Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J.
Johnson, Circuit Judge
Steffen Rahmeyer, P.J.
Rasmussen ("Defendant") was charged by Second
Amended Felony Information with assault in the first degree
for allegedly striking Victim "in the neck with a closed
fist" on July 23, 2014. Following a trial to a jury that
began on July 11, 2016, the jury found Defendant guilty of
assault in the second degree, and the trial court sentenced
Defendant as a prior and persistent offender to fifteen years
in the Department of Corrections. Defendant appeals, and, in a
single point, claims that the trial court erred in admitting
at trial the preliminary hearing testimony of a witness who
was not present for trial.
in the light most favorable to the jury's verdict,
evidence at trial showed the following. Defendant's
conduct occurred in a motel parking lot in Branson in the
middle of the day. The manager of the motel requested Victim,
who was responsible for maintenance at the motel, to ask
Defendant to leave the motel property. When Victim did so,
Defendant indicated that he would leave, but then approached
Victim from the rear, struck him in the neck with his fist,
and ultimately chased Victim, caught Victim near a fence on
the motel property and physically threw Victim over the
fence. Defendant's blow to Victim's throat caused
serious injury to Victim's throat. A woman
("Witness") observed the confrontation between
Defendant and Victim from a balcony of the motel. A
surveillance video showed Defendant chasing Victim and
throwing him over the fence, but the only persons who
actually witnessed the confrontation were Victim, Witness and
Defendant. At trial, Victim testified, Witness was not
present, and Defendant chose not to testify.
Witness did appear and testify at Defendant's preliminary
hearing on September 2, 2014. The hearing was recorded,
Defendant and his attorney were present in person,
Witness was placed under oath, examined by the prosecutor,
and subjected to cross examination by defense counsel without
any objection by the prosecutor and without the hearing court
placing any limits on defense counsel's cross
examination. Defense counsel's cross examination
specifically explored Witness' ability to perceive
accurately the events about which Witness testified. At the
conclusion of the hearing, the hearing court ordered
Defendant "bound over."
8, 2016, the State filed a motion informing the trial court
that the State and Defendant were unable to locate Witness,
and requesting that Witness' testimony at the preliminary
hearing be admitted at Defendant's trial as the
"former testimony of an unavailable witness." The
trial court conducted a hearing on the motion at a pretrial
conference on June 13, 2016.
hearing, an investigator for the prosecutor's office
testified as follows. The investigator was assigned to locate
Witness. In the course of attempting to locate Witness, the
investigator (1) used "MULES, " which gave the
investigator access to a "nationwide database"
known as "NCIC, " (2) talked to an individual at
the Mid-State Organized Crime Information Center, which is
known as "MOCIC, " (3) looked on Facebook, and (4)
within the last two days and on a prior occasion
"several months back, " went to Witness' last
known address, which was the motel where Defendant's
confrontation with Victim occurred. The investigator used
Witness' name and Social Security Number in his inquiries
to MULES and MOCIC. None of these inquiries revealed any
information that permitted the investigator to locate
Witness, and the investigator did not "know of any
other" "steps that [he] should take . . . in
reasonable diligence to try to find [Witness]." The
trial court ruled "based on the evidence, I conclude
that sufficient due diligence has been conducted here, "
and granted the State's motion.
trial, Defendant objected to the admission of an audio
recording of Witness' testimony at Defendant's
preliminary hearing during the prosecutor's opening
statement and later when the prosecutor actually sought to
admit the recording. The trial court overruled
Defendant's objections. The recording was published to
evidence at trial included (1) Defendant's statements to
a police officer that Victim "told [him] to leave the
property, " Defendant "felt this was unfair"
and "felt threatened, " Defendant "struck
[Victim] in the upper chest to defend himself, and then
chased [Victim] to a fence, " and Victim "fell over
the fence and that [Defendant] did not push [Victim];"
(2) Victim's testimony that, after Defendant threw him
over the fence, Defendant told Victim "It's a good
day to die;" (3) Defendant's flight from the fence
and subsequent flight from a uniformed police officer; and
(4) Witness' written statement to a police officer that
A trial court has broad discretion over whether to admit or
exclude evidence. State v. Kemp, 212 S.W.3d 135, 145
(Mo. banc 2007). Thus, we will only reverse a trial
court's ruling on the admission of evidence when the
trial court has clearly abused its discretion. Id.
Such "discretion is abused when a ruling is clearly
against the logic of the circumstances and is so unreasonable
as to indicate a lack of careful consideration."
Id. "Whether admission of the challenged
testimony violated the Confrontation Clause is a question of
law, which the Court reviews de novo." State v.
Justus, 205 S.W.3d 872, 878 (Mo. banc 2006).
State v. Smith, 240 S.W.3d 753, 754 (Mo.App. E.D.
sole point relied on, Defendant claims that the "trial
court abused its discretion in admitting [Witness']
preliminary hearing testimony" because doing so
"violated [Defendant's constitutional] right to
confrontation" in that Witness "was not proved to
be unavailable as the State did not diligently attempt to
locate [Witness], and ...