                                                     In the
                               Missouri Court of Appeals
                                           Western District
 STATE OF MISSOURI,                                        )
                                                           )
                    Respondent,                            )    WD78334
                                                           )
 v.                                                        )    OPINION FILED: October 18, 2016
                                                           )
 LEVI SCOTT ELLIOTT,                                       )
                                                           )
                     Appellant.                            )

                 Appeal from the Circuit Court of Benton County, Missouri
                    The Honorable Michael O'Brien Hendrickson, Judge

      Before Division Four: Mark D. Pfeiffer, Chief Judge, Presiding, Victor C. Howard,
                              Judge and Gary D. Witt, Judge

         Levi Scott Elliott ("Levi")1 was convicted, following a jury trial in Benton County,

Missouri, of murder in the second degree, section 565.021,2 armed criminal action, section

571.015, and tampering with a motor vehicle, section 569.080. Levi was sentenced to

consecutive terms of imprisonment of twenty years, five years, and five years, respectively.

Levi raises two claims of error in his appeal. First, Levi claims that the trial court erred in




          1
            Due to the fact many of the individuals in this opinion share the same last name we use Levi's first name
and the first names or full names of other relatives for ease of reference and understanding. No disrespect or
familiarity is intended.
          2
            All statutory references are to the Revised Statutes of Missouri 2000 as currently supplemented, unless
otherwise indicated.
not sua sponte preventing the State from entering a nolle prosequi and refiling the charges

because this deprived Levi of the opportunity to be considered for dual jurisdiction in

sentencing pursuant to section 211.073. Second, Levi claims that the trial court erred in

overruling a hearsay objection at trial. We affirm.

                                           Factual Background3

         The events giving rise to Levi's convictions occurred on the evening of March 24,

2012. In March of 2012, Levi was fifteen years old, and his half-sister, Sierra Elliott

("Sierra"), was twelve years old.4 Both Levi and Sierra lived with their father, Jim Elliott,

and Sierra's mother, Peggy Elliott, in Bolivar, Missouri. The previous month, Jim and

Peggy Elliott's older son, Andy Summers ("Summers"), moved out of the house, leaving

behind a gun cabinet containing some firearms. The gun cabinet was locked, but the key

to the cabinet was located on top of the cabinet. Summers had taught Levi how to shoot

the .22 caliber guns for target practice and at the time that Summers moved out of the

house, the magazine for the .22 caliber Ruger rifle remained loaded.

         On March 24, 2012, around 8:00 p.m., Jim and Peggy Elliott left twelve-year-old

Sierra in the care of her brother Levi while they ran an errand. Jim and Peggy Elliott owned

a white Ford pickup truck that remained at the house.

         Jim and Peggy Elliott returned home in about one hour. When they returned, they

noticed that the house was dark and their pickup truck was missing. Jim Elliott entered his



         3
          We view the facts in the light most favorable to the verdict. State v. Allison, 326 S.W.3d 81, 85 (Mo.
App. W.D. 2010).
        4
          Levi is the biological son of Jim Elliott and Joy Adams. Sierra is the biological daughter of Jim and
Peggy Elliott.

                                                         2
home and yelled for his children. He heard moaning coming from the master bedroom

where he found Sierra lying on the bed with a gunshot wound to her head. Levi was not at

home. Jim and Peggy Elliott called 911, and Sierra was airlifted to the hospital. Sierra did

not regain consciousness and passed away the following day. The projectile from the gun

that injured Sierra was consistent with a Ruger .22 caliber rifle. There were no signs of

forced entry into the home and nothing was missing from the home. Summers's gun cabinet

was open.

       Video surveillance at the Walmart in Clinton, Missouri showed that Levi parked

Jim and Peggy Elliott's white Ford pickup truck in the Walmart parking lot at

approximately 9:02 p.m. and walked into the store. Levi remained in the store for

approximately two hours. Two Walmart employees testified about speaking with Levi

while he was in the store. Nicole Marsh, who worked in the electronics department,

received two calls for Levi. She testified that she spoke to a woman who stated she was

Levi's grandmother and was frantic wanting to speak with him. She paged Levi's name

over the store public address system and identified Levi as the person who responded to

the page. Levi told the woman on the phone that he "didn't do anything" and that he did

not want his father to know his location. A second call came in from a woman claiming to

be Levi's mother. Levi was paged again and he responded. He spoke with the woman on

the phone and said he "hadn't done it" and kept telling her not to tell his father his location.

Levi also spoke with Walmart employee Vickie Anderson ("Anderson"), who asked him if

he needed help. Levi was nervous and said that he was on spring break and was just

hanging around. Levi told her that he had been watching movies with his sister. In the

                                               3
conversation, they discussed hunting, and Anderson mentioned to Levi that she had a black

Jeep that was parked outside.

        Levi also spoke with his step-father Robert Adams ("Robert"), the husband of Levi's

biological mother, Joy Adams ("Joy")5, while at Walmart. Levi told Robert he needed

someone to pick him up from Walmart. In a subsequent conversation, Levi claimed that

when he was home alone with Sierra, he heard a loud noise from down the hallway. He

went to investigate and saw that Sierra had been shot, and a man with a rifle was

rummaging through a dresser. Levi claimed that he put on his shoes and fled the scene in

Jim and Peggy Elliott's truck. Levi claimed that the man pursued him in a black Jeep for

several miles but eventually gave up. Levi then stopped the truck at Walmart because the

truck was out of gas.

        Joy testified that she received a call from Peggy Elliott the night of the shooting,

who told her that Levi had shot Sierra. Joy spoke with Levi while he was at Walmart, and

Joy's parents, Levi's grandparents, picked Levi up from the Walmart and brought him to a

hotel. Levi told the same story regarding the intruder and car chase with the black Jeep to

Joy. When Joy learned the police were looking for her son, she took him to a police station

in Kansas City.

                                        Procedural Background

        Levi was charged on June 13, 2012 with second degree murder, armed criminal

action, and tampering with a motor vehicle in the first degree. On July 3, 2013, a motion


        5
          Again, because Joy and Robert Adams have identical surnames, we will refer to them by their first names.
No familiarity or disrespect is intended.

                                                        4
for change of venue was granted and the case was transferred to Greene County, Missouri.

On August 27, 2013, the State dismissed the charges and refiled them the same day in Polk

County, Missouri.

         A jury trial was held from October 27, 2014 through October 29, 2014. At trial, the

trial court overruled a hearsay objection to testimony from Jason Trammell ("Trammell")

of the Missouri State Highway Patrol. Trammell was allowed to testify that a paramedic

told him that blood found on a nightstand near Sierra was the result of an IV inserted by

paramedics in treating Sierra. The jury found Levi guilty of the charges against him. At

the time of conviction, Levi was seventeen years and eight months of age. Levi was

sentenced on January 7, 2015, at which time he was seventeen years and ten months of age.

Levi now appeals.

                                                      Analysis

                                                     Point One

         In Point One on appeal, Levi argues that the trial court erred in failing to sua sponte

prevent the State from dismissing the charges against him and refiling the same charges

the same day because it deprived him of the opportunity to be considered for dual

jurisdiction in sentencing pursuant to section 211.073.6 Levi argues that had the case not

been dismissed and refiled, he would have been under the age of seventeen years and six

months at the time he was found guilty and, therefore, would have been eligible for the

dual jurisdiction program. Levi argues that this deprived him of due process of law


         6
           Dual jurisdiction allows the trial court to consider, in sentencing, both the criminal and juvenile codes as
to the offender. See Section 211.073.1.

                                                           5
guaranteed by the Fourteenth Amendment of the United States Constitution and Article I,

Section 10 of the Missouri Constitution.

       As no objection to the dismissal was made before the trial court, Levi requests plain

error review of his claim under Rule 30.20.

       Rule 30.20 authorizes this Court to review, in its discretion, "plain errors
       affecting substantial rights ... when the court finds that manifest injustice or
       miscarriage of justice has resulted therefrom." Our Supreme Court has
       established a threshold review to determine if a court should exercise its
       discretion to entertain a Rule 30.20 review of a claimed plain error. First, we
       determine whether or not the claimed error "facially establishes substantial
       grounds for believing that 'manifest injustice or miscarriage of justice has
       resulted[.]'" State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995) (quoting
       Rule 30.20). If not, we should not exercise our discretion to conduct a Rule
       30.20 plain error review. If, however, we conclude that we have passed this
       threshold, we may proceed to review the claim under a two-step process
       pursuant to Rule 30.20. In the first step, we decide whether plain error has,
       in fact, occurred. [State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009)].
       "All prejudicial error, however, is not plain error, and plain errors are those
       which are evident, obvious and clear." Id. (citations and internal quotation
       marks omitted). In the absence of evident, obvious, and clear error, we
       should not proceed further with our plain error review. If, however, we find
       plain error, we must continue to the second step to consider whether or not a
       miscarriage of justice or manifest injustice will occur if the error is left
       uncorrected. Id. at 607–08.

State v. Flores, 437 S.W.3d 779, 789 (Mo. App. W.D. 2014).

       Levi challenges the authority of the State to dismiss and refile the charges against

him where the dismissal allegedly precluded the court from considering "dual jurisdiction"

in sentencing due to the resulting delay in his prosecution.




                                              6
         A nolle prosequi7 is the formal entry on the record that a prosecutor no longer

intends to prosecute pending criminal charges against the defendant. State v. Sisco, 458

S.W.3d 304, 310 (Mo. banc 2015). It is well-settled that a prosecutor has great discretion

in whether to pursue charges against a defendant, which has been codified in section

56.087. Id. Section 56.087

         provides that the prosecutor "has the power, in his or her discretion, to
         dismiss a complaint, information, or indictment, or any count or counts
         thereof["] without the consent of the court. Unless double jeopardy has
         attached, a dismissal by the prosecutor will be without prejudice, meaning
         the prosecutor "has complete discretion to refile the case, as long as it is
         refiled within the time specified by the applicable statute of limitations."
         [Section 56.087] "Once a prosecutor dismisses a case without prejudice, a
         court ... has no authority to convert the dismissal to one with prejudice or to
         force the prosecutor to trial." [State v. Honeycutt, 96 S.W.3d 85, 89 (Mo.
         banc 2003)].

Id.

         Levi does not allege any impropriety or defect in the dismissal of the charges against

him or their refiling except that the delay caused thereby impacted his right to be considered

for "dual jurisdiction" under section 211.073.

         Section 211.073.1 provides, in part, that

         [t]he court shall, in a case when the offender is under seventeen years and six
         months of age[8] and has been transferred to a court of general jurisdiction
         pursuant to section 211.071, and whose prosecution results in a conviction

         7
            "Nolle prosequi" is Latin for "not to wish to prosecute" and is defined as "[a] legal notice that a lawsuit or
prosecution has been abandoned." State v. Dozler, 455 S.W.3d 471, 473 (Mo. App. S.D. 2015) (quoting BLACK'S
LAW DICTIONARY 1074 (8th ed.2004)).
          8
            Levi contends in briefing, not contested by the State, that an offender must be under seventeen years and
six months of age at the time of conviction in order to be considered for "dual jurisdiction" in sentencing. Levi does
not cite any authority supporting this interpretation, and the Court has not located any authority interpreting the age
requirement in this manner. A plain reading of the statute would suggest that the offender need only be seventeen
years and six months of age when transferred to a court of general jurisdiction in order to be eligible for the
program. This reading would make the delay in the prosecution irrelevant. However, as this issue has not been
raised or briefed by either party, we need not and do not address this issue in our ruling today.

                                                            7
       or a plea of guilty, consider dual jurisdiction of both the criminal and juvenile
       codes, as set forth in this section.

As this Court has explained,

       Section 211.073 gives a court the authority to "invoke dual jurisdiction of
       both the criminal and juvenile codes," § 211.073.1, in cases involving an
       offender under seventeen who is transferred to a circuit court of general
       jurisdiction and whose prosecution results in a conviction. Under section
       211.073, the circuit court may impose a juvenile disposition and
       "simultaneously impose an adult criminal sentence, the execution of which
       shall be suspended pursuant to the provisions of this section." Id.

State ex rel. Sanders v. Kramer, 160 S.W.3d 822, 824 (Mo. App. W.D. 2005) (footnote

omitted). The decision regarding whether to place an offender under the dual jurisdiction

program is a matter for the court's discretion. Burnett v. State, 311 S.W.3d 810, 816 (Mo.

App. E.D. 2009).

       Levi has cited no authority to support his contention that the broad discretion

granted to prosecutors to nolle prosequi charges, codified by statute as explained supra, is

limited or can be limited by section 211.073. Levi has not identified any authority in which

this Court has found that the prosecutor's broad discretion to dismiss and refile charges

prior to trial is limited by anything other than double jeopardy or the applicable statute of

limitations. As explained in Sisco, the prosecutor has "complete discretion" to dismiss the

charges without the court's consent, and the trial court does not have the power to force the

state to trial. 458 S.W.3d at 310; see also State v. Honeycutt, 96 S.W.3d 85, 88-89 (Mo.

banc 2003) (reaffirming the broad discretion vested in the prosecutor and stating that her

decision on how to enforce the criminal laws are "seldom subject to judicial review"); State

v. Clinch, 335 S.W.3d 579, 583-584 (Mo. App. W.D. 2011) (holding that this Court does


                                              8
not have the authority to require the trial court to approve a nolle prosequi due to

"numerous precedents of this state, including from our supreme court," which grants the

prosecutor broad discretion); accord Doyle v. Crane, 200 S.W.3d 581, 587-88 (Mo. App.

W.D. 2006). Any orders or action taken by the trial court after the nolle prosequi has been

entered are nullities, as the trial court has lost jurisdiction. See Dozler, 455 S.W.3d at 473.

Levi has not cited, and this Court has not found, any basis in existing law to support Levi's

contention that the trial court had the authority to disallow the prosecutor's nolle prosequi

of the charges or the refiling of the charges on the basis alleged by Levi.9

         In the absence of any authority whatsoever to support the limitation of the

prosecutor's discretion to dismiss and refile the charges under these facts, under plain error

review, we cannot find that facially there has been established any substantial ground for

believing that manifest injustice or a miscarriage of justice has resulted, much less that the

trial court had any way to recognize and foresee such a future issue at the time of the

dismissal such that the court should have sua sponte stepped in to correct it. We, therefore,

decline plain error review.

         Point One is denied.

                                                    Point Two

         In Point Two on appeal, Levi claims the trial court erred in admitting hearsay

testimony, over Levi's objection, from Missouri State Patrolman Jason Trammell



         9
           Further, from a purely practical standpoint, it is impossible to discern what the trial court could have done
if confronted with such an objection. The trial court was not in a position to know, at the time of dismissal, whether
the State intended to refile the charges or if any resulting delay in the prosecution would have any impact
whatsoever on Levi's eligibility for dual jurisdiction. Also, see footnote 8.

                                                           9
("Trammell"), who was allowed to testify that he was informed by a paramedic that a drop

of blood found on a nightstand was caused by the paramedics' attempt to put an IV into

Sierra's arm.

         Trammell is an investigator with training in blood stain pattern analysis and crime

scene reconstruction. Trammell testified at trial that no DNA from Sierra was found on

the clothing Levi wore the day of the shooting and none was found on the clothing Levi

was wearing when he was taken into custody by law enforcement. In addition, Trammell

testified that no DNA from Sierra was located in the truck driven by Levi the night of the

crime. Sierra's blood was found, however, on a nightstand located near where investigators

concluded the shooter was standing when he shot Sierra.10 The defense argued that Levi

could not have been the shooter, as no blood spatter was located on any of his clothing or

in the truck that he drove away from the scene of the crime.

         Trammell was asked by the prosecutor on redirect examination whether the blood

on the nightstand was back spatter from the shooting. Trammell attempted to testify

regarding what the paramedic had told him about the origin of the blood on the nightstand.

The defense objected based on hearsay. The State argued that Trammell was an expert and

was entitled to rely on and testify regarding hearsay upon which he could have reasonably

relied as an expert in forming his opinion. The defense argued that no foundation had been




          10
             The defense characterizes Trammell's testimony as stating that the shooter was standing in front of the
nightstand, such that any blood that spattered onto the nightstand would have also ended up splattered on the
shooter. Trammell actually testified that the shooter was standing approximately next to the front right corner of the
nightstand. However, Trammell testified he was unable to determine where exactly the shooter would have been in
relation to the nightstand.

                                                         10
made as to the reasonableness of Trammell's reliance on the hearsay in forming his opinion.

The objection was overruled.

       Trammell was allowed to opine that the blood on the nightstand was not back spatter

because a paramedic had told him that the blood resulted from the paramedics' attempt to

put an IV into Sierra's arm. He also testified that the physical characteristics of the blood

on the nightstand that suggested it resulted from "passive" or "90 degree" dripping rather

than spatter. During cross-examination, Trammell agreed that he could not conclusively

determine whether the blood on the nightstand was back spatter or was dropped from the

paramedics' treatment of Sierra.

               A trial court "has broad discretion to admit or exclude evidence during
       a criminal trial, and error occurs only when there is a clear abuse of this
       discretion." [State v. Hart, 404 S.W.3d 232, 248 (Mo. banc 2013)].
       "Reversal due to an evidentiary error requires a showing of prejudice." State
       v. McFadden, 369 S.W.3d 727, 736 (Mo. banc 2012) (quoting State v.
       Taylor, 298 S.W.3d 482, 492 (Mo. banc 2009)). If there is a reasonable
       probability that the trial court's error affected the outcome of the trial, there
       is prejudice. State v. Clark, 364 S.W.3d 540, 544 (Mo. banc 2012).

State v. Hartman, 488 S.W.3d 53, 56 (Mo. banc 2016).

       "Hearsay statements, or out-of-court statements used to prove the truth of the matter

asserted, generally are inadmissible." Id. at 57. However,

       [i]n recognition of the generally accepted principle that an expert acquires
       his knowledge and expertise from a number of sources, some of which may
       include inadmissible hearsay, an expert can rely on hearsay information in
       forming an opinion. An expert can rely on such information provided that
       those sources are not offered as independent substantive evidence, but rather
       serve only as a background for his opinion. Section 490.065.3 permits an
       expert to consider facts not in evidence in forming an opinion or inference,
       but a two-step approach must be used to determine the admissibility of that
       expert opinion. First, the facts or evidence must be of a type reasonably
       relied on by experts in the field in forming opinions or inferences on the

                                              11
         subject. Second, the trial court must independently decide if the facts and
         data relied on by the expert meet a minimum standard of reliability, i.e., are
         otherwise reasonably reliable.

Whitnell v. State, 129 S.W.3d 409, 416 (Mo. App. E.D. 2004) (internal citations omitted).

         We need not consider whether the trial court erred in admitting the hearsay evidence

regarding the origin of the blood found on the nightstand, as Levi cannot show he was

prejudiced by the admission of that evidence.11 First, Trammell testified that he could not

conclusively determine the origin of the blood on the nightstand, lessening the force of his

testimony regarding the hearsay. Second, Levi's claim of prejudice is premised on the

assumption that the shooter was standing in front of the nightstand when Sierra was shot,

such that any back spatter would have hit both the nightstand and the shooter. As explained

above, the evidence was inconclusive as to the precise location of the shooter with relation

to the nightstand. Third, in addition to Trammell's testimony regarding what the paramedic

told him about the origin of the blood, Trammell also testified that, in his expert opinion,

the blood on the nightstand was not back spatter due to the appearance of the blood, which

suggested it was not spatter but rather was passive and dropped from a 90 degree angle.

This expert testimony reinforces the conclusion the blood on the nightstand was not back

spatter, irrespective of the hearsay testimony.

         More importantly, the evidence against Levi was overwhelming. He was left alone

with his sister and less than one hour later, upon the return of his parents, she was found


          11
             Levi did not object to the testimony based on any alleged violation of the confrontation clause and makes
no argument on appeal that the admission of this testimony violated his constitutional rights under the confrontation
clause. As the claim was not raised before the trial court or raised or argued on appeal, we do not address this issue.
See State v. Nathan, 404 S.W.3d 253, 271 n.12 (Mo. banc 2013) (claims that are neither preserved nor addressed
will not be considered on appeal).

                                                          12
shot in head. There was no sign of forced entry into the house and nothing was stolen.

Levi was familiar with the firearms in the home and had fled the scene in a pickup truck.

He did not go to the police but went to Walmart where he walked around and talked

nervously with employees for several hours. He developed an unbelievable story that after

finding his sister shot in the bedroom, he was able to flee from the scene and evade the

shooter in a car chase. He claimed that he only stopped at Walmart because he was running

out of gas. Instead of calling the police or telling this tale to the employees at Walmart

upon arrival to seek safety, he waited and evaded his parents, while his sister lay dying at

home.

        There is not a reasonable probability that the outcome of the trial would have been

different had Trammell not been allowed to testify regarding what the paramedic told him

about the origin of a drop of blood on the nightstand. Because Levi cannot show he was

prejudiced by the admission of the hearsay, we need to consider whether its admission was

error. See State v. Steele, 314 S.W.3d 845, 850 (Mo. App. W.D. 2010) (“[E]ven if the court

finds hearsay evidence was improperly admitted, the conviction will be reversed only if

defendant can prove both error and prejudice”).

        Point Two is denied.

                                        Conclusion

        The judgment of the circuit court is affirmed.


                                           __________________________________
                                           Gary D. Witt, Judge

All concur
                                             13
