State v. Riston

• Docket Number: SD 37522
• Decision Date: 19 September 2023
• Citation: State v. Riston, 677 S.W.3d 888 (Mo. App. 2023)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kimberly RISTON, Defendant-Appellant.
• Court: Missouri Court of Appeals

677 S.W.3d 888

STATE of Missouri, Plaintiff-Respondent,

v.Kimberly RISTON, Defendant-Appellant.

No. SD 37522

Missouri Court of Appeals, Southern District, In Division.

Filed: September 19, 2023

Rehearing and/or Transfer Denied October 11, 2023

Application for Transfer Denied November 21, 2023

Attorney for Appellant: Christian E. Lehmberg of Columbia, MO.

Attorneys for Respondent: Andrew Bailey, Atty. Gen., and Karen L. Kramer, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, J.

Kimberly Riston (Defendant) appeals from her convictions for second-degree murder, first-degree robbery, first-degree tampering with a motor vehicle, and two counts of armed criminal action (ACA). See § 565.021; § 570.023; § 569.080; § 571.015.¹ Defendant presents two points on appeal. She contends the trial court abused its discretion by: (1) excluding testimony in an offer of proof from a law enforcement witness; and (2) declining to permit defense counsel to show a surveillance video of the crime during voir dire. Because the trial court did not abuse its discretion in making either ruling, we affirm the trial court's judgment and sentences.

Factual and Procedural Background

On the morning of April 21, 2021, Defendant and her boyfriend, Josue Martinez (Martinez), were staying at a motel. They had no vehicle because it had been in an accident. Donald Wethy (Victim) was staying at the same motel with a female companion. She was visited by two other men, who were in a vehicle in the motel parking lot. Martinez and Defendant approached the two men in the vehicle several times, attempting to buy marijuana, but they were turned away. At one point, when Defendant and Martinez were in front of their motel room, Defendant approached Martinez. She put her arms loosely around his neck, at which time Martinez removed a pocket knife from Defendant's pocket and put it in his own. The two men visiting Victim's female companion eventually drove away. Victim was sitting in his own vehicle in the parking lot at this time, and Defendant and Martinez entered their motel room. A few minutes later, Martinez left the room and approached Victim, who was then standing next to his vehicle. Defendant soon came out of the room with her dog and walked toward Martinez and Victim. Martinez stabbed Victim with Defendant's pocket knife and continued stabbing repeatedly as Victim fell to the ground.

While that was occurring, Defendant walked past them and placed her dog inside Victim's vehicle. She and Martinez also got into the vehicle, but they soon got out and walked away from the motel. Police found Victim's body in the motel parking lot. Thereafter, Martinez and Defendant were apprehended on foot approximately 15 miles from the motel.

Defendant was charged with first-degree murder, first-degree robbery, first-degree tampering with a motor vehicle, and two counts of ACA. The trial court instructed the jury on accomplice liability, as well as the murder, robbery, and ACA charges. The jury found Defendant: (1) guilty of second-degree murder, rather than first-degree as charged; and (2) guilty on all the remaining counts. The trial court sentenced Defendant to terms of imprisonment totaling 23 years. This appeal followed. Additional facts relevant to each point on appeal are included below.

Standard of Review

Defendant's first point on appeal challenges the trial court's exclusion of evidence at trial, which we review for an abuse of discretion. State v. Brandolese , 601 S.W.3d 519, 533 (Mo. banc 2020). A circuit court has broad discretion to admit or exclude evidence at trial. State v. Minor , 648 S.W.3d 721, 733 (Mo. banc 2022). Defendant's second point challenges a ruling made by the trial court during voir dire , which we also review for an abuse of discretion. State v. Baumruk , 280 S.W.3d 600, 614 (Mo. banc 2009). A trial court abuses its discretion only when the ruling is:

clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

State v. Brown , 939 S.W.2d 882, 883-84 (Mo. banc 1997) (citation omitted); Brandolese , 601 S.W.3d at 533. Additionally, we review the trial court's ruling for prejudice, not mere error, and we will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. Brandolese , 601 S.W.3d at 533-34. An error by the trial court is not prejudicial unless there is a reasonable probability that the error affected the outcome of the trial. Id . at 534.

Discussion and Decision

Point 1

The disposition of this point requires the following additional facts. The prosecutor presented testimony from Detective Derrick Lewis (Det. Lewis), the lead detective on the case. During cross-examination of Det. Lewis, defense counsel asked him: "You can't say what [Martinez's] intent was when he took the knife from [Defendant's] pocket, can you?" The prosecutor objected, and the trial court sustained the objection.² Defense counsel then asked: "You can't rule out that [Martinez] got the knife intending to use it for something other than a robbery, can you?" Once again, the prosecutor's objection was sustained.

Defense counsel approached the bench and argued that he had asked Det. Lewis similar questions during a deposition and that the questions were "essential" to establish reasonable doubt regarding Defendant's knowledge and intent. The prosecutor argued that the questioning was impermissible because it asked for Det. Lewis’ opinion on the ultimate issue of the case and invaded the jury's duty to decide whether or not the evidence was sufficient to support conviction. The trial court agreed with the prosecutor and again sustained the objection. The trial court explained: "I think, in essence, you're asking this witness to draw conclusions from the evidence. And [the prosecutor] is correct on the jury's job to draw from the evidence." Defense counsel then made the following offer of proof:

Q. Detective, I think where we ended that last line of questioning, I – I asked you, I said, you cannot – you can't rule out that [Martinez] got the knife intending to use it for something other than a robbery, can you?

A. No.

Q. You can't rule out that [Defendant] did not know [Martinez] was going to use that knife to commit some sort of crime?

A. It's – I don't mean to be flippant, but it's not my responsibility to figure that out. That has to be presented to the jury. I don't make those – I don't make –

Q. What did you tell me –

A. – those decisions.

Q. – at your deposition? What did you tell me at your deposition?

A. I don't remember.

....

Q. I asked you, is there any evidence that you're aware of that rules out [Defendant] not knowing that [Martinez] was going to use that knife to commit some sort of murder – I'm sorry – commit some sort of crime? And your answer was?

A. No.

Q. You have no evidence that rules that out?

A. Correct.

....

Q. You have no evidence which rules out [Victim] and [Martinez] having some interaction over race, and that being the motive for the homicide?

A. Correct.

....

Q. Okay. I asked you, do you have any evidence that rules out, in that deposition, [Victim] and [Martinez] having some interaction over race, and that being the motive for the homicide? Can you rule that out as a – based on evidence you have, and your answer was?

A. No.

Q. You can't rule out race being the motive based upon the evidence you have?

A. No.

Q. You don't have any evidence which rules out that [Defendant] truly thought that [Martinez] was just going to go out and talk to [Victim] about getting some marijuana?

A. Correct.

Q. You don't have any evidence which rules out that [Martinez] attacked [Victim] because of some jealous rage?

A. Correct.

Q. You can't rule out that [Martinez] attacked [Victim] because of some jealous rage?

A. Correct.

Q. You can't rule out that the decision to get in [Victim's] car was made after [Martinez] killed [Victim]?

A. Correct.

When the offer of proof concluded, the prosecutor reiterated his objection that the questions invaded the province of the jury regarding the ultimate facts and issues of the case. Defense counsel responded that he was not asking Det. Lewis whether or not Defendant was ultimately guilty, but merely whether he had seen evidence that ruled out possibilities other than the State's theory of the case. The trial court sustained the State's objection, reasoning that it is "the jury's job to determine the facts ultimately and the conclusions or inferences to be drawn from the evidence." Defense counsel included this ruling in a motion for new trial.³

On appeal, Defendant asserts that the trial court abused its discretion in excluding Det. Lewis’ testimony in the offer of proof. Defendant argues that the testimony was logically and legally relevant because it went to whether she had the requisite mental state for the charged offenses. There is no merit in this argument.

"An offer of proof must establish what the evidence will be, its purpose and object, and each fact essential to establishing the admissibility of the evidence." State v. Stiff , 626 S.W.3d 916, 922 (Mo. App. 2021) ; see Terry v. Mossie , 59 S.W.3d 611, 612 (Mo. App. 2001). If any part of the offer is inadmissible, the trial court can reject the entire offer. See State v. Murphy , 534 S.W.3d 408, 415 (Mo. App. 2017) ; State v. Prine , 456 S.W.3d 876, 882 n.9 (Mo. App. 2015) ; State v. Jones , 322 S.W.3d 141, 144 (Mo. App. 2010) ; State v. Broussard , 57 S.W.3d 902, 911 (Mo. App. 2001) ; State v. Malicoat , 942 S.W.2d 458, 460 (Mo. App. 1997).

Defendant's intent was an ultimate issue for the jury to decide by drawing inferences from the evidence presented. In our view, the purpose of the "rule out" line of questioning was to get Det. Lewis, an investigating police officer, to...