From the Circuit Court of St. Charles County; Criminal Appeal; Judge Fred Rush.
Application Denied October 18, 1983.
Before Snyder, P.j., Dowd, Gaertner, JJ.
The opinion of the court was delivered by: Snyder
Appellant was found guilty by a jury and convicted of arson in the second degree, in violation of § 569.050 RSMo. 1978. He was sentenced as a persistent offender under § 558.016 RSMo. 1978 to fifteen years imprisonment. The judgment is affirmed.
Appellant asserts the trial court erred in: (1) granting the state's motion in limine which unduly restricted appellant's crossexamination of an important state's witness about whether a "deal" existed between the state and the witness; (2) failing to grant a new trial on the grounds of prosecutorial misconduct; (3) failing to instruct on lesser included offenses; and (4) failing to refer to an instruction on reasonable doubt in reply to a jury question. Appellant also argues that the evidence failed to support the verdict.
On March 31, 1980 a house or cabin owned by Allen and Paula Krshul, and occupied by Dorothy Parsons and Gary Bradley, burned to the ground. Neither Parsons nor Bradley were at home at the time of the fire, had no knowledge of how the fire started, and were not aware the house had burned until the following morning. It was not possible to determine the cause of the fire.
Before the fire on March 31, 1980, appellant arrived at witness Ron Ray's residence and asked Ray to step outside. Once outside, appellant asked Ray to take appellant's truck to the entrance of a driveway at the top of a hill and act as a lookout for him.
Appellant then removed a propane gas torch from his truck and entered the cabin rented by Dorothy Parsons and Gary Bradley. About ten minutes later appellant left the cabin and told Ray that he was burning it down for insurance reasons. Both men returned to Ray's residence and began watching television.
A short while later appellant asked Ray to stand lookout again while appellant reentered the Krshul cabin. Appellant came out of the cabin a few minutes later and asked Ray to drive him down to the bottom of the hill. From this vantage point they saw that the inside of the cabin was on fire.
On May 27, 1980, appellant went to Ray's residence, slapped him in the face, and told him that if he gave police a statement, the appellant would kill him, his wife, and his son. The appellant left and when the police arrived ten minutes later, Ray told the police he would testify concerning the fire.
On direct examination Ray testified that he was presently serving a four month sentence for driving while intoxicated. On crossexamination he was interrogated about his prior misdemeanor convictions without objection. Appellant's attorney made several unsuccessful attempts to uncover a possible deal between the Franklin County authorities and Ray involving the dropping of pending charges against Ray, or more lenient treatment of Ray, by the Franklin County authorities, in return for Ray's testimony in this case.
During its deliberations the jury sent a note to the Judge requesting an explanation of "reasonable doubt." The trial court, after consultation with, and approval by, both lawyers, sent the note back to the jury with the answer "No" and the Judge's signature written on the bottom.
In his first point on appeal appellant alleges the trial court erred in granting the state's motion in limine restricting appellant's cross examination of witness Ray. The point is not well taken.
The filing of a motion in limine or an objection to the trial court's granting of the motion preserves nothing for appellate review. To preserve the error it is necessary for the appellant to make a contemporaneous objection at the time the evidence in question is introduced. State v. Foster, 608 S.W.2d ...