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State v. Rinehart

Court of Appeals of Missouri, Southern District, Second Division

January 17, 2018


         APPEAL FROM THE CIRCUIT COURT OF MCDONALD COUNTY [1] Honorable Timothy W. Perigo, Presiding Judge


         Oren Rea Rinehart[2] ("Rinehart") was found guilty by a jury of leaving the scene of a motor vehicle accident, in violation of section 577.060.[3] 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 judgment.

         Factual and Procedural History

         Rinehart's 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.[4] 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).

         Second, 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.

         On 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 thereafter.

         The 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.

         On 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 following day.

         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.

         A jury 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.

         Both parties put on witnesses and evidence, including one expert witness for each party for purposes of accident reconstruction testimony. Rinehart did not testify.

         Before 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."

         In 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 Victim.]"

         After the prosecutor finished, defense counsel asked to approach the bench and ...

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