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State v. Cummings

Court of Appeals of Missouri, Western District, Second Division

March 28, 2017

STATE OF MISSOURI, Respondent,
v.
KAREN DIANE CUMMINGS, Appellant.

         Appeal from the Circuit Court of Johnson County, Missouri The Honorable R. Michael Wagner, Judge

          Before James Edward Welsh, P.J., Anthony Rex Gabbert, and Edward R. Ardini, Jr., JJ.

          James Edward Welsh, Presiding Judge.

         Karen Diane Cummings appeals the circuit court's judgment convicting her following a jury trial of one count of the class D felony of unlawful use of a weapon. We affirm the circuit court's judgment.

         Background

         The State charged Cummings with violating section 571.030.1(4), RSMo, [1] on or about December 1, 2014, by knowingly exhibiting, in the presence of one or more persons, a weapon readily capable of lethal use, in an angry or threatening manner.

         The evidence at trial showed that, [2] at the time of the charged crime, Cummings' friend, Brenda Weigand, was in the midst of a divorce from Danny Weigand. Danny lived in the couple's home, which was on a farm. Brenda no longer lived there.[3] On December 1, 2014, Brenda wanted to get some hay for her horses. She texted Danny to let him know that "she wanted to come and get some hay from the farm." Danny responded that, "it needed to go through [their] lawyers." Danny testified that he and Brenda had had some confrontations during the divorce, and he expected that, if she came over to get hay, there would be problems.

         Nevertheless, Brenda called Cummings and asked if she would go with her to the farm, as she needed help loading the hay and because she was scared to go by herself. Cummings agreed, and the two women drove to the farm in the Weigands' Dodge pickup. When they arrived, Brenda found the tractor she would need to load the hay, but the keys were not in it.

         Danny, who was in the barn, saw Brenda and Cummings pull into the driveway. He got into his feed truck and drove to meet them. Danny pulled up next to Brenda, who was walking toward the couple's other truck, a Ford pickup, which was parked at the farm. Danny asked Brenda what she was doing, but she did not answer. When Danny tried to get out of the feed truck, Brenda "slammed the door back on [him] and took off running towards" the Ford. Danny followed her. Danny and Brenda both tried to get the keys out of the Ford. Brenda got them first, and an altercation ensued. Danny asked for the keys, but Brenda refused to relinquish them unless Danny gave her the tractor keys so she could get some hay. He refused.

         Danny turned and began to walk back toward the Dodge that Brenda had been driving. By this time, Cummings "had c[o]me down towards" the Ford. Danny walked past Cummings on his way to the Dodge. Danny was "trotting" "to make sure [Brenda and Cummings] weren't running behind [him]." He wanted to get to the Dodge first to get the keys. Cummings called out Danny's name a couple of times, but he ignored her. Cummings then pulled out her pistol and chambered a round, thinking that the sound would get his attention. It did not. When Danny got to the rear of the Dodge pickup, he heard the sound of a gunshot, which startled him. He turned around and saw Cummings standing there holding a gun "kind of up in the air."

         Danny took the keys out of the Dodge and "started walking back." Cummings came toward him and met him. She still had the gun in her hand. According to Danny, "the gun was out to her side kind of like a 45-degree angle." Cummings told Danny, "a little forceful[ly], " to give her the keys. Danny looked at her for a few seconds. He "really didn't know what was going to happen" and felt threatened. Danny then turned and walked away from Cummings. As he walked toward the barn, he called 911 on his cell phone.

         Johnson County Sheriff's Deputy William Holland was dispatched to the farm. When he arrived, he found Cummings and Brenda sitting in a pickup truck. Deputy Holland asked Cummings if she had a firearm, and Cummings gave him a .45 Kimber handgun. Deputy Holland found a spent .45 shell casing in the area where the firearm had been discharged. The deputy testified that Cummings told him she had pulled out her pistol and "racked the gun" hoping that the sound would scare Danny into giving the keys back, but, instead, he kept walking "with a crazy look in his eyes." When the sound of chambering the pistol did not get Danny's attention, she pointed the gun in the air and discharged it.

         The jury found Cummings guilty of unlawful use of a weapon and assessed punishment as "[n]o imprisonment but a fine, in an amount to be determined by the court." The court sentenced Cummings to pay a $100 fine.

         Discussion

         In Point I, Cummings contends that the circuit court erred in rejecting her claim, which she first raised in a motion for new trial, that the jury's inquiry as to whether Cummings had a conceal and carry permit was evidence of juror misconduct. Cummings claims that the inquiry alone demonstrated that the jury impermissibly considered "material matters extrinsic to the evidence and outside of the issues at trial" and, thus, necessitated a new trial.

         Prior to trial, the court granted defense counsel's motion in limine to exclude any evidence related to a concealed carry permit. During deliberations, the jury sent a note asking, "Did or does [Cummings] have a conceal and carry permit and does she have any weapons training?" The court discussed the matter with the attorneys, and all agreed that the court would respond: "I cannot provide you with the information you have requested. You will be guided by your collective memories of the evidence." Defense counsel stated: "That is fine, Judge."

         By not addressing this alleged misconduct when she witnessed it, Cummings failed to preserve this claim for review. State v. Cooper, 735 S.W.2d 85, 86 (Mo. App. 1987) ("A party cannot witness jury misconduct or improper influences on the jury and wait until after the verdict before deciding if he will object."). Thus, the claim can be reviewed for plain error only. State v. Walter, 479 S.W.3d 118, 123 (Mo. banc 2016). In the context of plain error review, we will reverse the denial of a motion for new trial only if we find "an obvious and clear abuse of discretion, which affected a substantial ...


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