Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Boone County, Missouri The
Honorable Christine Carpenter, Judge.
Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge
and Cynthia L. Martin, Judge.
Cynthia L. Martin, Judge.
Boss ("Boss") appeals from the trial court's
entry of judgment convicting him of seven counts of robbery
in the first degree, seven counts of armed criminal action,
and one count of unlawful use of a weapon. Boss claims (1)
the trial court erred in overruling a motion to exclude
evidence including a gun found in a backpack and ballistics
conclusions relating to that gun because the State failed to
timely disclose the evidence; (2) the trial court erred in
admitting the testimony of a ballistics expert because the
admission of the testimony violated section
490.065; and (3) the trial court erred in
admitting testimony that Boss had been kicked out of his
hotel room because the testimony was inadmissible character
and propensity evidence. We affirm the trial court with
regard to Boss's arguments on appeal, and remand on the
limited basis to correct the written judgment to reflect the
trial court's oral pronouncement and sentencing.
and Procedural Background
October 29, 2014, Boss entered the LaQuinta Inn located in
Columbia, wearing a plastic mask and carrying a .45-caliber
pistol. Boss held the overnight employee at gunpoint and
directed the employee to retrieve money in the hotel's
cash drawer, before fleeing the hotel. This robbery was the
first of a series of seven armed robberies that Boss
committed in October and December of 2014.
December, Boss, with the assistance of others, robbed another
hotel, the Budget Host Inn; two convenience stores, the
Speedy Mart and We B Smokin'; and three restaurants,
Jimmy John's, China Moon, and Denny's. During the
commission of the robbery at Denny's, a single round was
fired into the restaurant's ceiling from a handgun. A
.45-caliber shell casing was recovered by police. After the
robbery at China Moon, a restaurant employee told police the
gunman had been carrying a handgun with the word
"Model" written on it.
December 17, police responded to calls about a possible
robbery and shots fired in an alleyway behind a strip mall
near the Columbia Mall. Police discovered damage to the strip
mall building consistent with the discharge of a firearm.
Police also recovered a .45-caliber shell casing from the
alleyway. Boss was apprehended walking near the strip mall.
Several weeks later, a backpack that had been hidden under a
porch at an apartment complex near the strip mall was
discovered. The backpack contained a .45-caliber handgun with
the word "Model" written on it. Boss's DNA was
discovered on items in the backpack.
was charged by information on multiple counts of robbery in
the first degree, kidnapping, and armed criminal action. A
jury trial was set for December 5, 2017. On November 15,
2017, the State disclosed evidence relating to the gun found
in the backpack, including ballistics laboratory reports that
had been prepared by the Missouri Highway Patrol
("Highway Patrol"). Boss filed a Motion to Exclude
("Motion") any evidence or witnesses regarding the
gun and ballistics reports compiled by the Highway Patrol
based on the late disclosure of the evidence. During a
pretrial hearing on November 29, 2017, the trial court
overruled Boss's Motion.
December 1, 2017, the State filed a superseding indictment,
charging Boss with seven counts of robbery in the first
degree, seven counts of armed criminal action, and one count
of unlawful use of a firearm. On December 4, 2017, Boss's
counsel's requested a continuance to prepare for
additional charges filed in the superseding indictment. The
continuance request was granted. Boss was tried by jury in
early February 2018. Prior to trial, Boss re-asserted his
Motion. The Motion was denied the day trial began.
trial, the State admitted the gun found in the backpack
without Boss's objection, though he earlier objected
unsuccessfully to admission of a photograph of the gun.
Highway Patrol Officer Jason Crafton ("Crafton")
testified as a firearm and tool mark expert without
objection. Other evidence, including cartridges and
photographs used during the ballistics testing, were admitted
over Boss's objection. Crafton concluded from examination
of the gun and shell casings recovered at Denny's and in
the alleyway of the strip mall that the gun found in the
backpack was used to discharge the round in both locations.
Harvey testified that he participated in four of the seven
robberies with Boss. Harvey also testified that he and Boss
had been denied lodging at the LaQuinta Inn on December 8,
2014. Corroborating Harvey's testimony, a LaQuinta Inn
manager testified that she denied Boss lodging on that date.
The LaQuinta Inn manager testified that she decided to deny
Boss a room after a discussion with a co-employee who had
been working when the LaQuinta Inn was robbed on October 29,
2014. Other testimony also established that Boss had stayed
at the Budget Host Inn for several months, before being asked
to leave before the University of Missouri-Columbia's
jury convicted Boss on all counts included in the superseding
indictment. The trial court sentenced Boss, as a prior and
persistent offender, to 90 years imprisonment.
asserts three points on appeal. Boss's first point argues
that the trial court erred in admitting the gun found in the
backpack and ballistics conclusions relating to that gun
because the State failed to disclose that evidence in
violation of Rule 25.03. Boss's second point asserts the
trial court erred in overruling Boss's objections to the
testimony of Crafton because the testimony violated section
490.065's standards of admissibility for expert witness
testimony. Boss's third point asserts the trial court
erred by overruling Boss's objection to evidence that
Boss had been denied and kicked out of hotel rooms. We
address each point in turn.
first point asserts the trial court erred in admitting into
evidence the gun found in the backpack and ballistics
conclusions relating to that gun in violation of Rule 25.03
because the evidence was not disclosed by the State until
November 15, 2017 and the late disclosure prevented defense
counsel from having sufficient time to prepare.
reviewing discovery violations under Rule 25.03, we must
determine: "first, whether the State's failure to
disclose the evidence violated Rule 25.03, and second, if the
State violated Rule 25.03, then what is the appropriate
sanction the trial court should have imposed." State
v. Clark, 486 S.W.3d 479, 484 (Mo. App. W.D. 2016).
"Review is for abuse of discretion." Id.
(citing State v. Wolfe, 13 S.W.3d 248, 259 (Mo.
banc. 2000)). "The trial court has discretion to impose
sanctions for discovery violations under Rule 25.03."
Id. "[The] denial of a requested sanction is an
abuse of discretion only where the admission of the evidence
results in fundamental unfairness to the defendant."
State v. Taylor, 298 S.W.3d 482, 502 (Mo. banc
2009). "Such fundamental unfairness exists if there is a
reasonable likelihood that the failure to disclose the
evidence affected the result of the trial." Id.
(internal quotes omitted).
25.03(A) provides that the State "shall, upon written
request of defendant's counsel, disclose to
defendant" material and information within its
possession or control as designated in the request. Included
among the information and material that the State is required
to disclose are "any reports or statements of experts,
made in connection with the particular case, including
results . . . of scientific tests, experiments, or
comparisons." Rule 25.03(A)(5). Rule 25.03(C) provides:
If the defense in its request designates material or
information which would be discoverable under [Rule 25.03] if
in possession or control of the state, but which is, in fact,
in the possession or control of other governmental personnel,
the state shall use diligence and make good faith efforts to
cause such materials to be made available to the defense
counsel . . .
rule "imposes an affirmative requirement of diligence
and good faith on the state to locate records not only in its
own possession or control but also in the control of other
government personnel." State v. Steidley, 533
S.W.3d 762, 772 (Mo. App. W.D. 2017).
point on appeal asserts the trial court erred "in
admitting the gun found in the backpack and ballistics
conclusions relating to that gun." The State argues that
Boss's claim of error is only partially preserved because
although Boss objected to admission of some of the evidence
used to reach the ballistics conclusion (such as cartridges
and photographs) he did not object to admission of the gun
itself, or to the testimony of Crafton about the
"ballistics conclusions." The partial preservation
of some, but not all, of Boss's claim of error need not
be further addressed, however, as the trial court did not
commit error in denying Boss's Motion and in admitting
the gun and ballistics conclusions, plain or otherwise.
among numerous other discovery requests, Boss requested all
lab reports relating to Boss's arrest and charges. In
response to those requests, the State disclosed all reports
it had been ...