State v. Mosely

599 S.W.3d 236

STATE of Missouri, Respondent,

v.Lawrence MOSELY, Appellant.

WD 81972

Missouri Court of Appeals, Western District.

OPINION FILED: February 4, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied March 3, 2020

Application for Transfer to Supreme Court Denied June 2, 2020

Andrew Sartorius, Jefferson City, MO, Counsel for Appellant.

Evan Buchheim, Jefferson City, MO, Counsel for Respondent.

Before Division Two: Cynthia L. Martin, P.J., Thomas H. Newton, and Gary D. Witt, JJ.

Thomas H. Newton, Judge

Mr. Lawrence Mosely appeals his conviction by a Cole County Circuit Court jury of one count of knowingly distributing marijuana, a controlled substance, and the 24-year suspended sentence the court imposed. § 195.211, RSMo. (2000 & 2003 Supp.).¹ Mr. Mosely challenges trial court rulings allowing certain testimony and evidence, overruling the motion for new trial on the basis of the State's alleged withholding of certain information, permitting the State to make improper arguments in closing while chastising defense counsel for objecting, and refusing to grant a mistrial after the State purportedly commented on Mr. Mosely's failure to testify. We affirm.

Mr. Mosely distributed marijuana to Ms. Kalie Kluge in the presence of undercover highway-patrol Trooper Shawn Griggs who paid $130 for the purchase on March 1, 2012. Trooper Griggs alleged that Mr. Mosely displayed a weapon during this drug transaction. Mr. Mosely was also alleged to have distributed marijuana to Ms. Kluge on March 8, 2012. Mr. Mosely was charged with and convicted by a jury in January 2016 of two counts of distribution of a controlled substance in the Cole County Circuit Court, but was acquitted of one charge of unlawful use of a weapon.² State v. Mosely , 534 S.W.3d 879, 880 (Mo. App. W.D. 2017). On appeal, we reversed for a Batson violation and remanded for a new trial. Id. at 885. On retrial, the jury convicted Mr. Mosely of one count of distribution of a controlled substance, involving the March 1, 2012, sale but acquitted him of the distribution count involving the March 8, 2012, sale. The court denied Mr. Mosely's motion for new trial and, because Mr. Mosely was a prior and persistent offender, imposed a 24-year prison sentence but suspended its execution, placing Mr. Mosely on five years’ supervised probation. Mr. Mosely files this appeal, asking the Court to either dismiss the case for prosecutorial misconduct or remand for a new trial.

"On direct appeal we review the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. We review the facts in the light most favorable to the verdict." State v. Morrow , 968 S.W.2d 100, 106 (Mo. banc 1998).

Uncharged Crime

In the first point, Mr. Mosely claims that the trial court abused its discretion in "permitting testimony related to the presence of a fire arm [sic] because such evidence violates the appellant's rights to not twice be put in danger of life and liberty and to only be tried for the offense charged." Because he was acquitted of a firearm-related charge arising from the March 1, 2012, incident and "did not face any charges related to the possession of a gun" on retrial, Mr. Mosely contends that evidence that a weapon was used "violated [his] right to be tried for the offense charged and to be free from double jeopardy." The State argues that because Mr. Mosely did not frame the issue in the motion for new trial as a double-jeopardy claim, we may review it, if at all, for plain error. As to this part of the point, we agree.

Mr. Mosely first raised an objection to evidence or testimony about possession of a firearm in a motion in limine, arguing that this evidence would violate the Double Jeopardy Clause and constitute uncharged criminal conduct. Mr. Mosely did not address the double-jeopardy issue when arguing the motion to the trial court. Mr. Mosely objected to the introduction of this evidence during trial, relying on the arguments previously made, but not expressly addressing the Double Jeopardy Clause. The motion for new trial raises the matter solely as error in allowing the State to introduce "evidence of prior bad acts and uncharged criminal conduct." The case cited in support, State v. Atkinson , 835 S.W.2d 517, 519-20 (Mo. App. S.D. 1992), discusses only uncharged criminal acts, the danger associated with allowing evidence relating to such acts, and exceptions to the exclusion of such evidence. Accordingly, the double-jeopardy argument was not properly preserved. See State v. Walter , 479 S.W.3d 118, 123 (Mo. banc 2016) ("the general rule with respect to preservation of error is that an objection stating the grounds must be made at trial, the same objection must be set out in the motion for new trial and must be carried forward in the appellate brief to preserve it." (citation omitted)); and State v. Davis , 564 S.W.3d 649, 656 (Mo. App. W.D. 2018) ("[Appellant] is bound by the grounds specified at trial and cannot change or broaden his theory. The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.").

Rule 30.20 allows unpreserved claims to be reviewed for plain error at our discretion. Still, "because the right to be free from double jeopardy is a constitutional right which goes to the very power of the State to bring the defendant in the court to answer the charge brought against him," we "should grant plain error review in any case where from the face of the record it appears that the court had no power to enter the conviction." State v. Wright , 383 S.W.3d 1, 4 (Mo. App. W.D. 2012). The U.S. Constitution's Double Jeopardy Clause, enforceable against the states through the Fourteenth Amendment, "provides two distinct protections for criminal defendants: (1) protection from successive prosecutions for the same offense after acquittal or conviction and (2) protection from multiple punishments for the same offense." Id. Mr. Mosely does not develop his double-jeopardy argument with any particular detail on appeal other than to claim that "[a]s a matter of first impression, acquitted conduct should not be permitted as res gestae. "³ According to Mr. Mosely, "[i]f an item is so integral as to render it impossible for a crime to be understood without evidence of a crime for which the defendant has already been found not guilty, the State should not be able to ignore the double jeopardy clause ... to remedy this problem." It is not clear to us that the admission of evidence about Mr. Mosely's use of a firearm during the March 1, 2012, drug sale implicates the Double Jeopardy Clause, accordingly we have not passed the threshold for plain-error review, i.e., the existence of an error that is evident, obvious, and clear. Id. See also State v. Flores , 437 S.W.3d 779, 794 (Mo. App. W.D. 2014) (seeing no apparent double-jeopardy violation from the face of the record, we declined full plain-error review). The admission of this evidence constituted neither a successive prosecution for the same offense after an acquittal nor a multiple punishment for the same offense.

As for Mr. Mosely's claim that the trial court abused its discretion in admitting evidence of an uncharged offense, we note that courts have broad discretion to admit and exclude evidence during a criminal trial, and we will reverse the court's decision "only if that discretion was clearly abused." State v. Collings , 450 S.W.3d 741, 765 (Mo. banc 2014). Missouri courts usually do not admit evidence of an uncharged crime "because that evidence may result in a conviction based upon a crime with which the defendant is not charged." Atkinson , 835 S.W.2d at 519 (quoting State v. Kitson , 817 S.W.2d 594, 596 (Mo. App. E.D. 1991) ). This is so, because "[t]he jury may use the evidence of the uncharged crime to infer the defendant has a general criminal disposition, a bad character, or a propensity or proclivity to commit the type of crime charged, which, in turn, results in the jury basing a finding of guilt on the uncharged crime." Id. (citation omitted). Still, a non-exclusive "list of theories for establishing independent logical relevance" that would justify the admission of such evidence includes evidence tending "to establish motive, intent, identity, the absence of mistake, or a common scheme or plan embracing the commission of two or more crimes so related that the proof of one tends to establish the other." Id. (citation omitted). Such evidence can also be admitted "to present the jury a complete and coherent picture of the charged crimes." Morrow , 968 S.W.2d at 107 ; Kitson , 817 S.W.2d at 597 n.1 (setting forth the parallel exception "which permits proof of another crime, if the other crime is so linked together in point of time and circumstances with a crime charged that one cannot fully be shown without proving the other." Under this exception, "the state is permitted to paint a complete and coherent picture of the crime charged and is not required to sift and separate evidence and exclude the testimony tending to prove the crime for which defendant is not on trial."). The State countered Mr. Mosely's uncharged-crimes claim at trial by arguing that the jury would better understand why an experienced undercover state trooper would immediately exit the vehicle when ordered to do so, as well as to show why the trooper would recall what Mr. Mosely looked like.

Here, Trooper Griggs testified that, after Ms. Kluge arranged the March 1, 2012, drug buy over the phone and Mr. Mosely drove to their location, the trooper got into the back seat on the passenger side of the car. It was about 1 a.m., and the car's interior dome light was illuminated when Ms. Kluge and the trooper got into it. Because Mr. Mosely did not know the trooper, he ordered Trooper Griggs...