State v. Robertson
| Decision Date | 11 April 2023 |
| Docket Number | ED110046 |
| Parties | STATE OF MISSOURI, Respondent, v. DANIEL RAY ROBERTSON, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Washington County Honorable Jerel Lee Poor II.
Daniel Ray Robertson ("Robertson") appeals from the trial court's judgment following a jury trial finding him guilty of second-degree burglary. In his sole point on appeal, Robertson claims the trial court plainly erred in denying his motion for new trial because the State at closing argument presented a theory of liability that was not included in the jury instructions. Specifically, Robertson contends the State told the jury that he could be found guilty under a theory of accomplice liability when the jury was not instructed on accomplice liability. A trial court generally does not commit plain error by failing to intervene sua sponte during the State's closing argument. Moreover the record before us does not show that Robertson suffered manifest injustice as a result of the closing argument. Accordingly, we deny Robertson's point on appeal and affirm the trial court's judgment.
Viewed in the light most favorable to the verdict, the evidence adduced at trial showed that on August 28, 2018, Robertson and two other men broke into a shed on private property.
The property owner ("Owner") and a neighbor ("Neighbor") saw a vehicle backed into a driveway that led to the shed at the top of the hill. Owner and Neighbor confronted the three men who were coming down the hill away from the shed. Neighbor observed Robertson carrying a jug. The men did not have permission to be on the property. The three men said that they had been looking for water because their vehicle had overheated. The reserve tank on the radiator of the car was full when Owner checked it, and the men had taken an antifreeze jug from the shed, which did not have a water spigot or hoses. One of the men gave Owner a fake name. Owner's son ("Son") also arrived at the scene as he was driving home, and he photographed the vehicle's license plate.
The men eventually left. Son and Owner examined the shed area and noticed that property had been taken from the shed. The shed door, normally closed and locked, was partially open. The inside was disorganized, with items having been thrown around and removed from the shelves. Other items were moved into the yard. Owner's tools and motorcycle helmets that he normally kept on the workbench were found outside near an air compressor that had been unplugged from the shed.
The police used the vehicle registration to link Robertson and the other men to the incident, and the witnesses identified Robertson at trial. The State charged Robertson with the class D felony of burglary in the second degree for knowingly entering unlawfully the shed for the purpose of committing stealing therein. The case proceeded to trial. Son, Owner Neighbor, and the investigating deputy testified for the State.
At the close of the State's evidence, Robertson moved for a judgment of acquittal on the basis that no evidence was produced from which the jury could reasonably infer that Robertson had entered the shed. Robertson argued that evidence of his presence on the property and opportunity to enter the shed, without more, was insufficient to support a conviction for burglary. The State countered that the jury reasonably could infer that Robertson entered the shed or that Robertson was working in concert with the other men either of whom could have entered the shed. The trial court denied the motion for acquittal. Robertson moved for acquittal again on the same basis at the close of all evidence, and the trial court again denied the motion.
The State requested the following verdict director for second-degree burglary, which the trial court submitted to the jury without objection:
The verdict director also defined stealing. Additionally, the trial court instructed the jury that The trial court instructed that the attorneys' closing arguments "are intended to help you in understanding the evidence and applying the law, but they are not evidence."
The State did not request a verdict director premised upon accomplice liability and no such instruction was given.
During closing argument, the State told the jury that "you have to find two things, first, that [Robertson] knowingly entered unlawfully[.]" The State then continued:
Under Missouri law, you're responsible for the acts of the people with whom you are acting in concert. It doesn't have to be specifically pled or found in here. So you don't necessarily have to literally believe that [Robertson] personally stepped across it as long as you believe he was working with the people who were doing this.
The State further argued:
All the testimony was that [Robertson] was the older guy. There were two younger guys with him. He was the one that seemed to be cool about this stuff down at the car and wasn't giving much dumb excuses. It seemed like he was a little more wise to all this than maybe his buddies were. You know, but in any event, you can assume that either he or his associates entered that shed.
The State then moved into a discussion of the element of stealing. The State argued that "[a]ll that matters really, is that at the time-this is the invisible line of that shed-at the time [Robertson] crosses in here, is it his intent to steal something." Robertson did not object to the State's closing argument. Robertson argued in closing that there was no evidence that he ever entered the shed or told anybody to do so on his behalf.
The trial court submitted the case to the jury, which convicted Robertson on second-degree burglary as charged. Robertson filed a motion for a new trial, and the trial court denied the motion. The trial court entered judgment and sentenced Robertson as a prior and persistent offender to ten years in prison. Robertson now appeals.
In his sole point on appeal, Robertson maintains the trial court plainly erred in denying his motion for new trial because the State in closing argument misinformed the jury that it could instructed on accomplice liability. Robertson argues the State's misstatement of law lowered the burden of proof by removing the requisite element that Robertson personally entered the shed, thereby creating a manifest injustice warranting plain-error relief.
Preliminarily Robertson acknowledges that his claim of error is unpreserved for review. "Only an objection made timely at trial will preserve an issue for appeal." State v. Minor, 648 S.W.3d 721, 729 (Mo. banc 2022) (internal citation omitted). Here, although Robertson raised the issue in his motion for new trial, Robertson did not object to the State's closing argument at trial, which now forms the basis of his claim on appeal. Robertson asks us to exercise our discretion to engage in plain-error review. See id. at 731 (internal quotation omitted) ( "[p]lain error review is discretionary").
"Rule 30.20[1] is the exclusive means by which an appellant can seek review of any unpreserved claim of error[.]" Id. (quoting State v. Brandolese, 601 S.W.3d 519, 530 (Mo. banc 2020)). "Whether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. Plain-error review involves two steps:
Minor, 648 S.W.3d at 731 (quoting Grado v. State, 559 S.W.3d 888, 899-900).
"A trial court maintains broad discretion in the control of closing arguments." State v. Reese, 632 S.W.3d 365, 378 (Mo. App. W.D. 2021) (quoting State v Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003)). With respect to unpreserved allegations of error in closing arguments, "[i]t has long been held that '[p]lain error relief as to closing argument should rarely be granted and is generally denied without explanation.'" State v. Hall, 319 S.W.3d 519, 523 (Mo. App. S.D. 2010) (internal quotation omitted). "Courts especially hesitate to find plain error in the context of closing argument because the decision to object is often a matter of trial strategy, and in the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such...
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