State v. Aaron

• Decision Date: 25 April 2023
• Docket Number: ED110394
• Parties: STATE OF MISSOURI, Respondent, v. MARK AARON, Appellant.
• Court: Missouri Court of Appeals

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STATE OF MISSOURI, Respondent, v. MARK AARON, Appellant.

No. ED110394

Court of Appeals of Missouri, Eastern District, Third Division

April 25, 2023

Appeal from the Circuit Court of St. Louis County Cause No 20SL-CR03875-01 Honorable Stanley J. Wallach

JOHN P. TORBITZKY, J.

I. Introduction

Mark Aaron appeals the judgment entered after a jury found him guilty of first-degree assault, armed criminal action, and unlawful possession of a firearm. We affirm.

II. Background

Aaron's convictions stem from a shooting on August 18, 2020. After becoming concerned about the whereabouts of a missing cellphone, Aaron and his girlfriend went to Marcus Recar's and his girlfriend's residence. Soon after their arrival, Aaron's girlfriend and Recar's girlfriend began to fight. Aaron, a convicted felon, picked up a firearm from his girlfriend's sweatshirt and shot Recar four times. Aaron and his girlfriend fled from the scene, and a neighbor called the police.

Although Aaron did not testify at trial, Aaron's girlfriend advanced a theory of self-defense on his behalf. She testified that Aaron shot Recar after Recar moved first towards her before changing directions and charging towards Aaron with a metal pipe. Recar and his girlfriend both testified that Recar was unarmed during the entirety of the incident.

After the shooting, Dr. Matthew Pieper, a trauma surgeon, treated Recar at Saint Louis University Hospital Trauma Center. At trial, Dr. Pieper testified about Recar's surgery and the extent of his injuries. Over Aaron's objection, the State introduced into evidence a photograph of Recar's torso showing a large opening in his abdomen covered by a black sponge and a small gunshot wound above it. Dr. Pieper testified that the photograph showed Recar's abdomen during an initial "damage-control surgery" and that the sponge served as a "dressing that is covering his internal organs." Dr. Pieper also testified, over Aaron's objection, about the pain that an individual would be expected to experience after being shot.

The jury found Aaron guilty of first-degree assault, armed criminal action, and unlawful possession of a firearm. This appeal follows. In his three points on appeal, Aaron challenges the admission of the photograph of Recar after surgery and the admission of expert testimony regarding the pain a person experiences after being shot.

III. Standard of Review

A circuit court has broad discretion to admit or exclude evidence at trial. State v. Blurton, 484 S.W.3d 758, 779 (Mo. banc 2016). We will reverse a circuit court's decision to admit evidence only if the circuit court abused its discretion and the opponent of the evidence was thereby prejudiced. State v. Hughes, 469 S.W.3d 894, 902 (Mo. App. E.D. 2015). "An abuse of discretion must be clearly against the logic of the existing circumstances and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. "To prevail on appeal, the defendant must demonstrate prejudice, not mere error, and we will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Forster, 616 S.W.3d 436, 445 (Mo. App. E.D. 2020) (internal quotation marks and citations omitted). The test for prejudice is outcome-determinative and requires a finding that, "when considered with and balanced against all evidence properly admitted, there is a reasonable probability that the jury would have acquitted but for the erroneously admitted evidence." State v. Black, 50 S.W.3d 778, 786 (Mo. banc 2001).

IV. Discussion

In order to be admissible, evidence must be both logically and legally relevant. Blurton, 484 S.W.3d at 777. "Evidence is logically relevant if it tends to make the existence of a material fact more or less probable." Id. (quoting State v. Taylor, 466 S.W.3d 521, 528 (Mo. banc 2015)). "Evidence is legally relevant when the probative value of the evidence outweighs its costs, such as unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." Id. (internal quotation marks and citation omitted).

Admission of Photograph

In his first point on appeal, Aaron asserts that the circuit court abused its discretion by admitting the photograph of Recar's torso. Aaron does not contest the logical relevance of the photo. Rather, he contends that the photograph was so "shocking and gruesome," its probative value was outweighed by its prejudicial impact. Specifically, Aaron contends that the photograph was cumulative to the testimony regarding the extent of Recar's injuries and that, because the seriousness of the injury was not contested, the photograph served no purpose but to arouse emotion in the jury.

"Photographs are admissible if they accurately and fairly represent what they purport to depict and tend to prove or disprove any of the elements of the charged offense." State v. Cannady, 389 S.W.3d 306, 312 (Mo. App. S.D. 2013) (internal quotation marks and citation omitted). Even if a photograph may be inflammatory, it should not be excluded if it is relevant. State v. Rousan, 961 S.W.2d 831, 844 (Mo. banc 1998). A photograph is relevant if it "show[s] the scene of the crime, the identity of the victim, the nature and extent of the wounds, the cause of death, the condition and location of the body, or otherwise constitute[s] proof of an element of the crime or assist[s] the jury in understanding the testimony." Id. If a photograph is shocking or gruesome, it is generally because the crime itself was shocking or gruesome. Id. Additionally, "a photograph is not rendered inadmissible because other evidence may have described what is shown in the photograph; nor is the State precluded from introducing the photograph because the defendant expresses a willingness to stipulate to some of the issues involved." Forster, 616 S.W.3d at 446 (internal quotation marks and citations omitted).

Here, Aaron characterizes the admitted photograph as "grotesque" and "gruesome" and contends that it served no other purpose than to inflame the jury. While the photograph may be unpleasant as a result of the medical dressing and gunshot wound, it depicts the seriousness of the injuries sustained by Recar following his medical surgery. The photograph was relevant to show the nature of the wounds and assisted the jury in understanding Dr. Pieper's testimony. Moreover, we do not find the photograph particularly gruesome. It is a post-surgical photograph in which all blood has been cleared away. Although Recar's abdomen was opened during the surgery, the whole of the surgical site is covered with a large black sponge such that nothing internal remains visible. To the extent that the photograph may be considered gruesome, that would only be a result of the gruesome nature of the crime.

Aaron also argues that the photograph was cumulative to other testimony about Recar's injuries and that it should have been excluded because the defense conceded the fact of serious physical injury. However, the fact that Dr. Pieper and Recar also testified about the nature of the injury did not render the photograph inadmissible. The photograph served as corroborating evidence of the testimony. Additionally, Aaron could not preclude evidence of the seriousness of the injuries simply by attempting to concede that fact. See Forster, 616 S.W.3d at 446 ("As the [S]tate has the heavy burden of proving defendant's guilt beyond a reasonable doubt, it should not be unduly limited in the quantum of its proof even though [the] defendant made a tentative offer to stipulate as to the identity of the victim." (internal quotation marks and citation omitted)).

Because Aaron has not demonstrated that the circuit court abused its discretion by admitting this photograph, Point I is denied.

Admission of Expert Testimony

In Aaron's second and third points on appeal, he asserts that the circuit court abused its discretion when it permitted Dr. Pieper to testify as an expert witness as follows:

[Prosecutor:] Okay. Doctor, what kind of pain would a person who has been shot multiple times be going through? What is their body going through?

[Dr. Pieper:] Could I ask clarification, if you mean like initially or when they come to see me?

[Prosecutor:] So, initially. After they've been shot what's going on with their body regarding their senses? Pain sensory type?

[Dr. Pieper:] Well, in this patient scenario, I imagine he'd feel a sharp pain to his abdomen, chest. That's, you know, maybe relative to a different, you know, person to person, but these types of injuries are painful. It's hard to quantify, if that's what you're asking me. [Prosecutor:] Would it be possible for him to misconstrue pain elsewhere because of what's going on?

[Dr. Pieper:] Sure. So definitely when people come in with certain injuries, you know, we might call that a distracting injury that might not make you recognize something else, so that's why we have to do follow-up scans and follow-up examinations, because their initial pain might be significant enough to distract them from a second injury.

Aaron...