                                         In the
                        Missouri Court of Appeals
                                 Western District
STATE OF MISSOURI,                            )
                                              )
               Respondent,                    )   WD76966
                                              )
v.                                            )   OPINION FILED: October 27, 2015
                                              )
UMAR MUHAMMAD,                                )
                                              )
                Appellant.                    )

             Appeal from the Circuit Court of Jackson County, Missouri
                    The Honorable Peggy Stevens McGraw, Judge

Before Division One: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge
                          and Cynthia L. Martin, Judge


       Umar Muhammad ("Muhammad") appeals his convictions of second-degree

murder, first-degree assault, and two counts of armed criminal action following a jury

trial. Muhammad claims that errors during closing argument and in the admission of

evidence at trial made it less likely that the jury would accept his defense that he was not

the shooter, an essential element of his crimes. Finding no error, we affirm.
                                 Factual and Procedural Background

         Muhammad does not challenge the sufficiency of the evidence to sustain his

convictions. [Appellant's Brief, p. 14, n. 5] That evidence, viewed in the light most

favorable to the jury's verdict,1 was as follows:

         On May 19, 2011, at approximately 3:45 a.m., Muhammad shot and killed

Mohamed Hussein ("Hussein") at a park in Kansas City, Missouri. Just prior to the

shooting, Hussein was in a car with Anwar Ali ("Ali"). Muhammad was near the park

entrance with two men when he saw Hussein and exclaimed "Bird, Bird, that's them."

The two men with Muhammad were Seneca Keith ("Keith"), whose nickname was

"Bird," and Jermaine Henderson ("Henderson"). Ali and Hussein heard Muhammad's

statement, which prompted Hussein to get out of the car and walk toward the three men.

Ali got out of the car to urge Hussein to return. Muhammad shot Hussein. Hussein

began running. Ali was five feet away at the time and saw Muhammad shoot Hussein.

Ali had met Muhammad on two prior occasions and recognized him. Ali did not know

the other two men with Muhammad.

         After firing several more shots at Hussein, Muhammad began firing at Ali, who

ducked and took cover inside the car. After the shots stopped, Ali lifted his head and saw

Muhammad and the other two men running into the park.

         Ali drove his car to the location where Hussein had fallen. Ali drug Hussein to the

car. Keith and Henderson (who had at first fled the scene) ran back to assist Ali.

         1
          In determining whether a criminal conviction is supported by sufficient evidence, we view the evidence in
the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Miller, 372 S.W.3d 455, 463 (Mo. banc 2012).

                                                         2
However, Hussein died at the scene. The bullets recovered from Hussein's body and

from Ali's car where determined to have been fired from the same weapon, although that

weapon was never recovered.

       Muhammad and Hussein had been in a dispute just hours before the shooting at a

gas station close to the park. A police officer who responded to that scene observed that

Muhammad was wearing a black "do rag" and a black jacket with white "KC" insignias.

In a dash cam photograph of that scene, the officer could not distinguish the "do rag"

from a black baseball cap.

       Ali told officers that Hussein's shooter was wearing a black hoodie and a black

baseball cap. Ali described the shooter as "the Egyptian dude." Muhammad is Egyptian.

Ali identified Muhammad as the shooter in a color photo lineup several hours after the

shooting. Ali also identified Keith as the person Muhammad had called "Bird" at the

scene. Ali testified at trial that he was "[one] hundred percent sure" that Muhammad was

the shooter.

       Following his arrest, Muhammad first denied being at the park, then admitted

being at the park though at a different time than the shooting.           Later, Muhammad

admitted being at the park almost every day. He admitted knowing Hussein and admitted

that he had been involved in an altercation with Hussein, though he claimed it had been

several days earlier.   Muhammad claimed he was at his sister's at the time of the

shooting, though she never corroborated this alibi. Muhammad did not testify at trial, but

his defense at trial centered on suggesting that Keith was the shooter.



                                             3
       The jury convicted Muhammad and recommended sentences which the trial court

imposed.

       Muhammad appeals.

                                          Analysis

       Muhammad raises four points on appeal. Three of the points claim error in

connection with the State's closing argument. One of the points claims error in the

admission of evidence. With respect to all four points, Muhammad concedes that there

was sufficient evidence to support his convictions but argues that, but for the errors

addressed in the points, the "defense may have carried the day or had a more significant

chance of success" in persuading the jury that Muhammad was not the shooter.

[Appellant's Brief, p. 14, n. 5] Because establishing that Muhammad was the shooter was

an essential element of his charged crimes, Muhammad claims he was prejudiced. We

address Muhammad's points individually.

                                          Point One

       In his first point on appeal, Muhammad argues that the trial court abused its

discretion when it allowed the State to argue during its rebuttal closing, and over

Muhammad's objection, that a key witness's trial testimony implicating Keith had not

been previously reported to the police.

       We review a trial court's decisions in the control of closing arguments for an abuse

of discretion. State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006). Improper closing

argument will not support reversal, however, unless the error is prejudicial. Id. To be

"prejudicial," the improper argument must have had "'a decisive effect on the jury's

                                             4
determination.'" State v. Armentrout, 8 S.W.3d 99, 111-12 (Mo. banc 1999) (quoting

State v. Hall, 982 S.W.2d 675, 683 (Mo. banc 1998)). Muhammad has not met this

burden. State v. Steele, 314 S.W.3d 845, 851 (Mo. App. W.D. 2010) (observing that a

defendant has the burden to establish prejudice associated with improper closing

argument).

       The portion of the State's rebuttal closing about which Muhammad complains

involved a discussion of the trial testimony of Tyra Anderson ("Anderson"). To afford

context to the rebuttal closing, and to Muhammad's objection, we must first summarize

Anderson's trial testimony.

       The State called Anderson as a witness during its case-in chief.          On direct

examination, Anderson testified that she lived in an apartment building near the park

where Hussein was killed.       Anderson knew Keith, having previously dated him.

Anderson also knew Muhammad and Henderson. Anderson testified that on the morning

of the shooting, she awoke to loud voices, leaned out her bedroom window, and could

clearly see Muhammad, Keith, and Henderson near the park entrance.               She heard

gunshots and ducked. She then saw Keith run from the scene in one direction, while

Muhammad and Henderson ran in a different direction. Anderson did not testify that she

saw who shot Hussein. Anderson did, however, see Hussein fall to the ground and saw

Ali drive to that location, where Ali got out of the car crying. Anderson testified that she

ran outside and then spoke with the police when they arrived at the scene. She testified

that she later went to police headquarters where she made a statement and identified

Muhammad, Keith, and Henderson from a photo lineup. The State did not ask Anderson

                                             5
any further questions about the content of her statements to the police at the scene or

police headquarters.

      On cross examination, Muhammad established through Anderson that Keith was

wearing a black hoodie at the time of the shooting and that Anderson saw Keith return to

the scene to assist Ali with Hussein after first running away. Muhammad then asked

Anderson the following:

      Q:     Shortly after the shooting, you hear [Keith] yell something, correct?

      A:     Yes.

      Q:     And what you hear him yell is -- and I don't [sic] that this is
      offensive, but you hear him yell, "Bitch ass nigga, I got you, I got you?"

      A:     Yes.

      Q:     And he was saying this towards the direction of the car or [Hussein]?

      A:     Correct.

Mohammad did not ask Anderson whether she told the police about Keith's statement.

The State did not redirect Anderson.

      During closing argument, Muhammad argued:

      [T]he State is asking you to find [Muhammad] guilty of murder.
      Everything you heard yesterday--you heard within hours of [Hussein] being
      shot and killed over two years ago, Officer Moore arrived at the scene and
      from the moment he got there, he was told that [Keith] was involved, that
      the shooter was wearing a black pullover hoodie and a black baseball cap
      and [Keith] is arrested . . . right there. Officer Moore spoke with
      [Anderson] at the scene. She was available to them immediately. They
      want you to rule out [Keith] because Officer Moore told you that he was
      never charged and a case was never submitted to the prosecutor's office
      because they didn't have any evidence which linked [him] to the shooting.
      Ladies and gentlemen, they had everything that you saw yesterday. And
      I've been able to point out to you two things now that the evidence points

                                            6
       to [Keith] overwhelmingly more than it points to [Muhammad]. But they
       let [Keith] go. . . . Ladies and gentlemen . . . you cannot be firmly
       convinced in this case. . . . [Keith] is the shooter. He should be the person
       who is sitting in court today.

(Emphasis added.) The plain implication of Muhammad's closing was that Anderson had

told police at the scene of the shooting everything about which she had testified at trial,

including the statement she heard Keith make as he fled the scene.

       During rebuttal closing argument, the State argued:

       [F]or [Muhammad] to get up here and say everything that was presented
       here in front of you yesterday, the police department knew the night this
       happened, is not true. [Muhammad's counsel] talked to you about what
       [Anderson] said when she talked to Officer Moore. Two years ago when
       this case occurred . . . and [Anderson] was standing right there, she is not---

At this point, Muhammad objected: "[f]acts not in evidence. We didn't say anything

about what [Anderson] told [Officer Moore]." The State responded that its argument was

"retaliatory" (responsive) to Muhammad's argument that "they had everything" because

"[Anderson] did not say that to Officer Moore. She did not tell that to police the night of

the homicide." In response, Muhammad argued: "Which there is no evidence of. You

can't argue facts not in evidence." The trial court overruled Muhammad's objection. The

State continued its rebuttal argument as follows:

       [Anderson] did not tell the police that she heard [Keith] say that. Two
       years ago, she did not tell the officer that [Keith] said, "I got you" . . . . Two
       things, right? That statement . . . and this clothing thing. And I'll get to the
       clothing thing in a minute. But when she is coming in here and she is
       saying it now and she is going to say well the police department knew that
       and they let the real killer go . . . . You cannot expect the police department
       or the prosecutor's office or the law to take care of [Keith] when all of the
       sudden we are going to hear this two years later.



                                               7
It is the State's rebuttal closing following the trial court's denial of Muhammad's

objection about which Muhammad complains on appeal.

       On appeal, Muhammad raises two distinct concerns with the State's rebuttal

argument. First, Muhammad argues that the State's rebuttal closing argument addressed

facts not in evidence, thus depriving him of his constitutional right to confront witnesses.

Second, Muhammad complains that the State's argument was not truthful because it was

contrary to information in the State's possession.

       With respect to the first issue, the trial court did not abuse its discretion in

overruling Muhammad's objection that the State's rebuttal closing addressed "facts not in

evidence." The State explained that its argument was "retaliatory" or responsive to

Muhammad's closing where Muhammad clearly argued that Anderson had spoken with

police at the scene and had told them everything the jury heard from her at trial. In fact,

neither the State nor Muhammad elicited any evidence from Anderson about what she

told the police, whether at the scene or in her later statement at police headquarters.

However, because Muhammad's closing suggested this had been the evidence, it was

within the trial court's discretion to permit the State to make a responsive argument.

State v. Bryant, 741 S.W.2d 797, 799 (Mo. App. E.D. 1987) ("[I]t is well recognized that

a prosecutor is permitted to exceed the normally recognized limits of closing argument in

retaliation to defense counsel's argument."); State v. Parker, 886 S.W.2d 908, 922 (Mo.

banc 1994) ("A prosecutor has considerable leeway to make retaliatory arguments at

closing.") On appeal, Muhammad's point relied on supplements his trial objection with

the additional argument that in overruling his objection, the trial court deprived him of

                                             8
his constitutional right to confront a witness. This constitutional claim was not raised at

trial and is not preserved for our review. Moreover, though Muhammad mentions the

constitutional argument in his point relied on, he fails to develop the claim in the

argument portion of his Brief, thus abandoning the claim. State v. Nunley, 341 S.W.3d

611, 623 (Mo. banc 2011).

       Muhammad's second concern is that the State's rebuttal closing was factually

inaccurate. Muhammad explains in his Brief that in fact Anderson did tell the police

about Keith's statement during her video-taped statement given hours after the shooting at

police headquarters. Though this additional basis for objecting to the State's rebuttal

closing was raised in Muhammad's motion for new trial, it was not raised as an objection

at trial, and is thus not preserved. State v. Letica, 356 S.W.3d 157, 167 (Mo. banc 2011);

Nelson v. Waxman, 9 S.W.3d 601, 605 (Mo. banc 2000) ("A party is not permitted to

advance on appeal an objection different from that stated at trial."). At best, Muhammad

is entitled to plain error review of this unpreserved claim of error. Id.; Rule 30.20.2

"This Court will exercise its discretion to conduct plain error review only when the

appellant's request for plain error review establishes facially substantial grounds for

believing that the trial court's error was 'evident, obvious, and clear,' and 'that manifest

injustice or miscarriage of justice has resulted.'" State v. Jones, 427 S.W.3d 191, 195

(Mo. banc 2014) (quoting State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2007)).

       During argument on Muhammad's motion for new trial, the State defended

Muhammad's claim that its rebuttal closing was contrary to available evidence by arguing

       2
           All citations to the Rules are to Missouri Court Rules Volume I--State (2015).

                                                           9
that the rebuttal closing responded only to Muhammad's suggestion that Anderson had

reported Keith's statement to Officer Moore at the scene of the shooting. No available

evidence indicated that to be the case. The trial court sought clarification and asked the

State "was 'that statement' [ever] given to the police?" The State responded that "[i]t was

given to the police later on that evening in the video-taped statement down at

headquarters. It was not given at the scene."3 [Tr. 643-44]                         The trial court denied the

request for a new trial.

         On appeal, the State once again argues that its rebuttal closing only responded to

Muhammad's suggestion that Anderson told Officer Moore about Keith's statement at the

scene of the shooting, an argument that was not inconsistent with the available evidence.

Though that may well have been the State's intent at the time of trial, a plain reading of

the State's rebuttal closing reveals that the State argued the broader proposition that

Anderson never told authorities about the statement she attributed to Keith and first

reported Keith's statement two years after the shooting during her trial testimony. This

argument was not consistent with the available evidence.

         However, that fact alone does not establish a basis for plain error review. In

arguing his motion for new trial, Muhammad conceded that Anderson's video-taped

statement was "evidence that was available" to everyone prior to trial. [Tr. p. 644] We



         3
           In its Brief on appeal, the State emphasizes that though Muhammad has the burden to prove trial court
error, and despite the apparent importance of Anderson' video-taped statement to his claims of error, Muhammad did
not submit the video-tape to the trial court in connection with his motion for new trial and did not include the video-
tape in his record on appeal. Ordinarily, we are permitted to infer from the failure to include items in the record on
appeal that are essential to a claim of error that the missing information would not be favorable to the appellant's
claim of error. State v. Brumm, 163 S.W.3d 51, 56 (Mo. App. S.D. 2005). Here, however, the State conceded that
Anderson reported Keith's statement to the police during her video-taped statement given hours after the shooting.

                                                         10
are left to speculate why Muhammad did not use or refer to the video-taped statement

during his cross-examination of Anderson, or why Muhammad did not simply ask

Anderson on cross-examination whether and when she reported to the police what she

heard Keith exclaim. More to the point, we are left to speculate why Muhammad failed

to object that the State's rebuttal closing was contrary to the available evidence, an

objection that is materially different from an objection that closing argument exceeds the

facts actually in evidence. Muhammad has not established the facial showing of evident,

obvious, or clear error, and we thus decline to review for plain error under Rule 30.20.

Jones, 427 S.W.3d at 195-96. It is highly relevant to our conclusion that although

Muhammad admits that Anderson's video-taped statement was available evidence at the

time of trial, he never referred to the statement during Anderson's testimony, he did not

object to the State's rebuttal closing by referencing the statement, and he never provided

the trial court or this court with Anderson's statement, suggesting a strategic motivation.

State v. Johnson, 284 S.W.3d 561, 573 (Mo. banc 2009) (holding that "[r]arely is plain

error relief granted for a closing argument claim, absent an objection, because it may be a

strategic decision by counsel").

       Even were we to presume evident, obvious, and clear error based solely on the fact

that the State's rebuttal closing misstated the evidence available to both the State and the

defendant, reversal would not be warranted unless the error resulted in a manifest

injustice or a miscarriage of justice. State v. Severe, 307 S.W.3d 640, 642 (Mo. banc

2010). "Plain error review of a closing argument . . . will be considered only if there is a

sound, substantial manifestation, a strong, clear showing, that injustice or miscarriage of

                                            11
justice will result if relief is not given." Johnson, 284 S.W.3d at 573 (quotation omitted).

This standard has not been met. Ali testified that he was 100% certain that Muhammad, a

man he had met twice before, and a man who shot Hussein and shot at Ali from five feet

away, was the shooter. Muhammad concedes that this evidence was sufficient to support

his convictions. Several witnesses placed Muhammad at the scene of the shooting,

including Anderson, despite Muhammad's reports to the police that he had an alibi and

was not in the park when Hussein was shot.                         Muhammad fled the scene after the

shooting, while Keith and Henderson returned to assist Ali and Hussein. Muhammad

denied having been involved in an altercation with Hussein just hours before the shooting

even though police had dash cam video from that scene which captured Muhammad

wearing clothes similar to those later described by Ali. The fact that Keith was wearing a

black hoodie at the time of the shooting, and that Ali had been unable to positively

identify Muhammad from a black and white photo array during his deposition two years

after the shooting, were developed and emphasized by Muhammad's counsel at trial in an

effort to suggest that Keith was the shooter. The jury heard Anderson's testimony about

Keith's statement as he fled the shooting. Yet, the jury was not persuaded to disregard

Ali's testimony that he was "100% sure" that Muhammad was the shooter. Though we do

not condone the State's rebuttal closing,4 we simply are not persuaded that the State's

rebuttal closing had a "decisive effect on the jury's determination" or resulted in a

manifest injustice or a miscarriage of justice warranting reversal based on plain error

         4
         We are not suggesting that the State's mischaracterization of the available evidence during its rebuttal
closing was purposeful, and Muhammad has never suggested or demonstrated otherwise. Whether or not
purposeful, the State's rebuttal closing was not proper argument.

                                                         12
review. Johnson, 284 S.W.3d at 573-74 (holding that plain error during closing requires

the defendant to prove that the argument had a decisive effect, established by reviewing

the whole record and not just an isolated segment of the record).

       Point One is denied.

                                         Point Two

       In his second point on appeal, Muhammad argues that the trial court committed

plain error when it failed to declare a mistrial or to give a curative instruction during

closing argument after the State made a reference to what Muhammad was going to "say

two years later" to address whether he was present at the scene of the shooting. When the

State made this statement, Muhammad timely objected, and the State immediately agreed

it "shouldn't have said 'say,'" and asked to "rephrase," which the trial court permitted it to

do. The State continued its argument "on unobjectionable lines." [Appellant's Brief, p.

28] Muhammad did not ask for a mistrial or for a curative instruction.

       "Our review for plain error of a trial court's failure to sua sponte declare a mistrial

is extremely limited." State v. Durham, 371 S.W.3d 30, 37 (Mo. App. E.D. 2012). Here,

the State's comment about what Muhammad was going to say, two years after the

shooting, about whether he was in the park at the time of the shooting must be viewed in

context.   The comment followed the State's summary of the testimony of several

witnesses who placed Muhammad in the park, at which point the State commented on

Muhammad's requested instruction that mere presence at the scene is not enough to

convict by saying "well which is it? Was the defendant there or wasn't he? Now is he

going to say two years later that he was there?" The jury had heard police officer

                                             13
testimony that Muhammad repeatedly denied being in the park at the time of the

shooting. The State's closing argument was not a direct reference to Muhammad's failure

to testify at trial but was instead a comment on the relative weakness of Muhammad's

case. See State v. Richardson, 923 S.W.2d 301, 314 (Mo. banc 1996).

       The trial court did not commit plain error in failing to sua sponte declare a mistrial

or provide a curative instruction during the State's closing argument.

       Point Two is denied.

                                       Point Three

       In his third point on appeal, Muhammad claims the trial court erred when it

permitted the State during its closing argument, and over Muhammad's objection, to

discuss the meaning of "reasonable doubt" by suggesting that the jury use common sense

in weighing the evidence.

       During closing, the State argued as follows:

       Now, we have all heard about reasonable doubt in jury selection to [sic]. I
       just want to remind you that this is a doubt based on reason and common
       sense. We ask you to leave your outside prejudices and things that you
       have known from outside and things that you might think you know about
       the area or life experiences, leave this at the door. But don't check your
       common sense. When you go into deliberation . . . .

Muhammad objected that the State's argument misstated the law and improperly reduced

its burden of proof. The State responded that it was simply arguing the reasonable doubt

jury instruction. Muhammad's objection was overruled. The State's argument continued:

       So use your common sense. That is what the instruction says to do. Use
       your common sense when you are looking at all the evidence. In addition,
       you need to be firmly convinced while using your instructions and your
       collective memory of the evidence.

                                             14
       Muhammad claims on appeal that the State's argument misstated the law and

improperly reduced its burden of proof. "An attorney is free to discuss reasonable doubt

during closing argument, but he cannot attempt to define reasonable doubt." State v.

Williams, 659 S.W.2d 778, 781 (Mo. banc 1983) (internal citations omitted). Here, the

jury was instructed on reasonable doubt as follows:

       A reasonable doubt is a doubt based upon reason and common sense after
       careful and impartial consideration of all the evidence in the case.

       Proof beyond a reasonable doubt is proof that leaves you firmly convinced
       of the defendant's guilt. The law does not require proof that overcomes
       every possible doubt. If, after your consideration of all the evidence, you
       are firmly convinced that the defendant is guilty of the crime charged, you
       will find him guilty. If you are not so convinced, you must give him the
       benefit of the doubt and find him not guilty.

During its closing argument, the State referenced the ability to use common sense as well

as the jury's obligation to be firmly convinced of Muhammad's guilt. We see nothing in

the State's closing argument other than a proper reference to "reasonable doubt" as the

jury was instructed. This case is distinguishable from Williams where the State argued

that the jury need only determine whether the evidence established guilt "beyond reason

and common sense," and that the jury need only determine whether "common sense" told

the jury that sexual intercourse with a victim was with consent or by force. 659 S.W.2d

at 781. In contrast, in this case, though the State properly referenced the jury's right to

rely on its common sense, as the instruction so directs, the State did not in any manner

suggest that the jury could do so to the exclusion of its obligation to be firmly convinced

of Muhammad's guilt.


                                            15
      Point Three is denied.

                                         Point Four

      In his fourth point on appeal, Muhammad argues that the trial court erred when it

failed to sua sponte declare a mistrial or give a curative instruction after it allowed a

police detective to testify that charges were not sought against two other suspects in

Hussein's murder.

      During its case-in-chief, the State questioned Police Detective Matthew Williams

("Williams") as follows:

      Q:       Henderson and . . . Keith are both arrested that night?

      A:       Yes.

      Q:       And they are transported down to headquarters?

      A:       Correct.

      Q:       [T]hey [are] talk[ed] to either by you or other detectives in your

      squad?

      A:       Yes.

      Q:       [Were] they fully investigated as potential suspects in this case?

      A:       I would say so.

      Q:       And were requests for charges ever presented to the prosecutor's

      office on either . . . Keith or . . . Henderson?

      A:       No.

      Q:       Why not?



                                              16
       A:     Because we developed other evidence to say they were not involved

       [as the shooter].

       Muhammad argues that Williams's testimony deprived him of a fair trial because it

violated mandatory criminal jury instructions MAI-CR 300.02 and MAI-CR 302.04.

Both MAI-CR 300.02 and MAI-CR 302.04 provide that "[t]he charge of any offense is

not evidence, and it creates no inference that any offense was committed or that the

defendant is guilty of an offense."       Muhammad claims on appeal that Williams's

testimony created the inference that Muhammad committed second-degree murder, first-

degree assault, and armed criminal action because he was charged with those crimes and

other suspects were not. Muhammad did not object to Williams's testimony at trial on

this or any other basis. Muhammad acknowledges in his brief that this point is not

preserved for appellate review and can only be reviewed, if at all, for plain error. We

have already described our standard for plain error review.

       Muhammad has not established that Williams's testimony injected evident,

obvious, and clear error into his trial. Muhammad has presented no authority for the

proposition that testimony about whether charges were sought against other suspects who

are neither witnesses nor co-defendants violates jury instructions MAI-CR 300.02 and

MAI-CR 302.04. Indeed, a plain reading of MAI-CR 300.02 and MAI-CR 302.04

indicate both instructions refer only to charges filed against the defendant on trial.

       Even were we to presume evident, obvious, and clear error, Williams's testimony

did not result in manifest injustice or a miscarriage of justice. Muhammad relied on the

same testimony during his closing argument to argue that police investigators rushed to

                                             17
justice in concluding that Muhammad murdered Hussein. Muhammad cannot claim a

manifest injustice or a miscarriage of justice occurred from Williams's purportedly

inadmissible testimony when he relied on the same testimony to bolster his defense that

Keith was the shooter. "A trial court does not plainly err when it fails to sua sponte

prohibit the introduction of objectionable evidence when the totality of the surrounding

circumstances reflect a clear indication that trial counsel strategically chose not to object

to the evidence." State v. D.W.N., 290 S.W.3d 814, 825 (Mo. App. W.D. 2009).

       In any event, even if, as Muhammad suggests, the jury did infer that Muhammad

committed the crimes because other suspects were not charged, MAI-CR 300.02 and

MAI-CR 302.04 cured that negative inference. Both jury instructions specifically state

that "[t]he charge of any offense is not evidence, and it creates no inference that any

offense was committed or that the defendant is guilty of an offense." Accordingly, "we

assume the jury obeyed the trial court's directions and followed its instructions."

Christian v. State, 455 S.W.3d 523, 528 (Mo. App. W.D. 2015) (internal quotations

omitted). It is hard to fathom how a sua sponte curative instruction regarding Williams'

testimony would have aided the jury since the curative instruction would have recited

essentially the same directive to the jury already found in MAI-CR 300.02 and MAI-CR

302.04.

       Point Four is denied.

                                        Conclusion

       Muhammad's convictions are affirmed.



                                             18
              __________________________________
              Cynthia L. Martin, Judge
All concur.




               19
