STATE OF MISSOURI,                            )
                                              )
       Plaintiff-Respondent,                  )
                                              )
vs.                                           )              No. SD33305
                                              )
WILLIAM J. KEARNES,                           )              Filed: April 7, 2015
                                              )
       Defendant-Appellant.                   )

          APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY

                         Honorable R. Craig Carter, Circuit Judge

AFFIRMED

       A jury found William J. Kearnes (“Defendant”) guilty of stealing a tractor and

brush hog, and the trial court sentenced him as a prior offender to ten years in the

Missouri Department of Corrections. Defendant appeals and raises three points – (1) the

trial court “plainly erred in not declaring a mistrial sua sponte” when the prosecutor,

without objection, “misstate[d the] law” in closing argument, (2) the trial court “plainly

erred in overruling [Defendant’s] objection” to a statement and implication by the

prosecutor during closing argument that was “not based on any evidence,” and (3) the

trial court “abused its discretion” in excluding “a missing person report” from evidence.

We affirm the trial court’s judgment because Defendant fails to persuade us that either of



                                             1
the claimed plain errors in closing argument had a decisive effect on the outcome of the

trial, and the exclusion of the missing person report from evidence was not an abuse of

discretion as the report was cumulative to significant other evidence.

                                  Facts and Procedural History

        Defendant was charged as a prior offender with stealing, on August 4, 2011, a

tractor and brush hog that had a value of at least $25,000.

        Inasmuch as Defendant does not challenge the sufficiency of the evidence, we

limit our summary of the evidence at trial to that evidence necessary for us to review the

points raised by Defendant. In summarizing the evidence, we view the evidence in the

light most favorable to the jury’s verdict – drawing all reasonable inferences favorable to

the jury’s verdict and rejecting all evidence and inferences contrary to the jury’s verdict.

State v. Hart, 404 S.W.3d 232, 235 (Mo. banc 2013); State v. Salazar, 414 S.W.3d 606,

610 n.2 (Mo.App. S.D. 2013), cert. denied, 134 S.Ct.2875 (2014); and State v. Vorhees,

342 S.W.3d 446, 448 (Mo.App. S.D. 2011).

        Donald (“Archie”) Earl Ladd owned a tractor with an attached front-end loader

with a hay spike and a “fold-up brush hog.” The tractor, loader and brush hog were

appraised after August 4, 2011, for more than $50,000. A tractor and attachments can be

sold without a title. The tractor and attachments were located behind locked gates on

August 4, 2011, near a “waterer” that pumped fresh water that was safe to drink.1 After

lunch at Mr. Ladd’s home on August 4, 2011, Mr. Ladd and a worker, Pat Moore, started

back toward where the tractor and attachments were located. Mr. Ladd and Mr. Moore

were traveling in separate vehicles with Mr. Ladd in front and Mr. Moore behind. In the


1
 On August 3, 2011, Mr. Ladd had talked to and observed law officers looking for a person and also
observed a helicopter searching for a person.


                                                   2
course of the trip, Mr. Ladd encountered Defendant driving Mr. Ladd’s tractor and

attachments toward Mr. Ladd. Mr. Ladd had not given Defendant permission to operate

the tractor. Mr. Ladd used his vehicle to block the road, exited his vehicle with a loaded

.38 caliber revolver, and ordered Defendant to exit the tractor and lie on the gravel.

Defendant complied, and did not seem disoriented to Mr. Ladd. Mr. Ladd then contacted

law enforcement, and officers responded to the scene.

       While driving Mr. Ladd’s tractor, Defendant had passed a wedding chapel and

two occupied houses and drove the tractor over three miles before Defendant encountered

Mr. Ladd. To get out of the locked enclosure in which the tractor was located, Mr. Ladd

believed that Defendant used the front-end loader to lift the locked gates up and pull them

out of the way, and, in the process, ran over one of the gates. In addition, the tractor had

been left in a “transmission range” for use in the field, but was in a “transmission range”

for use on the highway when Mr. Ladd encountered Defendant driving the tractor. In

order to shift the tractor from field range to highway range, the operator was required to

place the transmission and shuttle in neutral and then push a button.

       Other evidence at trial included the testimony of several witnesses. Retired

Missouri State Highway Patrol Sergeant Keith Jones testified that officers from Christian

and Douglas Counties conducted a search on August 3, 2011, in the area where

Defendant was found on August 4, 2011. When Sergeant Jones arrived at the scene

where Defendant was present on August 4, 2011, Douglas County Sheriff Chris Degase

and Douglas County Deputy Sheriff Vernon Johnson were present. Defendant was

“drinking a bottle of water.” Sergeant Jones described Defendant’s condition “as pretty

much emaciated. He was dehydrated. He had cuts, scratches, and bruises all over his




                                              3
body. He was dirty. His hair was matted with leaves and burrs and dirt . . . .” Sergeant

Jones added that “[i]t looked like . . . [Defendant] had ran through or been drug through a

briar patch.” Defendant’s only clothing was “a pair of shorts.” A gate at the farm of the

owner of the tractor and brush hog “looked like someone had just ran through the gate

with -- with something -- a car, a piece of equipment.” Sergeant Jones did not “smell[]

any intoxicants on [Defendant],” and opined that Defendant “had been impaired or was

impaired at the time” by drugs though he would have been unable “to tell the difference”

between impairment by drugs and disorientation from being lost and without food for

days because no tests were conducted. Swan Creek, with fresh water, was “not too far”

from where Defendant was encountered. Defendant was transported by ambulance to a

hospital “for medical attention.”

       Pat Moore, who worked for Mr. Ladd, testified that it appeared Defendant had

used the loader on the tractor to lift the locked gates and move them to one side so

Defendant “could get out.” It also appeared Defendant drove over a part of the locked

gates. Mr. Moore had not “seen anybody out there asking for help” in the days before

August 4, 2011.

       Defendant did not testify, but called his mother, Katherine Kearnes, and Douglas

County Sheriff Chris Degase as witnesses. In response to Mr. Ladd’s request for law

enforcement assistance, Sheriff Degase went to the location where Mr. Ladd was holding

Defendant. Deputy Sheriff Johnson arrived “right behind [Sheriff Degase]” followed by

Sergeant Jones. Defendant “had a lot of scratches,” including on his feet, and was

“galded” on his buttocks and “somewhat incoherent.” Defendant was in “sad shape.”

Defendant was dehydrated, and was sent to the hospital. Sheriff Degase “knew




                                             4
[Defendant] had been in the woods for a couple, three days at least. I believe that August

2nd, his wife was picked up in that area.” A report Defendant was missing was filed on

August 3 by either Defendant’s wife or mother, and law enforcement searched the area

for Defendant on August 3. The search included the use of a helicopter and plane. On

cross examination, Sheriff Degase stated, “I don’t know whether [Defendant] was

[intoxicated] at that time. Later on in the interview, he indicated to me that he and his

wife felt that they had gotten some bad dope.”

       Ms. Kearnes reported to “authorities” Defendant was missing when Defendant’s

wife was found a “day or two before [Defendant] was found.” The authorities included

the Taney County Sheriff’s office. Defense counsel requested to “enter . . . into the

record” the written report Ms. Kearnes made to the Taney County Sheriff’s office, and

the prosecutor objected based on a lack of relevance. Defense counsel replied the report

“indicates how long [Defendant] was gone, how long he very possibly was in the woods.

. . .” The trial court sustained the prosecutor’s objection and excluded the report from

evidence. Almost immediately after the trial court’s ruling, Ms. Kearnes testified that “it

was, like, five and a half days he was missing totally.”

       Defendant and his wife were living with Ms. Kearnes at the time. Defendant and

his wife did not take any “camping stuff” or anything else with them when they left Ms.

Kearnes’ home. Defendant was at the hospital when Ms. Kearnes first saw him after he

was found driving Mr. Ladd’s tractor. Defendant “was very skinny” and “pathetic

looking” – “he just looked withered.” Ms. Kearnes took pictures of some of Defendant’s

sores and abrasions at the hospital, and those pictures were shown to the jury. When

Defendant’s wife was found, she was “naked from the waist down.” A drug test was




                                             5
performed on her and Ms. Kearnes “assumed” she was “using methamphetamines.” The

only clothing Defendant’s wife had on when she was found was a “shirt,” and the only

clothing Defendant had on when he was found was “shorts.” Ms. Kearnes was aware the

search for Defendant included a helicopter. On cross examination, the trial court

prohibited the prosecutor from asking Ms. Kearnes for a “medical opinion” on the cause

of Defendant’s sores.2

          During voir dire, the trial court informed the venire panel:

          It is your duty to follow the law as the Court gives it to you in the
          instructions even though you may disagree with it. Are there any of you
          who would not be willing to follow all the instructions which the Court
          will give to the jury? If so, please raise your hand at this time. Again, the
          Court sees no hands.

Defense counsel asked the venire panel, “[w]ould anyone have a problem keeping their --

keeping an open mind as to intent, because that’s really what this case is going to turn on

today.”

          In his opening statement, the prosecutor told the jury that, after it heard all the

evidence, it would determine Defendant “didn’t intend to return [the tractor].” Defense

counsel told the jury in her opening statement that Defendant admits he “took” the

tractor, but “[h]e didn’t take it to keep it for himself” – “[h]e took it as a means to an end.

He took it so he could get to somewhere where he could get the help that he needed.” A

short time later in her opening statement, defense counsel repeated “[h]e did not take [the

tractor] to keep it. He took it to save his life.”




2
  Contrary to Defendant’s assertion in his brief that the trial court “never instructed [the jury] to disregard”
the prosecutor’s question, jury instruction 2 specifically instructed the jury “[y]ou must not assume as true
any fact solely because it is included in or suggested by a question asked a witness. A question is not
evidence, and may be considered only as it supplies meaning to the answer.”


                                                       6
       The trial court instructed the jury that in order to find Defendant guilty, the jury

must “find and believe from the evidence beyond a reasonable doubt” that Defendant

“took” the tractor and brush hog “for the purpose of withholding from the owner

permanently or using or disposing of it in such a way that made recovery by the owner

unlikely” among other elements. Defense counsel submitted a converse instruction that

also was given to the jury and stated:

       Unless you find and believe from the evidence beyond a reasonable doubt
       that the defendant took the tractor for the purpose of withholding it from
       the owner permanently, or using, or disposing of it in such a way that
       made recovery by the owner unlikely, you must find the defendant not
       guilty . . . .

The jury was further instructed: (1) “[i]t is your duty to follow the law as the Court gives

it to you,” and (2) closing arguments:

       are intended to help you in understanding the evidence and applying the
       law, but they are not evidence. You will bear in mind that it is your duty
       to be governed in your deliberations by the evidence as you remember it,
       the reasonable inferences which you believe should be drawn there from,
       and the law as given in these instructions.

       In the first part of his closing argument, the prosecutor argued as follows:

       But do you think that tractor would’ve returned ever to the ownership of
       Mr. Ladd? I seriously doubt it. And that’s what you have to decide today
       because they’ve admitted to everything else.
                They had to. He was caught red-handed, driving the tractor down
       the road. So they want to say, oh, wait, he didn’t mean to steal it, he was
       just kind of borrowing it. . . .
                So, you know, the instruction says, did he take the tractor? Yes.
       Did he do it without Mr. Ladd’s consent? Yes. Did it have a value of at
       least $25,000? Yes. And the issue is, did he withhold it from the owner
       permanently, or disposing of it in such a way that made recovery unlikely?
       That’s your question as to, was he going to do that? We don’t know
       what’s in his mind. But I think you can draw commonsense notion, folk,
       that if you take a tractor and you drive it down the road, you’re not going
       to bring it back that afternoon. He’s not going to bring it back the next
       day and say, oh, here’s your tractor I borrowed. . . .




                                             7
       ....

Don’t tell me that the sores on his body were caused by what was
happening to him out there. Something else, in my opinion, caused those
sores. And I believe it’s --
       [Defense Counsel]: Objection, Your Honor. That’s not in
evidence.
       [Prosecutor]: Well, I’ll let the jury -- the jury can decide what the
evidence shows, Your Honor.
       THE COURT: Overruled.
       [Prosecutor]: I don’t think there’s any argument about the tractor;
how much it’s worth. . . .

       ....

        I don’t know why he didn’t raise his hand; why he didn’t say, here
I am folks, come help me. I’m thirsty. I’m all ate up by briars, chiggers,
and ticks, and whatever else. You know, it’s a sad, sad, state of affairs if
that’s going to be the defense to crime in this country goes.
        And by the way, look in your Jury Instruction No. 5, it doesn’t say
anywhere in there that being high or out of your mind or unconscious for
some reason is a defense to this crime. If it was, I couldn’t convict
anybody ever in Douglas County. Just tell you that right up front.
        Pass the argument.

Defense counsel in her closing argument stated:

I agree with the Prosecutor, we want you to use your commonsense. . . .

       ....

We do know that he was dirty, that he was matted, that he found that
tractor and he rode it to try to find help. . . .

       ....

       So we ask that you look at what’s missing in the evidence. The
Prosecution has not proved that he intended to keep that tractor, that he
intended to do anything with it, but to find help. The tractor was returned.
We ask that you -- unless you find and you believe the evidence beyond a
reasonable doubt that the Defendant took the tractor for the purpose of
keeping it, of disposing it in some way to keep it from the owner
permanently, to make the recovery unlikely for the owner, you must find
the Defendant not guilty. Thank you.

The prosecutor in his reply closing argument, argued the following:



                                     8
                   I get the last say because the burden of proof is on the State to
           prove to you beyond a reasonable doubt that [Defendant] did, in fact, steal
           the tractor, and didn’t intend to return. . . .

           Yeah, you do have to make a little leap of faith. What was he going to do
           with the tractor? Just take it out for a joy ride to see how that -- he might
           like to buy one of those $52,000 tractors next week.

                    ....

           It’s a simple case. If you want to let the guy go and you think he’s going
           to bring the tractor back in one piece, you’re living in a different world
           than I live in every day. And I know that’s your right to do so.

           The jury found Defendant guilty of stealing, and the trial court sentenced

Defendant to ten years in the Missouri Department of Corrections as a prior offender.

                                                Points I and II

              Standard of Review for Claimed Plain Error in Closing Argument

           Errors not objected to at trial are limited to review only for plain error. State v.

Carter, 415 S.W.3d 685, 691 (Mo. banc 2013); and State v. Deck, 303 S.W.3d 527, 541

(Mo. banc 2010). With exceptions not relevant here, errors that are objected to at trial

but are not included in a motion for new trial also are limited to review only for plain

error. Rule 29.11(d);3 State v. Miller, 372 S.W.3d 455, 475 (Mo. banc 2012); and State

v. Vorhees, 342 S.W.3d 446, 448 (Mo.App. S.D. 2011).

           A conviction will be reversed for plain error in closing argument only when the

defendant shows that the error had a “decisive effect on the outcome of the trial and

amounts to manifest injustice.” Miller, 372 S.W.3d at 475 (internal quotations and

citation omitted); and Deck, 303 S.W.3d at 541; see also Carter, 415 S.W.3d at 691 (a

“decisive effect on the jury”). The claimed error in closing argument must be “examined

in the context of the entire record.” Deck, 303 S.W.3d at 541, 542-43.
3
    All rule references are to Missouri Court Rules (2015), unless otherwise specified.


                                                        9
       There are additional concerns where the claimed error was not objected to at trial.

As our high court stated in Carter, 415 S.W.3d at 691:

               Reviewing courts will rarely find plain error in closing remarks
       when the challenging party did not object at trial because any action on the
       part of the court would be uninvited. State v. Perry, 275 S.W.3d 237, 245
       (Mo. banc 2009); see State v. Silvey, 894 S.W.2d 662, 670 (Mo. banc
       1995) (declining plain error review of prosecutor statements in closing
       argument because relief is rarely granted in such situations). The
       defendant's failure to object to an improper argument is often strategic,
       and uninvited intervention may emphasize the matter in a way the
       defendant chose not to. Perry, 275 S.W.3d at 245.

Further, double jeopardy may bar retrial “if a judge grants a mistrial in a criminal case

without the defendant’s request or consent.” State v. Lovell, 414 S.W.3d 577, 579 n.4

(Mo.App. S.D. 2013) (internal quotations and citation omitted).

                                          Analysis

                                           Point I

       In his first point, Defendant argues that the trial court “plainly erred in not

declaring a mistrial sua sponte” when the prosecutor, without objection, argued on a

single occasion that jury instruction 5 does not “say anywhere in there that being . . . out

of your mind or unconscious for some reason is a defense to this crime” because that

argument “was a misstatement of the law” that had a decisive effect on the outcome of

the trial where “the entire crux of [Defendant’s] defense was that he was so disoriented

from being lost in the woods for days that he could not have formed the intent to steal

[Mr.] Ladd’s tractor.”

       In order to find Defendant guilty, jury instruction 5 required the jury to “find and

believe from the evidence beyond a reasonable doubt” that Defendant “took” Mr. Ladd’s

tractor and brush hog “for the purpose of withholding from the owner permanently or




                                             10
using or disposing of it in such a way that made recovery by the owner unlikely.”

Defendant’s argument is that the jury could have misinterpreted the prosecutor’s

argument to alter or negate the element that required the jury to find Defendant acted

with the specified purpose. Defendant has failed to show that occurred in this case.

        First, the prosecutor made the challenged statement only once in his closing

arguments. Defendant had the opportunity to challenge or explain what he now says is

the correct law. Second, at Defendant’s request, the trial court submitted to the jury a

converse instruction that emphasized the jury “must find [Defendant] not guilty” unless

the jury “find[s] and believe[s] from the evidence beyond a reasonable doubt” that

Defendant “took the tractor for the purpose” specified in jury instruction 5. Third, in voir

dire, following the trial court’s instruction that it was the venire panel’s “duty to follow

the law as the [trial c]ourt gives it to you in the instructions even though you may

disagree with it,” no venire person indicated that the venire person “would not be willing

to follow all the [trial court’s] instructions . . . to the jury.” Fourth, immediately before

closing arguments, the trial court instructed the jury it was the jury’s “duty to follow the

law as the [trial c]ourt gives it to you,” and also that closing arguments:

        are intended to help you in understanding the evidence and applying the
        law, but they are not evidence. You will bear in mind that it is your duty
        to be governed in your deliberations by the evidence as you remember it,
        the reasonable inferences which you believe should be drawn there from,
        and the law as given in these instructions.

Fifth, in their opening statements, both the prosecutor and defense counsel framed the

factual issue for the jury correctly – the prosecutor told the jury the evidence would show

that Defendant “didn’t intend to return [the tractor],” and defense counsel told the jury

that Defendant admits he “took” the tractor, but “[h]e didn’t take it to keep it for himself”




                                              11
– rather he took the tractor to get help or save his life. And, finally, on three occasions

during his closing arguments – two before and one after the challenged argument – the

prosecutor properly framed the factual issue for the jury, and defense counsel also framed

the factual issue properly for the jury in her closing argument.

        In these circumstances (including the fact that the relief now sought was not

requested by Defendant at trial) and viewed in the context of the entire record, Defendant

has failed to show that the prosecutor’s isolated argument had a decisive effect on the

outcome of the trial. Cf. Deck, 303 S.W.3d at 43 (no demonstration that single

misstatement of fact prejudiced the defendant); State v. Wolf, 326 S.W.3d 905, 907 n.2

(Mo.App. S.D. 2010) (“comments [in closing argument that] were brief, ambiguous, and

not the focus of the argument” were not plain error that merited reversal). Defendant’s

first point is denied.

                                           Point II

        In his second point, Defendant asserts that the trial court “plainly erred in

overruling [Defendant’s] objection to the [prosecutor’s] statement and implication during

closing argument that sores on [Defendant’s] body at the time he was arrested were not

from being lost in the woods for four days but rather a result of using drugs” in that the

prosecutor’s statement and implication were “not based on any evidence that was

admitted at trial” and had a decisive effect on the outcome of the trial. This point is

subject to only plain error review because, although Defendant objected, Defendant did

not include this claim in his motion for new trial.

        We note when defense counsel objected, she did not request any relief. Although

the trial court overruled defense counsel’s objection, the prosecutor immediately




                                              12
terminated his argument without stating the conclusion to his thought when defense

counsel objected, and then shifted his argument to a different topic. Consequently,

Defendant received all the relief that would normally flow from a bare objection – i.e.,

the termination of the opposing party’s challenged argument.

       In addition, there was evidence at trial that supported a reasonable inference

Defendant was impaired by methamphetamine that had been improperly manufactured.

Defendant’s mother testified that Defendant’s wife was “naked from the waist down”

when she was found “a day or two before” Defendant was found, and Defendant’s

mother “assumed” Defendant’s wife was using methamphetamine. Defendant told

Sheriff Degase that “he and his wife felt that they had gotten some bad dope.” Defendant

was only wearing shorts when he was found, did not respond to aircraft and officers

searching the area on August 3, passed up water that was safe to drink at the location

where he took the tractor, and did not stop for help at a house or houses and a chapel that

he passed while driving Mr. Ladd’s tractor. The jury also saw pictures of Defendant’s

sores and abrasions.

       This evidence permitted the prosecutor to draw and argue the reasonable

inference that at least some of Defendant’s sores were caused by Defendant’s voluntary

use of improperly manufactured methamphetamine. Even if that inference was not

reasonable, the prosecutor’s unfinished argument was merely cumulative to the evidence

that Defendant had voluntarily ingested improperly manufactured methamphetamine

before taking Mr. Ladd’s tractor. Defendant fails to persuade us that, in the

circumstances of this case, the prosecutor’s unfinished argument had a decisive effect on

the outcome of the trial. See Deck, 303 S.W.3d at 543 (no basis to conclude




                                            13
misstatement of fact had a decisive effect on the outcome of the trial at least in part

because of the cumulative nature of the misstatement). Defendant’s second point is

denied.

                                             Point III

                             Standard of Review for Point Three

          We review a trial court’s decision to exclude evidence for abuse of discretion and

resulting prejudice. See State v. Wolfe, 344 S.W.3d 822, 837 (Mo.App. S.D. 2011); State

v. Mason, 95 S.W.3d 206, 211 (Mo.App. S.D. 2003); State v. Barriner, 111 S.W.3d 396,

400 n.4 (Mo. banc 2003). “A trial court abuses its discretion in excluding evidence if its

decision shocks the sense of justice or indicates an absence of careful consideration.”

Wolfe, 344 S.W.3d at 837. A trial court does not abuse its discretion when it excludes

evidence that is merely cumulative to other admitted evidence. Id.; Mason, 95 S.W.3d at

211.

          Trial court error in excluding admissible evidence in a criminal case creates a

rebuttable presumption of prejudice. See State v. Hopper, 315 S.W.3d 361, 367

(Mo.App. S.D. 2010); Barriner, 111 S.W.3d at 401. When the error was preserved, the

State must show the error was harmless beyond a reasonable doubt to rebut the

presumption of prejudice. See State v. Hopper, 315 S.W.3d at 367; State v. Sanders, 126

S.W.3d 5, 23 (Mo.App. W.D. 2003).

                                             Analysis

          In his third point, Defendant asserts that the trial court “abused its discretion” in

excluding “a missing person report” that Defendant’s mother filed with law enforcement

that would have “shown” and “corroborated” that Defendant “had been missing for at




                                                14
least four days before he was found.” The trial court did not abuse its discretion in

excluding the missing person report because the report was cumulative to the testimony

of Defendant’s mother and Sheriff Degase as well as other witnesses.

       Prior to Defendant’s attempt to admit the missing person report filed by

Defendant’s mother, Sheriff Degase testified that (1) he “knew [Defendant] had been in

the woods for a couple, three days at least” before he was found on August 4, (2)

Defendant’s “wife was picked up in that area” on August 2, (3) a report Defendant was

missing was filed on August 3, (4) law enforcement searched the area for Defendant on

August 3, and (5) the search included the use of a helicopter and plane. Mr. Ladd and

Sergeant Jones also testified that a search for a missing person occurred on August 3 in

the area where Defendant ultimately was found on August 4. Finally, almost

immediately after the trial court excluded the missing person report, Defendant’s mother

testified “it was, like, five and a half days he was missing totally.”

       The missing person report clearly was cumulative to significant other evidence

that Defendant had been missing for a significant period of time before he was found.

The trial court did not abuse its discretion in excluding cumulative evidence.

Defendant’s third point is denied.

       The trial court’s judgment is affirmed.



Nancy Steffen Rahmeyer, J. – Opinion Author

Gary W. Lynch, J. - Concurs

Don E. Burrell, J. - Concurs




                                              15
