Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin R.
Holden, Circuit Judge
WILLIAM W. FRANCIS, JR., J. - OPINION AUTHOR.
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.
and Procedural Background
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.
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") 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.
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.
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 card on a table in the motel room.
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.
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.
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
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.
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
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
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.
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.
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.
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
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.
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").
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.
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.
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.
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."
cross-examination, defense counsel did not challenge
Detective Cole's testimony regarding what Merryman told
him during the interview.
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" 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.
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.
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.
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.
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.
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.
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.
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 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 ...