             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

STATE OF MISSOURI,                                )
                                                  )
                                 Respondent,      )
                                                  )    WD77727
v.                                                )
                                                  )    OPINION FILED:
                                                  )    March 1, 2016
JEFFREY P. THOMPSON,                              )
                                                  )
                                    Appellant.    )


                 Appeal from the Circuit Court of Jackson County, Missouri
                          The Honorable Edith L. Messina, Judge

                  Before Division II: Cynthia L. Martin, Presiding Judge, and
                      Mark D. Pfeiffer and Karen King Mitchell, Judges

       Mr. Jeffrey Thompson (“Thompson”) appeals the Judgment of the Circuit Court of

Jackson County, Missouri (“trial court”), finding him guilty, following a jury trial, of two counts

of robbery in the first degree and two counts of armed criminal action. Thompson raises three

points on appeal, in which he challenges the sufficiency of the evidence; the admission of certain

evidence; and the trial court’s failure to declare a mistrial, sua sponte, because of the

prosecutor’s alleged improper comments in opening statement and closing argument. We affirm.
                                      Facts and Procedural History1

        On February 1, 2013, Thompson was driving his girlfriend’s 2013 black Chevrolet

Impala rental car; Jeremy Williams and David West were passengers. Thompson knew that

Williams had a 9-millimeter semiautomatic black gun tucked into the waist of his pants.

        About 7:00 p.m. that evening, Christopher Munns, a Papa John’s Pizza deliveryman,

delivered a pizza at 4006 Oak in Kansas City, Missouri, and got back in his car. Thompson,

Williams, and West saw Munns. Thompson dropped Williams and West off, and Williams and

West approached Munns’s car. One of them knocked on the driver’s side door and said he

needed to use Munns’s phone because someone had been shot down the road. Munns was

suspicious, so he rolled up his window and tried to put his car in drive. When he looked up, one

of the men had pulled out a black 9-millimeter semiautomatic pistol. The man told Munns to

open the door and hand him the money he had received from the delivery and his wallet. Munns

complied. During this encounter and after Munns had been subdued by the gun pointed at him,

the second man went through the front and back passenger doors to rummage around the inside

of Munns’s car. The two men (Williams and West) then ran off, and Thompson picked them up

in a nearby alley. Munns drove back to Papa John’s and called 911. Officers responded.

        Later that evening, between 7:00 p.m. and 8:00 p.m., Thompson again dropped off

Williams and West, and they approached Minh Nguyen from behind as he was attempting to

lock the gate of his driveway at 2652 East 8th Street in Kansas City, Missouri. One man pointed

a black gun at the back of Nguyen’s head and said, “Don’t scream and don’t turn back, don’t

look back, and give me the money.” The other man then searched Nguyen for Nguyen’s




        1
           In an appeal from a jury-tried case, we view the facts in the light most favorable to the jury’s verdict.
State v. Ramirez, 447 S.W.3d 792, 794 n.1 (Mo. App. W.D. 2014).


                                                         2
valuables. The men took Nguyen’s cell phone and wallet. The men (Williams and West) ran

off, and Thompson picked them up. Nguyen ran home, and his wife called the police.

       Kansas City, Missouri, Patrol Officer Benjamin Lindsay responded to the dispatch of a

reported robbery at Nguyen’s residence. When Nguyen told Officer Lindsay that his cell phone

had been stolen, Officer Lindsay used a cell phone locator app to track Nguyen’s cell phone.

The phone pinged to a location in Kansas City, Kansas, and Officer Lindsay broadcast the

location of the phone.

       Kansas City, Missouri, Patrol Officer Darren King responded to the location in a marked

police car while on the lookout for a black vehicle occupied by three black males, as described

by witnesses. Officer King saw a black vehicle traveling at a high rate of speed. The vehicle

suddenly pulled to the curb, and three men exited the vehicle and ran. Officer King chased the

driver of the vehicle and apprehended Thompson. Within ten minutes, officers found Williams

hiding where Nguyen’s phone had been tracked. He had Nguyen’s wallet and phone, Munns’s

stolen property, and a loaded gun.

       The next day, on February 2, 2013, Kansas City, Missouri, Detective Kristofer Oldham

interviewed the three suspects who were being held at the Wyandotte County, Kansas, jail.

Thompson waived his Miranda rights and gave Detective Oldham an audio-recorded statement.

Thompson admitted dropping off and picking up Williams and West at the scene of five

robberies or attempted robberies within an hour and a half. He said Williams had a gun the

entire time, and Williams and West forcibly took money, a cell phone, bank cards, and wallets

during the robberies. Thompson said he could have participated but felt good about himself

because he had no involvement, and “I made it where I couldn’t get involved. I dropped off.”




                                               3
       Thompson was charged under Count I with the class A felony of robbery in the first

degree and under Count II for the unclassified felony of armed criminal action for assisting

Williams and West in the armed robbery of Munns. He was charged under Count III with the

class A felony of robbery in the first degree and under Count IV for the unclassified felony of

armed criminal action for assisting Williams and West in the armed robbery of Nguyen. At the

close of the State’s case, Thompson moved for a judgment of acquittal. The trial court denied

the motion. Thompson presented no evidence and moved for a judgment of acquittal at the close

of all the evidence. The trial court denied the motion. The jury found Thompson guilty as

charged. Thompson then moved for a judgment of acquittal notwithstanding the verdict or, in

the alternative, a new trial.     The trial court denied the post-verdict motion and sentenced

Thompson as a prior and persistent offender to twenty years’ imprisonment on the robbery

counts and five years’ imprisonment on the armed criminal action counts, with all sentences to

run concurrently and concurrently to sentences previously imposed. Thompson appeals.

                                Point I – Sufficiency of the Evidence

       In Point I, Thompson asserts a sufficiency-of-the-evidence challenge. The essence of

Thompson’s claim is that the State submitted a verdict director to the jury that unnecessarily

heightened its burden of proving robbery in the first degree; but, in so doing, the State was

obligated to prove the entirety of the heightened jury instruction—which Thompson alleges the

State failed to do—even though the indictment properly charged Thompson with the statutory

elements for robbery in the first degree, and there was sufficient evidence to support the crimes

as charged. Specifically, Thompson argues:

       The State could have submitted verdict directors for [the first-degree robbery
       counts] that alleged in the third paragraph that Mr. Williams alone threatened the




                                                 4
        immediate use of physical force against the victims.2 But instead, the State
        alleged that both Mr. Williams and Mr. West threatened the use of physical force.
        By including the allegation that both men threatened the immediate use of
        physical force, the State assumed that added burden of proving beyond a
        reasonable doubt that both men did in fact threaten the immediate use of physical
        force. The State failed to do so.

                                              Standard of Review

        “An appellate court’s review of the sufficiency of the evidence to support a criminal

conviction is limited to determining whether there is sufficient evidence from which a reasonable

jury could have found the defendant guilty beyond a reasonable doubt.” State v. Porter, 439

S.W.3d 208, 211 (Mo. banc 2014). “All evidence and inferences favorable to the State are

accepted as true, and all evidence and inference to the contrary are rejected.” Id. The question is

not whether we believe that the evidence at trial established guilt beyond a reasonable doubt but,

instead, whether, “in light of the evidence most favorable to the State, any rational fact-finder

could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal

quotation omitted).

        Even more specifically, the Supreme Court of the United States has very recently

addressed sufficiency challenges on appeal where the jury was instructed under a heightened jury

instruction:

        [W]hen a jury instruction sets forth all the elements of the charged crime but
        incorrectly adds one more element, a sufficiency challenge should be assessed
        against the elements of the charged crime, not against the erroneously heightened
        command in the jury instruction.

        That conclusion flows from the nature of a court’s task in evaluating a
        sufficiency-of-the-evidence challenge. Sufficiency review essentially addresses
        whether “the government’s case was so lacking that it should not have ever been
        submitted to the jury.” Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 57
        L. Ed. 2d 1 (1978) (emphasis deleted). On sufficiency review, a reviewing court
        makes a limited inquiry tailored to ensure that a defendant receives the minimum

        2
          On appeal, Thompson does not contest that Williams was armed with a deadly weapon and that Williams
threatened the immediate use of physical force upon each of the victims.


                                                     5
       that due process requires: a “meaningful opportunity to defend” against the
       charge against him and a jury finding of guilt “beyond a reasonable doubt.”
       Jackson v. Virginia, 443 U.S. 307, 314-315, 99 S. Ct. 2781, 61 L. Ed. 2d 560
       (1979). The reviewing court considers only the “legal” question “whether, after
       viewing the evidence in the light most favorable to the prosecution, any rational
       trier of fact could have found the essential elements of the crime beyond a
       reasonable doubt.” Id., at 319, 99 S. Ct. 2781 (emphasis in original). That limited
       review does not intrude on the jury’s role “to resolve conflicts in the testimony, to
       weigh the evidence, and to draw reasonable inferences from basic facts to
       ultimate facts.” Ibid.

       A reviewing court’s limited determination on sufficiency review thus does not
       rest on how the jury was instructed. When a jury finds guilt after being instructed
       on all elements of the charged crime plus one more element, the jury has made all
       the findings that due process requires. If a jury instruction requires the jury to
       find guilt on the elements of the charged crime, a defendant will have had a
       “meaningful opportunity to defend” against the charge. Id. at 314, 99 S. Ct. 2781.
       And if the jury instruction requires the jury to find those elements “beyond a
       reasonable doubt,” the defendant has been accorded the procedure that this Court
       has required to protect the presumption of innocence. Id. at 314-315, 99 S. Ct.
       2781. The Government’s failure to introduce evidence of an additional element
       does not implicate the principles that sufficiency review protects. All that a
       defendant is entitled to on a sufficiency challenge is for the court to make a
       “legal” determination whether the evidence was strong enough to reach a jury at
       all. Id., at 319, 99 S. Ct. 2781. The Government’s failure to object to the
       heightened jury instruction thus does not affect the court’s review for sufficiency
       of the evidence.

Musacchio v. United States, 136 S. Ct. 709, 715 (2016).

                                            Analysis

       Thompson’s claim is that the evidence was insufficient to prove an element contained in

the verdict directors: that Mr. West threatened the immediate use of physical force against

Munns (Count I) or Nguyen (Count III). He contends that by including the allegation in the

verdict directors that both Williams and West threatened the use of immediate physical force, the

State assumed the added burden of proving that element beyond a reasonable doubt; but, argues

Thompson, the State presented no evidence that West (as opposed to Williams) threatened the

victims with the immediate use of physical force as the verdict director required. He further




                                                6
asserts that because the State failed to present such evidence, his robbery convictions and the

corresponding convictions for armed criminal action cannot stand.

       The State charged Thompson with two counts of first-degree robbery. In Count I of its

information in lieu of indictment, the State charged that Thompson:

       committed the Class A Felony of Robbery in the First Degree . . . in that on or
       about February 1, 2013, . . . the defendant, either acting alone or purposefully in
       concert with another, forcibly stole miscellaneous U.S. currency and a wallet in
       the possession of Christopher Munns, and in the course thereof another participant
       in the crime was armed with a deadly weapon.

Count III charged that Thompson:

       committed the Class A Felony of Robbery in the First Degree . . . in that on or
       about February 1, 2013, . . . the defendant acting alone or purposefully in concert
       with another forcibly stole a wallet and cellular phone in the possession of Minh
       Nguyen, and in the course thereof another participant in the crime was armed with
       a deadly weapon.

First-degree robbery is codified in section 569.020, which states in pertinent part:

       1. A person commits the crime of robbery in the first degree when he forcibly
       steals property and in the course thereof he, or another participant in the crime,

               (1) Causes serious physical injury to any person; or

               (2) Is armed with a deadly weapon; or

               (3) Uses or threatens the immediate use of a dangerous instrument against
               any person; or

               (4) Displays or threatens the use of what appears to be a deadly weapon or
               dangerous instrument.

§ 569.020.1.

       Thompson was charged in Counts II and IV with two counts of armed criminal action.

Armed criminal action is codified in section 571.015, which provides that “any person who

commits any felony under the laws of this state by, with, or through the use, assistance, or aid of

a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action.”



                                                 7
       Thompson was charged with the crimes as an accomplice. Section 562.041.1(2) provides

that a person is criminally responsible for the conduct of another when “[e]ither before or during

the commission of an offense with the purpose of promoting the commission of an offense, he

aids or agrees to aid or attempts to aid such other person in planning, committing or attempting

to commit the offense.” Hence, “all persons who act in concert to commit a crime are equally

guilty.” State v. Sistrunk, 414 S.W.3d 592, 597 (Mo. App. E.D. 2013). See also State v.

Thomas, 387 S.W.3d 432, 437 (Mo. App. W.D. 2013).

       “[T]o make a submissible case of accomplice liability, the State must show that the

defendant associated himself with the venture or participated in the crime in some manner, but

the State need not show that the defendant personally committed every element of the crime.”

Sistrunk, 414 S.W.3d at 597 (internal quotation omitted).       “Any evidence, either direct or

circumstantial, demonstrating ‘affirmative participation’ in the crime charged and committed is

sufficient to support a conviction.” Id. Thus, the State was required to show that Thompson,

“acting in concert with another, committed first-degree robbery with the assistance of a deadly

weapon.” Id.

       Thompson admitted to Detective Oldham that he knew Williams was armed with a

deadly weapon—a 9-millimeter semiautomatic handgun. He also admitted that, in the space of

an hour and a half, he dropped Williams and West off and picked them up on five occasions

during which they robbed individuals of money, a cell phone, bank cards, and wallets. A

reasonable juror could have found that Thompson knew Williams was armed, that Williams and

West robbed Munns and Nguyen, and that Thompson acted as a getaway driver. “[P]roof that

the defendant knew the principal actor had robbed someone and that the defendant acted as a

getaway driver is sufficient evidence of participation to support a finding of accomplice




                                                8
liability.”   State v. Jones, 296 S.W.3d 506, 510 (Mo. App. E.D. 2009).               Furthermore,

Thompson’s flight from police constituted evidence of guilt. Id.

        Thompson’s challenge to his convictions of armed criminal action (Counts II and IV) for

the corresponding robbery counts (Counts I and III) is based on his contention that the State

failed to present sufficient evidence as to the robbery counts. As we have just explained, the

evidence was adequate to support his convictions for both counts of first-degree robbery. For the

conviction for armed criminal action to be proper, the evidence had to support the additional

finding that the robbery was committed “by or with or through the use or assistance or aid of a

dangerous instrument.” The evidence in this case supports the conclusion that both Munns and

Nguyen were threatened with a 9-millimeter semiautomatic pistol during the robberies. That

evidence is sufficient to support the additional element contained in the crime of armed criminal

action. Thompson’s acting as a getaway driver in an armed robbery is sufficient evidence of

participation to support a finding of accomplice liability in committing first-degree robbery and

armed criminal action. Id.

        On appeal, Thompson does not contest that the information in lieu of indictment properly

charged him with all the statutory elements for accomplice liability for robbery in the first degree

and armed criminal action; nor does Thompson contest that the evidence is sufficient to establish

that Thompson was acting in concert with another, Williams, to forcibly steal property from the

subject victims, and that Thompson knew that Williams was armed with a deadly weapon to

commit the crimes. Instead, Thompson argues that the State failed to prove the entirety of the

heightened jury instructions—that, in addition to Williams threatening the immediate use of

physical force to compel the victims to deliver up their property—the State was also obligated to




                                                 9
prove that the other purported criminal actor—West—also threatened the use of immediate

physical force with the subject victims.

       Specifically, Thompson argues that the State did not establish every requirement in the

third paragraph of the verdict director in Instructions 8 and 10. The State submitted Instruction 8

as the verdict director for Count I, which charged Thompson as an accomplice in Williams and

West’s armed robbery of Munns:

              As to Count 1, if you find and believe from the evidence beyond a
       reasonable doubt:

               First, that on or about February 1, 2013, in the County of Jackson, State of
                        Missouri, Jeremy Williams and David West took U.S. Currency,
                        and a wallet, which was property in the possession of Christopher
                        Munns, and

               Second, that Jeremy Williams and David West did so for the purpose of
                     withholding it from the owner permanently, and

               Third, that Jeremy Williams and David West in doing so threatened the
                       immediate use of physical force on or against Christopher Munns
                       for the purpose of forcing Christopher Munns to deliver up the
                       property, and

               Fourth, that in the course of taking the property Jeremy Williams was
                      armed with a deadly weapon,

       then you are instructed that the offense of robbery in the first degree has occurred,
       and if you further find and believe from the evidence beyond a reasonable doubt:

               Fifth, that with the purpose of promoting or furthering the commission of
                       that robbery in the first degree, the defendant aided or encouraged
                       Jeremy Williams and David West in committing the offense,

       then you will find the defendant guilty under Count 1 of robbery in the first
       degree. . . .

The State submitted Instruction 10 as the verdict director for Count 3, which charged Thompson

as an accomplice in Williams and West’s armed robbery of Nyugen:




                                                10
               As to Count 3, if you find and believe from the evidence beyond a
        reasonable doubt:

                 First, that on or about February 1, 2013, in the County of Jackson, State of
                          Missouri, Jeremy Williams and David West took a cellular phone,
                          and a wallet, which was property in the possession of Minh
                          Nguyen, and

                 Second, that Jeremy Williams and David West did so for the purpose of
                       withholding it from the owner permanently, and

                 Third, that Jeremy Williams and David West in doing so threatened the
                         immediate use of physical force on or against Minh Nguyen for the
                         purpose of forcing Minh Nguyen to deliver up the property, and

                 Fourth, that in the course of taking the property Jeremy Williams was
                        armed with a deadly weapon,

        then you are instructed that the offense of robbery in the first degree has occurred,
        and if you further find and believe from the evidence beyond a reasonable doubt:

                 Fifth, that with the purpose of promoting or furthering the commission of
                         that robbery in the first degree, the defendant aided or encouraged
                         Jeremy Williams and David West in committing the offense,

        then you will find the defendant guilty under Count 3 of robbery in the first
        degree. . . .

Thompson contends that because the State’s verdict directing instructions included a requirement

that the jury find that both Williams and West threatened the immediate use of physical force,

the State assumed the burden of proving that assertion.3

        This case is not appreciably distinguishable from Musacchio.                      In Musacchio, the

defendant, Mr. Musacchio, was indicted under 18 U.S.C. § 1030(a)(2)(C), which made it a crime

either (1) to obtain access to another’s protected computer without authorization or (2) to obtain

access to another’s protected computer with authorization but then exceeding that authorization


        3
           Thompson argues that Williams was the gun man and did all the “threatening” talking and that West
merely served as the accomplice who “quietly” removed property from the victims. This, Thompson claims,
establishes that West’s conduct was not immediately threatening of physical harm. For reasons discussed infra, we
disagree.


                                                       11
improperly. Musacchio, 136 S. Ct. at 713. At trial, the jury was instructed under a heightened

instruction (not objected to by the Government) instructing the jury that § 1030(a)(2)(C) “makes

it a crime for a person to intentionally access a computer without authorization and exceed

authorized access.” Id. at 714 (internal quotation omitted). The jury convicted Musacchio, but

Musacchio challenged the conviction on appeal claiming that there was insufficient evidence to

establish both that he had conspired to access the subject computer without authorization and

with authorization but in a manner that exceeded such authorization. Id.

       In rejecting Musacchio’s sufficiency-of-the-evidence challenge, the United States

Supreme Court noted that Musacchio did not contest that he had been properly charged with the

statutory elements for conspiracy to obtain unauthorized computer access; Musacchio did not

contest that the jury instructions included within the heightened instructions all of the elements

necessary to convict him of the charged criminal offense; Musacchio did not contest that the jury

instructions correctly instructed the jury on the Government’s burden of proof—beyond a

reasonable doubt; and Musacchio did not contest that the evidence was sufficient to convict him

of the crime as charged in the indictment. Id. at 715. Under these circumstances, the Court

rejected Musacchio’s sufficiency challenge, concluding that where a jury has convicted under

jury instructions that identify all (and more) of the evidence necessary to convict the defendant

of the crime as charged, “the jury has made all the findings that due process requires.” Id.

       Here, Thompson does not contest on appeal that he was properly charged under the

statutory elements for accomplice liability for robbery in the first degree and armed criminal

action; likewise, Thompson does not contest that all (and more) of the evidence necessary to

convict him of the charged crimes was included within the jury instructions from which the jury

did, in fact, convict him. Thus, like Musacchio, Thompson’s sufficiency challenge must fail.




                                                12
       Additionally, we note that Thompson is taking the third paragraph of each of the verdict

directors out of context and, in so doing, Thompson is reading the jury instructions in a

grammatical light most convenient for himself. But, read in context, the first paragraph of the

verdict directors is describing how Williams and West, collectively, teamed up to take valuable

possessions from the victims; paragraph two describes how Williams and West, collectively,

teamed up to withhold this property from each of the victims permanently; paragraph three

describes how Williams and West, collectively, teamed up to threaten the victims with

immediate physical harm if the victims did not comply with their demands; and the fourth

paragraph describes how, in the course of this tag team robbery, the tasks of the first three

paragraphs were accomplished via the possession by Williams—not West—of a deadly weapon.

No reasonable juror would conclude that the plain language of this group of paragraphs was

intended to suggest in the third paragraph that both Williams and West possessed a gun and

threatened immediate physical harm with such weapon; rather, the verdict directors were

designed to describe how both Williams and West teamed up to accomplish all of the tasks of

robbery itemized in the first three paragraphs. Clearly, that is exactly what happened.

       Finally, when the evidence and inferences favorable to the State are accepted as true, the

evidence supports a reasonable juror’s conclusion that all elements have been satisfied—

including Thompson’s reading of the third element in each verdict director—and Thompson was

guilty beyond a reasonable doubt.

       “Missouri law no longer recognizes any distinction between principals and accessories; it

is now the law that all persons who act in concert are equally guilty.” State v. Ward, 473 S.W.3d

686, 691 (Mo. App. W.D. 2015) (citing State v. Barnum, 14 S.W.3d 587, 591 (Mo. banc 2000)).

The focus of Missouri courts on committing “acts” that constitute a crime is upon whether the




                                                13
“actor” has “affirmatively participated” in the “act” alleged to be a crime. State v. Barker, 442

S.W.3d 165, 169 (Mo. App. W.D. 2014). “[A]ll persons who act in concert to commit a crime

are equally guilty.” State v. Thomas, 387 S.W.3d 432, 437 (Mo. App. W.D. 2013) (citing State

v. Isa, 850 S.W.2d 876, 898 (Mo. banc 1993)).

       Here, acting in concert with Williams, West affirmatively participated in the “act” of

threatening the immediate use of physical force to rob each of the victims. It cannot reasonably

be said that either of the victims did not reasonably fear the immediate use of physical force from

either Williams or West—whether by pulling a trigger on a gun or instructing a fellow criminal

participant to pull the trigger—if the victims failed to permit West to relieve them of their

personal valuable possessions. Thus, a reasonable juror certainly could have concluded that both

Williams and West actively and affirmatively participated in the act of threatening the immediate

use of physical force in perpetrating the robbery upon each of the victims.

       Viewing the evidence and all reasonable inferences therefrom in the light most favorable

to the verdict and rejecting all contrary evidence and inferences, the evidence is sufficient to

support Thompson’s criminal convictions under the verdict directing instructions submitted to

and relied upon by the jury in arriving at its guilty verdict.

       Point I is denied.

                            Point II – Admission of Propensity Evidence

       In Thompson’s second point, he asserts that the trial court abused its discretion in

admitting the redacted audio recording of Thompson’s statement to the police. He contends that

the tape contained inadmissible propensity evidence of three uncharged robberies.




                                                  14
                                       Standard of Review

        “The standard of review for the admission of evidence is abuse of discretion.” State v.

Williams, 420 S.W.3d 713, 721 (Mo. App. W.D. 2014) (internal quotation omitted). “A trial

court has broad discretion to admit or exclude evidence at trial.” Id. (internal quotation omitted).

“The trial judge is also in the best position to weigh the probative value of the evidence against

its prejudicial effect.” Id. (internal quotation omitted). “Abuse of discretion occurs when a trial

court’s ruling is clearly against the logic of the circumstances and is so unreasonable as to

indicate a lack of careful consideration.” Id. (internal quotation omitted). Reversal is warranted

only if the error is so prejudicial that it deprived the defendant of a fair trial. Id. “Trial court

error is not prejudicial unless there is a reasonable probability that it affected the outcome of the

trial.” Id.

                                             Analysis

        In the audio recording, Detective Oldham told Thompson that they were talking about

more than one robbery and that police “talked to a lot of people; they’re describing your

vehicle.” Detective Oldham asked Thompson, “How many times did you stop and drop them

off?” Thompson answered, “I dropped them off three times yesterday.” Detective Oldham then

told Thompson, “There was a condensed period of time where they were getting in and out of the

car quite a few times in that little condensed period of time; we have several reports from that

condensed period of time. So we’re just talking about dropping folks off.” The Detective asked

Thompson, “How many times was it in that little period of time? . . . So how many times, how

many times did you drop them off and pick them up? We’ve got reports, we’ve got that vehicle

description, so I know it happened, I want to know how many times they did this. We have these

reports; how many?” Thompson then stated that he dropped Williams and West off four times.




                                                 15
But then he pinpointed five locations where he dropped the pair off, and he described the items

they returned with when he picked them up. Thompson said that in each robbery, there was one

victim. He stated the five incidents took place in an hour and a half time frame.

        “The well-established general rule concerning the admission of evidence of prior criminal

acts is that proof of the commission of separate and distinct crimes is not admissible unless such

proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for

which he is on trial.” State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008) (internal quotation

omitted). The rationale for this rule is that “[e]vidence of other crimes, when not properly

related to the cause on trial, violates defendant’s right to be tried for the offense for which he is

indicted.” Id. (internal quotation omitted). This right is guaranteed in article I, sections 17 and

18(a) of the Missouri Constitution that a defendant has the right to be tried only on the offense

charged. Id. at 587-88. Article I, section 17 states that “no person shall be prosecuted criminally

for felony or misdemeanor otherwise than by indictment or information[.]” Article I, section

18(a) provides “[t]hat in criminal prosecutions the accused shall have the right . . . to demand the

nature and cause of the accusation[.]”

        Accordingly, “[a]s a general rule, evidence of uncharged misconduct is inadmissible for

the purpose of showing the propensity to commit such crimes.” State v. Sprofera, 372 S.W.3d

17, 19 (Mo. App. W.D. 2012) (internal quotation omitted).             “However, evidence of the

defendant’s prior misconduct is admissible when it is logically relevant—it has some legitimate

tendency to directly establish the accused’s guilt of the charges for which he is on trial, and when

it is legally relevant—its probative value outweighs its prejudicial effect.” Id. (internal quotation

omitted). Evidence has a legitimate tendency to prove the specific crime charged when the State

uses it to establish:




                                                 16
       (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common
       scheme or plan embracing the commission of two or more crimes so related to
       each other that proof of one tends to establish the other; or (5) the identity of the
       person charged with commission of the crime on trial.

State v. Joyner, 458 S.W.3d 875, 882 (Mo. App. W.D. 2015) (internal quotation omitted). “In

addition, evidence of uncharged crimes that are part of the circumstances or the sequence of

events surrounding the offense charged may be admissible to present a complete and coherent

picture of the events that transpired.” Id. (internal quotation omitted) (emphasis added).

       Under these principles, we conclude that the trial court did not err in admitting the

redacted audio recording of Thompson’s statement. The recording was logically relevant to

explain the sequence of events that surrounded the charged offenses. The three uncharged

robberies were part of the circumstances of the two charged offenses and part of the sequence of

events. Thompson transported Williams and West to and from each robbery. The five events

“were a continuous sequence of events closely related in nature, scope, and time.” State v.

Payne, 135 S.W.3d 504, 508 (Mo. App. W.D. 2004). Thompson’s statement about the five

incidents “was admissible to provide a complete and coherent picture of the events that occurred

that day.” Id. at 507. Moreover, the recording of defendant’s confession was legally relevant as

its probative value outweighed any prejudicial effect. The evidence was “highly probative” of

Thompson’s guilt and “necessary to provide the jury with a complete understanding of the

virtually unbroken chain of events that occurred that day.” Id. at 508.

       Point II is denied.

                      Point III – Mistrial Due to Propensity Arguments

       In Thompson’s third point, he asserts that the trial court plainly erred in failing to declare

a mistrial, sua sponte, and in permitting the State to make propensity arguments in its opening

statement and closing argument.        Thompson concedes that although he objected to the



                                                17
prosecutor’s opening statement, he did not include that objection in his motion for new trial, and

he did not object to the prosecutor’s closing argument; therefore, this issue is not preserved and

may be reviewed only for plain error pursuant to Rule 30.20.

                                      Standard of Review

       Any issue that was not preserved at trial is only reviewable for plain error. State v.

Letica, 356 S.W.3d 157, 167 (Mo. banc 2011). “[P]lain errors affecting substantial rights may be

considered in the discretion of the court when the court finds that manifest injustice or

miscarriage of justice has resulted therefrom.” Rule 30.20. “The plain error rule is to be used

sparingly and may not be used to justify a review of every point that has not been otherwise

preserved for appellate review.” Letica, 356 S.W.3d at 167 (internal quotation omitted). Plain

error review is a two-step process. State v. Beggs, 186 S.W.3d 306, 311 (Mo. App. W.D. 2005).

“First, the court must determine whether the trial court committed an evident, obvious and clear

error, which affected the substantial rights of the appellant.” Id. “[T]he second step of plain

error review requires the court to determine whether manifest injustice or a miscarriage of justice

resulted therefrom.” Id. at 312.

       “[A]ppellate courts are wary of claims that a trial court erred in failing to declare a

mistrial sua sponte in a criminal case.” State v. Sprofera, 427 S.W.3d 828, 837 (Mo. App. W.D.

2014) (internal quotation omitted). “Granting a mistrial is a drastic remedy and should be

exercised only in extraordinary circumstances where the prejudice to the defendant cannot be

removed any other way.” Id. (internal quotation omitted). “Trial judges are not expected to

assist counsel in trying cases, and trial judges should act sua sponte only in exceptional

circumstances.” Id. (internal quotation omitted). Accordingly, “a trial court’s decision not to

grant a mistrial sua sponte will not be reversed as plain error absent a clear showing of a




                                                18
manifest abuse of discretion, which resulted in manifest injustice or a miscarriage of justice.” Id.

(internal quotation omitted).

                                             Analysis

       “The purpose of an opening statement is to inform the circuit court and the jury of the

general outline of the anticipated evidence and its significance.” State v. Powell, 286 S.W.3d

843, 850 (Mo. App. W.D. 2009) (internal quotation omitted). We will grant plain error review

on the basis of an error in the prosecutor’s opening statement “only when the defendant can show

that the prosecutor’s remark had a decisive effect on the jury’s determination.” Id. (internal

quotation omitted). “This is a difficult standard to meet because the courts have concluded that

the impact of the prosecutor’s opening statement diminishes after the parties introduce evidence

and give their closing arguments.” Id.

       Thompson challenges the portion of the prosecutor’s opening statement in which he

pointed out that Thompson picked up and dropped off Williams and West five times:

       Good morning. You sat through a long day yesterday and heard us talk a lot.
       One thing you didn’t hear is why you’re here. You’re here because, by the
       defendant’s own admission, he was the drop-off and getaway driver for five
       armed robberies. You’ll hear, by the defendant’s own admission, he picked up
       Mr. Williams, he switches from his Yukon to his girlfriend’s rental car that
       doesn’t come back to him. You’ll hear, by his own admission, that he then picks
       up Mr. West and they drive around. And by his own admission, he drops them
       off five times. And he picks them up five times. Knowing they’re committing
       robberies, knowing they have a gun. And knows the property taken. That’s why
       you’re here.

       Thompson is not entitled to relief because he has not established that the record facially

shows that the prosecutor’s statement resulted in manifest injustice. “[A] defendant suffers no

manifest injustice from a prosecutor’s remark in his opening statement when the record

establishes that the prosecutor’s remark was supported by the evidence at trial, and the [trial]

court instructs the jury that it should not consider the prosecutor’s opening statement to be



                                                19
evidence.” Id. at 851. In this case, the record establishes that the prosecutor’s remarks were

supported by evidence at trial: in Thompson’s redacted confession, he discussed his involvement

in the uncharged robberies during the same time period as his involvement in the charged

offenses. And, as discussed in our analysis of Point II, this evidence was properly admitted at

trial by the trial court, over Thompson’s objection.

       Thompson also claims that the trial court erred in permitting the State to make propensity

arguments in closing by repeatedly referring to five robberies:

       Good morning, ladies and gentlemen. Yesterday in opening argument, my
       co-counsel, Mr. Stigall, asked you, why were we here. And he told you we were
       here because, by the defendant’s own admission, he was the getaway driver in
       five separate armed robberies. Every piece of evidence you have heard so far
       confirms that fact.

       ....

       They say the only thing linking is the audio. Ladies and gentlemen, we have the
       same car description, we have the car pulled over, we have the three of them
       fleeing, we have the property recovered. We have a continued course of conduct.
       Drop off, pick up; drop off, pick up. Five times.

       ....

       Ladies and gentlemen, the defendant is in the business of robberies. And when
       the business is good, you’re out there laughing about it, talking to prostitutes,
       driving around holding up people at gunpoint with two kids.

Thompson contends that the State used the three uncharged robberies as substantive evidence of

Thompson’s guilt of the two charged robberies. As we discussed in Point II, the evidence

Thompson complains should not have been permissible closing argument was, in fact, properly

admitted evidence at trial by the trial court. Thus, it can hardly be said that the trial court

committed error in failing to, sua sponte, declare a mistrial in response to hearing the prosecutor

argue the evidence that was properly admissible during the course of the trial.




                                                20
       “A prosecutor is allowed to argue the evidence and all reasonable inferences from the

evidence during closing arguments.” State v. Brown, 337 S.W.3d 12, 14 (Mo. banc 2011). Here,

Thompson’s recorded statement to the police, in which he recounted his participation in five

armed robberies, was properly admissible in evidence and was played for the jury. Therefore,

the State was allowed to make these arguments in closing based on the evidence that had already

been presented to the jury, as well as to argue reasonable inferences therefrom.

       Point III is denied.

                                           Conclusion

       The judgment of the trial court is affirmed.




                                             Mark D. Pfeiffer, Judge

Cynthia L. Martin, Presiding Judge, and
Karen King Mitchell, Judge, concur.




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