             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

STATE OF MISSOURI,                               )
                                                 )
                                 Respondent,     )
                                                 )    WD74285
v.                                               )
                                                 )    OPINION FILED:
                                                 )    February 25, 2014
TRENT L. WILLIAMS,                               )
                                                 )
                                   Appellant.    )


                Appeal from the Circuit Court of Jackson County, Missouri
                        The Honorable Robert M. Schieber, Judge

                  Before Division I: Cynthia L. Martin, Presiding Judge, and
                      Mark D. Pfeiffer and Karen King Mitchell, Judges

       Trent Williams (“Williams”) appeals the judgment of the Circuit Court of Jackson

County, Missouri (“trial court”), finding him guilty, after a jury trial, of the class A felony of

murder in the first degree and sentencing him to life imprisonment without the possibility of

probation or parole. Williams challenges his conviction and sentence in light of Miller v.

Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Williams also asserts that the trial court

erred in overruling his motion for new trial based on a claim of newly discovered evidence and

in admitting certain gun evidence. Williams’s evidentiary claims lack merit, but his sentencing

claim is meritorious in light of recent changes in Eighth Amendment jurisprudence. Therefore,
we affirm in part and reverse in part and remand for further proceedings consistent with our

ruling today.

                                      Facts and Procedural History1

        On June 7, 1993, Williams and his brother Sean2 were watching television at their

parents’ house on East 68th Terrace in Kansas City, Missouri, when Sean’s girlfriend stopped by

to show Sean her new car. Sean and his girlfriend went for a ride around the neighborhood.

When they drove by someone the girlfriend thought was Cameron Sheppard (“Victim”), Sean’s

demeanor changed. He became angry and told his girlfriend to drive back to his parents’ house.

Once inside, Williams and Sean left their parents’ house together.

        At about 12:10 a.m. the next day, Williams, Sean, and the Victim were standing on the

sidewalk across the street from 4014 East 67th Terrace having words with each other. Williams

was holding an assault rifle; Sean was holding a pistol grip 12-gauge shotgun; the Victim was

unarmed. Williams shot the Victim first, then Sean shot him,3 and the Victim fell to the ground.

Williams and Sean ran from the scene through an alley. A third person was in the alley with

Williams and Sean, but the third person did not have a weapon.

        When Sean’s girlfriend left Sean’s parents’ house and got into her car, Sean and Williams

came up from behind. Sean told her to open the trunk, and he would go with her to her Kansas

residence. He put a bag in the trunk. Williams and another man were with Sean, who appeared

winded, agitated, and excited. She dropped the unidentified man off down the street and drove

        1
            Williams does not challenge the sufficiency of the evidence to support his conviction. On appeal from a
jury-tried case, we view the facts in the light most favorable to the jury’s verdict. State v. Peal, 393 S.W.3d 621,
623 n.1 (Mo. App. W.D. 2013).
          2
            Given that members of the Williams family have the same last name, we refer to defendant Trent
Williams’s brothers, Sean and Darwin, by their first names to avoid confusion. No familiarity or disrespect is
intended.
          3
            Sean testified that about midnight on May 28, 1993, he was in his car parked in the driveway of his and
Darwin’s house waiting for Darwin when an unknown person in a van fired a shotgun at his car causing injuries to
his eyes, nose, and skull. He later believed that his assailant was Cameron Sheppard. Sean admitted that he shot
Sheppard in retaliation.


                                                         2
Williams and Sean to her residence, where Williams and Sean spent the night. In the morning,

she drove Williams and Sean to the house Sean shared with their brother Darwin.

         The Victim died from multiple high velocity gunshot wounds (at least ten were found by

the medical examiner) and at least one shotgun wound to the left side of his back, left arm, and

left side of the head. Investigators found five live shotgun shells and two spent shotgun shells at

the crime scene, as well as twenty-two spent PMC 7.62x39 shell casings. Impact marks caused

from a gun being fired in a downward position were found at the crime scene, indicating that the

Victim was lying on the ground while being shot.

         About a week after the shooting, the police searched Sean and Darwin’s house and found

a PETA SKS 7.62x39 millimeter rifle, a 12-gauge Winchester shotgun shell slug on the box

springs under the mattress, a rifle magazine loaded with live ammunition, and ten live rounds

head-stamped PMC 7.62x39 millimeters.4

         On January 27, 2009, a petition was filed in the Family Court Division of the Circuit

Court of Jackson County, Missouri, alleging that on June 8, 1993,5 Williams, a juvenile,6

committed murder in the first degree, § 565.020, RSMo Cum. Supp. 1992. Williams was also

charged with armed criminal action, § 571.015. The juvenile officer moved for a hearing

pursuant to section 211.071 on whether Williams should be transferred from Family Court to a

court of general jurisdiction. After a hearing held on February 11, 2009, the Family Court

dismissed the juvenile officer’s petition and transferred jurisdiction over Williams to the court of

general jurisdiction for the purpose of prosecuting him as an adult. Thereafter, Williams was



         4
           At trial, the parties stipulated that the shell casings recovered at the homicide scene were not fired by the
SKS rifle found in the house.
         5
           Police reopened the investigation of this “cold” murder case after being contacted years later by a person
who wished to provide information about the homocide.
         6
           Williams was born on June 19, 1976.


                                                           3
charged by indictment in the Jackson County Circuit Court with murder in the first degree and

armed criminal action.7

        Williams’s first trial in December 2010 ended in a mistrial because of a hung jury. He

was re-tried on June 13-17, 2011, and the State presented the evidence summarized above.

While Williams did not testify at trial, he called several witnesses who testified that he was not

involved in the shooting. Sean testified that he and a man named Trevor Wilson, who died prior

to Williams’s trial, shot the Victim and that Williams was not involved. The jury was instructed

on both first- and second-degree murder and found Williams guilty of first-degree murder and

assessed punishment at life imprisonment. Thereafter, the trial court sentenced Williams to life

imprisonment without the possibility of probation or parole.

        Williams timely appeals.

                                     Points I and II – Sentencing

        In Points I and II, Williams claims that the first-degree murder statute, § 565.020, is

unconstitutional as applied to him in light of the United States Supreme Court’s decision in

Miller v. Alabama, 132 S.Ct. 2455 (2012). In Point I, Williams argues that in the absence of a

valid penalty provision for juvenile offenders, section 565.020 is unenforceable against him;

therefore, his conviction and sentence for first-degree murder should be reversed, and either he

should be discharged, or a judgment of conviction for murder in the second degree should be

entered, and he should be re-sentenced. In the alternative, in Point II, Williams claims that he

should be re-sentenced on first-degree murder to an authorized term of imprisonment for a

class A felony.




        7
          Williams’s motion to dismiss the armed criminal action charge on statute of limitations grounds was
granted by the trial court on May 27, 2010.


                                                     4
                                            Standard of Review

        The Missouri Supreme Court has exclusive jurisdiction in cases involving the validity of

a state statute under article V, section 3 of the Missouri Constitution. However, a party’s mere

assertion that a statute is unconstitutional does not necessarily deprive this court of jurisdiction

unless that issue is real and substantial and not merely colorable. State v. Davis, 203 S.W.3d

796, 801 (Mo. App. W.D. 2006). Where “the Missouri Supreme Court has already twice ruled

on the precise issue presented by the Defendant, the court of appeals has jurisdiction, but

must . . . follow the rule decided by the Supreme Court.” Id. (internal quotation omitted). See

also Austin W. Road Mach. Co. v. City of New Madrid, 185 S.W.2d 850, 851 (Mo. App. 1945)

(“No construction of the constitutional provision is called for, but merely its application. . . .

Hence, this court has jurisdiction.”).

        The issues raised by Williams concerning the constitutionality of the first-degree murder

statute as applied to juvenile offenders in light of Miller and the sentencing procedures upon

remand were decided by the Missouri Supreme Court in companion cases handed down July 30,

2013: State v. Hart, 404 S.W.3d 232 (Mo. banc 2013), and State v. Nathan, 404 S.W.3d 253

(Mo. banc 2013). Therefore, we have jurisdiction to consider Williams’s appeal.

                                                   Analysis

        Williams was found guilty of first-degree murder under section 565.020, which in 19938

provided:

        1. A person commits the crime of murder in the first degree if he knowingly
           causes the death of another person after deliberation upon the matter.

        2. Murder in the first degree is a class A felony, and the punishment shall be
        either death or imprisonment for life without eligibility for probation or parole, or

        8
           “[A] defendant will be sentenced according to the law in effect at the time the offense was committed
unless a lesser punishment is required by a change in the law creating the offense itself.” State v. Johnson, 150
S.W.3d 132, 138 (Mo. App. E.D. 2004).


                                                       5
        release except by act of the governor; except that, if a person has not reached his
        sixteenth birthday at the time of the commission of the crime, the punishment
        shall be imprisonment for life without eligibility for probation or parole, or
        release except by act of the governor.

§ 565.020, RSMo Cum. Supp. 1992. At the time of trial in 2011, Williams was not eligible for

the death penalty due to his age,9 see Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161

L.Ed.2d 1 (2005) (holding that the death penalty was categorically prohibited for juvenile

offenders). Therefore, the only other punishment authorized by section 565.020.2 was life in

prison with no possibility of probation or parole.

        The United States Supreme Court held in Miller that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole for juvenile

offenders” when the sentencer has not considered an “offender’s youth and attendant

characteristics.” 132 S.Ct. at 2469, 2471. In Hart, a first-degree murder case involving a

juvenile, the Missouri Supreme Court acknowledged Miller’s holding:10

        Miller does not categorically bar sentencing a juvenile offender who commits
        first-degree murder to life without parole. Instead, Miller holds that such a
        sentence is constitutionally permissible as long as the sentencer determines it is
        just and appropriate in light of the defendant’s age, maturity, and the other factors
        discussed in Miller.

Hart, 404 S.W.3d at 237-38. Thus, Hart expressly rejected Williams’s argument in Point I that

in the absence of a valid penalty provision for juvenile offenders, section 565.020 is

unenforceable against him.

        Our decision in this case is controlled by Hart:

        [defendant’s] sentence of life without parole for first-degree murder violates the
        Eighth Amendment because, as in Miller, it was imposed with no individualized
        consideration of the myriad of factors discussed in the Miller decision.

        9
          Williams was seventeen years old at the time he committed the murder.
        10
           Williams’s direct appeal was filed August 31, 2011. Because Miller was handed down on June 25, 2012,
while Williams’s first-degree murder conviction was on direct appeal (and, therefore, not yet final), the State
concedes that Miller is applicable to this case. See State v. Hart, 404 S.W.3d 232, 235 n.3 (Mo. banc 2013).


                                                      6
       Accordingly, [defendant] must be re-sentenced in accordance with Miller’s
       constitutional safeguards requiring the sentencer to consider whether a sentence of
       life without parole is just and appropriate in light of [defendant’s] age and the
       other circumstances surrounding his offense.

Hart, 404 S.W.3d at 235. In applying Miller, the Hart court held that the constitutional defect in

Hart’s sentence for first-degree murder was not its length or the fact that he would not be eligible

for parole. Id. at 238. “Instead, Hart’s sentence of life without parole violates the Eighth

Amendment because—and only because—it was imposed without any opportunity for the

sentencer to consider whether this punishment is just and appropriate in light of Hart’s age,

maturity[,] and the other factors discussed in Miller.” Id. The court continued that the “case

must be remanded for re-sentencing using a process by which the sentencer can conduct the

individualized analysis required by Miller and, on that basis, determine whether life without

parole is a just and appropriate sentence for Hart under all the circumstances.” Id. at 238-39.

The court considered Hart’s claim—that section 565.020 is void for lack of a constitutionally

permissible punishment—premature until the case is remanded and the sentencer makes the

determination Miller requires. Id. at 239.

       However, because Williams’s sentence of life without probation or parole for first-degree

murder was imposed in a manner that violated the Eighth Amendment, he must be re-sentenced

using the procedure described in Miller as interpreted in Hart. If Williams does not choose to

waive jury sentencing on remand, the State will bear the burden of persuading the jury beyond a

reasonable doubt that a sentence of life without parole is just and reasonable under all the

circumstances. Hart, 404 S.W.3d at 241.

       During the sentencing phase on remand, after the parties present their evidence and

arguments, and before the jury begins deliberating, the trial court will instruct the jury that “if it

is not persuaded that life without parole is a just and appropriate sentence under all the



                                                  7
circumstances of the case, additional instructions concerning applicable punishments will be

given at that time.” Id. at 242. Thereafter, “the [jury] must determine whether life without

parole is a just and appropriate sentence for the first degree murder [the defendant] committed.”

Id. If the State meets its burden of persuading the jury beyond a reasonable doubt, then the trial

court must impose the sentence. Id. “If the State fails to persuade the [jury] of this proposition

beyond a reasonable doubt, [Williams] cannot receive that sentence.” Id. “In that event, the trial

court must declare section 565.020 void as applied to [Williams] on the ground that it fails to

provide a constitutionally valid punishment for the crime it purports to create.”          Id.   “If

section 565.020 is void, the trial court must vacate the jury’s verdict finding [Williams] guilty of

first-degree murder and enter a new finding that [Williams] is guilty of [the lesser-included

offense of] second-degree murder under section 565.021.1(1).” Id. Should it become necessary

for the trial court to enter those findings, the trial court would then instruct the jury as to the

range of punishment authorized by section 558.011.1(1), and the jury would then determine

Williams’s sentence within the applicable statutory range. Id. at 243. Thus, the Hart court

expressly rejected Williams’s claim for appellate remedy in Point II that he should be

re-sentenced on first-degree murder to an authorized term of imprisonment for a class A felony;

instead, the remedy is that as has been summarized above.

       To the extent Points I and II have asserted claims of error based upon the Eighth

Amendment, we agree and, pursuant to the direction of Hart, this case is remanded for Williams

to be re-sentenced under the procedures as outlined in this opinion.

                            Point III – Newly Discovered Evidence

       In his third point on appeal, Williams argues that the trial court abused its discretion in

overruling his motion for new trial based on newly discovered evidence.




                                                 8
                                              Standard of Review

         Rule 29.11 provides that the court may grant a new trial “upon good cause shown.” A

trial court has substantial discretion in deciding whether a new trial should be granted, and the

trial court’s decision will not be disturbed on appeal absent an abuse of discretion. State v.

Stewart, 313 S.W.3d 661, 665 (Mo. banc 2010). “An abuse of discretion occurs when the trial

court’s ruling is clearly against the logic of the circumstances then before the court and is so

arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful

consideration.” Id. “New trials based on newly discovered evidence are disfavored . . . .” Id.

         To obtain a new trial on the basis of newly discovered evidence, Williams was required

to show: “(1) the facts constituting the newly discovered evidence came to his knowledge after

the trial; (2) his lack of prior knowledge was not owing to want of due diligence on his part; (3)

the newly discovered evidence is so material that it is likely to produce a different result at a new

trial; and (4) the evidence is not merely cumulative evidence or evidence impeaching a witness’s

credibility.” Id.

                                                     Analysis

         In his motion for new trial, Williams alleged that his trial counsel spoke with Sean in the

week after his second trial,11 and Sean disclosed to trial counsel that Sean had not been

“completely forthcoming” in his testimony . . . apparently at two different trials. Sean allegedly

told Williams’s trial counsel that “there was a third person present at the time that [Victim] was

shot by [Sean] and others.” The “third person” was identified as Sean’s (and Williams’s) cousin.

In the motion for new trial, Williams alleged that his cousin “could” have testified that Williams

was not involved in the shooting; and if the newly discovered evidence had been available to trial

         11
              It has not gone unnoticed by this court that Sean’s memory recollection did not occur after Williams’s
first trial, which resulted in a mistrial due to a hung jury, and instead, the memory recollection occurred only after
Williams’s conviction by a jury in the re-trial.


                                                          9
counsel before trial, counsel’s strategy “could have been substantially altered[,] and the outcome

of the trial could likely [have] been different.”

          There are a number of fatal deficiencies with this “newly discovered evidence.”

          First, this vaguely worded one-paragraph affidavit is not the affidavit of the witness with

personal knowledge of the events described in the affidavit; rather, it is the hearsay testimony of

Williams’s trial counsel about a witness who is Williams’s brother and was presumably available

to execute an affidavit based upon personal knowledge, not hearsay. At best, this hearsay

“evidence” referenced in trial counsel’s affidavit might be useful for impeaching the defense’s

own witness (which carries with it a host of other issues), but it is clearly not substantive

evidence warranting a new trial. State v. Westcott, 857 S.W.2d 393, 398 (Mo. App. W.D. 1993)

(“[Affiant’s] testimony is hearsay, useful perhaps for impeach[ment] . . . , but not as substantive

evidence.”). See also State v. Gatewood, 965 S.W.2d 852, 859 (Mo. App. W.D. 1998) (holding

an affidavit containing impeachment evidence is insufficient to support the granting of a new

trial).

          Second, the affidavit does not indicate that Williams was not present at the time that the

Victim was shot by “Sean and others,” and numerous eyewitnesses from trial specifically

connect Williams to the murder scene at the time of the murder. Thus, presumably, Williams

himself was aware of his cousin’s presence at the murder scene, and if so, this affidavit does not

reflect “newly discovered evidence.” “Newly discovered evidence . . . is evidence that the

defendant was not aware existed until after the conclusion of the trial.” State v. Smith, 181

S.W.3d 634, 638 (Mo. App. E.D. 2006) (citing State v. Reed, 971 S.W.2d 344, 349 (Mo. App.

W.D. 1998)) (emphasis added).




                                                    10
        Third, the affidavit suggests that the Victim was shot by “Sean and others,” suggesting at

least three shooters, not two. Since the affidavit does not suggest that Williams was not present,

and other eyewitnesses place Williams at the murder scene and fleeing the murder scene after the

murder, there simply is nothing exculpatory about this “newly discovered evidence.” Thus, there

is nothing about this evidence that is “so material that it is likely to produce a different result at a

new trial.” State v. Stewart, 313 S.W.3d 661, 666 (Mo. banc 2010).

        Fourth, there is no indication from this “newly discovered evidence” about precisely what

Williams’s cousin would testify to, so there is nothing but speculation in the affidavit about the

allegedly exculpatory evidence that possibly “could” exist from this member of Williams’s

family who, again, would presumably have been available to Williams at the time of the motion

for new trial to execute his own affidavit about what testimony he would have given. “An

affidavit based upon mere speculation or hope does not establish the existence of new evidence,

and cannot be the basis for sustaining a motion for new trial.” State v. Batek, 638 S.W.2d 809,

813 (Mo. App. E.D. 1982).

        Point III is denied.

                                     Point IV – Gun Evidence

        In his fourth point on appeal, Williams alleges that the trial court abused its discretion in

admitting into evidence an SKS rifle and magazine and ammunition (including photographs of

those items) found during a search of Williams’s brothers’ (Sean and Darwin) house more than

one week after the Victim’s murder, the same house that eyewitness testimony places Williams

at immediately after the murder of the victim. Williams claims that this evidence was irrelevant

to the charged offense and was inappropriately offered as evidence of uncharged crimes.




                                                  11
                                        Standard of Review

       “The standard of review for the admission of evidence is abuse of discretion.” State v.

Peal, 393 S.W.3d 621, 625 (Mo. App. W.D. 2013) (internal quotation omitted). “A trial court

has broad discretion to admit or exclude evidence at trial.” Id. (internal quotation omitted).

“The trial judge is also in the best position to weigh the probative value of the evidence against

its prejudicial effect.” Id. (internal quotation omitted). “Abuse of discretion occurs when a trial

court’s ruling is clearly against the logic of the circumstances and is so unreasonable as to

indicate a lack of careful consideration.” Id. (internal quotation omitted). Only if the error is so

prejudicial that it deprived the defendant of a fair trial is reversal warranted. Id. Trial court error

is not prejudicial unless there is a reasonable probability that it affected the outcome of the trial.

Id.

                                              Analysis

       First, we note that, “[a] defendant cannot invite error and then raise it as reversible error

on appeal.” State v. Riggins, 987 S.W.2d 457, 463 (Mo. App. W.D. 1999).

       At trial, a witness for the State testified that on the night and time of the murder, he was

sitting on the back steps of his elevated patio when he heard multiple gunshots from a

semi-automatic and a 12-gauge weapon. He saw two people run down the alley. He recalled

giving a statement to the police identifying Williams as carrying an assault rifle with a banana

clip. The witness testified that the two individuals ran to Sean and Darwin’s house, and one of

the individuals, whom the witness identified as Sean, yelled at Darwin to open the door. Without

objection, the State asked the witness what weapons he told the police the two men were

carrying as they ran out of the alley, and the witness responded an SKS semi-automatic weapon,

which looked like an assault rifle with a banana clip, and a Mossberg shotgun with a pistol grip.




                                                  12
The witness testified that he had been in Sean and Darwin’s house when Williams was there and

that he saw an SKS and a Mossberg in the house.

       Defense counsel cross-examined the witness, inquiring whether the witness told the

police that he saw Williams and Sean run out of the alley and that Sean had an SKS because he

knew that there was an SKS in Sean and Darwin’s house:

       Q.     By 2002, you tell the police that you saw Shawn [sic] and [Williams] run
              out of the alley, and you saw Shawn with an SKS, correct? Is that what
              you told them in 2002?

       A.     Yes.

       Q.     And did you tell them that because you knew that there was an SKS in the
              house, in the Williams’ house?

       A.     Yes.

       Q.     At Shawn and Darwin’s house?

       A.     Yes.

Later during the cross-examination, defense counsel inquired of the witness about his 2008

statement to the police during which he identified the shotgun one of the two men running out of

the alley was carrying as a Mossberg shotgun:

       Q.     . . . [Y]ou said that because you had seen at one point a Mossberg shotgun
              in the Williams’ house, right?

       A.     Right.

       Q.     Just like you had seen an SKS rifle in their house?

       A.     Right.

       Q.     And that’s where you came up with the description of the weapons?

       A.     Yes.




                                                13
After this testimony, the State offered the parties’ stipulation (subject to Williams’s counsel’s

relevance objection) to the items found during the search of Sean and Darwin’s house into

evidence (which included the SKS rifle)—a fact that the jury already knew as a direct result of

defense counsel’s cross-examination of the witness. In other words, defense counsel solicited the

response from the witness about the weapons—and where the weapons came from—evidence

that Williams now argues was inadmissible and was so prejudicial that even the mere mention of

this evidence in Williams’s trial affected the outcome of his trial. Having invited this evidence

into the record, however, Williams cannot now be heard to complain about its admission.

Riggins, 987 S.W.2d at 463. “[W]hen a defendant presents the same evidence to which he

objected when offered by the state, any claim of prejudice by presentation of the otherwise

inadmissible evidence of another crime is waived.” State v. Hitchcock, 329 S.W.3d 741, 748-49

(Mo. App. S.D. 2011) (internal quotation omitted). See also State v. Miller, 372 S.W.3d 455,

474 (Mo. banc 2012) (“The complaining party cannot be prejudiced by the allegedly

inadmissible evidence if that party offers evidence to the same effect as the challenged

evidence.”) (internal quotation omitted); State v. Dunson, 979 S.W.2d 237, 244 (Mo. App. W.D.

1998) (“A defendant cannot challenge the introduction of evidence by the prosecution when he

presents evidence of the same nature.”).

         Even were we to assume, arguendo, that the challenged evidence was admitted in error,12

it was not prejudicial. Errors in admitting evidence require reversal only when the prejudice


         12
            We are not persuaded by Williams that the evidence complained of, even had it been properly objected to
and not first offered by the defense through trial testimony, was admitted in error. “Weapons or objects connected
with the defendant or the crime, when sufficiently identified, become relevant and possess probative value.” State v.
Speaks, 298 S.W.3d 70, 81 (Mo. App. E.D. 2009). Here, the evidence recovered from the house that Williams was
seen fleeing to after the murder of the victim contained ammunition of the same type found at the crime scene and
weaponry similar in form or character to the weapon that eyewitnesses testified that Williams possessed at the time
of the murder.
         [A] weapon or instrument found in the possession of accused or of his criminal associates which,
         although not identified as the one actually used, is similar in form and character thereto, or which,


                                                         14
from the improper admission is outcome-determinative. State v. Berwald, 186 S.W.3d 349, 362

(Mo. App. W.D. 2005). “A finding of outcome-determinative prejudice expresses a judicial

conclusion that the erroneously admitted evidence so influenced the jury that, when considered

with and balanced against all evidence properly admitted, there is a reasonable probability that

the jury would have acquitted but for the erroneously admitted evidence.” Id. (internal quotation

omitted). In this case, there was eyewitness testimony that Williams shot the Victim with an

assault rifle and then fled the scene to the house where the disputed evidence was recovered.

Other witnesses saw Williams with an automatic weapon. When considered with and balanced

against all the evidence properly admitted, we find that there is not a reasonable probability that

the jury would have acquitted Williams but for the admission of the challenged evidence.

        Point IV is denied.

                                                 Conclusion

        For the reasons set forth above, this case is remanded for Williams to be re-sentenced in

proceedings consistent with this opinion. In all other respects, the judgment of the trial court is

affirmed.



                                                    Mark D. Pfeiffer, Judge

Cynthia L. Martin, Presiding Judge, and
Karen King Mitchell, Judge, concur.




          from the circumstances of the finding justifies an inference of the likelihood or possibility of its
          having been used, is admissible for the purpose of showing availability to accused of the means of
          committing the crime in the manner in which it is shown to have occurred . . . .
State v. Cuckovich, 485 S.W.2d 16, 23 (Mo. banc 1972) (internal quotation omitted). See also State v. Ramsey, 820
S.W.2d 663, 666 (Mo. App. W.D. 1991) (“Weapons found at or near the crime scene or which tend to explain the
manner in which a crime was committed are generally found to be admissible.”).


                                                       15
