State v. Rose
| Decision Date | 28 March 2018 |
| Docket Number | No. SD 34982,SD 34982 |
| Citation | 542 S.W.3d 428 |
| Parties | STATE of Missouri, Respondent, v. Calvin M. ROSE, Appellant. |
| Court | Missouri Court of Appeals |
Appellant's Attorney: Casey A. Taylor, of Columbia, Missouri.
Respondent's Attorney: Joshua Hawley, Attorney General, and Dora A. Fichter, Assistant Attorney General, of Jefferson City, Missouri.
Calvin M. Rose ("Rose")1 appeals his conviction for receiving stolen property, pursuant to section 570.080. On appeal, Rose contends the trial court abused its discretion in overruling defense counsel's objection to the owner's testimony regarding the value of the cattle taken, in that the testimony was hearsay offered for the truth of the matter asserted and did not fit any of the exceptions to the general rule against hearsay. Finding no merit to this contention, we affirm.
Rose does not challenge the sufficiency of the evidence to support his conviction. We recite only those facts relevant to the legal issue raised by Rose, and as necessary for context.
In August 2015, Rose tried to steal two cows and a calf from the farm of an 88-year-old man ("Victim") in Morrisville. Victim called the police. Rose, admitting to hearing of Victim's report of theft, returned the cattle to Victim. Rose asked Victim where he should unload the cattle. Victim said, "[w]here you loaded them up." Then Rose unloaded the cattle from where he initially took them.
Rose was charged, by amended information, with the class C felony of receiving stolen property with a value of at least $500, pursuant to section 570.080,2 as a prior and persistent offender.
A jury trial commenced on February 23, 2017. The prosecutor adduced the following testimony from Victim:
During cross-examination, the following colloquy occurred:
Defense counsel then approached the bench. He objected to Victim's testimony, on the basis that The prosecutor argued that Victim was competent to testify as to the value of his cattle because he is the owner, and that the sources and quality of Victim's information as to the value went to the weight of the evidence, and was properly for the jury to decide. After hearing extensive argument from the parties, and allowing a recess for counsel to research the issue, the trial court overruled defense counsel's objection, showing it to be an "ongoing, continuing objection."
The jury returned a guilty verdict. Rose filed a motion for new trial, which the trial court denied. On May 15, 2017, the trial court entered its judgment, convicting Rose of the class C felony of receiving stolen property, pursuant to section 570.080. This appeal followed.
In one point on appeal, Rose asserts the trial court abused its discretion in overruling his objection and admitting testimony from Victim regarding the value of his stolen cows in that the testimony was hearsay offered for the truth of the matter asserted and did not fit any of the exceptions to the general rule against hearsay.
Rose challenges that the trial court abused its discretion in admitting Victim's testimony as to the value of his cattle.
"We review trial court decisions regarding the admission or exclusion of evidence for abuse of discretion." State v. Cross , 421 S.W.3d 515, 518 (Mo. App. S.D. 2013). Abuse of discretion refers to the "propriety" of a trial court's ruling—the attendant prejudice (if any) is a separate and independent consideration.3 We test the trial court's application of the law to the "factual underpinnings" of its ruling, giving deference to the trial court's explicit and implicit credibility determinations.
State v. Taylor , 298 S.W.3d 482, 492 & n.4 (Mo. banc 2009). We discern the "factual underpinnings" from the record at the time of the challenged ruling. See State v. Davis , 348 S.W.3d 768, 770 (Mo. banc 2011) ; Nelson v. Waxman , 9 S.W.3d 601, 608 (Mo. banc 2000).4 These factual underpinning findings frame the reviewing court's de novo review of the underlying legal question in the evidentiary challenge. Taylor , 298 S.W.3d at 492 n.4 ; see also State v. Rinehart , 543 S.W.3d 640, 644–45 & n.8, 2018 WL 446194, at *4 & n.8 (Mo. App. S.D. Jan. 17, 2018).
The trial court is presumed to know and apply the law—however, this does not mean that de novo review of the evidentiary legal question subsumes our entire evaluation. The abuse-of-discretion standard accounts for the fact that the trial court must make numerous, and usually on-the-spot evidentiary rulings in any given trial, and is vested with the discretion to do so. Thus, "if reasonable persons may differ as to the propriety of an action taken by the trial court, then it cannot be held that the trial court has abused its discretion." State ex rel. Wyeth v. Grady , 262 S.W.3d 216, 219 (Mo. banc 2008). However, the trial court is said to abuse that discretion when its ruling is "clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration."5 Id.
To succeed on appeal, an appellant must also show that the trial court's abuse of discretion was "so prejudicial that it deprived the defendant of a fair trial." State v. Culpepper , 505 S.W.3d 819, 828 (Mo. App. S.D. 2016) (internal quotations and citations omitted). "Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial." Id. (internal quotations and citation omitted). We evaluate prejudice based on the whole record. State v. Olten , 428 S.W.3d 784, 788 (Mo. App. S.D. 2014).
Rose argues that the trial court abused its discretion in admitting testimony from Victim regarding the value of the cattle Rose took from him. Rose suggests the testimony's admission was error because it was inadmissible hearsay. He indicates that it was prejudicial because it was the only evidence that "the value of the cattle was over $500," and this "was one element that the state was required to prove in order for [Rose] to be convicted as charged" pursuant to section 570.080.4(1).
"A person commits the crime of receiving stolen property if for the purpose of depriving the owner of a lawful interest therein, he or she receives, retains or disposes of property of another knowing that it has been stolen, or believing that it has been stolen." § 570.080.1. Receiving stolen property is a class C felony if "[t]he value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand dollars[.]" § 570.080.4(1).
§ 570.020(1), RSMo Cum.Supp. 2002.
Rose argues that Victim's testimony as to the value of his cattle was inadmissible hearsay. In support, Rose argues:
[Victim]'s testimony regarding the value of the stolen cattle, was, by [Victim]'s own admission, an out-of-court statement. [Victim] testified that he is not in the business of buying and selling cattle, that he doesn't personally know what the cows were worth, and that his testimony regarding the value was based on what he had heard on television and through 'paperwork.' Because neither the unnamed declarants on television nor the unnamed authors of the paperwork [Victim] referred to testified, their statements, testified to by [Victim], were out of court statements.
We reject this argument because Victim's testimony was admissible:
The owner of stolen property need not be experienced in valuating such property in order to express an opinion. And an owner's opinion can be substantial evidence of an item's worth. Because the trial court is...
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State v. Burroughs
...findings frame the reviewing court's de novo review of the underlying legal question in the evidentiary challenge. State v. Rose , 542 S.W.3d 428, 430-31 (Mo. App. S.D. 2018) (internal citations omitted) (emphasis in original). In reviewing evidence, we consider all evidence and reasonable ......