                   In the Missouri Court of Appeals
                           Eastern District

                                    DIVISION TWO



STATE OF MISSOURI,                        )      No. ED100133
                                          )
       Plaintiff/Respondent,              )      Appeal from the City of St. Louis
                                          )      Circuit Court
vs.                                       )
                                          )       Honorable Mark H. Neill
TIM WASHINGTON,                           )
                                          )      Filed: August 26, 2014
       Appellant/Defendant.               )


                                       Introduction

       Tim Washington (Defendant) appeals his convictions of first-degree robbery and

armed criminal action. On appeal, Defendant claims that the trial court abused its

discretion by allowing into evidence the pretrial and in-court identifications of Defendant.

Defendant also claims that the trial court abused its discretion by failing to provide a

limiting instruction when the State, in its closing argument, argued facts not in evidence

and improperly shifted the burden of proof to Defendant. We affirm.
                                          Factual Background

        On June 2, 2011, Defendant walked into a Circle K gas station around 10 p.m. At

the time, Shindell Dinkins was working as a cashier and saw, from where she stood at her

cash register, Defendant enter the store carrying a large woman‘s bag. Dinkins kept her

―eye‖ on Defendant because she suspected that Defendant ―was probably coming in to try

and stuff product in his bag.‖1 Dinkins also noticed that Defendant was ―oddly tall‖ and

―so thin.‖ As Dinkins waited on other customers, she continued to watch Defendant as

he walked all the way around the store and then toward her cash register.                               As he

approached, Dinkins saw Defendant pull a gun from the bag. When Defendant reached

the register, which was open, he pushed a customer out of the way, reached across

Dinkins, and took about $50 from the register while pointing the gun at Dinkins.

Defendant then exited the store and walked toward a Metrolink station.

        No DNA or other physical evidence linked Defendant to the scene, but the store‘s

surveillance video showed the robbery occurring. Consistent with police department

practice, an email containing a still-photo of Defendant from the surveillance video was

circulated to the department.              Another police officer recognized Defendant and,

subsequently, a photo lineup containing Defendant‘s photo was prepared. Dinkins and

another witness who was a customer at the scene, Rhonda Shannon, identified




1
 Dinkins explained that the manager of the store had warned her to ―look out‖ for people who come into the store
with bags because they may steal things.


                                                       2
Defendant.2 Defendant was arrested and, thereafter, Dinkins identified Defendant at an

in-person lineup.

        Defendant was charged with first-degree robbery and armed criminal action.

Before trial, Defendant moved to suppress the out-of-court identification of Defendant,

claiming that the photo lineup and in-person lineup were unduly suggestive. After a

hearing on the motion, the trial court denied the motion without explanation.

        The matter then proceeded to a jury trial, where the State presented the testimony

of Dinkins and Shannon, who identified Defendant as the individual who committed the

robbery. Dinkins‘ and Shannon‘s out-of-court identifications of Defendant, as well as the

surveillance video, were also admitted into evidence.                       At the close of the State‘s

evidence, Defendant presented evidence in support of its defense theory that Defendant‘s

identity had been mistaken. Defendant also presented the alibi testimony of his sister,

Louisa Lyes, who testified that Defendant was at her home when the robbery occurred.

Ultimately, the jury convicted Defendant as charged and the trial court sentenced

Defendant as a prior offender to concurrent terms of 25 years‘ imprisonment for each

conviction. This appeal followed.

                                           Standard of Review

        Defendant‘s first point on appeal relates to the trial court‘s decision to admit

certain identification evidence. We review a trial court‘s decision to admit or exclude

evidence for an abuse of discretion. State v. Norman, 145 S.W.3d 912, 919 (Mo. App.

2
 Shannon was the customer that Defendant pushed out of the way. According to Shannon, she saw Defendant pull
out the gun. At this point, she looked directly at Defendant, he looked directly at her, and then Defendant pushed
her out of the way.


                                                        3
S.D. 2004). ―A trial court abuses its discretion when its ruling is clearly against the logic

of the circumstances before the court and is so arbitrary and unreasonable as to shock the

sense of justice and indicate a lack of careful consideration.‖ State v. White, 329 S.W.3d

710, 712 (Mo. App. S.D. 2010). Error in the admission or exclusion of evidence does not

justify reversal unless the error was so prejudicial that it deprived the defendant of a fair

trial such that the verdict would have been different. State v. Kreidler, 122 S.W.3d 646,

649 (Mo. App. S.D. 2003).

       Defendant‘s remaining two points relate to the State‘s comments during closing

argument. ―The trial court has broad discretion in controlling closing argument, with

wide latitude accorded counsel in their summation.‖ State v. Dudley, 51 S.W.3d 44, 57

(Mo. App. W.D. 2001) (citation and quotations omitted).         ―Although courts are to be

careful to refrain from unduly restricting closing arguments, they have the power to

confine the arguments to issues raised by the pleadings and the evidence.‖ State v.

Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006) (quotations omitted). A trial court‘s

decision concerning the scope of closing argument is cause for reversal only upon a

showing of an abuse of discretion that resulted in prejudice to the defendant. State v.

Deck, 136 S.W.3d 481, 488 (Mo. banc 2004). In reviewing a trial court‘s decision, we

are to examine the closing argument at issue in the context of the entire record. State v.

Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003). To the extent that Defendant did not

raise specific objections to the State‘s comments during closing argument, we may

review Defendant‘s allegations for plain error. See State v. Hopson, 168 S.W.3d 557, 565

(Mo. App. E.D. 2005).


                                             4
                                       Discussion

                            Point I: Identification Evidence

      In his first point relied on, Defendant claims that the trial court abused its

discretion by allowing the pre-trial and in-court identifications of Defendant because the

identification was the result of ―impermissibly suggestive police procedures that damaged

the reliability of the identification.‖ Specifically, Defendant maintains that the photo

array was unduly suggestive because Defendant was the only individual who fit the

description of the robber, which rendered the identifications unreliable and tainted

subsequent identifications in violation of his due process rights. The State responds that

Defendant has not established that the identifications procedures were unduly suggestive

and, that even if this evidence was improperly admitted, reversal is not required because

other evidence sufficiently supported Defendant‘s convictions.

      Identification testimony is inadmissible if the pretrial identification procedure was

unnecessarily suggestive and the suggestive procedure made the identification unreliable.

State v. Body, 366 S.W.3d 625, 629 (Mo. App. E.D. 2012). This test contemplates a two-

prong inquiry for determining whether identification testimony is admissible. Foster v.

State, 348 S.W.3d 158, 161 (Mo. App. E.D. 2011). First, the Court determines whether

the police procedures used were impermissibly suggestive. Id. at 162. ―Police procedure

is unduly suggestive if the witness‘s identification of the defendant results from the

procedure or actions of the police, rather than from the witness‘s recollections of his or

her firsthand observations.‖ Body, 366 S.W.3d at 629. If ―the witness has an adequate

basis for the identification independent of the suggestive procedure,‖ then it cannot be


                                            5
said that unduly suggestive police procedures tainted the identification. State v. Floyd,

347 S.W.3d 115, 125 (Mo. App. E.D. 2011).

       Only if the procedure was unnecessarily suggestive does the Court reach the

second prong of the inquiry whether the suggestive procedure made the identification

testimony unreliable. Body, 366 S.W.3d at 629. ―In determining the reliability of a

witness‘s identification, we consider: (1) the opportunity of the witness to view the

subject; (2) the witness‘s degree of attention; (3) the accuracy of any prior description

given by the witness; (4) the level of certainty demonstrated by the witness in making the

identification; and (5) the interval between the event and the identification procedure.‖

Floyd, 347 S.W.3d at 125.

       At the hearing on the motion to suppress and at trial, Detective Douglas

McPherson testified that he created the photo lineup containing Defendant‘s photograph

after interviewing witnesses at the scene and after a fellow police officer identified

Defendant in the surveillance video. According to McPherson, Defendant‘s most recent

mugshot on file appeared to match that of the robber described by witnesses at the scene

and in the video. McPherson testified that he then created the lineup using a computer

program that uses the suspect‘s characteristics to populate the lineup with other

individuals of similar skin tone, height, weight, hair, hairstyle, and facial hair.

McPherson explained that the program generates about 30 photographs of similar

individuals, from which an officer then selects the five individuals that best resemble the

suspect to create the lineup. In the photo spread prepared in this case, McPherson

indicated that Defendant was the lightest-skinned individual of the six individuals


                                            6
depicted and four out of the six individuals had some facial hair, including possibly

Defendant.3 McPherson testified that he did not notice that Defendant was wearing a

similar red-checked shirt in the mugshot used for the photo lineup as Defendant wore on

the night of the robbery.

        About a week after the robbery, McPherson showed the photo lineup to Shannon,

telling her consistent with standard procedure that ―the photo lineup contains six photos,

[that the] suspect may or may not be in the photos [and to] view each photo and let me

know if [you recognize] anybody.‖ Shannon testified that she immediately identified

Defendant because she ―noticed the face and everything about him[,] [t]he shirt,

everything.‖

        Another detective, Detective Angela Hawkins, testified that she showed the same

spread to Dinkins the day after Shannon identified Defendant. Hawkins said that she told

Dinkins that ―the person who was responsible could or could not be depicted in these

photos, and if [the person] were or were not, [you] should let me know.‖ Dinkins

testified that she identified Defendant in the photo spread and told Hawkins that she was

100 percent certain in her identification. According to Dinkins, she picked Defendant‘s

photo because ―that‘s [the] man that I saw rob the store.‖ Dinkins further explained that

she had not noticed that he wore a similar shirt in the lineup as on the night of the

robbery, but that she identified Defendant as the robber because ―[h]e was very close to




3
  Two individuals in the photo spread have short-trimmed mustaches, while the remaining individuals possibly have
stubble or some lighter facial hair.



                                                       7
me in the store, and that‘s the same guy that I saw. We were face to face. It wasn‘t hard

to pick him out.‖

       The day after Dinkins identified Defendant in the photo spread, McPherson

conducted an in-person lineup during which Dinkins identified Defendant from a viewing

room. McPherson explained that he would select three other individuals of similar

height, weight, and body style for the victim to view.          For Defendant‘s lineup,

McPherson indicated that he had the individuals sit down because Defendant is ―very

tall.‖ Dinkins testified that she identified Defendant because she recognized ―how thin

his face is . . . how skinny he is,‖ and the noticeable discolorations of his complexion.

She again indicated that she was 100 percent certain in her identification. Both Shannon

and Dinkins later identified Defendant at trial.

       As our review of the record demonstrates, the evidence in this case does not show

that the police took any action that made either the photo lineup or physical lineup

impermissibly suggestive. McPherson generated the photo lineup using a computer

program that selected 30 individuals similar to Defendant and then he populated the

spread with the five individuals most similar to Defendant. Indeed, the record shows that

all six of the individuals in the photo spread are of the same race, have a similar age, a

similar hairstyle, and at least two individuals other than Defendant can reasonably be

described as light-skinned African Americans. When the photo lineup was presented to

Dinkins and Shannon, no threats or promises were made to either witness to secure their

identification of Defendant. Rather, each witness was told that the perpetuator may or

may not be in the photo spread and to simply indicate whether the robber was present.


                                              8
Each witness thereafter identified Defendant based on their memory of the robber, their

recollection of Defendant‘s face and, in Dinkins case, his unique features. For the in-

person lineup, McPherson selected individuals similar in height, weight, and body type,

and three of the four individuals (including Defendant) had lighter complexions. In

addition, McPherson had the individuals sit down, given that Defendant is very tall.

      Despite the neutrality of the police action and the witnesses‘ certainty in their

identifications of Defendant, Defendant argues that these pretrial procedures were

impermissibly suggestive because Defendant was the only light-skinned African

American without facial hair in the lineup and the only individual to be displayed in both

the photo lineup and physical lineup. However, ―[d]issimilarity in physical appearance,

alone, is insufficient to establish impermissible suggestion.‖ State v. Chambers, 234

S.W.3d 501, 513 (Mo. App. E.D. 2007). Police are only required to use reasonable

efforts to find physically similar participants, and ―differences in age, weight, height,

hairstyle, and other physical characteristics do not compel a finding of impermissible

suggestiveness.‖ Id. at 514. Indeed, this Court has previously concluded that merely

because a defendant has the lightest complexion of the six individuals in a photo spread

does not render the lineup impermissibly suggestive.         Floyd, 347 S.W.3d at 126

(defendant‘s complaint that he was lightest-complected individual in a photo array did

not render procedure unduly suggestive).         Likewise, a police procedure is not

impermissibly suggestive just because the defendant was the only individual to appear in

both the photo lineup and physical lineup. Body, 366 S.W.3d at 631.




                                            9
        Defendant additionally highlights the fact that he wore a similar shirt on the night

of the robbery as in the photo spread and alleges that this fact also renders the photo

lineup unduly suggestive. However, this alleged taint arises not from police procedure,

but from the coincidental fact that the shirt Defendant wore in his most recent mugshot

was similar to the one he wore when he committed the robbery.                                     As noted, an

identification procedure is unduly suggestive if it arises from police procedure. Body,

366 S.W.3d at 629. A ―taint‖ that originates from a nongovernmental source cannot

render an identification procedure impermissibly suggestive. State v. Glover, 951 S.W.2d

359, 363 (Mo. App. W.D. 1997). Moreover, because both Dinkins and Shannon had an

―adequate basis for the identification independent of the suggestive procedure‖—their

recollection of Defendant‘s face—it cannot be said that unduly suggestive police

procedures tainted the identification. Floyd, 347 S.W.3d at 125.4

        Finally, there is no merit to Defendant‘s argument that the ―inherent deficiencies‖

of eyewitness identification are apparent in this case and that this matter is unlike State v.

Body, 366 S.W.3d at 625, where this Court concluded that a photo lineup was not unduly

suggestive. The psychological studies5 Defendant references are not informative with

respect to the question in this case whether the police procedures used were unnecessarily

suggestive. Nor do these studies provide authority for Defendant‘s argument that the

4
  Defendant also claims that Shannon‘s identification of Defendant was ―tainted‖ by her traumatic reaction to the
robbery, but Defendant cites no case law for the proposition that a witness‘s response to an event may render an
identification procedure unnecessarily suggestive. An appellant abandons a claim if the appellant cites no authority
in support. See Rios v. State, 368 S.W.3d 301, 312 (Mo. App. W.D. 2012).
5
 See, e.g., Morgan et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly
Intense Stress, 27 Int‘l J.L. & Psychiatry 265, 274 (2004); Brewer et al., The Confidence-Accuracy Relationship in
Eyewitness Identification, 8 J. Experimental Psychol. Applied 44, 44-5 (2002).



                                                        10
cases permitting eyewitness identification testimony under circumstances similar to this

case were wrongly decided.               Likewise, Defendant‘s reliance on Body is misplaced,

because there, like here, the police employed neutral practices to create the photo lineup

and to present the lineup to the victim.               Id. at 631. Body does not require a different

result.

          Because the record does not establish that the identification procedures were

unduly suggestive, we do not address the reliability of the identification. The trial court

did not abuse its discretion by admitting the pre-trial identifications, given that the pre-

trial procedures were not unduly suggestive.                    Further, Defendant‘s point relied on

indicates that the allegedly suggestive pre-trial identifications rendered the subsequent in-

court identifications unreliable. However, because we have concluded that the police

procedures were not unduly suggestive, it cannot be concluded that the subsequent in-

court identifications were also ―tainted.‖6 Point I denied.

                              Point II: Arguing Facts Not In Evidence

          In his second point relied on, Defendant claims that the trial court abused its

discretion by failing to provide a limiting instruction after the State made improper

remarks during closing argument. Specifically, Defendant asserts that the State argued

facts not in evidence pertaining to places that the gun could have been secreted or

disposed. The State counters that no abuse of discretion occurred because the State‘s

6
  Notably, Defendant‘s point relied on simply alleges that the impermissible pre-trial procedures used rendered the
in-court identification unreliable, while the argument portion of Defendant‘s brief posits that Shannon‘s in-court
identification of Defendant did not have a ―sufficient independent basis of reliability‖ because Shannon was ―under
great stress‖ and Defendant was the only African American male seated at counsel table. Because this argument is
not encompassed by the point relied on, we do not consider it. See Rule 84.04(e); State v. Cochran, 365 S.W.3d
628, 636 n. 6 (Mo. App. W.D. 2012).


                                                        11
argument regarding the location of the gun was a reasonable inference based on the facts

adduced at trial.

       Generally, ―a prosecutor is entitled to substantial latitude in closing argument,‖

State v. Lloyd, 205 S.W.3d 893, 909 (Mo. App. S.D. 2006), and ―may comment on the

evidence and the credibility of the defendant‘s case,‖ State v. Storey, 40 S.W.3d 898, 910

(Mo. banc 2001) (citation and quotations omitted). In doing so, ―counsel may even

belittle and point to the improbability and untruthfulness of specific evidence,‖ id., and

may suggest reasonable inferences for the jury to draw from the evidence, Lloyd, 205

S.W.3d at 909. A prosecutor cannot, however, argue facts not in evidence or inferences

not supported by the evidence. See Forrest, 183 S.W.3d at 226.

       During the State‘s case-in-chief, the prosecutor asked McPherson, ―In your

experience, is it necessarily unusual to not have a weapon recovered?‖ Defendant

objected on relevancy grounds, but the trial court overruled the objection, indicating that

McPherson‘s experience is ―relevant . . . [but] that‘s it. I‘m not going to allow you to

delve into it, ask how many times, or anything like that.‖ The prosecutor then restated

the question as: ―[I]n your experience, it‘s not necessarily unusual for the weapon to

never be recovered, right?‖ McPherson responded, ―Correct.‖ Later, during closing

argument, the prosecutor made the following argument in support of the armed criminal

action charge:

       [THE PROSECUTOR]: When you find him guilty of the robbery, first
       degree, next you find him guilty of the armed criminal action. Why? They
       piggyback on each other. The armed criminal action is for doing this
       robbery with a real weapon, with a deadly weapon.



                                            12
                                      *      *      *

      What other evidence do we have that this gun is real, that it‘s a deadly
      weapon? Here we go. You saw [Shannon‘s] expression yesterday. She
      was shaking so hard when she saw that surveillance video. She started
      crying and bawling. She got very, very, very, very scared and upset. You
      could see her reliving it. She thought she was going to die in that
      convenience store. [Dinkins] told you it was real. She said that was
      pointed at me, and I took a moment and I looked him right in the face
      because I knew I needed to remember him. That is a real gun.

                                      *      *      *

      He had his finger on the trigger. He threatened multiple people, pointed it
      right at this woman. This is a real gun, and the evidence shows that it‘s a
      real gun. It‘s that circumstantial evidence. It‘s like that rain that we talked
      about outside. You saw the puddles. You saw the umbrella. You‘ve got
      all the circumstantial evidence. Put those puzzle pieces together. You
      know that this is a real gun. I don‘t have it in the courtroom, but think of all
      the places it could be. In a house somewhere, hidden in the bottom of river.
      It‘s not the first time as Detective McPherson told you –

      [DEFENSE COUNSEL]:            I‘m going to object.      Arguing facts not in
      evidence.

      THE COURT: Overruled

      [THE PROSECUTOR]: It‘s not the first time Detective McPherson told
      you that a gun wasn‘t recovered. Doesn‘t mean it wasn‘t real, and it
      doesn‘t mean it didn‘t happen. You saw how he was using that gun in the
      video. You can see in this still the fear on this woman‘s face. They know
      it was real, and it was. [Emphasis added.]

      Clearly, the prosecutor‘s main argument was that the firearm need not be in

evidence to establish Defendant‘s guilt and that circumstantial evidence could establish

that the gun Defendant wielded was real. The prosecutor‘s point that the gun could be

―somewhere‖ is an inference from McPherson‘s testimony that it is not unusual to not

recover a firearm after a crime and was likely intended to rebut a contrary inference that



                                            13
Defendant‘s guilt had not been established because the gun had not been located.

McPherson‘s testimony in this regard was properly admitted and the prosecutor simply

made a reasonable inference from McPherson‘s testimony that Defendant may have

disposed of the firearm or otherwise hid it from police discovery. Moreover, we fail to

see how the result of the trial would have been different had the prosecutor not made

these remarks, given that the only disputed issue at trial was the identity of the robber and

the other evidence against Defendant was overwhelming, including eyewitness

identifications and a surveillance video.

       Our conclusion that the prosecutor‘s statements were proper inferences drawn

from the record that did not prejudice Defendant is supported by State v. Byrd, 423

S.W.3d 882 (Mo. App. E.D. 2014), which is directly on point. There, as here, the

prosecutor, with respect to the armed criminal action charge, commented during closing

argument on the fact that ―there are lots of reasons why that gun cannot be brought into

this courtroom.‖ Id. at 866. This Court reasoned that the prosecutor‘s comments as to

the location of the gun had no bearing on the sole issue at trial, the defendant‘s identity as

the robber, and concluded, in light of the evidence of the defendant‘s guilt, which

included GPS monitoring that placed the defendant at the scene and fingerprint evidence,

that the outcome of the trial would not have been different had the prosecutor not argued

that the gun need not be in evidence to establish the defendant‘s guilt. See id. at 887.

Similarly here, in light of the other evidence of Defendant‘s guilt, Defendant has failed to

establish that the jury‘s verdict would have been different had the prosecutor not made

this argument.


                                             14
        Defendant asserts that Byrd is distinguishable because, in that case, the prosecutor

did not suggest a variety of ways in which the defendant could have disposed of the

weapon, the defendant did not allege a violation of his Sixth Amendment right to

confrontation, and the evidence against the defendant was more compelling. These

alleged distinctions do not require a different result. First, the prosecutor‘s argument in

Byrd did, in fact, suggest that the defendant could have disposed of the weapon in a

variety of manners, including disposing of the gun in a river or giving it to a friend. 423

S.W.3d at 886. Moreover, that the defendant in Byrd did not argue that the prosecutor

effectively became a witness against the accused in violation of his confrontation rights is

immaterial. Here, the prosecutor did not testify against Defendant by offering additional

evidence. As our review of the record has made clear, the prosecutor‘s argument was

based on facts adduced at trial and, consequently, the prosecutor‘s statements did not

implicate Defendant‘s Sixth Amendment rights. Finally, the evidence in this case is no

less compelling than in Byrd, given that a surveillance video actually depicted Defendant

committing the crime.7 The trial court did not abuse its discretion by allowing the

prosecutor to argue that there were a number of ways in which Defendant could have

disposed of the weapon. Point II denied.




7
  Defendant also posits that the prosecutor‘s remarks were improper because the prosecutor accused Defendant of
additional acts of bad character and uncharged felonies, further improperly bolstering the State‘s theory that
Defendant was a ―liar.‖ Defendant never objected to the prosecutor‘s comments on this basis. Nor is this allegation
encompassed by Defendant‘s point relied on, which simply asserts that the comments were improper because the
prosecutor argued facts not in evidence. ―[I]ssues raised only in the argument portion of the brief are not presented
for review.‖ State v. Tinsley, 143 S.W.3d 722, 735 n. 7 (Mo. App. S.D. 2004) (citations and quotations omitted).
Therefore, we do not consider this assertion.



                                                         15
                               Point III: Arguing an Adverse Inference

         In his third point relied on, Defendant claims that the trial court abused its

discretion by failing to provide a limiting instruction after the State argued in closing

argument that Defendant could have called additional witnesses to support his alibi.

According to Defendant, this argument improperly shifted the burden of proof to

Defendant and violated the rule against arguing an ―adverse inference‖ when a witness is

―equally available.‖8 The State responds that the additional alibi witnesses were not

equally available to the State and, therefore, the prosecutor properly argued an adverse

inference.

         At the outset, we note that the argument portion of Defendant‘s brief focuses

entirely on the claim that the prosecutor improperly argued an adverse inference because

the missing witnesses were allegedly equally available to the State. Defendant, however,

did not object to the prosecutor‘s argument on this basis. Rather, Defendant simply

objected on the basis that the prosecutor‘s argument was improper because it ―shift[ed]

the burden.‖ During the State‘s closing argument, the following ensued:

         [THE PROSECUTOR]: Yes, this case all comes down to identity, who did
         it. We‘ve known that from the beginning, and that‘s what I‘ve been
         showing you during the course of this trial. He did it. These witnesses
         were not mistaken. Think about it. Whose testimony is corroborated?
         Whose testimony does the evidence back up? State‘s witnesses, [Shannon],
         [Dinkins]. Whose testimony is not corroborated? His sister‘s. His sister got
         up here –
8
  Defendant does not develop his claim in the argument portion of his brief that the State‘s closing argument
improperly shifted the burden of proof, other than to assert, without citation to authority, that permitting an adverse
inference argument when a witness is equally available ―can shift the burden of production to the defense.‖ An
appellant abandons a claim if the argument portion of the brief does not support the allegation in the point relied on
and also, when the appellant cites no authority in support. See Rios, 368 S.W.3d at 312; State v. Greenlee, 327
S.W.3d 602, 614 (Mo. App. E.D. 2010). Therefore, we do not consider Defendant‘s claim that the prosecutor‘s
remarks improperly shifted the burden of proof.


                                                         16
       [DEFENSE COUNSEL]: Your Honor, I‘m going to object. Shifting the
       burden.

       THE COURT: Rephrase your statement.

       [THE PROSECUTOR]: His sister got up here and said all these things that
       she could back none of them up. Including she said there were two other
       people who were at that apartment.

       [DEFENSE COUNSEL]:           Objection.    Shifting the burden.     Improper
       argument.

       THE COURT: Sustained.

       [THE PROSECUTOR]: Your Honor, can we approach? I believe this is an
       adverse inference, Your Honor.

       THE COURT: I‘ll reverse my position on that. Objection‘s overruled.
       You can go ahead.

       [THE PROSECUTOR]: Thank you. Thank you, Your Honor. Two other
       people she said could come in here and say where he was. They didn‘t
       come in here. Mr. Stennies and Mr. Conrad was his first name. She said
       she knew how to get ahold of them. Where were they? They were not
       here. You know why? Because it didn‘t happen because she was lying.

       [DEFENSE COUNSEL]: I‘m going to object still. Shifting the burden,
       Your Honor.

       THE COURT: Overruled.

       ―To preserve a claim of error, counsel must object with sufficient specificity to

apprise the trial court of the grounds for the objection.‖ State v. Stepter, 794 S.W.2d 649,

655 (Mo. banc 1990). Because Defendant did not object on grounds that the prosecutor

improperly drew an ―adverse inference‖ from the missing witnesses, our review of

Defendant‘s claim is for plain error only. Rule 30.20. It is rare that statements made

during closing argument amount to plain error. State v. Jones, 128 S.W.3d 110, 113 (Mo.


                                            17
App. E.D. 2003). ―To reverse a conviction under plain error review on a claim of

improper closing argument, a defendant must establish not only that argument was

improper, but also that it had a decisive effect on the outcome of the trial and would

amount to manifest injustice or miscarriage of justice if the error was left uncorrected.‖

Hopson, 168 S.W.3d at 565.

       ―Generally, in closing argument, the State may not argue an adverse inference

from the defendant‘s failure to call a witness who is equally available to both parties, or

unavailable to both parties.‖ State v. Tinsley, 143 S.W.3d 722, 735 (Mo. App. S.D. 2004)

(emphasis added). ―‗Equally available‘ means more than merely being susceptible to

service of process and is determined by consideration of the following three factors: (1)

one party‘s superior ability to know or identify the witness; (2) the nature of the

testimony expected to be given by the witness; and (3) a relationship between a party and

the witness which indicates a likelihood that the witness would testify more favorably for

one party than the other.‖ State v. Anderson, 867 S.W.2d 571, 576 (Mo. App. W.D.

1993). Only when the missing witness is ―peculiarly available‖ to the defendant, should a

trial court permit argument that the missing witness would have testified adversely to the

defendant. See id.

       In this case, Defendant had the superior ability to know and identify the missing

witnesses, as ―Stennies‖ was Defendant‘s sister‘s brother and ―Conrad‖ was likely an

acquaintance of Defendant. The record does not indicate that either individual was

disclosed to the State as alibi witnesses or that police discovered these individuals

through their investigation. Further, the alibi testimony of Defendant‘s sister indicates


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that the testimony of Stennies and Conrad would have further corroborated her alibi

testimony, which would have been favorable to Defendant and unfavorable to the State.

These factors indicate that these witnesses were not equally available to both the State

and Defendant. Accordingly, we discern no error, plain or otherwise, in the trial court‘s

decision to permit the State to argue an adverse inference from the missing witnesses and

not to provide a limiting instruction. Point III denied.

                                        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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