Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Benton County, Missouri The
Honorable Michael O'Brien Hendrickson, Judge.
Before: Mark D. Pfeiffer, Chief Judge, Presiding, Victor C.
Howard, Judge and Gary D. Witt, Judge.
D. Witt, Judge.
Scott Elliott ("Levi") was convicted, following a
jury trial in Benton County, Missouri, of murder in the
second degree, section 565.021,  armed criminal action,
section 571.015, and tampering with a motor vehicle, section
569.080. Levi was sentenced to consecutive terms of
imprisonment of twenty years, five years, and five years,
respectively. Levi raises two claims of error in his appeal.
First, Levi claims that the trial court erred in not sua
sponte preventing the State from entering a nolle
prosequi and refiling the charges because this deprived
Levi of the opportunity to be considered for dual
jurisdiction in sentencing pursuant to section 211.073.
Second, Levi claims that the trial court erred in overruling
a hearsay objection at trial. We affirm.
events giving rise to Levi's convictions occurred on the
evening of March 24, 2012. In March of 2012, Levi was fifteen
years old, and his half-sister, Sierra Elliott
("Sierra"), was twelve years old. Both Levi and
Sierra lived with their father, Jim Elliott, and Sierra's
mother, Peggy Elliott, in Bolivar, Missouri. The previous
month, Jim and Peggy Elliott's older son, Andy Summers
("Summers"), moved out of the house, leaving behind
a gun cabinet containing some firearms. The gun cabinet was
locked, but the key to the cabinet was located on top of the
cabinet. Summers had taught Levi how to shoot the .22 caliber
guns for target practice and at the time that Summers moved
out of the house, the magazine for the .22 caliber Ruger
rifle remained loaded.
March 24, 2012, around 8:00 p.m., Jim and Peggy Elliott left
twelve-year-old Sierra in the care of her brother Levi while
they ran an errand. Jim and Peggy Elliott owned a white Ford
pickup truck that remained at the house.
Peggy Elliott returned home in about one hour. When they
returned, they noticed that the house was dark and their
pickup truck was missing. Jim Elliott entered his home and
yelled for his children. He heard moaning coming from the
master bedroom where he found Sierra lying on the bed with a
gunshot wound to her head. Levi was not at home. Jim and
Peggy Elliott called 911, and Sierra was airlifted to the
hospital. Sierra did not regain consciousness and passed away
the following day. The projectile from the gun that injured
Sierra was consistent with a Ruger .22 caliber rifle. There
were no signs of forced entry into the home and nothing was
missing from the home. Summers's gun cabinet was open.
surveillance at the Walmart in Clinton, Missouri showed that
Levi parked Jim and Peggy Elliott's white Ford pickup
truck in the Walmart parking lot at approximately 9:02 p.m.
and walked into the store. Levi remained in the store for
approximately two hours. Two Walmart employees testified
about speaking with Levi while he was in the store. Nicole
Marsh, who worked in the electronics department, received two
calls for Levi. She testified that she spoke to a woman who
stated she was Levi's grandmother and was frantic wanting
to speak with him. She paged Levi's name over the store
public address system and identified Levi as the person who
responded to the page. Levi told the woman on the phone that
he "didn't do anything" and that he did not
want his father to know his location. A second call came in
from a woman claiming to be Levi's mother. Levi was paged
again and he responded. He spoke with the woman on the phone
and said he "hadn't done it" and kept telling
her not to tell his father his location. Levi also spoke with
Walmart employee Vickie Anderson ("Anderson"), who
asked him if he needed help. Levi was nervous and said that
he was on spring break and was just hanging around. Levi told
her that he had been watching movies with his sister. In the
conversation, they discussed hunting, and Anderson mentioned
to Levi that she had a black Jeep that was parked outside.
also spoke with his step-father Robert Adams
("Robert"), the husband of Levi's biological
mother, Joy Adams ("Joy"), while at Walmart. Levi told
Robert he needed someone to pick him up from Walmart. In a
subsequent conversation, Levi claimed that when he was home
alone with Sierra, he heard a loud noise from down the
hallway. He went to investigate and saw that Sierra had been
shot, and a man with a rifle was rummaging through a dresser.
Levi claimed that he put on his shoes and fled the scene in
Jim and Peggy Elliott's truck. Levi claimed that the man
pursued him in a black Jeep for several miles but eventually
gave up. Levi then stopped the truck at Walmart because the
truck was out of gas.
testified that she received a call from Peggy Elliott the
night of the shooting, who told her that Levi had shot
Sierra. Joy spoke with Levi while he was at Walmart, and
Joy's parents, Levi's grandparents, picked Levi up
from the Walmart and brought him to a hotel. Levi told the
same story regarding the intruder and car chase with the
black Jeep to Joy. When Joy learned the police were looking
for her son, she took him to a police station in Kansas City.
was charged on June 13, 2012 with second degree murder, armed
criminal action, and tampering with a motor vehicle in the
first degree. On July 3, 2013, a motion for change of venue
was granted and the case was transferred to Greene County,
Missouri. On August 27, 2013, the State dismissed the charges
and refiled them the same day in Polk County, Missouri.
trial was held from October 27, 2014 through October 29,
2014. At trial, the trial court overruled a hearsay objection
to testimony from Jason Trammell ("Trammell") of
the Missouri State Highway Patrol. Trammell was allowed to
testify that a paramedic told him that blood found on a
nightstand near Sierra was the result of an IV inserted by
paramedics in treating Sierra. The jury found Levi guilty of
the charges against him. At the time of conviction, Levi was
seventeen years and eight months of age. Levi was sentenced
on January 7, 2015, at which time he was seventeen years and
ten months of age. Levi now appeals.
Point One on appeal, Levi argues that the trial court erred
in failing to sua sponte prevent the State from
dismissing the charges against him and refiling the same
charges the same day because it deprived him of the
opportunity to be considered for dual jurisdiction in
sentencing pursuant to section 211.073. Levi argues that
had the case not been dismissed and refiled, he would have
been under the age of seventeen years and six months at the
time he was found guilty and, therefore, would have been
eligible for the dual jurisdiction program. Levi argues that
this deprived him of due process of law guaranteed by the
Fourteenth Amendment of the United States Constitution and
Article I, Section 10 of the Missouri Constitution.
objection to the dismissal was made before the trial court,
Levi requests plain error review of his claim under Rule
Rule 30.20 authorizes this Court to review, in its
discretion, "plain errors affecting substantial rights
... when the court finds that manifest injustice or
miscarriage of justice has resulted therefrom." Our
Supreme Court has established a threshold review to determine
if a court should exercise its discretion to entertain a Rule
30.20 review of a claimed plain error. First, we determine
whether or not the claimed error "facially establishes
substantial grounds for believing that 'manifest
injustice or miscarriage of justice has
resulted[.]'" State v. Brown, 902 S.W.2d
278, 284 (Mo. banc 1995) (quoting Rule 30.20). If not, we
should not exercise our discretion to conduct a Rule 30.20
plain error review. If, however, we conclude that we have
passed this threshold, we may proceed to review the claim
under a two-step process pursuant to Rule 30.20. In the first
step, we decide whether plain error has, in fact, occurred.
[State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc
2009)]. "All prejudicial error, however, is not plain
error, and plain errors are those which are evident, obvious
and clear." Id. (citations and internal
quotation marks omitted). In the absence of evident, obvious,