State v. Rost

690 S.W.3d 573

STATE of Missouri, Plaintiff-Respondent,

v.Robert C. ROST, Defendant-Appellant.

No. SD 37732

Missouri Court of Appeals, Southern District, In Division.

Filed: May 9, 2024

Rehearing and/or Transfer Denied May 29, 2024

Application for Transfer to Supreme Court Denied July 9, 2024

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY, The Honorable David C. Jones, Judge

Attorney for Appellant – Chad Flanders of St. Louis, MO.

Attorneys for Respondent – Andrew Bailey (Attorney General), Garrick Aplin of Jefferson City, MO.

JENNIFER R. GROWCOCK, J.

Robert C. Rost appeals a Greene County Circuit Court ("trial court") judgment convicting him of unlawful use of a weapon (section 571.030), armed criminal action (section 571.015), assault in the second degree committed against a special victim (section 565.052), and unlawful possession of a firearm (section 571.070).¹ Rost asserts four claims alleging the trial court erred (Points I-III) and plainly erred (Point IV) by: (1) Denying his requests for a mistrial and for the substitution of jurors after it was discovered several jurors were commenting about the case outside of the time for jury deliberations (Point I); Denying Rost’s motion to sever the tampering charge from the other charged offenses because Rost had specific reasons for testifying as to the tampering charge and to avoid testifying on the remaining charges, and he made a particularized showing of prejudice that would result from the failure to sever the charges (Point II); (3) Denying Rost’s motion for judgment of acquittal at the close of all evidence because there was insufficient evidence to prove he knowingly possessed a motor vehicle without the consent of the owner (Count III); and (4) Entering a judgment convicting him of unlawful possession of a firearm under Count IV when the jury had actually found Rost guilty of tampering in the first degree (section 569.080). We reject Rost’s arguments under Points I, II, and III and affirm the trial court’s judgment. However, we also determine Point IV has merit and remand to the trial court with instructions to correct the judgment nunc pro tunc to the extent it does not reflect the jury’s verdict of guilt under Count IV for tampering in the first degree.

Factual Background and Procedural History

On March 23, 2017, two police officers observed a Chevrolet Silverado truck going approximately 63 miles per hour in a 40 mile per hour zone. As the officers got behind the truck, it made a sudden right turn to go south on another street. The officers caught up to the truck and activated their lights to initiate a traffic stop, but the truck did not stop. As they were following the truck, both officers observed the truck’s back windows were tinted. The officers could see the silhouette of a person in the driver’s seat but could not give any descriptions of the driver, and they did not see anyone in the passenger’s seat. The truck turned right, then turned left onto another road, and eventually rolled to a stop.

Both officers exited their patrol vehicle and approached the truck. As they approached, the track accelerated, and the officers ran backwards toward the patrol car. They then heard several gunshots coming from the direction of the truck. The officers took cover behind the trunk of their vehicle as the track drove away.

After the track left, one officer saw there was a hole in the patrol vehicle’s front license plate that was consistent with a gunshot hole. There was also a chip on the hood consistent with a ricochet shot, another apparent gunshot hole in the driver’s side "A-pillar" just above the spotlight, and a bullet hole in the bumper. Damaged projectiles were found at the base of the windshield and behind the front license plate frame, and a small fragment of what was believed to be another projectile was behind the bumper. One officer was struck by something he could not identify and suffered abrasions as a result.

Additional officers found the truck two to ten minutes later abandoned in a field approximately 1.8 miles from where the shooting occurred. The truck’s hood was up, and the back glass was shattered. Officers also observed that the fuse box cover was missing and found the brake fluid reservoir cap underneath the truck. The key was in the ignition, but it appeared to have been hit, and the shift and boot had been torn up as if someone had wanted to get into the truck’s wiring for the stereo and ignition.

Officers began to collect evidence from around and inside the truck. A fingerprint from Host’s left ring finger was found on the hood of the truck where one would normally place his or her hand to close and open it. A receipt from a metal recycling facility was recovered from the ground below the passenger side door. There was a prescription bottle with Rost’s name in the cupholder closest to the driver’s seat. Mail with Rost’s name and address was located near the VIN plate on the dashboard in front of the steering wheel. In the map pocket of the driver’s door, one officer found multiple documents with Rost’s name on them, including a partially completed bill of sale and a gas station receipt from March 8, 2017. In the rear driver storage compartment, there was more mail and a prescription, all with Rost’s name on them, along with a receipt for a drug prescription from Walmart dated May 15, 2017. Hornady brand nine-millimeter shell casings were found on the back floor of the truck, and the same brand of ammunition was in the center arm rest console. A can of black spray enamel was in the back seat, and several areas of the truck had been painted black over their original color.

Police located and arrested Rost on April 14, 2017, and took him in for an interview at the Greene County Jail. Rost initially denied having driven the track but eventually admitted he had. He also admitted the medication found in the track was his antibiotic and that the Walmart receipt was for that same medication. Rost claimed he met someone named "Eric" through an unidentified "someone else" and that Eric brought the track to Rost to install a stereo system. He did not know Eric’s last name, but Rost claimed he checked the track’s VIN and that it had not come back as stolen. Rost further denied being in the track on March 23, 2017, or shooting anybody on the day in question. According to Rost, he was at his father’s probation and parole appointment on that day at 11:25 a.m.

[1] The State charged Rost with unlawful use of a weapon (Count I), armed criminal action (Count II), assault in the second degree (Count III), tampering in the first degree (Count IV), unlawful possession of a firearm (Count V), and resisting a lawful stop (Count VI). The case was tried before a jury on Counts I through IV.²

At trial, the detective who interviewed Rost in jail testified that Rost’s asserted alibi of being at the probation and parole office did not matter because, even if Rost was at the office at 11:25 a.m., the shooting occurred at 10:47 a.m. The owner of the truck testified his truck was stolen sometime overnight between February 18 and 19, 2017, from a hotel parking lot. When he woke up at the hotel, the truck was not there, and he never found the keys for the truck. The owner identified the truck the police found as his truck from a photograph, but he noted the truck’s mesh grill and bumpers had been spray-painted black, which he had not done. The stereo equipment that the owner installed was also gone when the truck was recovered. The owner further testified he had never met Rost before trial, and he never gave Rost permission to use, operate, or drive the truck.

A resident in the area of the shooting testified he had just backed into his driveway when the officers stopped the truck in front of his house. The resident said the truck "took off" as the officers approached it, and he heard gunshots when the truck got past his vehicle. The truck’s back glass started coming out, and the resident could see a blue flame associated with gunfire coming from within the track. The resident saw a driver in the track but gave no identifying features at trial and testified he did not see anyone else in the track.

C.F. and his girlfriend, K.C., testified that on March 22, 2017, the day before the shooting, Rost picked them up in the track and drove them to a metal recycling facility. This metal recycling facility was the same one named in the receipt police later found next to the abandoned brack. Rost stayed inside the track while K.C. went inside the facility to complete the transaction. Afterwards, Rost returned C.F. and K.C. to where he had picked them up, and C.F. and K.C. both confirmed they were not in the track on the day of the shooting.

The State then played a surveillance video recording from a gas station for the jury along with a recording of a phone call between Rost and his father while Rost was in jail. The surveillance video from the gas station was dated March 8, 2017, 17 days after the owner of the truck discovered his track was stolen. It showed Rost driving the track and making a transaction in the gas station. The recorded jail phone call was dated April 25, 2017. Rost stated during the call that his tampering charge was for "that truck." When asked by his father, "Which truck[,]" Rost replied, "The track…. Which one you think?" Rost also said he "need[ed] someone to go up there and take that charge for [him], someone that ain’t [sic] never been in trouble" because he or she would get a "slap on the hand and a fine."

The jury found Rost guilty of unlawful use of a weapon under Count I, armed criminal action under Count II, assault in the second degree of a law enforcement officer under Count III, and tampering in the first degree under Count IV. The trial court sentenced him to 15 years’ imprisonment on Count I, 30 years’ imprisonment on Count II, life imprisonment on Count III, and 10 years’ imprisonment on Count IV. Rost’s timely appeal followed. This Court...