             In the Missouri Court of Appeals
                     Eastern District
                                         DIVISION THREE

BILLY R. RICHEY,                                 )      No. ED101584
                                                 )
       Appellant,                                )      Appeal from the Circuit Court
                                                 )      of the City of St. Louis
       vs.                                       )      1122-CC10729
                                                 )
STATE FARM MUTUAL AUTOMOBILE                     )      Honorable Michael F. Stelzer
INSURANCE COMPANY,                               )
                                                 )
       Respondent.                               )      Filed: February 2, 2016

       Billy R. Richey (“Appellant”) appeals the judgment entered upon a jury verdict in favor

of State Farm Mutual Automobile Insurance Company (“Respondent”) on Appellant’s claim for

uninsured motorist benefits under a policy issued by Respondent. We reverse and remand.

                                    I.      BACKGROUND

       On the evening of April 5, 2008, Appellant was riding his motorcycle on a rural highway

in Dade County, Missouri. Appellant suffered extensive injuries as a result of an accident and

sought uninsured motorist coverage under his policy issued by Respondent. Respondent denied

Appellant coverage, and Appellant initiated the instant lawsuit. A jury trial on whether

Appellant was entitled to uninsured motorist benefits under the policy was held from February

24-27, 2014.
A.     Appellant’s evidence and testimony

       Appellant testified that on the day of the accident, he was returning home on his

motorcycle after visiting a relative. As Appellant approached a bend in the highway, an

unknown driver (referred to by the parties as the “phantom vehicle”) travelling in the opposite

direction swerved into Appellant’s lane. Appellant stated he could have either driven off the

road or hit the oncoming car head-on. Appellant swerved or steered his motorcycle to the right

to avoid the other vehicle, and upon leaving the road, Appellant crashed into a ditch, sustaining

serious injuries. The driver of the other vehicle left the scene. The area of the accident was

about forty to fifty yards past the start of the curve. In addition, Appellant’s motorcycle left tire

marks where the motorcycle exited the road close to where the curve started.

       Jeremy Jones, a deputy with the Greene County Sheriff’s Department, found Appellant

lying unconscious partially in the roadway. Deputy Jones called 911, secured Appellant’s neck

to ensure he did not injure himself further, and waited for paramedics to arrive. Appellant was

transported from the scene by paramedics, and was then airlifted by helicopter to a hospital in

Springfield, Missouri. He remained there in a coma for approximately three weeks.

       Appellant was charged with the class A misdemeanor of careless and imprudent driving

as a result of the accident. The charge specifically stated that Appellant drove off the roadway

and struck a ditch, thereby endangering the property of another or the life and limb of any

person. He was also charged with having an improper license. Appellant pleaded guilty to the

charge of careless and imprudent driving but not guilty to the charge of driving with an improper

license. Appellant claimed he pleaded guilty to the charge of careless and imprudent driving

because it would be too expensive to hire an attorney to contest the charge, although he admitted

he was not afraid to defend himself on the charge having an of improper license.



                                                  2
       Appellant stated he told Respondent he had been run off the road, including during

communications with his local agent, Jerry Poston, and Kim Sandbothe, an agent who worked

with Poston. Appellant also testified he called Respondent’s main office twice and stated he

reported to Respondent that he had been run off the road during both conversations.

B.     Respondent’s evidence

       Respondent presented an alternative theory of the case, positing there was no other driver

and Appellant ran off the highway due to his own inattention. Respondent first relied on

testimony from Corporal Todd Hadlock. At the time of the trial, Corporal Hadlock had been

with the Missouri Highway Patrol for nineteen years, had taken classes involving the

investigation of accidents, and had investigated approximately 1,500 accidents. Corporal

Hadlock was noticed up as an expert witness in accident reconstruction, but did not perform an

accident reconstruction in this instance.

       Corporal Hadlock testified as to his observations of the scene and as to his opinion

regarding the circumstances of the accident. He testified as follows. There was a skid mark 177

feet in length at the scene of the accident in a ditch and a divot that had been taken out by the

motorcycle. From the skid mark, it appeared Appellant had entered the curve and gradually left

the road. Had Appellant swerved, Corporal Hadlock stated he would have expected to see a

“yaw” mark or brake mark on the road, but there was no evidence of this at the scene. From the

evidence, it appeared the motorcycle had left the roadway in a straight line. Corporal Hadlock

stated he found no evidence that another vehicle had forced Appellant off the road. It was

Corporal Hadlock’s opinion Appellant was inattentive at the time of the crash. Corporal

Hadlock gave Appellant a ticket for careless and imprudent driving as a result of the accident.




                                                  3
           Respondent also presented evidence from Respondent’s agents who handled the claim.

Poston, Appellant’s insurance agent, testified that Appellant never said anything about being run

off the road. Had something like that been said, Poston testified he would have made a note

regarding how the accident had taken place, and information about a car running Appellant off

the road would have been noted in Respondent’s master record. Sandbothe, an agent who

worked with Poston, also stated that Appellant had never indicated there was another vehicle

involved in the accident. Finally, Cullen Jordan, a claims Team Manager for Respondent at its

main office, testified that the claim was reported to Respondent as a single-vehicle accident

leaving the roadway and striking a ditch. The claim file reflects numerous contacts with

Appellant and his family members and no one mentioned anything about a phantom vehicle until

November 10, 2010, over two and one-half years after the accident. According to Jordan, the

first indication that a phantom vehicle may have been involved was when a letter was received

from Appellant’s counsel on November 10, 2010.

C.         The trial

           The sequence of argument and testimony presented at trial is relevant to the issues of this

appeal. Prior to trial, Appellant filed a motion in limine to prevent Corporal Hadlock from

testifying regarding the cause of the accident or the relative degree of fault of the parties. The

trial court denied the motion.

           When the trial began, in its opening statement, Respondent asserted Appellant’s account

of the phantom vehicle was a fabrication created when Appellant retained counsel in the fall of

2010. Respondent’s counsel was explicit on this point:1

           On November 15, 2010 [Respondent] receives a letter dated November 10 from
           Mr. Patton. In that letter Mr. Patton says my client advises me, something to this
           effect, -- you’re going to see the letter, it is going to be in evidence, -- something
1
    Respondent’s attorney on appeal was not trial counsel.

                                                             4
        to the effect that my client advises me that he was involved in an accident with a
        phantom vehicle and his property damage claim has not been paid. The lawyer’s
        letter is the first time [Respondent] has ever heard anything about a phantom
        vehicle, and it’s two and a half -- two years and seven months after the accident
        and 23, 24 months after the claim file has been closed. The lawyer’s gotten
        involved now, folks. That’s what the evidence is going to show. When the lawyer
        gets involved the phantom gets created.

(emphasis added). After opening statements, Appellant’s counsel started the trial by calling

Appellant’s two children, Tracy Hyatt and Mark Richey (“Tracy” and “Mark”),2 prior to calling

Appellant himself. Tracy testified regarding Appellant’s hospitalization and rehabilitation. She

also stated she was present when her father talked to Respondent regarding his claim. Mark

testified as to his physical observations of the accident scene and the extent of Appellant’s

injuries. Due to Respondent’s sustained objections, Appellant was not permitted to put on any

evidence regarding statements Appellant made to Tracy, Mark, or others about the existence of a

phantom vehicle.3 Subsequently, Appellant put on an offer of proof outside the presence of the

jury that Tracy and Mark could testify that between March 1 and June 12, 2008, Appellant

indicated he was run off the road and told Respondent he had been run off the road. Tracy

testified during the offer of proof she overheard Appellant tell Poston and Sandbothe about the

phantom vehicle during two separate phone calls. She further stated Appellant told “[a]nybody

that would listen” about the phantom vehicle. Mark similarly testified during the offer of proof

that Appellant first told him about the phantom vehicle when Appellant was released from

rehabilitation, and that Appellant “always told the same story” about being run off the road.

        After the testimony of Tracy and Mark, Appellant presented testimony from Jordan, who

testified as stated above, and then Appellant finally testified on his own behalf. During cross-


2
  Because some of the parties involved have the same last name, we refer to them by their first names. No disrespect
is intended.
3
  The trial court ruled the testimony was not hearsay but that statements Appellant made to parties other than
Respondent were not relevant and should therefore be excluded.

                                                         5
examination, Respondent attacked Appellant’s credibility with evidence of prior inconsistent

statements. Namely, Respondent presented evidence which emphasized to the jury that

Appellant pleaded guilty to the careless and imprudent driving charges, but he claimed at trial

that he had been run off the road by the phantom vehicle. Despite this attack on his credibility,

Appellant did not seek to recall either Tracy or Mark back to present rebuttal evidence on this

point.

         Respondent then put on the video depositions of Deputy Jones and Corporal Hadlock.

Prior to the depositions being played, Appellant restated his objections to Corporal Hadlock’s

opinion testimony, which the trial court again overruled. In Corporal Hadlock’s deposition, he

opined Appellant was in a one-vehicle accident, and the following exchange occurred:

         Q: [D]id you reach any conclusion, to a reasonable degree of certainty, accident
         investigation certainty, as to what occurred out there at the accident scene?

         A: Yes, I did.

         Q: Okay.

         Q: Okay. Based upon what you saw in your investigation, what was your opinion
         you reached that day?

         A: My opinion was that [Appellant] was just inattentive to the roadway condition
         at the time of the crash.

Finally, Respondent presented additional testimony from Jordan, and finished with testimony

from Poston and Sandbothe.

         The case was then submitted to the jury, and the jury entered a verdict in favor of

Respondent. Subsequently, the trial court entered a judgment in accordance with the jury’s

verdict. This appeal followed.




                                                  6
                                      II.     DISCUSSION

       Appellant brings two points on appeal. In his first point, Appellant asserts the trial court

erred by excluding testimony from Tracy and Mark regarding Appellant’s prior consistent

statements on the existence of the phantom vehicle. In his second point, Appellant claims the

trial court erred by allowing Corporal Hadlock to testify as to his opinion on the accident’s

causation.

A.     Standard of review

       The decision to admit or exclude evidence at trial lies within the sound discretion of the

trial court, and we will not disturb that decision absent an abuse of discretion. Howard v. City of

Kansas City, 332 S.W.3d 772, 785-86 (Mo. banc 2011). An abuse of discretion occurs when the

ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that it

shocks the sense of justice and indicates a lack of careful, deliberate consideration. Id. Even if

an abuse of discretion occurs, we will not reverse the trial court’s decision unless the abuse had a

material effect on the trial. Stokes v. National Presto Industries, Inc., 168 S.W.3d 481, 483 (Mo.

App. W.D. 2005).

B.     Prior consistent statements

       In his first point on appeal, Appellant claims the trial court erred in excluding testimony

from Tracy and Mark regarding statements made by Appellant to them and others that he was

run off the road by another vehicle. Specifically, Appellant asserts the testimony was proper

evidence of prior consistent statements by Appellant offered to rehabilitate him after Respondent

posited in its opening statement that the phantom driver theory was a recent fabrication or the

result of improper influence. We agree.




                                                  7
       Generally, a witness’ duplicitous or corroborative extrajudicial statement is inadmissible.

Anuhco, Inc. v. Westinghouse Credit Corp., 883 S.W.2d 910, 927 (Mo. App. W.D. 1994). “The

rule exists to prevent one party from obtaining unfair advantage [over] another by presenting the

same testimony in multiple forms.” Id. (quotations omitted). However, where a witness is

impeached by proof of variant acts or statements, relevant evidence of the witness’ prior

statements consistent with his trial testimony may be admissible for the purpose of rehabilitation.

State v. Henderson, 666 S.W.2d 882, 890 (Mo. App. S.D. 1984). Further, a “prior consistent

statement is not hearsay and is admissible if the statement is offered to rebut an express or

implied charge against the declarant of recent fabrication or improper influence or motive.”

Trident Group, LLC v. Mississippi Valley Roofing, Inc., 279 S.W.3d 192, 199 (Mo. App. E.D.

2009) (internal quotation marks and citation omitted).

       1.      Respondent’s arguments

       Respondent asserts that the testimony from Tracy and Mark was inadmissible due to the

order in which the testimony was presented. At trial, Tracy and Mark both testified before

Appellant. Thus, Respondent argues, the testimony was improper, because Appellant had yet to

be impeached or have his credibility brought into question. In support of its argument,

Respondent cites to case law which holds that prior consistent statements are only admissible

after a witness has been impeached by proof of his prior inconsistencies. Henderson, 666

S.W.2d at 890. In other words, according to Respondent, evidence must be introduced tending to

establish statements made by the witness which statements were inconsistent with the witness’

testimony at trial. Id. Therefore, Respondent asserts, in order to introduce the testimony in

question, Appellant was required to recall Tracy and Mark to the stand after Appellant testified

and was impeached.



                                                 8
       However, the cases relied on by Respondent for its assertion that prior consistent

statements may only be offered following evidence of a prior inconsistent statement are not

factually on point, and therefore do not control the outcome here. Specifically, those cases

address only the use of prior consistent statements in the context of inconsistencies in the

witness’s testimony, not in light of charges of recent fabrication or improper motive. See

Stratton v. Kansas City, 337 S.W.2d 927, 931 (Mo. 1961); Anuhco, 883 S.W.2d at 927; Broome

v. Bi-State Development Agency, 795 S.W.2d 514, 518-19 (Mo. App. E.D. 1990); and

Henderson, 666 S.W.2d at 889. As recognized in Henderson, impeachment with a prior

inconsistent statement and a charge of fabrication or improper influence or motive represent two

separate and independent grounds for admission of a prior consistent statement. 666 S.W.2d at

889. The cases cited by Respondent concern only the former ground, which is not at issue here.

As such, Respondent’s reliance on these cases is misplaced, and they do not control the outcome

in the case at bar. Rather, the circumstances here address the second ground, a charge of

fabrication or improper influence or motive.

       2.      Applicable case law

       Recent case law from our Court in Trident, 279 S.W.3d 192, and the Southern District in

State v. Campbell, 254 S.W.3d 203 (Mo. App. S.D. 2008) addresses this issue. As discussed

below, these cases demonstrate that a charge of recent fabrication in an opening statement is

sufficient to warrant the introduction of evidence otherwise classified as hearsay.

       Trident involved the admission of an expert witness’s report on a defective roof the

defendant asserted was hearsay. 279 S.W.3d at 196, 198-99. In its opening statement, the

defendant charged the witness with improper influence and attacked his credibility and motive as

follows:



                                                 9
       For their expert . . . they paid him thousands and thousands of dollars to prepare
       a report, but they don’t give them the business to repair their buildings. He’s a
       very interesting fellow because we know that he doesn’t know basic physics and
       boils [sic] law. He didn’t know it . . .. He had a little trouble with fundamental
       science.

Id. at 199. Later, while cross-examining another of plaintiff’s witnesses, the defendant asked

questions attempting to show the plaintiff hired the expert to “begin fraudulent litigation.” Id.

The expert’s report did not contain any new information, and the expert testified at length as to

the contents of the report. Id. We held the trial court did not err in admitting the report because

it was admissible to “rebut an express or implied charge . . . of recent fabrication or improper

influence or motive.” Id.

       The Southern District reached a similar result in Campbell, 254 S.W.3d 203. In that case,

a prosecution witness received a plea bargain in exchange for his testimony at trial. Id. at 205.

In his opening statement, defense counsel insinuated to the jury that the witness fabricated his

testimony to protect himself from prosecution and that his testimony was influenced by the plea

deal. Id. To rebut the fabrication claims, the State was allowed to play the witness’s videotaped

statement to police made prior to the plea deal. Id. The Southern District held the statement was

admissible: “[t]he suggestion that a witness’s testimony is recently fabricated opens the door to

introduction of the witness’s consistent statement made prior to the suggested fabrication.” Id.

(emphasis added).

       In Trident, the witness was not impeached at trial nor was there any suggestion or proof

he had made any prior inconsistent statement. 279 S.W.3d at 199. The report in that case was

properly admitted due to the charge of fabrication and improper influence made against the

witness in the defendant’s opening statement and its examination of another plaintiff’s witness.

Id. “During its opening statement, [d]efendant charged [the witness] with improper influence



                                                 10
and attacked his credibility and motive” due to the “thousands and thousands of dollars” plaintiff

paid him to prepare his report. Id. In its examination of the plaintiff’s vice president, the

defendant attempted to show the plaintiff hired the witness “to begin fraudulent litigation.” Id.

This was sufficient to open the door to admission of the witness’s prior consistent statements as

set forth in his report. See id. Similarly, in Campbell, the witness was not impeached and there

is no indication in the opinion he had made any prior inconsistent statement. See Campbell, 254

S.W.3d at 205-06. As such, his statement was properly admitted based on the attacks contained

solely in the defense counsel’s opening statement. Id.

         3.       The circumstances of this case

         The circumstances are substantially similar here. Like the opening statement concerning

the witness’s paid report in Trident and the plea bargain in Campbell, Respondent’s opening

statement here expressly charged Appellant with recent fabrication and his attorney with

improper influence and motive, stating that the phantom vehicle was first “created” when

Appellant contacted his attorney and counsel became involved in the case. Respondent’s

opening statement included the following assertion: “The lawyer’s gotten involved now, folks.

That’s what the evidence is going to show. When the lawyer gets involved the phantom gets

created.” This was plainly a charge Appellant falsified his testimony after he consulted with his

trial counsel, and that his testimony was thereby the result of improper influence or motive.4

Whether Appellant was impeached with inconsistent statements is irrelevant, as neither witness



4
  There is also an argument that Respondent’s counsel’s statements were improper accusations of attorney
misconduct against Appellant’s counsel. When Respondent’s counsel made this statement during opening
argument, Appellant’s counsel objected that the statement was “attacking [his] credibility” and “injecting [him] as a
witness in this case.” The trial court instructed Respondent’s counsel to move on. Statements asserting an opposing
counsel, an officer of the court, suborned perjury or aided in fabricating a client’s testimony are improper and may
be grounds for a mistrial. See State v. Johnson, 804 S.W.2d 753, 755 (Mo. App. E.D. 1990); State v. Harris, 662
S.W.2d 276, 277 (Mo. App. E.D. 1983). However, that argument is not before us on appeal. We caution counsel in
future cases against such inflammatory accusations.

                                                         11
was impeached at all in Trident or Campbell. See Trident, 279 S.W.3d at 199; Campbell, 254

S.W.3d at 205-06.

       Based on the foregoing, the trial court abused its discretion in excluding testimony from

Tracy and Mark regarding statements made by Appellant to them and others that he was run off

the road by another vehicle. The exclusion had a material effect on the trial, as it would have

functioned as a substantial affirmation of Appellant’s version of events. Point one is granted.

C.     Hadlock’s opinion testimony

       In his second point and final on appeal, Appellant claims the trial court erred by

admitting the portion of Corporal Hadlock’s testimony in which he opined the accident was

caused solely by Appellant’s inattentive driving. We agree.

       “Missouri courts have uniformly held that a police officer, especially if he or she did not

witness the accident, cannot offer an opinion as to the fault of a party to the accident.” Khan v.

Gutsgell, 55 S.W.3d 440, 443 (Mo. App. E.D. 2001). This is because a jury will likely give

undue weight to an officer’s assessment of fault in a traffic accident. Id. This rule applies

regardless of whether the officer is testifying as an expert witness or not. Stucker v. Chitwood,

841 S.W.2d 816, 819-20 (Mo. App. S.D. 1992).

       Here, Corporal Hadlock was noticed up as an expert in accident reconstruction, though he

did not perform a reconstruction in this case. In his videotaped deposition, which was played to

the jury at trial, the following exchange occurred:

       Q: [D]id you reach any conclusion, to a reasonable degree of certainty, accident
       investigation certainty, as to what occurred out there at the accident scene?

       A: Yes, I did.

       Q: Okay.




                                                12
       Q: Okay. Based upon what you saw in your investigation, what was your opinion
       you reached that day?

       A: My opinion was that [Appellant] was just inattentive to the roadway condition
       at the time of the crash.

       This line of questioning amounted to improper opinion evidence that there was no other

vehicle that ran Appellant off the road, that this was a one-vehicle crash that involved only

Appellant’s motorcycle, and that the sole cause of the crash was Appellant’s inattentive driving.

Corporal Hadlock’s opinions and conclusions were not fact testimony of what he personally

observed at the scene. An expert witness’s testimony should not be admitted unless it is clear

that the jurors themselves are not capable of drawing correct conclusions from the facts. Id. at

819. “In this era of widespread highway travel and numerous highway collisions, a jury, usually

composed of adult drivers for the most part, is capable of reaching its own conclusions with

regard to fault and degree of fault in a case of this type.” Id. at 820.

       Based on the foregoing, Corporal Hadlock’s testimony in which he opined the accident

was caused solely by Appellant’s inattentive driving was inadmissible, and the trial court abused

its discretion in admitting it. Moreover, the testimony materially affected the outcome of the

trial, as the case law recognizes an officer’s opinion testimony on fault in an accident will likely

be given undue weight and significantly influence the jury’s resolution on the issue of liability.

Khan, 55 S.W.3d at 443; Stucker, 841 S.W.2d at 820. Point two is granted.




                                                  13
                                    III.    CONCLUSION

       The trial court’s judgment entered in accordance with the jury verdict in favor of

Respondent is reversed and remanded for proceedings in accordance with this opinion.




                                              ROBERT M. CLAYTON III, Presiding Judge

Lawrence E. Mooney, J., and
James M. Dowd, J., concur.




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