                          In the Missouri Court of Appeals
                                  Eastern District

                                              DIVISION TWO


STATE OF MISSOURI,                               )      No. ED100972
                                                 )
           Respondent,                           )
                                                 )      Appeal from the City of St. Louis
vs.                                              )      Circuit Court
                                                 )
IVAN DOMINGUEZ-RODRIGUEZ,                        )      Honorable Rex M. Burlison
                                                 )
           Appellant.                            )      Filed: May 19, 2015



                                               Introduction

           Ivan Dominguez-Rodriguez (Defendant) appeals the judgment and sentence of the Circuit

Court of the City of St. Louis entered after a jury convicted him of first-degree assault, armed

criminal action, and first-degree burglary. In four points relied on, Defendant claims that the

trial court (1) plainly erred in submitting Instruction No. 9 for armed criminal action; (2) clearly

erred in overruling his Batson1 objections to the prosecutor’s strikes of two African-American

venirepersons; and (3) abused its discretion by permitting the prosecutor to argue in closing

argument that Defendant was “hiding behind” his Spanish interpreter. We affirm.




1
    Batson v. Kentucky, 476 U.S. 79 (1986).
                                      Factual Background

       In the early morning hours of August 20, 2012, Defendant entered B.J.’s (Victim’s) home

through the back door. Defendant choked her, beat Victim’s head and body with his fists, and

beat her on the head with a “very, very hard” object, which Victim later realized to be her hair

straightener. Defendant was silent during the attack and did not respond when Victim asked him

what he wanted. Eventually, Defendant fled Victim’s home, scaling a chain link fence in her

back yard. As a result of the attack, Victim suffered lacerations to her head, a broken jawbone

and cheekbone, four broken ribs, a lacerated and collapsed lung, a lacerated spleen, a gash on her

knee, and a broken finger.

       Defendant was subsequently arrested and charged with first-degree assault, armed

criminal action based on the first-degree assault charge, and first-degree burglary. At trial, the

State produced DNA evidence showing that blood smears found outside Victim’s home matched

that of the Victim. The State also produced evidence showing that DNA found on the pants

Defendant wore on the night of the assault, as well as DNA found on Defendant’s flip flop and

stocking cap, matched Victim. In his defense, Defendant testified, with the aid of a Spanish

interpreter, that he had been drinking the day before the assault and, upon returning to his home,

had continued to drink and had fought with his girlfriend over the phone. Defendant further

testified that he entered the back door of Victim’s home believing it to be his own and when he

saw Victim lying on the floor bleeding, he fled.

       The jury found Defendant guilty of the crimes charged. The trial court adopted the jury’s

sentencing recommendation and sentenced Defendant to consecutive terms of 25 years’

imprisonment for first-degree assault, five years’ imprisonment for armed criminal action, and

eight years’ imprisonment for first-degree burglary. Defendant appeals.




                                                   2
                                   Point I: Instructional Error

       In his first point relied on, Defendant claims the trial court plainly erred in submitting

Instruction No. 9 for armed criminal action because “because (1) the submitted instruction did

not specify the ‘dangerous instrument’ charged; (2) the State argued that either a hand or a hair

straightener could be this dangerous instrument; (3) a hand is not a dangerous instrument; (4) the

instruction did not did not ensure that the jury would unanimously convict Appellant of the same

conduct[;] (5) whether the victim was struck by a hand or other object was a disputed fact at trial;

(6) the lack of a unanimous verdict for the crime of armed criminal action caused a manifest

injustice and resulted in a consecutive sentence of five years.” In the argument portion of his

brief, Defendant explains that Instruction No. 9, which is patterned on Missouri Approved

Instruction-Criminal (MAI-CR 3d) 332.02, is not in conformity with this Court’s recent decision

in State v. Evans, 455 S.W.3d 452 (Mo. App. E.D. 2014), and, under certain factual

circumstances like the instant matter, allows for verdicts that are not unanimous. The State

responds that plain error review is precluded in this case, given that Instruction No. 9 is patterned

on the MAI. Even assuming that plain error review is available, the State asserts that the trial

court did not plainly err by submitting Instruction No. 9 to the jury.

                                        Standard of Review

       During the instruction conference, the State proffered Instruction No. 9, which the parties

do not dispute is based on MAI-CR 3d 332.02. When the trial court asked defense counsel

whether Defendant had any objection, counsel responded “no.” Subsequently, the trial court

submitted Instruction No. 9 to the jury, which provided:

             As to Count II [armed criminal action], if you find and believe from the evidence
       beyond a reasonable doubt:




                                                  3
              First, that defendant is guilty of the offense of assault in the first degree, as
       submitted in Instruction No. 5, and

             Second, that defendant committed that offense by or with or through the
       knowing use or assistance or aid of a dangerous instrument,

                 then you will find the defendant guilty under Count II of armed criminal
       action.

               As used in this instruction, the term “dangerous instrument” means any
       instrument, article, or substance that, under the circumstances in which it is used,
       is readily capable of causing death or other serious physical injury.

               However, unless you find and believe form the evidence beyond a
       reasonable doubt each and all of these propositions, you must find the defendant
       not guilty of that offense.

       Because Defendant did not object to Instruction No. 9, his claim of error on appeal is not

preserved. See State v. Banks, 434 S.W.3d 100, 102 (Mo. App. E.D. 2014) (“To preserve a claim

of instructional error, counsel must make specific objections to the allegedly erroneous

instruction at trial and in a motion for new trial.”). Unpreserved claims of instructional error

may be subject to plain error review. Id. We recognize, however, that “[u]se of an approved

instruction cannot, by definition, be deemed plain error[,]” State v. Goodwin, 891 S.W.2d 435,

438 (Mo. App. W.D. 1994), and, in such instances, plain error review is precluded, State v.

Sanders, 449 S.W.3d 812, 816 (Mo. App. S.D. 2014). An apparent exception to this rule exists,

however, where the MAI is not in “proper form” because it fails to comport with substantive law.

State v. Manuel, 443 S.W.3d 669, 672-73 (Mo. App. W.D. 2014). That is the type of argument

Defendant raises here.

       Accordingly, we review Defendant’s claim of instructional error for plain error, “which

requires a finding of manifest injustice or a miscarriage of justice resulting from the trial court’s

error.” Banks, 434 S.W.3d at 102. “To show that the trial court plainly erred in submitting an

instruction, the defendant must go beyond a demonstration of mere prejudice, and must establish



                                                  4
that the trial judge so misdirected or failed to instruct the jury as to cause manifest injustice or a

miscarriage of justice.”        Manuel, 443 S.W.3d at 672 (citation and quotations omitted).

“Instructional error rarely rises to the level of plain error and reversal is required only when it is

readily apparent that [the alleged] error affected the jury’s verdict.” State v. Lucy, 439 S.W.3d

284, 293 (Mo. App. E.D. 2014).

                                 MAI-CR 3d 332.02 & Substantive Law

        Resolution of Defendant’s claim requires us to first address whether Instruction No. 9

complies with substantive law.         The basis for Defendant’s argument that MAI-CR 3d 332.02

does not comply with substantive law is this Court’s recent decision in State v. Evans, supra.

There, in the context of a sufficiency of the evidence challenge, the Eastern District considered

whether a hand or fist can qualify as a “dangerous instrument” in support of a conviction for

armed criminal action. Id. at 453. After noting that the statute, § 556.061(9) RSMo Supp. 2013,

defined “dangerous instrument” for purposes of armed criminal action, as “any instrument,

article or substance, which, under the circumstances in which it is used, is readily capable of

causing death or other serious physical injury,” the Court concluded that fists/hands do not

qualify as “dangerous instruments.” Id. at 457.2 The Court stated,

                We conclude that a reasoned and common-sense reading of the terms
        “instrument, article or substance” from the definition of “dangerous instrument”
        indicate an external object or item, rather than a part of a person’s body. The
        most relevant dictionary definition of “instrument” is “a tool or implement, esp.
        one for delicate or scientific work.” . . . . In ordinary language, hands, feet, or
        other body parts are not commonly referred to as instruments, or even as articles
        or substances. Thus, a plain and ordinary reading of the terms instrument, article,
        and substance do not indicate a body part. Id. at 458.




2
 Section 556.061(9) RSMo Supp. 2009, in effect at the time of the instant crimes, defined “dangerous instrument”
using the exact same language.


                                                       5
       Here, MAI-CR 3d 332.02 defines “dangerous instrument” using language that is identical

to the language defining “dangerous instrument” in the statute, see § 556.061(9), and does not

define “dangerous instrument” to include a hand, fist, or other body part. Because the language

of the statute and the language of the MAI are identical, it cannot be said that the MAI is

inconsistent with substantive law. Further, the conclusion in Evans that “dangerous instrument”

as used in § 556.061(9) does not include hands or fists, or any part of the body, does not

(contrary to the implications of Defendant’s argument on appeal) render the MAI inconsistent

with substantive law.    Rather, the MAI is in conformity with Evans’ holding because, a

reasonable juror giving the term “dangerous instrument” its common-sense meaning, would not

interpret the definition of “dangerous instrument” to include hands or fists. Stated differently,

the MAI does not, on its face, allow for a conviction of armed criminal action based on the use of

hands, fists, or other body parts as a deadly weapon. Accordingly, we conclude that MAI-CR 3d

332.02, on which Instruction No. 9 was patterned, is in conformity with the law and entirely

consistent with Evans.

                                    Submission of MAI-CR 3d 332.02

       Having concluded that MAI-CR 3d 332.02 is consistent with substantive law, we next

consider whether, under the facts of this case, the jury was misled by the trial court’s instruction

as to render a non-unanimous verdict. In this regard, Defendant asserts that the MAI is not in

conformity with the law after Evans, because in cases like the instant matter, its broad language

allows for non-unanimous verdicts. Defendant explains that under the facts of this case—where

the question whether Victim was beat with fists versus a hair straightener was contested, where

the prosecutor argued that both fists and the straightener qualified as a “dangerous instrument,”

and where the jury questioned whether fists were “dangerous instruments” during




                                                 6
deliberations—some of the jurors may have believed that Defendant beat Victim with his fists,

but others may have believed Defendant beat Victim with the straightener.

       Here, the trial court specifically instructed the jury, in Instruction No. 18, that the

attorneys’ arguments “are intended to help . . . in understanding the evidence and applying the

law, but they are not evidence” and that the jury’s deliberations are “to be governed . . . [by] the

law as given in these instructions.” Regarding the trial court’s submission of Instruction No. 9, it

is undisputed that this instruction was patterned on MAI-CR 3d 332.02, which defined

“dangerous instrument” to be “any instrument, article, or substance that, under the circumstances

in which it is used, is readily capable of causing death or other serious physical injury.” After

the trial court submitted these, and other instructions, to the jury, the parties made their closing

arguments, in which the prosecutor argued that both a fist and hair straightener qualified as a

“dangerous instrument” for purposes of armed criminal action. Subsequently, when the jury

asked during deliberations whether a fist qualifies as a dangerous instrument, the trial court

declined to answer the question and specifically referred the jury back to the written instructions.

       As the record demonstrates, the trial court provided the jury with a verdict director for

armed criminal action that is consistent with substantive law. As explained, that instruction, by

its plain terms, does not allow for an armed criminal action conviction based on the use of a

defendant’s hands, fists, or other body part. The trial court also instructed the jury that it was to

follow the written instructions during its deliberations, not the parties’ arguments, and further

instructed the jury in response to its question whether fists qualified as a “dangerous instrument,”

that it was to follow the written instructions given. It is well-established the jurors are presumed

to follow the instructions provided. State v. McFadden, 391 S.W.3d 408, 424 (Mo. banc 2013).

Accordingly, because it is presumed that jurors follow their instructions, we must presume that




                                                 7
the jurors, in finding Defendant guilty of armed criminal action based on first-degree assault,

unanimously believed that Defendant beat Victim with a hair straightener.

        The factual aspects of this case that Defendant highlights do not rebut this presumption.

Defendant notes that whether Victim was beat with fists versus a hair straightener was contested,

that the prosecutor argued that both fists and the straightener qualified as a “dangerous

instrument,” and that the jury questioned whether fists were “dangerous instruments.” These

facts do not logically lead to the conclusion that the trial court’s instructions mislead the jury

such that its verdict was non-unanimous. See McFadden, 391 S.W.3d at 420-21 (rejecting

defendant’s argument that prosecutor’s misstatement of law misled the jury, as the instructions

were correct and juries are presumed to follow the instructions); see also State v. Riley, 440

S.W.3d 561, 567-68 (Mo. App. E.D. 2014) (rejecting claim that prosecutor’s statements violated

right to unanimous jury verdict because instruction was proper and jurors are presumed to follow

the instructions). Rather, when viewed objectively, the reasonable inference from the record is

that the prosecutor’s closing argument caused the jury some confusion with respect to Instruction

No. 9, which led it to ask a question during deliberations.3 As noted, the trial court clearly

directed the jurors back to Instruction No. 9, which does not, by its plain terms, allow an armed

criminal action conviction based on the use of a “fist” as a dangerous instrument. See Evans,

455 S.W.3d at 458. Further, that the jury asked a question regarding whether a fist qualifies as a

dangerous instrument, does not, contrary to Defendant’s argument, show that the trial court

misled the jury such that its verdict was non-unanimous. Indeed, Defendant cites no authority in

support of this proposition.




3
 This Court certainly does not condone the State’s overreaching statement in closing argument that a fist would
qualify as a dangerous instrument.


                                                         8
       Accordingly, we conclude that Defendant has not rebutted the presumption that the jury

followed the instructions given, as to show that the jury’s verdict was not unanimous. Defendant

has not established any instructional error, plain or otherwise. Point I denied.

                               Points II & III: Batson Challenges

       Defendant’s second and third points relied on claim that the trial court clearly erred by

overruling his Batson objections to the prosecutor’s peremptory strikes of two African-American

venirepersons, Fran Collier and Donna Cannon. The State generally responds that the trial

court’s rulings were not erroneous because Defendant failed to establish that the prosecutor’s

reasons for the strikes were pretextual.

                                           Standard of Review

       When reviewing a trial court’s Batson challenge decision, this Court accords its findings

great deference because those findings are largely dependent on credibility evaluations. State v.

Washington, 288 S.W.3d 312, 314 (Mo. App. E.D. 2009). This Court will overturn the trial

court’s ruling on a Batson challenge only upon a showing of clear error. State v. McFadden, 191

S.W.3d 648, 651 (Mo. banc 2006). “A finding is clearly erroneous when the reviewing court is

left with the definite and firm conviction that a mistake has been made.” Id.

                                       Venireperson Collier

       In his second point relied on, Defendant asserts that the trial court clearly erred by

overruling his Batson objection to the prosecutor’s peremptory strike of venireperson Collier

because the proffered reason for the strike—that she had a brother-in-law and husband who had

been previously incarcerated and would cause her to view the prosecutor’s office negatively—

was pretextual. In support, Defendant points out that similarly situated white jurors were not




                                                   9
struck, Collier reported a positive experience with the “prosecutor’s office,” and the prosecutor

disproportionately struck African-American venirepersons.

       “Under the Equal Protection Clause, a party may not exercise a peremptory challenge to

remove a potential juror solely on the basis of the juror’s gender, ethnic origin, or race.” State v.

McFadden, 369 S.W.3d 727, 739 (Mo. banc 2012) (citation and quotations omitted). Therefore,

a peremptory challenge that is motivated by gender, ethnicity, or race violates a defendant’s and

the venireperson’s equal protection rights. See id. If a defendant suspects that such a prohibited

basis exists for the State’s strike, then the defendant can make a Batson objection to challenge

the strike. State v. Dow, 375 S.W.3d 845, 848 (Mo. App. W.D. 2012). Three procedural steps

are followed when a defendant raises a race-based Batson challenge: “(1) the defendant raises a

Batson challenge with respect to a specific venireperson struck by the State, identifying the

cognizable racial group to which that person belongs; (2) the State must supply a reasonably

specific and clear race-neutral reason for the challenged strike; and (3) if the State provides an

acceptable reason for the strike, then the defendant must show that the State’s given reason or

reasons were merely pretextual and that the strike was racially motivated.” State v. Johnson, 207

S.W.3d 24, 35 (Mo. banc 2006).

       In determining pretext, the primary consideration is the “plausibility of the prosecutor’s

explanations in light of the totality of the facts and circumstances surrounding the case.” Id.

Factors that a court considers in determining pretext include: (1) whether a similarly situated

white juror was not struck; (2) the “degree of logical relevance between the proffered

explanation and the case to be tried[;]” and, (3) “the prosecutor’s credibility based on his or her

demeanor or statements made during voir dire and the court’s past experiences with the

prosecutor.” State v. Strong, 142 S.W.3d 702, 712 (Mo. banc 2004) (citation and quotations




                                                 10
omitted). Other “[o]bjective factors bearing on the [S]tate’s motive to discriminate . . . [include]

conditions prevailing in the community and the race of the defendant, the victim, and the

material witnesses.”     State v. Bateman, 318 S.W.3d 681, 691 (Mo. banc 2010).                   A

disproportionate number of strikes against other minority venirepersons or number of

venirepersons remaining after completion of peremptory strikes may also be considered. Id.

This Court accords great deference to the trial court’s determination of pretext because the trial

court is in a better position to evaluate the credibility and demeanor of the prosecutor, as well as

the venirepersons. State v. Murphy, 443 S.W.3d 721, 725-726 (Mo. App. E.D. 2014); State v.

Nylon, 311 S.W.3d 869, 882 (Mo. App. E.D. 2010).

       Here, Defendant met the first step with respect to venireperson Collier, namely by

identifying Collier as an African-American female and implying that the prosecutor had

exercised his peremptory strikes to remove members of that group from the jury. Thereafter, the

prosecutor provided a race-neutral reason for the strike. The prosecutor explained that Collier’s

husband had been prosecuted by his office and had served a term of imprisonment. “[H]aving an

incarcerated family member is a race-neutral reason for a peremptory strike.” State v. Clark, 407

S.W.3d 104, 108 (Mo. App. E.D. 2013) (citing State v. Cole, 71 S.W.3d 163, 173 (Mo. banc

2002)). Because the prosecutor provided a race-neutral reason for the strike, the burden shifted

to Defendant to demonstrate that the prosecutor’s reasoning was merely a pretext for racial

discrimination. See Johnson, 207 S.W.3d at 35. Defendant asserted, as he does on appeal, that

the prosecutor’s reason for striking Collier is pretextual because her husband’s drug offense

occurred in the late 1980s, other white female venirepersons, Rebecca Harris and Pamela Hardy,

were similarly situated because Harris had a nephew in county jail and Hardy had nephews who

had been to prison and another in county jail, and the prosecutor disproportionately struck




                                                11
African-American venirepersons. The trial court concluded that the prosecutor’s reason for

striking Collier was not pretextual.

       Regarding Defendant’s assertion that similarly situated jurors were not struck, we believe

that having a close family member previously incarcerated, who was prosecuted by the same

office prosecuting the instant case, is different than having a distant relative either spend the

night in jail or go to prison. See cf. State v. Murray, 428 S.W.3d 705, 713 (Mo. App. E.D. 2014)

(distinguishing between venirepersons with family members charged with a crime versus

actually convicted of a crime).        Differences in degree of familial relation and terms of

confinement aside, nothing in the record indicates that Harris’ nephew’s offense arose in the City

of St. Louis, such that Harris would have any reason to unfavorably view the State’s case.

Similarly, Hardy’s nephews were prosecuted in Jefferson County. And, neither Harris nor Hardy

indicated that they visited their nephews while confined. Comparatively, that Collier visited her

husband while incarcerated, indicating a close relationship, and that her husband was prosecuted

by the same office pursing Defendant’s convictions, could reasonably cause Collier to view the

State’s case unfavorably, despite the fact that the incident occurred in the late 1980s. Defendant,

therefore, did not demonstrate that a venireperson similarly situated to Collier was not struck.

       While the absence of a similarly situated white juror who was not struck is not dispositive

in determining pretext, see Murphy, 443 S.W.3d at 725, the other factors Defendant raises do not

indicate that the prosecutor’s peremptory strike of Collier was based on racial animus.

Defendant does not explain how the fact that Collier’s husband’s was incarcerated over twenty

years ago renders the prosecutor’s strike discriminatory, nor how the prosecutor’s decision to use

four of its six strikes against African-Americans demonstrates pretext. Indeed, absent from the

record is any indication that the State acted on a pattern of discrimination in striking Collier.




                                                 12
        On appeal, Defendant additionally explains that because Collier reported a positive

experience with the prosecutor’s victim’s assistance office when her husband was the victim of a

crime, that the State’s concern that Collier had “issues” with his office was “transparently

pretextual.” That Collier had a positive experience with the victim’s assistance office, does not

necessarily mean that she viewed the Circuit Attorney’s office similarly. In any case, Defendant

did not make this argument to the trial court and we will not find error based on an argument that

the trial court was not afforded an opportunity to consider. Murray, 428 S.W.3d at 714.

        In sum, considering the totality of the circumstances, we cannot conclude that the trial

court clearly erred by denying Defendant’s challenge to the prosecutor’s strike of venireperson

Collier. Point II denied.

                                          Venireperson Cannon

        In her third point relied on, Defendant asserts that the trial court clearly erred by

overruling his Batson objection to the prosecutor’s peremptory strike of venireperson Cannon

because the proffered reason for the strike—“that her husband and son had been previously

incarcerated and may cause her to view the prosecutor’s office negatively”—was pretextual.4 In

support, Defendant points out that white jurors not struck had nephews in jail, that the prosecutor

did not know whether its office had prosecuted Cannon’s husband and stepson, and that the State

disproportionately struck African-American venirepersons.

        Defendant met the first Batson challenge requirement with respect to venireperson

Cannon, by identifying her as an African-American female and implying that the prosecutor had

exercised his peremptory strikes to remove members of that group from the jury. Thereafter, the

prosecutor provided a race-neutral reason for the strike: That Cannon’s husband and stepson


4
  Defendant misstates the record, as venireperson Cannon reported that her husband and stepson were currently
incarcerated for charges arising out of St. Louis County.


                                                     13
were currently incarcerated in St. Louis County. “[H]aving an incarcerated family member is a

race-neutral reason for a peremptory strike.” Clark, 407 S.W.3d at 107 (citing Cole, 71 S.W.3d

at 173). Because the prosecutor provided a race-neutral reason for the strike, the burden shifted

to Defendant to demonstrate that the State’s reasoning was merely a pretext for racial

discrimination. See Johnson, 207 S.W.3d at 35. In this regard, Defendant asserted that the

prosecutor’s strike was pretextual because similarly situated white female jurors, Harris and

Hardy, were not struck and because the State disproportionately struck African-American

venirepersons. The trial court determined the strike was not pretextual.

         Again, having a close family member incarcerated is different than a distant family

member spending the night in jail. See cf. Murray, 428 S.W.3d at 713. Indeed, as the State

points out, Cannon was the only venireperson who had close family members currently

incarcerated, of whom she visited regularly and, as such, Defendant did not show that another

venireperson was similarly situated. As a result of her immediate family members’ incarceration

and her close connection to them, as demonstrated through her regular visitation with them, the

prosecutor may have reasonably believed that Cannon could have a reason to view the State’s

case unfavorably.

         Further, the other factors Defendant raises do not establish pretext. Although the State

used four of its six strikes against African-Americans, four of the twelve remaining jurors were

African-American and Defendant does not explain how the distribution of strikes renders the

prosecutor’s strike of Cannon discriminatory.                 Defendant also does not explain how the

prosecutor’s lack of knowledge about whether its office prosecuted Cannon’s husband and son

contributed to the prosecutor’s alleged discriminatory strike.5 There are otherwise no indications


5
  Moreover, Defendant did not raise this factor before the trial court and we will not find error based on an argument
that the trial court was not afforded an opportunity to consider. Murray, 428 S.W.3d at 714.


                                                         14
on the record that the State acted on a pattern of discrimination in striking Cannon. As we afford

great deference to the trial court’s determination whether the prosecutor’s strike is pretextual, we

conclude, given the totality of the circumstances, that the trial court did not clearly err in its

decision to accept the prosecutor’s reason for striking Cannon. Point III denied.

                                        Point IV: Closing Argument

        In his fourth point relied on, Defendant claims the trial court abused its discretion by

overruling his objection to the prosecutor’s closing argument, which stated that Defendant, by

using an interpreter at trial, was “hiding behind” and “hiding between” the Spanish interpreter

and did not really need one. According to Defendant, this argument “invited the jury to draw an

adverse inference based on [Defendant] being a Spanish speaking person, based on

[Defendant’s] national origin, and based on his immigration status, and was an attempt to stoke
                                                                                                             6
the hostilities of the jury against [Defendant] based on these improper considerations.”                         The

State responds that the trial court did not abuse its discretion by overruling Defendant’s

objection. The State asserts that its argument was not improper and did not prejudice Defendant.

        “A trial court maintains broad discretion in the control of closing arguments.” State v.

Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003). Statements made during closing argument

must be viewed in context of the entire record. Id. The trial court’s rulings with respect to the

scope of closing argument “will be cause for reversal only upon a showing of abuse of discretion

resulting in prejudice to the defendant[,]” i.e., that the outcome of the trial would have been

different had the error not be made. State v. Deck, 136 S.W.3d 481, 488 (Mo. banc 2004); State

v. Deck, 303 S.W.3d 527, 540 (Mo. banc 2010).

6
  In the argument portion of his brief, Defendant suggests that the State improperly invited the jury to draw an
adverse inference from Defendant’s exercise of a constitutional right. Defendant does not identify the constitutional
right invoked. Aside from his failure to develop this argument, it is also not encompassed by the point relied on nor
was it raised before the trial court. Therefore, we consider this argument abandoned. See Rule 84.04(e); State v.
Mason, 428 S.W.3d 746, 753 n. 6 (Mo. App. E.D. 2014).


                                                        15
       The defense theory in its closing argument was that Defendant’s version of events was

credible, whereas the testimonies of Victim and the officers was not believable and that the DNA

evidence connecting Defendant to the crime did not support that Defendant committed the

crimes. In his rebuttal closing argument, the prosecutor sought to rehabilitate Victim’s testimony

by attacking Defendant’s credibility. The prosecutor argued:

       [The State]: And what do we have to refute the victim? The asinine story of the
       defendant who got up here, sat here and told you all this detail, I played soccer, I
       did this, I did that, and then he hides between the translator because what he did
       numerous times throughout the trial –

       [Defense counsel]: Objection, your Honor, it’s completely inappropriate to
       suggest he's hiding behind a translator. There's been no evidence of that. He has
       the right to have a translator and that's inappropriate, your Honor.

       THE COURT: Overruled.

       [The State]: I asked him on a couple of occasions, you all remember that? Please
       wait for your translator to answer because he was answering my questions and he
       did it on his own counsel’s questions. You make up your mind. Was he hiding
       behind the interpreter because he’s not speaking very well, but the fact of the
       matter is he understood what was going on.


Generally, “[a] prosecuting attorney should not inflame the passions or prejudices of the jury

against a defendant.” State v. Douglas, 720 S.W.2d 390, 393 (Mo. App. S.D. 1986). Arguments

designed to induce a jury to act on passion or prejudice may include personal attacks or the

invocation of personal epithets, speculation about future crimes the defendant might commit, or

statements designed to make the jury fear a defendant, such as arguments that ask the jury to put

themselves in the victim’s place.    State v. Banks, 215 S.W.3d 118, 121 (Mo. banc 2007)

(personal attacks); State v. Storey, 901 S.W.2d 886, 901 (Mo. banc 1995) (personalized

arguments); State v. Swenson, 551 S.W.2d 917, 919 (Mo. App. 1977) (personal epithets and

speculation about future crimes).




                                               16
        Here, the prosecutor’s comments, when read in context, were designed to attack

Defendant’s credibility. As noted, the prosecutor made the comments in his rebuttal closing

argument, which indicates an intention to rehabilitate Victim’s version of events by arguing that

Defendant’s testimony should not be believed. In essence, the prosecutor was arguing that

Defendant was a liar, i.e., Defendant represented that he only spoke Spanish and needed an

interpreter and, yet, was able to understand and answer questions during examination without the

interpreter’s help. Commentary on a defendant’s credibility is proper in a prosecutor’s closing

argument. See State v. Washington, 444 S.W.3d 532, 540-41 (Mo. App. E.D. 2014) (“[A

prosecutor] may comment on . . . the credibility of the defendant’s case [and] may even belittle

and point to the improbability and untruthfulness of specific evidence.” (citation and quotations

omitted)).

        Defendant’s contrary assertion, that the comments were made to inflame the jury’s

passion and to encourage punishment based on Defendant’s national origin and the fact that he is

a Spanish speaker, is not supported by the record. Defendant points out that several “potential

jurors” made disparaging comments regarding illegal immigrants during voir dire and that the

State asked about Defendant’s immigration status during the penalty phase of the trial.7 These

facts do not show that the jury, as result of the State’s rebuttal closing argument, acted on

personal animus when deliberating as to Defendant’s guilt. Defendant has not met his burden of

showing that the State’s argument affected the jury’s verdict.

        In sum, the State’s closing argument was proper and the trial court did not abuse its

discretion by permitting the argument. Point IV denied.



7
  In his brief, Defendant asserts that the prosecutor twice attempted to introduce irrelevant evidence about
Defendant’s immigration status. Defendant again misstates the record, as the prosecutor only sought to introduce
testimony of Defendant’s immigration status during the penalty phase of the trial.


                                                      17
                                           Conclusion

       The judgment of the trial court is affirmed.



                                             _________________________________
                                             Philip M. Hess, Judge


Sherri B. Sullivan, P.J. and
Mary K. Hoff, J. concur.




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