State v. Samsinak

688 S.W.3d 259

STATE of Missouri, Respondent,

v.Pavel SAMSINAK, Appellant.

No. SD 37559

Missouri Court of Appeals, Southern District, In Division.

Filed: February 28, 2024

Motion for Rehearing and/or Transfer to Supreme Court Denied March 20, 2024

Application for Transfer Denied April 30, 2024

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY, Honorable Becky J.W. Borthwick, Judge

Appellant’s attorney: Jonathan Sternberg, Kansas City, Missouri.

Respondent’s attorneys: Andrew Bailey, Attorney General, and Garrick Aplin, Assistant Attorney General, Jefferson City, Missouri.

JACK A. L. GOODMAN, C.J.

Pavel Samsinak bludgeoned Victim to death in her living room then lit her house on fire. A jury found Samsinak guilty of second-degree murder, second-degree arson, armed criminal action, and felony tampering with physical evidence. On appeal, he challenges two evidentiary rulings, the refusal to give a jury instruction, and the sufficiency of the evidence to support his tampering conviction. We affirm.

Background

Samsinak is a fit, middle-aged man who stands six feet six inches tall. He owned a vacant lot adjacent to the home of Victim, a 67-year-old woman who shared her home with her two dogs. Victim and Samsinak argued when Samsinak began building a privacy fence on what Victim considered to be her side of the property line. Samsinak was "yelling" and "very intense;" Victim was "upset" and "swinging her arms."

One evening about two weeks later, sometime between 7:00 and 8:00 p.m., Victim’s neighbor thought she heard arguing and Victim screaming for help, but the sounds were faint. The neighbor looked toward Victim’s house and saw Samsinak in Victim’s living room "with his hands above his head with something in his hands." Samsinak turned and glared at the neighbor through the window. Not seeing Victim, the neighbor thought she must have heard something else and went about her business.

A fire ignited in Victim’s house later that evening. The fire marshal later would conclude the fire had been intentionally set. When firefighters arrived shortly after 10:30 p.m., they found Victim’s house engulfed in flames and smoke. They retrieved Victim’s lifeless body from within the house. Investigators found a burned, sooty, metal baseball bat leaning against some furniture.

The medical examiner ruled Victim’s death a homicide, arising from numerous blunt force injuries to her head, face, neck, and spine. Victim also had defensive injuries on her forearms and hands. Several bruises on her body were linear and consistent with being struck by a bat.

When investigators searched Samsinak’s phone, they found a video from the security camera at his home. The video shows Samsinak approaching his house at night with blood stains on his shirt and pants.

At trial, a criminalist testified about blood and DNA testing she performed on evidence gathered in this case. Prior to her testimony, the defense offered her report into evidence "for the jurors to have the report as an exhibit so that they can better understand the testimony of [the criminalist] who is being offered as an expert …." The report outlined evidence gathered, tests performed, and results obtained. The State objected on the basis of hearsay, assumption of facts not in evidence, and relevance. The objection was sustained, with the court noting that experts’ reports are not just routinely admitted and that the criminalist would be available for examination.

During cross-examination of the criminalist, defense counsel asked, "[W]ithout telling us what happened, can you just tell us how many other items you tested in this time period?" When the State objected, defense counsel clarified, "I have no intention to ask anything other than how many items [the criminalist] tested and that’s -- during that time period. That’s all I’m asking. I’m not going to ask anything further." The court sustained the State’s objection that the total number of tests performed was irrelevant and may be confusing to the jury. Defense counsel submitted the criminalist’s lab report in an offer of proof.

During the jury instruction conference, the defense requested and proffered verdict directors on second-degree murder with sudden passion language and voluntary and involuntary manslaughter verdict directors. The defense argued a voluntary manslaughter instruction was necessary because the jury could find Samsinak acted with sudden passion based on evidence Samsinak argued with Victim. The court found Samsinak had not made a showing of sudden passion and accordingly refused the voluntary manslaughter verdict director and second-degree murder verdict director with sudden passion language. The jury was given conventional second-degree murder and involuntary manslaughter verdict directors.

Twenty minutes into deliberations, the jury sent written questions to the court: "Who owned the bat? Was it determined?" The court replied, "The jury will be guided by the evidence as each juror remembers it." Less than 30 minutes later, the jury returned guilty verdicts on all counts.

Tampering with Physical Evidence (Point 1)

Samsinak first contends the State did not present sufficient evidence to support the felony charge of tampering with physical evidence. He asserts that none of the State's witnesses "testified that the alteration of the contents of the house by the fire in any way impaired their determination that Mr. Samsinak caused Victim’s death by striking her or did so with the requisite intent."

[1, 2] We review to determine whether a rational fact-finder could find each essential element of the crime beyond a reasonable doubt. State v. Russell, 656 S.W.3d 265, 282 (Mo. App. 2022). We must accept as true all evidence favorable to the State, including favorable inferences to be drawn from the evidence, and disregard contrary evidence and inferences. Id.

The elements of the felony offense of tampering with physical evidence in the context of this case are: (1) the alteration of the contents of Victim’s house, (2) with purpose, (3) to impair its availability in an investigation, and this tampering (4) re suited in the impairment or obstruction of a felony prosecution. See Id. Only the fourth element, resulting impairment, is at issue here.

Defense counsel asked the court to dismiss the tampering count at the close of the evidence based on the same argument presented now on appeal. The State responded that the bat, which it postulated to be the murder weapon, was not consumed in the fire but it was charred and the handle was melted such that it could not "be tested for blood and other things."

[3] The bat was highly relevant to Samsinak’s murder and armed criminal action charges. The jury wanted more evidence or testimony about the bat, as evidenced by their questions during deliberations. Although no direct testimony established an inability to test the bat, it reasonably could be inferred that alteration of the bat by the fire precluded testing the bat for the presence of Victim’s blood, which would tend to show it was the murder weapon, or Samsinak’s fingerprints, which would connect him to the bat. With the evidence it had, the State could not argue the baseball bat was in fact the dangerous instrument Samsinak used to kill Victim, only that it was consistent with the object that inflicted deadly, blunt force trauma. Point 1 is denied.

Jury Instructions (Point 2)

Samsinak next contends the court erred in refusing to give the jury a second-degree murder verdict director with sudden passion language and a voluntary manslaughter verdict director.

[4–6] We review novo the decision whether to give a requested jury instruction for a lesser-included offense. State v. Rice, 573 S.W.3d 53, 63 (Mo. bane 2019). The jury must be instructed on a lesser-included offense when: "(1) ‘a party timely requests the instruction;’ (2) ‘there is a basis in the evidence for acquitting the defendant of the charged offense;’ and (3) ‘there is a basis in the evidence for convicting the defendant of the lesser included offense for which the instruction is requested.’ " Id. at 63-64 (citing State v. Jackson, 433 S.W.3d 390, 396 (Mo. banc 2014)); § 556.046.3.¹ For this determination, "[t]he evidence is viewed in the light most favorable to the defendant and, when in doubt, the court should instruct on the lesser-included offense." Id. at 63.

[7, 8] Voluntary manslaughter is a lesser-included offense of second-degree murder. Id. (citing § 565.025).

Voluntary manslaughter is defined as causing the death of another person under circumstances that would constitute murder in the second degree, except that the death was caused under the influence of sudden passion arising from adequate cause. To warrant a lesser-included offense instruction on voluntary manslaughter, there must be a basis in the evidence for the jury to find that [the defendant] acted out of sudden passion arising from adequate cause. "Sudden passion" is defined as "passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation." The provocation must be of a nature calculated to inflame the passions of the ordinary, reasonable, temperate person. There must be a sudden, unexpected encounter or provocation tending to excite the passion beyond control. Adequate cause, meanwhile, is cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person’s capacity for self-control.

Id. at 64 (internal citations and punctuation omitted). "The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause …. " Section 565.023.2.

[9, 10] " ‘Words alone, no matter how opprobrious or insulting, are not sufficient to show adequate provocation.’ " State v. Deckard, 18 S.W.3d 495, 500 (Mo. App. 2000) (quoting State v. Redmond, 937...