Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis
1522-CR01416-01 Honorable Robert H. Dierker, Jr.
M. Gaertner, Jr., Judge
Ralph (Ralph) appeals from a sentence and judgment of
conviction for possession of a controlled substance. He
challenges the trial court's admission of hearsay
evidence and asserts error in the trial court's
imposition of an enhanced sentence under the prior and
persistent offender statutes. We affirm.
State of Missouri (State) charged Ralph as a prior and
persistent offender with the class C felony of possession of
a controlled substance, Hydrocodone. The evidence at the 2016
jury trial showed the following, viewed in a light most
favorable to the verdict.
police responded to an anonymous 911 call reporting open air
drug sales in the 6000 block of Lucille in the City of St.
Louis. Officer Andrew Brown (Officer Brown) testified that
when he and his partner, Officer Timothy Nolan (Officer
Nolan), approached the area in their marked patrol vehicle,
he witnessed an individual later identified as Ralph standing
at the front passenger window of an occupied vehicle in a
manner associated with, in Officer Brown's experience,
the sale of narcotics. Officer Brown made eye contact with
Ralph, who then took something from his pocket and threw it
under the vehicle, which caused Officer Brown to suspect,
again from his experience and the surrounding circumstances,
that Ralph had discarded narcotics. Officer Brown approached
Ralph on foot and detained him. Officer Brown picked up a
blue plastic knotted baggie from underneath the edge of the
vehicle where Ralph had been standing and confirmed that the
baggie contained pills. He seized the baggie of pills, which
contained Hydrocodone. Officer Brown clarified, however, that
he did not witness an exchange of narcotics or money.
Finally, Officer Nolan testified over a hearsay objection
that during booking, which Officer Brown conducted, Officer
Nolan "learned" that Ralph lived in an area about a
ten-minute drive from the 6000 block of Lucille.
prove Ralph's prior-and-persistent-offender status, the
State relied upon Ralph's 2014 guilty plea in Cause No.
1322-CR1218 for the felony of resisting arrest and his 2008
guilty plea in Cause No. 0822-CR03740 for the felonies of
second-degree assault of a law enforcement officer and
tampering in the first degree. Ralph did not stipulate to the
prior convictions, and the State called the court clerk, who
testified without objection that the Missouri Justice
Information System (JIS)-which is a computerized statewide
automated record-keeping system established by the supreme
court-records reflected Ralph had at least two
prior felony convictions in Cause Nos.
1322-CR01218 and 0822-CR03740. The State did not
introduce physical copies of these court records, but asked
the trial court to take judicial notice of its own
files. On this evidence, the trial court found
beyond a reasonable doubt Ralph was a prior and persistent
jury found Ralph guilty of constructive possession of a
controlled substance, and the trial court sentenced him as a
prior and persistent offender to eight years in the Missouri
Department of Corrections. This appeal follows.
first point on appeal, Ralph argues the trial court erred in
overruling his objection to Officer Nolan's testimony
that he had learned Ralph did not live in the neighborhood
where the crime occurred because such testimony was
inadmissible hearsay that prejudiced Ralph by presenting him
as an outsider causing trouble in the neighborhood. We
is any out-of-court statement that is used to prove the truth
of the matter asserted and is generally inadmissible unless
it is a recognized exception to the hearsay rule. State
v. Tisuis, 362 S.W.3d 398, 405-06 (Mo. banc 2012). We
review a trial court's decision to admit or exclude
hearsay evidence for an abuse of discretion. State v.
Justus, 205 S.W.3d 872, 878 (Mo. banc 2006). An abuse of
discretion occurs when the trial court's ruling is
clearly against the logic of the circumstances or is so
arbitrary and unreasonable so as to shock the sense of
justice and indicate a lack of careful consideration.
State v. Hughes. 497 S.W.3d 400, 403 (Mo. App. E.D.
2016). We reverse for an error in the admission of evidence
only if the erroneously admitted evidence was so prejudicial
that it affected the outcome of the trial, meaning that but
for its admission there is a reasonable probability the jury
would have acquitted. State v. Adams, 350 S.W.3d
864, 866 (Mo. App. E.D. 2011). Even if the evidence admitted
was improper hearsay, we will only reverse the conviction if
a defendant can prove both error and prejudice. State v.
Jackson, 426 S.W.3d 717, 719(Mo.App.E.D.2014).
Ralph asserts on appeal that prejudicial error resulted when
Officer Nolan testified that he "learned" during
booking that Ralph lived about a ten-minute drive from where
he was arrested in the 6000 block of Lucille, because Officer
Brown was the declarant of the challenged statement, which
was admitted for its truth. We note that Ralph bears the
burden on appeal to prove both that the trial court
erroneously admitted hearsay evidence and that evidence
prejudiced him, which he has not done. See Jackson.
426 S.W.3d at 719. Although Ralph asserts Officer Brown was
the declarant of the challenged statement, the record does
not support this assertion. Officer Nolan testified that
Officer Brown booked Ralph, but Officer Nolan did not reveal
from whom he learned where Ralph lived. From the record
before us, it is just as likely Officer Nolan learned this
information from Ralph himself as from Officer Brown, and the
admission of relevant, material out-of-court statements by
the party opponent is a ...