Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF MCDONALD COUNTY  Honorable Timothy
W. Perigo, Presiding Judge
WILLIAM W. FRANCIS, JR., JUDGE.
Rea Rinehart ("Rinehart") was found guilty by
a jury of leaving the scene of a motor vehicle accident, in
violation of section 577.060. The trial court sentenced
Rinehart to three years in prison. In one point on appeal,
Rinehart asserts the trial court plainly erred in failing to
grant him a new trial after the prosecutor, in closing
argument, made references to Rinehart's possible
intoxication on the night of the accident. Finding no merit
to Rinehart's point, we affirm the trial court's
and Procedural History
claim is unpreserved. He requests plain error review, which
contemplates two steps. First, the reviewing court ascertains
whether there was plain error-that is, error,
occasioned by the trial court, which should have been
"evident, obvious, and clear to the trial court" at
the time of the error, based "on the record then
before it." State v. Hunt, 451 S.W.3d 251,
260, 264 (Mo. banc 2014) (emphasis added); see Rule
30.20. For this purpose, we do not view the facts
in the light most favorable to the verdict, as the trial
court would not have had the benefit of those findings at the
time of the alleged error. Hunt, 451 S.W.3d at 260;
cf. State v. Banks, 215 S.W.3d 118, 122
(Mo. banc 2007).
if we find plain error, we examine the whole record
to determine if such error resulted in prejudice constituting
"manifest injustice" or "miscarriage of
justice." State v. Muhammad, 478 S.W.3d 468,
476-77 (Mo.App. W.D. 2015). Because Rinehart's claim does
not survive the first step, our recitation is limited to the
record before the trial court at the time the alleged
"plain error" occurred. We recite such other
information as necessary for context.
September 12, 2015, at around 1:00 a.m., Rinehart struck and
killed a nineteen-year-old man ("Victim") near
Neosho, Missouri. Rinehart did not report the accident at the
time, and was not present when authorities arrived shortly
next morning, Rinehart told two people that he "hit a
deer last night[, ]" and showed them the damage to his
vehicle-one being Gaye Powell ("Powell")-a
childhood friend who lived in Noel, Missouri. Rinehart told
Powell he hit a deer "towards your way[, ]" was not
going to submit it to his insurance company, and would
probably fix it himself. Powell came to believe Rinehart had
hit Victim, and she reported the information to the police
about a week and a half after talking to Rinehart.
September 17, 2015, Rinehart, through his attorney, contacted
the Newton County prosecutor's office for the purpose of
offering his voluntary surrender, and the surrender of his
vehicle, on the condition that bail not be required if he
were charged. The prosecutor indicated he could not agree to
the bail condition at that time, and that he would first need
to speak with the Neosho Police Department and Victim's
family. On September 24, 2015, Rinehart's attorney
contacted the Neosho Police Department and arranged for an
interview and the surrender of Rinehart's vehicle the
police took custody of Rinehart's vehicle and processed
it for evidence: photographing damage to the front grill,
hood, and windshield. Rinehart was charged by information
with one count of the class D felony of leaving the scene of
a motor vehicle accident.
trial commenced on November 22, 2016. At trial, the contested
issue was whether Rinehart knew he had hit a person.
The State's theory of the case was that when Rinehart hit
Victim, Victim's head smashed into the windshield in
front of Rinehart, and Victim "rode" the hood for
approximately four seconds before Victim came off the
vehicle. Rinehart, the State theorized, would have seen he
hit a person during this interval, but nevertheless failed to
remain at the scene or alert the authorities. Rinehart's
theory of the case was that he thought he hit a
deer, not a person. When Rinehart hit Victim, according to
Rinehart's version of events, Victim was only on the
windshield for a second or so before going out of
Rinehart's line of vision.
parties put on witnesses and evidence, including one expert
witness for each party for purposes of accident
reconstruction testimony. Rinehart did not testify.
closing argument, the jury was instructed that they must not
consider as evidence "any statement or remark or
argument by any of the attorneys addressed to another
attorney or to the Court." The final instruction read to
the jury before closing arguments was Instruction No. 9,
which stated, in part: "The attorneys will now have the
opportunity of arguing the case to you. Their arguments are
intended to help you in understanding the evidence and
applying the law, but they are not evidence."
closing argument, the prosecutor made several references to
Rinehart's possible intoxication, without timely
objection by defense counsel:
• "If you're going to do that much damage to
the vehicle, to have the person strike right in front of you
as you're driving, and then not know that you hit a
person. You know, if you are awake and sober, you're
going to know that, I would submit to you."
• "Ladies and gentlemen, the evidence that
[Rinehart] knew that he hit a human being is the physical
evidence to his car and his common sense. . . . Was
[Rinehart] asleep? Was he drunk? We don't know.
There's only two people there at the point of the impact.
Would he have a reason to lie? Would he have a reason to wait
five days to turn himself in? We know he was sober when he
talked to the police. Was he not sober at the time?
There's a reason that leaving the scene of an accident is
a crime, so -- and the instructions will tell you to use your
common sense -- that you have to use your common sense. Even
if it was a roof vault, you know, you've got all of this
-- the hood explodes in front of you, the head hits the
windshield right in front of you, the body is flipped over
onto the roof and rides it for 250 feet, and then slides off
back, but he doesn't stop or maybe he did stop. Again, we
don't know, but he didn't call it in.
• "Even if [the Victim] was walking in the middle
of the road between the fast and the slow lanes[, ] . . .
you're still going to have your headlights illuminate
something in the road ahead of you if you're paying
attention or if you're sober. We can't know for sure
what was going on in [Rinehart]'s mind at the time he hit
the prosecutor finished, defense counsel asked to approach
the bench and ...