STATE OF MISSOURI,                                 )
                                                   )
          Plaintiff-Respondent,                    )
                                                   )
vs.                                                )       No. SD32548
                                                   )
DONALD WILLIAM LANGFORD,                           )       Filed: June 26, 2014
                                                   )
          Defendant-Appellant.                     )

              APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

                            Honorable Mark E. Orr, Circuit Judge

AFFIRMED

          Donald William Langford ("Defendant") appeals from his conviction for

one count of forgery. See § 570.090.1 Defendant's arguments are without merit,

and we affirm the trial court's judgment.

                          Factual and Procedural Background

          On July 4, 2010, Sherry Fox ("Fox") was working as a cashier at a gas

station in Branson, Missouri. Defendant came into the store, selected some items

that were for sale in the store, and approached the counter. Defendant laid a fifty

dollar bill on the counter. Fox noticed the bill was a fake, and she told Defendant

it was a fake bill. Defendant then "said he wasn't trying to pass it off on [Fox],



1   Unless otherwise indicated, all statutory references are to RSMo Cum. Supp. (2013).
that it was just a joke." Defendant paid for the items with other currency and left

the store.

        Fox notified the store owners and together they called the police. Officer

Joseph Edwards ("Officer Edwards") from the Branson Police Department

arrived at the gas station. Fox gave him the bill and told him what had happened.

Fox also informed Officer Edwards where Defendant lived.

        Officer Edwards went to speak with Defendant. Defendant was not very

cooperative and initially told Officer Edwards that Officer Edwards "must be

high." Officer Edwards explained why he was there, and Defendant responded,

"Oh, that fucking bitch across the street at the store." He told Officer Edwards he

was not attempting to pass the fifty dollar bill; rather, "he was simply trying to get

the clerk to realize that they were out there and not to be burned by them."

        Defendant was charged with one count of forgery. The charging document

was later amended to add a prior offender allegation. Defendant was tried by a

jury on September 17, 2012. The jury found Defendant guilty as charged, and the

trial court subsequently sentenced Defendant to four years in the Missouri

Department of Corrections. Defendant appealed.

                       Point I: Alleged Opinion Testimony

        In his first point, Defendant challenges Fox's testimony to the effect it was

her impression Defendant was attempting to pay for the items with the fake fifty

dollar bill.2 He claims the testimony was improper because it made a conclusion


2 In his first point Defendant also challenges the admission of testimony suggesting Fox did not

think Defendant was joking. The argument is not addressed because Defendant abandoned the
issue in his reply brief when he (1) admitted the objection to the testimony about whether Fox
thought Defendant was joking was sustained and the testimony was stricken and (2) asked this
Court to disregard the argument.

                                                2
regarding Defendant's state of mind which was an ultimate issue for the jury to

decide. Defendant is incorrect.

       Appellate courts "review the admission of evidence for an abuse of the trial

court's discretion." State v. Jones, 398 S.W.3d 518, 521 (Mo. App. E.D. 2013).

An abuse of discretion will be found when "the trial court's ruling is clearly

against the logic of the circumstances, indicates a lack of careful consideration,

and the error was so prejudicial so as to deprive the defendant of a fair trial." Id.

       The following additional facts are relevant to the resolution of this claim.

During Fox's testimony, the prosecutor asked if Fox had the impression

Defendant was attempting to pay for the items with the fake fifty dollar bill.

Defendant's attorney objected, arguing the question sought a comment on

Defendant's state of mind. The trial court overruled the objection, and Fox stated

it was her impression Defendant was actually trying to pay for the items with the

fake fifty dollar bill. Defendant now claims this testimony was an improper

opinion given by a lay witness.

       Defendant's argument is without merit because Fox's testimony fits into

an exception to the general rule that opinion testimony from a lay witness is not

permitted. "Generally speaking, a nonexpert witness is not permitted to give his

opinion or conclusion from facts observed, but there are exceptions to this rule."

State v. Strong, 142 S.W.3d 702, 716 (Mo. banc 2004) (quoting State v.

Wilkins, 100 S.W.2d 889, 893-94 (Mo. 1936)). One of these exceptions involves

a common-sense summary of details which are difficult to place before the jury.

       "Where the witness personally observed the events, he is permitted to

testify as to his 'comprehension of what he has seen in a descriptive manner' even

                                          3
if that testimony contains 'a conclusion, opinion or inference, if the inference is

common and accords with the ordinary experiences of everyday life.'" Id.

(quoting State v. Hill, 812 S.W.2d 204, 208 (Mo. App. W.D. 1991)). That is,

"[a]n observer is permitted to state natural inferences from observed conditions

or occurrences or the impression made on his mind by a number of connected

facts whose detail cannot be placed before the jury." Shockley v. State, 147

S.W.3d 189, 194 (Mo. App. S.D. 2004) (quoting State v. Brown, 683 S.W.2d

316, 318 (Mo. App. S.D. 1984)). This exception includes testimony regarding a

defendant's demeanor or facial expressions given by witnesses who observed the

defendant's demeanor or facial expressions at the relevant time. See, e.g.,

Strong, 142 S.W.3d at 716 (holding it was not an abuse of discretion to allow an

officer to testify the defendant was nonchalant); Hill, 812 S.W.2d at 208 (holding

it was not an abuse of discretion to permit an officer to testify the defendant was

combative); State v. Gray, 731 S.W.2d 275, 285 (Mo. App. W.D. 1987) (holding

it was not an abuse of discretion to admit testimony showing the witness knew

what had happened by the look on the defendant's face). The justification for this

exception is that the opinion or conclusion is "a 'short-hand rendition' of a

composite situation, and" the opinion is necessary "to avoid losing evidence

where it would be extremely difficult or impossible for a witness to convey an

accurate sense of his or her observations if limited to a statement of facts in the

traditional sense." State v. Davidson, 242 S.W.3d 409, 414 (Mo. App. E.D.

2007) (quoting Gray, 731 S.W.2d at 285).

       In the present case, Fox's testimony was simply a short-hand rendition of

her observations during the transaction. Fox testified Defendant put the bill on

                                          4
the counter but did not say anything until after she told him she knew the fifty

dollar bill was a fake. Thus, her impression that he was attempting to pay for the

items with the fake bill were based on his demeanor and expression. Those types

of facts are difficult to place before the jury without losing their significance. See

Davidson, 242 S.W.3d at 414. Consequently, Fox's impression that Defendant

was attempting to pay for the items was admissible.

       Defendant's first point is denied.

              Point II: Alleged Improper Closing Argument

       In his second point, Defendant argues the trial court erred in overruling

Defendant's objection to a portion of the prosecutor's closing argument. This

argument fails because Defendant cannot demonstrate prejudice.

       The following additional facts are relevant to the resolution of this claim.

Immediately prior to the State's argument, the judge read the instructions to the

jury. Among those instructions was Instruction Number 8, which stated, in

pertinent part, "[t]he attorneys will now have the opportunity of arguing the case

to you. Their arguments are intended to help you in understanding the evidence

and applying the law, but they are not evidence." (Emphasis added).

       Then, in the opening portion of his closing argument, the prosecutor

discussed the verdict director and explained to the jury how the evidence fit the

elements listed in that instruction. When he reached the element of whether

Defendant transferred the bill, the prosecutor stated, "[h]e transferred to the

store clerk, ladies and gentlemen. He actually handed it to her. That's

transferring." Defendant's attorney objected because he believed the argument



                                            5
misstated the facts that were presented in evidence. The trial judge responded by

stating, "[t]he jury will remember the evidence as presented."

       Defendant's closing argument also discussed this piece of evidence. Near

the beginning of his closing argument, Defendant's attorney told the jury the

prosecutor misstated the evidence when he said Defendant "handed" the bill to

Fox: "Ms. Fox specifically testified that she did not -- that he did not hand it to

her. He laid it down. He laid it down on the counter. He never transferred

anything. . . . I do respectfully submit [the prosecutor] misstated that." That is,

Defendant's attorney pointed out the alleged error and gave the jury the correct

information according to Defendant's theory of the case. This sequence involving

proper instructions and clarification by Defendant shows the jury's verdict was

not affected by any alleged impropriety in the prosecutor's closing argument.

       "A trial court has broad discretion in controlling the scope of closing

argument." State v. Talley, 258 S.W.3d 899, 913 (Mo. App. S.D. 2008).

Appellate courts will reverse only "upon a showing of abuse of discretion

resulting in prejudice to the defendant." State v. Martin, 103 S.W.3d 255, 264

(Mo. App. W.D. 2003).

       In considering whether a comment was prejudicial, one of the factors an

appellate court will consider is whether the trial judge gave the jury a curative

instruction. State v. Cannady, 660 S.W.2d 33, 40 (Mo. App. E.D. 1983). "A

jury is presumed to be aware of and have followed the instructions given by the

trial court." State v. Hashman, 197 S.W.3d 119, 134 (Mo. App. W.D. 2006).

See also State v. Overton, 261 S.W.3d 654, 664 (Mo. App. S.D. 2008); State

v. Norman, 243 S.W.3d 466, 473 (Mo. App. S.D. 2007). For this reason, an

                                          6
improper argument will not be found to have prejudiced the defendant if the trial

court has properly instructed the jury that the arguments of counsel are not

evidence. See Norman, 243 S.W.3d at 473.

       Here, the jury was properly instructed that the attorneys' remarks were

not evidence. Then, immediately after the allegedly improper comment, the

judge again instructed the jury to remember the evidence. Finally, Defendant's

attorney clarified any remaining confusion in his closing argument by pointing

out and correcting the prosecutor's alleged error. Under such circumstances, the

prosecutor's comment did not have a decisive effect on the jury's decision and

there is no prejudice to Defendant.

       Defendant's second point is denied.

                              Point III: Exhibit 2

       In his final point on appeal, Defendant requests plain error review because

he claims the trial court plainly erred in finding he was a prior offender because

the prosecution failed to prove the prior conviction was obtained via a valid guilty

plea. In support he argues the certified records of conviction offered as Exhibit 2

were inadmissible for various reasons.

       Although Defendant requests plain error review, plain error review is not

warranted in this case because Defendant's attorney stated at trial he had no

objection to the admission of Exhibit 2. On the morning of trial prior to voir dire,

the prosecutor properly asked to make a record regarding Defendant's prior

convictions. In support, the prosecutor offered Exhibit 2.

       After the prosecutor described the exhibit, the trial court asked if

Defendant had any objection. Defendant's attorney asked for a moment to

                                          7
examine the exhibit, which the trial court allowed. There was a pause in the

proceedings, and then Defendant's attorney stated, "I have no objection to

Exhibit No. 2." The trial court then admitted Exhibit 2. The trial court

subsequently found Defendant was a prior offender.

      As this review of the record shows, Defendant did not simply fail to object

to Exhibit 2, he affirmatively stated he had no objection to Exhibit 2. "The

general rule in Missouri is that a statement of 'no objection' when evidence is

introduced affirmatively waives appellate review of the admission." State v.

McWhorter, 240 S.W.3d 761, 763 (Mo. App. S.D. 2007). "Under those

circumstances, even plain error review is not warranted." State v. Goudeau,

85 S.W.3d 126, 128-29 (Mo. App. S.D. 2002) (quoting State v. Markham, 63

S.W.3d 701, 707-08 (Mo. App. S.D. 2002)); see also State v. White, 421 S.W.3d

560, 569 (Mo. App. E.D. 2014); State v. Massa, 410 S.W.3d 645, 656-57 (Mo.

App. S.D. 2013); State v. Johnson, 160 S.W.3d 839, 842 (Mo. App. S.D. 2005).

        Furthermore, this is not a case where Defendant sought a continuing

objection or the parties otherwise understood that some objection to the exhibit

was being preserved, so the only exception to the general rule does not apply. Cf.

State v. Baker, 103 S.W.3d 711, 716-17 (Mo. banc 2003); State v. O'Neal, 392

S.W.3d 556, 562 (Mo. App. W.D. 2013). Defendant's claim regarding the

admission of Exhibit 2 has been waived. See Johnson, 160 S.W.3d at 842.

      Defendant's third point is denied.




                                         8
                                  Decision

     The trial court's judgment is affirmed.


MARY W. SHEFFIELD, J. - OPINION AUTHOR

JEFFREY W. BATES, P.J. - CONCURS

DON E. BURRELL, J. - CONCURS




                                       9
