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State v. Derennaux

Court of Appeals of Missouri, Southern District, First Division

December 12, 2017

STATE OF MISSOURI, Plaintiff-Respondent,
v.
TYLOR SCOTT DERENNAUX, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY Honorable Sidney T. Pearson

          DON E. BURRELL, J.

         A jury found Tylor Scott Derennaux ("Defendant") guilty of arson and two burglaries in the second degree for events occurring in April 2014 near Davisville. See 569.050 and 569.170.[1] Defendant was sentenced to a total of 11-years imprisonment based upon consecutive sentences of two years on each burglary count and seven years on the arson count.

         In three points relied on, Defendant challenges his judgment of conviction and sentence by claiming: (1) the trial court "clearly erred in overruling [Defendant's] motion to suppress the cameras seized from him during an unlawful detention"; (2) the trial court "plainly erred" by "excluding the option of a 1-year prison sentence" in the jury instructions on the burglary counts; and (3) the trial court erred in "overruling [Defendant's] objection" to the State's sentencing-phase rebuttal closing argument that Defendant, "'up to this point in time, as we stand here, has not taken responsibility for what he did[.]'"

         Finding no merit in any of these claims, we affirm.

         Applicable Principles of Review and Governing Law

         "Issues that were not preserved may be reviewed for plain error only, which requires the reviewing court to find that manifest injustice or a miscarriage of justice has resulted from the trial court error." State v Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009); see also Rule 30.20. Plain-error relief requires "evident, obvious, and clear" error and a resulting manifest injustice or miscarriage of justice. Id. at 607-08 (quotation omitted).

         Assuming that the issue has been preserved,

[a] trial court's rulings on closing argument are reviewed only for an abuse of discretion. State v. Mahurin, 799 S.W.2d 840, 844 (Mo. banc 1990). To constitute reversible error, there must be both an abuse of discretion by the trial court and prejudice to the defendant as a result of such abuse.

State v. Gilmore, 22 S.W.3d 712, 715 (Mo. App. W.D. 1999).

         Analysis

         Defendant's points do not challenge the sufficiency of the evidence to support his convictions, and we limit our evidentiary summary to matters relevant to the points, "view[ing] the facts and the reasonable inferences therefrom in the light most favorable to the verdict[s]." State v. Salazar, 414 S.W.3d 606, 610 n.2 (Mo. App. S.D. 2013). We begin our analysis of each point with the factual and procedural history relevant to that particular point.

         Point 1-The Two Cameras[2]

         Brandon Black and a female juvenile ("Juvenile") testified at Defendant's July 2016 trial that they were walking down Highway 49 with Defendant on the night of April 17, 2014. Trishia Hicks, [3] a volunteer firefighter, was driving Highway 49 sometime around midnight when she passed Juvenile and two men about a mile from where, some 90 minutes later, she would be dispatched to help fight a fire. Juvenile waved her hands to stop Ms. Hicks and asked her to take the trio to Cherryville. Ms. Hicks refused because Cherryville was in the opposite direction from where she was headed, and she could smell alcohol on the group.

         Sometime after midnight, Melba Martin heard popping sounds and observed that the neighboring mobile home that belonged to her daughter and son-in-law ("the Tricamos") was on fire. Ms. Martin also saw several items from the mobile home scattered in the yard, and she discovered that a door to a farmhouse on the Tricamos' property had been kicked in. Nothing was amiss with the Tricamo property when Ms. Martin had checked it earlier in the evening.

         When Ms. Hicks was dispatched to fight the fire, she informed her assistant chief about the people she had seen in the road. That information was passed on to Sheriff's Deputy Frank Williams, and he responded to the scene.[4] Deputy Williams left the scene of the fire around 4:30 a.m., and he stopped when he saw Defendant and Juvenile walking in the road. Defendant was not wearing a coat, and Juvenile was not wearing shoes. Deputy Williams could smell alcohol on Defendant's breath as he spoke with him. Deputy Williams asked Defendant how old he was, and Defendant replied, "'[W]hat difference does it make?'" Defendant also said, "'I could've spilled beer on me.'"

         Deputy Williams "noticed that there were some bulging items in [Defendant's] pocket, so [the deputy] asked him what they were and [Defendant] told [the deputy] they were cameras." The deputy had Defendant take the cameras out of his pocket, and when asked if they were his cameras, Defendant said he had received them as a gift from his grandmother. Deputy Williams had Defendant get into the officer's patrol car, and he gave Defendant a Miranda[5] warning. The deputy seized the cameras as evidence. At a later time, Mr. Tricamo identified the cameras as his property.

         Defendant filed motions to suppress the statements he made to law enforcement officers, "the two cameras allegedly found on [D]efendant's person, " and any testimony relating to the cameras ("the suppression motions"). Following a hearing and briefing by counsel, the trial court denied the suppression motions.

         Defendant did not object at trial to testimony from Deputy Williams or Mr. Tricamo regarding the cameras. And when the prosecutor offered the cameras into evidence, defense counsel affirmatively stated, "No objection." Defendant filed a motion for new trial ("new trial motion") that stated that "[a]ll pretrial motions and oral arguments made during trial are incorporated by reference and included herein[, ]" but it made no other specific reference to the suppression motions or the cameras. In arguing the new trial motion, defense counsel did not specifically address either the suppression motions or the cameras.

         While Defendant acknowledges that he "did not object to the admission of the cameras at trial[, ]" he maintains that the new trial motion incorporated "all pretrial motions and oral arguments made on those motions[, ]" and he asks us to review the suppression ruling for "clear error." The State maintains that Defendant waived any claims regarding the cameras as evidence because he did not renew the suppression motions at trial and defense counsel stated "'[n]o objection'" when they were offered into evidence. We agree.

         "A trial objection to the admission of evidence challenged in a motion to suppress is required to preserve the issue for appellate review." State v. Lloyd, 205 S.W.3d 893, 900 (Mo. App. S.D. 2006). "The defendant cannot resurrect [an] abandoned issue in his motion for new trial after already allowing it to die at trial for lack of proper objection." State v. Overstreet, 694 S.W.2d 491, 494 (Mo. App. E.D. 1985). "Under such circumstances, 'even plain error review is not warranted.'" Lloyd, 205 S.W.3d at 901 (quoting State v. Markham, 63 S.W.3d 701, 707-08 (Mo. App. S.D. 2002)). Point 1 is denied.

         Point 2-Sentencing Instructions for the Burglaries

         Point 2 claims the trial court committed plain error when it instructed the jury that the burglary "sentences must be either '2, 3, 4, 5, 6 or 7' years, excluding the option of a 1-year prison sentence" for each of the burglary counts because a one-year sentence is the authorized minimum sentence for Class C felonies and "if the jury had been properly instructed, there is a reasonable probability it would have imposed a sentence of one ...


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