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State v. Culpepper

Court of Appeals of Missouri, Southern District, Second Division

November 9, 2016

STATE OF MISSOURI, Respondent,
v.
EUGENE CULPEPPER, JR., Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin R. Holden, Circuit Judge

         AFFIRMED.

          WILLIAM W. FRANCIS, JR., J. - OPINION AUTHOR.

         Eugene Culpepper, Jr. ("Culpepper"), appeals the judgment of the trial court following his convictions for the class B felony of first-degree assault, the unclassified felony of armed criminal action, and the class C felony of second-degree assault. Culpepper challenges the judgment of the trial court in twelve points on appeal. Finding no merit to any of Culpepper's points, we affirm the judgment of the trial court.

         Factual and Procedural Background

         "Appellate review of sufficiency of the evidence is limited to whether the state has introduced sufficient evidence from which a reasonable juror could have found each element of the crime beyond a reasonable doubt." State v. Hosier, 454 S.W.3d 883, 898 (Mo. banc 2015). This Court "does not reweigh the evidence but, rather, considers it in the light most favorable to the verdict and grants the state all reasonable inferences." Id. All evidence and inferences contrary to the verdict are disregarded. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011). The following summary of the relevant facts is presented in accordance with these governing principles.

         Jessica Duck ("Duck") and Jason Durgan ("Durgan") were in a long and contentious romantic relationship. On February 9, 2015, Duck and Durgan rented a motel room at the Battlefield Inn ("the motel") in Springfield. In the late evening of February 9, 2015, or early morning of February 10, 2015, Jackie Merryman ("Merryman")[1] and Culpepper arrived at the motel room. Thereafter, Culpepper and Durgan got into an argument. Culpepper threatened to shoot Durgan with a pistol, and when Duck tried to intervene, Culpepper shot her in the wrist. Culpepper then left the motel.

         The police were called. When Officer Robert Douglas ("Officer Douglas"), of the Springfield Police Department, arrived at the motel room, Duck told him that Culpepper shot her.

         The police found a gun lying in the grass between the pool and the fence of the motel. The police also found a bullet hole in the motel room wall and a shell casing on the motel room floor. Police found Culpepper's EBT[2] card on a table in the motel room.

         Culpepper was arrested on March 3, 2015, three weeks after the shooting, when a vehicle Culpepper was riding in was stopped for having a broken taillight. When the driver got out of the vehicle, Culpepper jumped into the driver's seat and drove away. Culpepper was apprehended after a brief chase, and officers found illegal drugs in the vehicle.

         Culpepper was charged by amended information, as a persistent offender, with the class B felony of assault in the first degree (Count I), pursuant to section 565.050; the unclassified felony of armed criminal action (Count II), pursuant to section 571.015; and the class C felony of assault in the second degree (Count III), pursuant to section 565.060.[3]

         Before trial, defense counsel told the trial court that he had an ethical dilemma if the State called Durgan as a witness. He indicated that he had not prepared for Durgan to be a witness, that Culpepper had refused to ask for a continuance, and that he might not be prepared to "effectively represent [Culpepper's] interests" as a result. The prosecutor stated that Durgan was not going to be called as a witness. Defense counsel did not object, but pointed out to the trial court that Culpepper did not want a continuance. The trial court stated it would not prevent the witness from testifying.

         Also prior to trial, the State filed a motion in limine seeking to preclude the introduction of evidence regarding any incidents between Duck and Durgan that did not result in a conviction, and to preclude the introduction of any evidence of any orders of protection that Duck had involving Durgan. Culpepper's theory of the case was that it was Durgan who shot Duck, and not Culpepper. During the pretrial conference, the State argued that such evidence was inadmissible because there was no direct evidence linking Durgan to the crime. The trial court declined to make an explicit pretrial ruling, but in response to the argument of Culpepper's defense counsel that Culpepper was the "scapegoat, " the trial court responded:

Well, what about the point that nobody says -- there's no witness to establish that anybody but your client did the shooting? . . . [Y]our client can testify and tell his side of the story [that Durgan was the shooter.] Then you can get into all that. . . . Well, I mean, you'll probably have some leeway; I just don't know that you're going to have as much as you want. . . . And [Culpepper's] offer of proof may change my mind.

         A jury trial commenced on July 28, 2015. Culpepper did not testify. Duck testified that prior to the shooting, she had gone into the motel bathroom to take a bath. She testified she heard Culpepper and Durgan arguing, and then heard someone get violently slapped. Duck indicated that, at this point, she got dressed and exited the bathroom. She testified that after Culpepper threatened to shoot Durgan, she moved to Durgan's side. Culpepper then discharged the pistol into her arm.

         Duck indicated that when Officer Douglas arrived on the scene, she told him that Culpepper had shot her. She testified she was "kind of shocked that he did it because -- I was just shocked."

         Before his cross-examination of Duck, Culpepper's attorney made an offer of proof concerning the ex parte order of protection Duck had obtained against Durgan in October 2014 because of violent behavior toward her in the presence of her children. The ex parte order of protection was still in effect at the time of the shooting. Duck testified that Durgan had been violent with her on another occasion in August 2012. Duck denied she was aware of Durgan's previous convictions for domestic assault, assault, and harassment prior to her relationship with him. After the offer of proof, the trial court made no further ruling. Culpepper's attorney then began his cross-examination of Duck.

         Before trial on the second day, Culpepper's defense counsel-anticipating the testimony of Officer Douglas-made an objection to Officer Douglas being allowed to recite Duck's statement to him that Culpepper was the one who shot her. Defense counsel argued that it was hearsay and did not fall under any hearsay exceptions; that if the State intended to say that the statement was an "excited utterance, " it would not qualify as such because there was sufficient time between the shooting and when Officer Douglas arrived for Duck and Durgan to have fabricated a story; and that it was also cumulative, improper bolstering, and not legally admissible because its probative value outweighed its prejudice. The State rebutted by arguing that the statement was spontaneous and was made at a time of stress and physical pain. The trial court overruled the objection and allowed the testimony.

         Officer Douglas testified he arrived at the scene within five minutes of the 911 call. When he arrived, Durgan was in the parking lot "frantically" flagging him down. When the prosecutor asked Officer Douglas what Durgan initially told him in the parking lot, defense counsel made a hearsay objection. The objection was overruled. Officer Douglas testified that Durgan told him his girlfriend had been shot. Upon entering the motel room, Officer Douglas observed Duck on the bed bleeding from a gunshot wound to her right wrist. Officer Douglas testified that Duck told him that Culpepper had shot her.

         Deputy Andrew Webb ("Deputy Webb"), with the Greene County Sheriff's Department, was called to testify. Before the State's examination of Deputy Webb could begin, Culpepper's attorney objected to any testimony regarding Culpepper's arrest approximately three weeks after the shooting. Culpepper's attorney argued that Culpepper's flight did not show a consciousness of guilt; Culpepper was unaware there was a probable cause warrant out for his arrest; it was not relevant, material, and was evidence of a prior bad act in which charges were still pending; and its prejudicial value outweighed its probative value. The State argued that Culpepper's arrest was close in time to the shooting, and it was evidence of flight in consciousness of guilt. The trial court overruled the objection.

         Deputy Webb then testified that a car Culpepper was riding in was stopped for a traffic violation. Culpepper gave a false name, and when the driver of the vehicle was removed from the car, Culpepper jumped into the driver's seat and drove away. Culpepper was arrested, and a search of the vehicle revealed crack cocaine in the front seat near the driver.

         Merryman appeared to testify, but was found to be impaired and was released. The parties agreed that her videotaped deposition, taken on July 22, 2015, could be played for the jury in lieu of her live testimony. Defense counsel stated he believed Merryman's videotaped statement, taken on February 10, 2015, would also be played during the testimony of Detective Brandon Cole ("Detective Cole").

         State's Exhibit 32, the video deposition of Merryman, was played for the jury. In that deposition, Merryman stated there were four people in the motel room just before the gunshot, including herself, and specifically identified Culpepper by name as being there as well. However, Merryman stated she did not remember speaking with Detective Cole on the morning of the shooting, denied making various specific statements at that time, and also denied making specific statements during any interviews after the shooting.

         Detective Cole testified he interviewed Merryman after she arrived at the Greene County Jail on February 10, 2015. The State entered in evidence Exhibit 33-Merryman's "court-edited interview" with Detective Cole. Defense counsel objected that it was "not a prior sworn statement, " was not "entirely inconsistent, " and asked that it not be allowed. The trial court overruled the objection and the interview was played for the jury.

         Due to the poor quality of the audio, after Merryman's videotaped statement was played for the jury, the prosecutor asked Detective Cole, "What was it that she was saying about that [after you told her to tell you what she knew]?" Defense counsel objected stating that the video was the best evidence, and the jury could listen to the video rather than Detective Cole's interpretation. The trial court overruled the objection.

         The prosecutor then asked Detective Cole, "What was it you remember her saying at that point?" Defense counsel made no objection to this question. In the interview, Merryman stated that Culpepper had the gun, Duck said something to Culpepper which caused Durgan to stand up for Duck, Culpepper and Durgan were "talking shit, " and a threat was made of "I'm going to kill you." Merryman indicated Culpepper had the gun and tried to "raise it up and shot it." At one point in the interview, Detective Cole admitted he began calling Culpepper "Eugene Johnson." However, when asked by Detective Cole, "What about Culpepper?" Merryman responded, "That's the same person." Merryman also identified Culpepper as "Eugene Culpepper."

         During cross-examination, defense counsel did not challenge Detective Cole's testimony regarding what Merryman told him during the interview.

         Darian Stinson ("Stinson"), an employee in the firearm and tool mark section of the Missouri State Highway Patrol Crime Lab, testified without objection that she analyzed evidence associated with "Springfield Police Report No. 15-5254"[4] in which Culpepper was named as a suspect. She analyzed the handgun, magazine, expended bullet, and expended cartridge case. She could not state conclusively, after comparing a test-fired round to the expended bullet retrieved at the scene, that the expended bullet could have been fired from the handgun retrieved from the scene. However, both expended bullets shared some characteristics so she could not eliminate it either. She did confirm through testing that the expended cartridge case had been fired from the gun. Her findings were verified through a peer review of her report and conclusions.

         After the State rested, Culpepper filed his "Motion for Judgment of Acquittal at the Close of State's Evidence, " arguing the State had not made a submissible case that Culpepper attempted to assault Durgan. The trial court overruled the motion.

         Culpepper called Marcie Abbey ("Abbey"), an employee in the DNA section of the Missouri State Highway Patrol Crime Lab. Abbey testified she performed a DNA analysis on the handgun used in the shooting. She did find DNA on the gun, but after comparing it to the sample provided by Culpepper, her findings were inconclusive as to whether Culpepper could be included or excluded as a contributor.

         In the State's cross-examination, Abbey stated she was unable to get a sufficient sample of DNA from the gun to compare with the sample provided by Culpepper. Abbey explained that a DNA profile appears as a graph of peaks and each peak is represented by a number that represents an "allele, " which is equivalent to a gene. The State asked Abbey, "How many alleles of [Culpepper] were consistent with that small amount of DNA from the handgun?" Culpepper's counsel objected on the basis that the question had been asked and answered. The trial court overruled the objection. The State then asked Abbey how many alleles were consistent. Abbey responded that the DNA profile from the handgun was a mixture of more than one individual, but all of Culpepper's alleles were represented in that mixture except for one allele at one location. There was no allele present to compare that one allele to because the profile from the handgun was of poor quality. She confirmed that Culpepper could not be excluded based on the DNA sample and that his alleles were represented at every location except the one.

         Culpepper then rested and filed his "Motion for Judgment of Acquittal at the Close of all Evidence." Culpepper's counsel reiterated his same argument that the State had not made a submissible case that Culpepper attempted to assault Durgan. The trial court overruled the motion.

         The jury found Culpepper guilty on all three counts. Culpepper filed a "Motion for Judgment of Acquittal Notwithstanding the Verdict of the Jury or in the Alternative for a New Trial" on August 21, 2015. The trial court overruled the motion on November 23, 2015, and the court proceeded with sentencing. Culpepper claimed that there were factual errors in the "prior supervision history" section of the sentencing assessment report, but did not substantiate these claims.

         Culpepper was sentenced on Count I-assault in the first degree-as a prior and persistent offender, to 20 years in the DOC, to run consecutive to Count III but concurrent with Count II; on Count II-armed criminal action-to 5 years in the DOC to run concurrent to Count I; and on Count III-second-degree assault- as a prior and persistent offender, to 10 years in the DOC, to run consecutive to Count I, for a total of 45 years. This appeal followed.

         In twelve points on appeal, Culpepper asserts the trial court erred in: (1) "sustaining the State's objection to defense counsel's offer of proof regarding prior acts of violence" Durgan perpetrated on Duck, for which she took out an order of protection against Durgan; (2) overruling defense counsel's objection to the testimony of Officer Douglas that Duck identified Culpepper as the shooter; (3) overruling defense counsel's objection to the testimony of Officer Douglas that Durgan identified Culpepper as the shooter; (4) overruling defense counsel's objections to evidence of Culpepper's arrest and flight from officers three weeks after the shooting; (5) overruling defense counsel's objection to Abbey's testimony that several DNA alleles found on the gun were the same as Culpepper's; (6) overruling defense counsel's objection to Exhibit 33-Merryman's videotaped statement to police because in it she identified Culpepper as "Eugene Johnson"; (7) overruling defense counsel's objection to the admission and publication of Exhibit 33 by Detective Cole as a "prior inconsistent statement" because the tape was not admissible as substantive evidence pursuant to section 491.074[5] and was therefore hearsay; (8) overruling defense counsel's objection and permitting Detective Cole to testify about the contents of Merryman's videotaped interview because the testimony violated the best evidence rule and invaded the province of the jury; (9) overruling defense counsel's motions for judgment of acquittal because there was insufficient evidence from which a rational finder of fact could find Culpepper guilty beyond a reasonable doubt; (10) in permitting ...


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