Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Johnson County, Missouri The
Honorable R. Michael Wagner, Judge
James Edward Welsh, P.J., Anthony Rex Gabbert, and Edward R.
Ardini, Jr., JJ.
Edward Welsh, Presiding Judge.
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.
State charged Cummings with violating section 571.030.1(4),
RSMo,  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
evidence at trial showed that,  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. 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
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.
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.
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."
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
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.
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.
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
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."
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 ...