was taken into custody, and after being Mirandized,² Defendant made a statement to police. Defendant told police that he and a companion had been driving on Highway 44 when they ran out of gas. Defendant said that he walked over to County Asphalt, climbed the fence, found the Chevy truck with the key in it, and drove the truck off the lot through the front gate.

Defendant was subsequently charged with stealing a motor vehicle, and in the alternative, first-degree tampering with a motor vehicle. The matter was tried to a jury. At trial, Defendant testified that he did not know the Chevy truck was stolen and that he believed the owner was a man named “Red,” whom he had met at a local service station. Defendant said that “Red” indicated that he wanted to sell the Chevy truck and gave Defendant the keys to the truck and permission to drive it. Defendant also said that he was merely returning the truck when Officer Sand stopped to question him in front of County Asphalt. At the close of the evidence, the jury was instructed on both stealing a motor vehicle, and in the alternative, first-degree tampering with a motor vehicle. The jury acquitted Defendant on the stealing charge, but found him guilty of first-degree tampering. The trial court sentenced him, as a prior and persistent offender, to nine years' imprisonment. Defendant raises two claims on appeal, both of which challenge the trial court's ruling as to the admissibility of evidence.

Standard of Review

“The trial court has broad discretion with regard to the relevance and admissibility of evidence.” State v. Hatch, 54 S.W.3d 623, 631 (Mo.App. W.D.2001). “We review trial court decisions regarding the admissibility of evidence for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.”Id. Balancing the probative value of the evidence against its prejudicial effect lies within the sound discretion of the trial court. Id. The trial court's discretionary ruling is presumed to be correct and the burden is on the defendant to overcome that presumption. See State v. Tindle, 395 S.W.3d 56, 61 (Mo.App. S.D.2013).

Point I: Cross–Examination Testimony

In his first point, Defendant argues that the trial court abused its discretion by sustaining the State's objection when defense counsel questioned Officer Sand regarding whether he seized $6.02 found in Defendant's pocket when he searched him. Defendant claims this evidence was within the scope of the State's rebuttal in order to contest the inference that Defendant “had left the truck because it ran out of gas.” The State responds that Defendant's claim is without merit because the question of whether Defendant had any money in his pocket when he was arrested was beyond the scope of rebuttal evidence and Defendant failed to demonstrate that he was prejudiced.

As an initial matter, we note that in his first point relied on, Defendant states, in part, that the court's ruling “prevented [Defendant] from contesting the State's intimation that [he] had left the truck because it was out of gas.” The facts of this case refer to two different “trucks,” namely the Chevy pickup admittedly driven by Defendant, and also a Ford truck found on County Asphalt's lot. Defendant's point relied on fails to specify to which “truck” he is referring. Further, in the first paragraph of his argument, Defendant states that, “[t]his evidence was within the scope of rebuttal, which related to property that had been seized from [Defendant's] pocket, and with which the state attempted to discredit [Defendant's] explanation for driving the truck.” Again, because Defendant fails to specify to which “truck” he refers, we can only speculate.

A point relied on must meet three requirements: (1) it must state the trial court's ruling about which appellant complains; (2) why the ruling was erroneous; and (3) what was before the trial court that supports the ruling that appellant contends should have been made. Storey v. State, 175 S.W.3d 116, 126 (Mo. banc 2005) ; Rule 84.04(d). “It is not the function of the appellate court to search the record to discover the facts that substantiate a point on appeal.” Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo.App. W.D.2004). “An insufficient point relied on, which cannot be understood without resorting to the record or the argument section of the brief, preserves nothing for appellate review.” State v. Williams, 951 S.W.2d 332, 338 (Mo.App. S.D.1997). Despite the lack of specificity in Defendant's first point relied on and argument, and as we prefer to rule on the merits, we have reviewed his entire brief, as well as the State's response and argument, and find that we are able to discern the basis of Defendant's argument. Therefore, we address the point ex gratia.

The scope of rebuttal testimony is within the sound discretion of the trial court and we will not reverse that decision absent a showing that the trial court abused its discretion. See State v. Simmons, 944 S.W.2d 165, 177 (Mo. banc 1997). “Rebuttal evidence may explain, counteract, repel, or disprove a defendant's evidence either directly or by implication.” State v. Petty, 967 S.W.2d 127, 141 (Mo.App. E.D.1998).

Here, the assertion that defense counsel sought to contest—that Defendant ran out of gas—was not addressed during the State's rebuttal. Rather, this evidence was adduced during the State's case-in-chief when Officer Sand testified about Defendant's statement to police after his arrest. It was only after Defendant testified that a person named “Red” had given him a “key ring” with “three keys” on it, that Officer Sand was called as a rebuttal witness. Defendant had also testified that he had two other keys in his possession when he was arrested that belonged to his van and house, but denied having a key to another stolen vehicle, other than the Chevy pickup. To refute this testimony, the State called Officer Sand as a rebuttal witness. Officer Sand testified that he found only two keys on Defendant when he was arrested. One of the keys fit the ignition of the Chevy truck that Defendant had been driving, and the other key fit the ignition of a Ford truck that was found on County Asphalt's lot and that police later discovered had been reported stolen.

After the State's rebuttal, defense counsel asked Officer Sand, on cross-examination, whether he seized $6.02 from Defendant at the time of his arrest. When the State objected, defense counsel argued that such evidence was within the scope of rebuttal because Officer Sand had previously testified that Defendant had indicated that he ran out of gas on Highway 44. Defense counsel explained that he sought to raise an inference that Defendant had enough money to buy gas and therefore would have no reason to leave the vehicle he was driving at the lot. Defendant maintains that if the jury had known that Defendant had six dollars in his pocket, it would have “rejected the State's theory that [Defendant] had exchanged the trucks because he ran out of...