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State v. Rasmussen

Court of Appeals of Missouri, Southern District, Second Division

October 6, 2017

STATE OF MISSOURI, Plaintiff-Respondent,
v.
PHILIP RASMUSSEN, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J. Johnson, Circuit Judge

          Nancy Steffen Rahmeyer, P.J.

         Philip 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.[1] 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.

         Viewed in the light most favorable to the jury's verdict, [2] the 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.

         However, 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, [3] and 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."

         On June 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.

         At the 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.

         At 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 the jury.

         Other 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 Defendant introduced.

         Standard of Review

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. 2007).

         Analysis

         In his 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 ...


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