Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY. Honorable R. Craig Carter, Circuit Judge.
For Appellant: Casey A. Taylor of Columbia, MO.
For Respondent: Chris Koster, Attorney General, and Daniel N. McPherson of Jefferson City, MO.
Gary W. Lynch, J. -
Concurs. Don E. Burrell, J. - Concurs.
Nancy Steffen Rahmeyer, J.
A jury found William J. Kearnes (" Defendant" ) guilty of stealing a tractor and brush hog, and the trial court sentenced him as a prior offender to ten years in the Missouri Department of Corrections. Defendant appeals and raises three points -- (1) the trial court " plainly erred in not declaring a mistrial sua sponte " when the prosecutor, without objection, " misstate[d the] law" in closing argument, (2) the trial court " plainly erred in overruling [Defendant's] objection" to a statement and implication by the prosecutor during closing argument that was " not based on any evidence,"
and (3) the trial court " abused its discretion" in excluding " a missing person report" from evidence. We affirm the trial court's judgment because Defendant fails to persuade us that either of the claimed plain errors in closing argument had a decisive effect on the outcome of the trial, and the exclusion of the missing person report from evidence was not an abuse of discretion as the report was cumulative to significant other evidence.
Facts and Procedural History
Defendant was charged as a prior offender with stealing, on August 4, 2011, a tractor and brush hog that had a value of at least $25,000.
Inasmuch as Defendant does not challenge the sufficiency of the evidence, we limit our summary of the evidence at trial to that evidence necessary for us to review the points raised by Defendant. In summarizing the evidence, we view the evidence in the light most favorable to the jury's verdict -- drawing all reasonable inferences favorable to the jury's verdict and rejecting all evidence and inferences contrary to the jury's verdict. State v. Hart, 404 S.W.3d 232, 235 (Mo. banc 2013); State v. Salazar, 414 S.W.3d 606, 610 n.2 (Mo.App. S.D. 2013), cert. denied, 134 S.Ct. 2875, 189 L.Ed.2d 835 (2014); and State v. Vorhees, 342 S.W.3d 446, 448 (Mo.App. S.D. 2011).
Donald (" Archie" ) Earl Ladd owned a tractor with an attached front-end loader with a hay spike and a " fold-up brush hog." The tractor, loader and brush hog were appraised after August 4, 2011, for more than $50,000. A tractor and attachments can be sold without a title. The tractor and attachments were located behind locked gates on August 4, 2011, near a " waterer" that pumped fresh water that was safe to drink. After lunch at Mr. Ladd's home on August 4, 2011, Mr. Ladd and a worker, Pat Moore, started back toward where the tractor and attachments were located. Mr. Ladd and Mr. Moore were traveling in separate vehicles with Mr. Ladd in front and Mr. Moore behind. In the course of the trip, Mr. Ladd encountered Defendant driving Mr. Ladd's tractor and attachments toward Mr. Ladd. Mr. Ladd had not given Defendant permission to operate the tractor. Mr. Ladd used his vehicle to block the road, exited his vehicle with a loaded .38 caliber revolver, and ordered Defendant to exit the tractor and lie on the gravel. Defendant complied, and did not seem disoriented to Mr. Ladd. Mr. Ladd then contacted law enforcement, and officers responded to the scene.
While driving Mr. Ladd's tractor, Defendant had passed a wedding chapel and two occupied houses and drove the tractor over three miles before Defendant encountered Mr. Ladd. To get out of the locked enclosure in which the tractor was located, Mr. Ladd believed that Defendant used the front-end loader to lift the locked gates up and pull them out of the way, and, in the process, ran over one of the gates. In addition, the tractor had been left in a " transmission range" for use in the field, but was in a " transmission range" for use on the highway when Mr. Ladd encountered Defendant driving the tractor. In order to shift the tractor from field range to highway range, the operator was required to place the transmission and shuttle in neutral and then push a button.
Other evidence at trial included the testimony of several witnesses. Retired Missouri State Highway Patrol Sergeant Keith Jones testified that officers from
Christian and Douglas Counties conducted a search on August 3, 2011, in the area where Defendant was found on August 4, 2011. When Sergeant Jones arrived at the scene where Defendant was present on August 4, 2011, Douglas County Sheriff Chris Degase and Douglas County Deputy Sheriff Vernon Johnson were present. Defendant was " drinking a bottle of water." Sergeant Jones described Defendant's condition " as pretty much emaciated. He was dehydrated. He had cuts, scratches, and bruises all over his body. He was dirty. His hair was matted with leaves and burrs and dirt . . . ." Sergeant Jones added that " [i]t looked like . . . [Defendant] had ran through or been drug through a briar patch." Defendant's only clothing was " a pair of shorts." A gate at the farm of the owner of the tractor and brush hog " looked like someone had just ran through the gate with -- with something -- a car, a piece of equipment." Sergeant Jones did not " smell any intoxicants on [Defendant]," and opined that Defendant " had been impaired or was impaired at the time" by drugs though he would have been unable " to tell the difference" between impairment by drugs and disorientation from being lost and without food for days because no tests were conducted. Swan Creek, with fresh water, was " not too far" from where Defendant was encountered. Defendant was transported by ambulance to a hospital " for medical attention."
Pat Moore, who worked for Mr. Ladd, testified that it appeared Defendant had used the loader on the tractor to lift the locked gates and move them to one side so Defendant " could get out." It also appeared Defendant drove over a part of the locked gates. Mr. Moore had not " seen anybody out there asking for help" in the days before August 4, 2011.
Defendant did not testify, but called his mother, Katherine Kearnes, and Douglas County Sheriff Chris Degase as witnesses. In response to Mr. Ladd's request for law enforcement assistance, Sheriff Degase went to the location where Mr. Ladd was holding Defendant. Deputy Sheriff Johnson arrived " right behind [Sheriff Degase]" followed by Sergeant Jones. Defendant " had a lot of scratches," including on his feet, and was " galded" on his buttocks and " somewhat incoherent." Defendant was in " sad shape." Defendant was dehydrated, and was sent to the hospital. Sheriff Degase " knew [Defendant] had been in the woods for a couple, three days at least. I believe that August 2nd, his wife was picked up in that area." A report Defendant was missing was filed on August 3 by either Defendant's wife or mother, and law enforcement searched the area for Defendant on August 3. The search included the use of a helicopter and plane. On cross examination, Sheriff Degase stated, " I don't know whether [Defendant] was [intoxicated] at that time. Later on in the interview, he indicated to me that he and his wife felt that they had gotten some bad dope."
Ms. Kearnes reported to " authorities" Defendant was missing when Defendant's wife was found a " day or two before [Defendant] was found." The authorities included the Taney County Sheriff's office. Defense counsel requested to " enter . . . into the record" the written report Ms. Kearnes made to the Taney County Sheriff's office, and the prosecutor objected based on a lack of relevance. Defense counsel replied the report " indicates how long [Defendant] was gone, how long he very possibly was in the woods. . . ." The trial court sustained the prosecutor's objection and excluded the report from evidence. Almost immediately after the trial court's ruling, Ms. Kearnes testified that
" it was, like, five and a half days he was missing totally."
Defendant and his wife were living with Ms. Kearnes at the time. Defendant and his wife did not take any " camping stuff" or anything else with them when they left Ms. Kearnes' home. Defendant was at the hospital when Ms. Kearnes first saw him after he was found driving Mr. Ladd's tractor. Defendant " was very skinny" and " pathetic looking" -- " he just looked withered." Ms. Kearnes took pictures of some of Defendant's sores and abrasions at the hospital, and those pictures were shown to the jury. When Defendant's wife was found, she was " naked from the waist down." A drug test was performed on her and Ms. Kearnes " assumed" she was " using methamphetamines." The only clothing Defendant's wife had on when she was found was a " shirt," and the only clothing Defendant had on when he was found was " shorts." Ms. Kearnes was aware the search for Defendant included a helicopter. On cross examination, the trial court prohibited the prosecutor from asking Ms. Kearnes for a " medical opinion" on the cause of Defendant's sores.
During voir dire, the trial court informed the venire panel:
It is your duty to follow the law as the Court gives it to you in the instructions even though you may disagree with it. Are there any of you who would not be willing to follow all the instructions which the Court will give to the jury? If so, please raise your hand at this time. Again, the Court sees no hands.
Defense counsel asked the venire panel, " [w]ould anyone have a problem keeping their -- keeping an open mind as to intent, because that's really what this case is going to turn on today."
In his opening statement, the prosecutor told the jury that, after it heard all the evidence, it would determine Defendant " didn't intend to return [the tractor]." Defense counsel told the jury in her opening statement that Defendant admits he " took" the tractor, but " [h]e didn't take it to keep it for himself" -- " [h]e took it as a means to an end. He took it so he could get to somewhere where he could get the help that he needed." A short time later in her opening statement, defense counsel repeated " [h]e did not take [the tractor] to keep it. He took it to save his life."
The trial court instructed the jury that in order to find Defendant guilty, the jury must " find and believe from the evidence beyond a reasonable doubt" that Defendant " took" the tractor and brush hog " for the purpose of withholding from the owner permanently or using or disposing of it in such a way that made recovery by the owner unlikely" among other elements. Defense counsel submitted a converse instruction that also was given to the jury and stated:
Unless you find and believe from the evidence beyond a reasonable doubt that the defendant took the tractor for the purpose of withholding it from the owner permanently, or using, or disposing of it in such a way that made recovery by the ...