                In the Missouri Court of Appeals
                        Eastern District
                                     DIVISION FIVE

STATE OF MISSOURI,                              ) No. ED107222
                                                )
       Plaintiff/Respondent,                    ) Appeal from the Circuit Court
                                                ) of the City of St. Louis
vs.                                             )
                                                )
NATHAN JEROME ALLEN,                            ) Honorable Bryan L. Hettenbach
                                                )
       Defendant/Appellant.                     ) Filed: March 24, 2020

                                          Introduction

       Nathan Jerome Allen (Appellant) appeals from the judgment of the trial court

entered after a jury found him guilty of first-degree murder and armed criminal action.

Finding no reversible error, we affirm.

                                  Facts and Background

       In the light most favorable to the jury’s verdict, the evidence at trial showed the

following:

       On September 23, 2015, during the day, August Lombardo (Lombardo) and Kelly

Massey (Massey) were in front of their house on Dunnica Avenue in St. Louis.

Lombardo and Massey witnessed Appellant chasing a man, identified later as Leon Clark

(Victim), down the street. Appellant shot at Victim as they ran. Victim fell to the ground

and rolled over as Appellant approached him. Appellant fired more shots at Victim
before fleeing in the direction of Keokuk Street. Victim died of the gunshot wounds at

the scene.

       Officers arrived a short while later and began to canvass the area in search of

witnesses. Police knocked on the door of Lombardo and Massey’s residence, but they did

not answer or speak with police that day. A number of other witnesses were interviewed,

but none claimed to know the identity of the shooter or Victim. One witness, Debra

Glenn, told police she saw the shooter flee in the direction of Keokuk Street. A police K-

9 unit responded to the scene. The dog’s handler led him around the scene, hoping to

track the suspect. The dog followed a scent in the direction of Keokuk Street, losing the

scent a few houses short of Appellant’s residence. At this time, investigators did not

identify Appellant as a suspect.

       Several months later, Lombardo was arrested on unrelated charges. In the course

of questioning, he offered information to police about the shooting. Lombardo told

police he and Massey had witnessed Appellant shoot Victim and then flee towards his

residence on Keokuk Street. Lombardo was able to identify Appellant as the shooter

because they were acquainted with one another: Appellant had sold drugs to Lombardo in

the past, and acquaintances of Appellant had lived with Lombardo on Dunnica Avenue

for a while. Massey was also taken into custody and questioned about the shooting; she

also identified Appellant as the shooter.

       At trial, Lombardo and Massey testified for the State of Missouri (State), as did

Detective Michael Herzberg (Det. Herzberg), the homicide detective who led the

investigation into Victim’s shooting. The State also presented the testimony of Detective

Eric Arnold (Det. Arnold). Det. Arnold testified about his involvement investigating



                                             2
another shooting, of which Appellant was the victim. Det. Arnold testified during that

investigation, after Appellant was shot, he identified Leondre Clark (Leondre)1, the

brother of Victim, as the shooter. However, Appellant refused to cooperate in

prosecuting Leondre for the shooting. The State asserted Appellant’s motive for killing

Victim was that he had been shot by Victim’s brother Leondre, and Appellant had opted

to take revenge by killing Victim instead of cooperating with the State to prosecute

Leondre.

           Appellant testified on his own behalf. Aside from denying shooting Victim,

Appellant claimed Lombardo had a motive to fabricate his testimony, not only to receive

favorable treatment from the State, but because he and Lombardo had run afoul in the

past. Appellant claimed he had sold Lombardo fake crack cocaine. He also testified

Lombardo had falsely claimed Appellant had broken into his house, which resulted in a

physical altercation between him and Lombardo. With regard to being shot by Victim’s

brother Leondre, Appellant claimed he never told police Leondre shot him. Appellant

further claimed he did not know the Clark brothers and had no reason to shoot Victim.

Appellant stated he did not remember where he was the day of the shooting.

           After deliberations the jury returned a verdict of guilty on the first-degree murder

and armed criminal action charges. The trial court sentenced Appellant as a prior

offender to concurrent sentences of life without parole for first-degree murder and thirty

years for armed criminal action. This appeal follows.

           Additional facts necessary to analyze Appellant’s points will appear below.




1
    We use this individual’s first name only for clarity; no undue familiarity is intended.

                                                         3
                                     Points Relied On

       Appellant makes eight claims of error on appeal. Point I claims the trial court

erred by not allowing certain evidence of other individuals who may have had a motive to

kill Victim. Point II claims the trial court erred by not granting a mistrial when a State’s

witness mentioned Appellant requesting an attorney. Point III claims the trial court erred

by not allowing Appellant to cross-examine Lombardo regarding a recorded phone call

between him and the prosecutor. Point IV claims the trial court erred in overruling

Appellant’s objection to Det. Herzberg’s testimony regarding the K-9 tracking unit at the

crime scene. Point V claims the trial court erred in overruling Appellant’s objection to

Lombardo’s testimony about statements he previously made to investigators. Point VI

claims the trial court erred by overruling Appellant’s objection to Det. Herzberg’s

testimony regarding out-of-court statements made by a witness at the crime scene. Point

VII claims the trial court erred in overruling Appellant’s objection to sympathy and fear

evidence elicited by the State from Lombardo. Finally, Point VIII claims the cumulative

effect of the aforementioned errors resulted in such prejudice that reversal of the

judgment is warranted.

                                           Point I

       Appellant claims the trial court erred by excluding evidence that would have

shown that the Clark brothers, Victim and Leondre, “had problems with other people in

the community as they were involved in multiple shootings.” At trial, Appellant made an

offer of proof as to the evidence he would have presented to the jury. Specifically, he

sought to introduce evidence of another shooting committed by Victim, as well as

evidence of an investigation into the killing of Leondre while Appellant was incarcerated.



                                              4
He claims this evidence was admissible because the State opened the door by electing to

establish Appellant’s motive to commit the murder and introducing evidence Appellant

had been shot by Victim’s brother Leondre.

                                    Standard of Review

        “A trial court has broad discretion to admit or exclude evidence during a criminal

trial, and error only occurs when there is a clear abuse of this discretion.” State v. Wood,

580 S.W.3d 566, 574 (Mo. banc 2019), quoting State v. Hartman, 488 S.W.3d 53, 57

(Mo. banc 2016). “A trial court abuses its discretion only if its decision to admit or

exclude evidence is clearly against the logic of the circumstance then before the court and

is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of

careful, deliberate consideration.” Id., quoting State v. Blurton, 484 S.W.3d 758, 769

(Mo. banc 2016). “This Court will reverse the trial court’s decision only if there is a

reasonable probability that the error affected the outcome of the trial or deprived the

defendant of a fair trial.” Id.

                                         Discussion

        Appellant claims evidence that others in the community had a motive to take

revenge on the Clark brothers is admissible to rebut evidence the State offered to show

Appellant’s motive.

        “Parties generally have wide latitude developing evidence of motive.” State v.

Shurn, 866 S.W.2d 447, 457 (Mo. banc 1993). “Where the defendant claims innocence,

evidence of motive, or absence of motive, is relevant.” Id. In order to present evidence

of the Clark brothers’ conflicts with others in the community, Appellant must establish

such evidence is relevant to the State’s theory of Appellant’s motive.



                                              5
       “The test for relevancy is whether an offered fact tends to prove or disprove a fact

in issue or corroborates other evidence.” Kansas City v. Keene Corp., 855 S.W.2d 360,

367 (Mo. banc 1993). The fact at issue is the State’s assertion that Appellant had a

motive to kill Victim. Simply put, evidence that others in the community had a motive to

kill Victim does not make it less likely Appellant had a motive to kill Victim. If

anything, it makes it more likely Appellant had a motive to kill Victim, as it might tend to

show Victim and Leondre had a penchant for behavior that provoked ill will in others.

The State did not assert Appellant was the only person with a motive to kill Victim, and

so showing others had a motive to kill Victim does not rebut the State’s assertion.

       Appellant’s evidence showed nothing more than others may have had a motive or

opportunity to kill Victim.

       When the evidence is merely that another person had opportunity or
       motive to commit the offense, or the evidence is otherwise disconnected or
       remote and there is no evidence that the other person committed an act
       directly connected to the offense, the minimal probative value of the
       evidence is outweighed by its tendency to confuse or misdirect the jury.

State v. Bowman, 337 S.W.3d 679, 686 (Mo. banc 2011). Without relevance to any

factual assertion by the State, or any evidence establishing a direct connection between

some other individual and the crime, the potential of evidence showing others’ motives to

commit the crime is substantially outweighed by its potential to confuse and mislead the

jury. Appellant does not show any evidence that would directly connect another

individual with Victim’s shooting. Thus, the trial court did not err by excluding evidence

of others’ motives.

       In the alternative, Appellant argues such evidence was admissible to demonstrate

the police investigators’ failure to develop other suspects aside from Appellant, despite



                                             6
there being other individuals who potentially had a motive to kill Victim. Appellant

complains not being able to present evidence of specific individuals who may have had a

motive to kill Victim deprived him of an opportunity to present his theory to the jury.

The record does not support this contention. The trial court granted Appellant ample

latitude in cross-examining Det. Herzberg on the alleged deficiencies of his investigation

and his focus on Appellant based on the accounts of Lombardo and Massey, to the

exclusion of other potential suspects. This renders Appellant’s evidence largely

cumulative and, accordingly, makes it of low probative value. Given the low probative

value of the evidence, weighed against its potential to confuse and mislead the jury, we

do not find the trial court abused its discretion by excluding it.

       Point I is denied.

                                           Point II

       In his second point, Appellant claims the trial court erred by overruling

Appellant’s request for a mistrial following Det. Herzberg’s reference to Appellant’s

requesting an attorney.

       The following exchange occurred during direct examination of Det. Herzberg:

       Prosecutor: And between the time you developed [Appellant] as a suspect
       and today, have you been given any information as to where [Appellant’s]
       whereabouts on that September 23rd, 2015 date, other than that he was the
       gunman that shot down [Victim]?

       Det. Herzberg: No. He would be able – he asked for an attorney when I
       placed him under arrest.

       After this remark, counsel for Appellant asked to approach the bench and

requested a mistrial. The trial court denied this request. The prosecutor returned to

questioning the witness, asking:



                                              7
        Prosecutor: And, Detective, this is just a simple yes or no. Have you
        gotten any information from anybody else as to the whereabouts of
        [Appellant] on that September 23rd, 2015 date, other than they were
        present as the shooter on Dunnica?

        Det. Herzberg: No.

        Appellant again requested a mistrial, and was again overruled. Appellant

requested no other relief from the trial court.

                                      Standard of Review

        “A mistrial is a drastic remedy to be exercised only in those extraordinary

circumstances in which the prejudice to the defendant cannot otherwise be removed.”

State v. Ward, 242 S.W.3d 698, 704 (Mo. banc 2008). “This decision is left to the

discretion of the trial court, as it is in the best position to determine whether the incident

had a prejudicial effect on the jury.” Id. We review the trial court’s refusal to grant a

mistrial for an abuse of discretion. Id. “A trial court abuses its discretion when its ruling

is clearly against the logic of the circumstances before it and when the ruling is so

arbitrary and unreasonable as to shock the appellate court’s sense of justice and indicate a

lack of careful consideration.” Id.

                                          Discussion

        Improper use of an arrested person’s invocation of their right to remain silent

against them in court is proscribed by the Constitution. Doyle v. Ohio, 426 U.S. 610, 618

(1976). “It is well established that the State may not use a defendant’s post-arrest silence,

or language representing silence, to incriminate the defendant.” State v. Mason, 420

S.W.3d 632, 638 (Mo. App. S.D. 2013). “‘Silence’ extends to a defendant’s request for

counsel.” Id.




                                               8
       As a preliminary matter, we are unconvinced of Appellant’s assertion a Doyle

violation occurred. Doyle involves the State’s use of a defendant’s post-arrest, post-

Miranda statement as impeachment material or otherwise substantive evidence of guilt.

State v. Dexter, 954 S.W.2d 332, 337 (Mo. banc 1997). On the other hand, “[i]t is not an

uncommon occurrence at trial for a witness to unexpectedly volunteer an inadmissible

statement.” State v. Simrin, 384 S.W.3d 713, 721 (Mo. App. S.D. 2012). We find it

important to distinguish whether the State in any way elicited, or thereafter utilized, Det.

Herzberg’s statement regarding Appellant’s post-arrest silence.

       Despite Appellant’s arguments to the contrary, we find Det. Herzberg’s statement

was clearly unresponsive to the prosecutor’s question, such that it cannot be said the

prosecutor was deliberately attempting to elicit it. Nor did the prosecutor highlight or

otherwise seek an advantage from the complained-of statement. During direct

examination, the prosecutor asked Det. Herzberg whether he had received any

information that would have placed Appellant at a location other than the scene of the

crime. This question in no way called for or referenced the subject of Appellant’s post-

arrest silence. Similarly, although Appellant argues the prosecutor “craftily repeated and

emphasized” the question after sidebar, in our view he did nothing of the sort. On the

contrary, the prosecutor carefully rephrased the question in a way that made it explicit to

Det. Herzberg it was not meant to elicit testimony about Appellant’s post-arrest silence.

       Further, in order to constitute a Doyle violation the complained-of testimony must

give rise to some reasonable inference of guilt. State v. Stites, 266 S.W.3d 261, 267 (Mo.

App. S.D. 2008). Appellant argues this burden is met because the testimony showed

“Appellant was approached by the police, put into handcuffs, was told he was under



                                              9
arrest for the murder of [Victim] and after clearly being asked questions he invoked his

right to counsel. Something that only a guilty man would do....” But the mere fact

someone is arrested and invokes their right to counsel does not, on its own, give rise to a

reasonable inference of guilt. Stites, 266 S.W.3d at 268, citing State v. Anderson, 79

S.W.3d 420, 441 (Mo. banc 2002).

        When, as here, a witness at trial spontaneously offers inadmissible testimony,

discretion lies with the trial court to measure its potential prejudicial effect on the jury

and act accordingly. Simrin, 384 S.W.3d at 721. We find the trial court did not abuse its

discretion by refusing Appellant’s request for a mistrial. Having not asked the trial court

for any other form of relief short of a mistrial, Appellant may not on appeal complain he

was prejudiced by not receiving it. See State v. Smith, 934 S.W.2d 318, 321 (Mo. App.

W.D. 1996), quoting State v. Tygart, 531 S.W.2d 47, 50 (Mo. App. K.C. 1975) (failure to

request relief short of mistrial “dulls any inclination on the part of this court to label the

trial court with an abuse of discretion”).

        Point II is denied.

                                             Point III

        Appellant next claims the trial court erred by not allowing him to introduce a jail

phone call that took place between Lombardo and the prosecutor.

        In a hearing outside the presence of the jury, Appellant sought the approval of the

trial court to offer recordings of various phone calls made by Lombardo while in jail.

One such call was between Lombardo and the prosecutor wherein Lombardo asked,

“How did it go when I was down there?” allegedly referring to his pretrial deposition, and

the prosecutor replied, “You’re no Sunday school teacher and it went as best as it could.”



                                                10
Lombardo also stated he could “walk Kelly Massey right into [the prosecutor] as well.”

The defense argued the tapes served to develop a narrative of Lombardo’s participation in

the trial being motivated by a desire to please the State in order to gain favorable

treatment, which was relevant to impeach his credibility. The trial court ruled that,

subject to Lombardo’s testimony on the stand, some of his recorded statements may be

introduced to impeach him. However, the trial court opined the prosecutor’s statements

may not be introduced to impeach Lombardo.

                                    Standard of Review

       “To preserve a claim that evidence was improperly excluded, the proponent of the

evidence must attempt to present the evidence at trial, and if an objection is sustained, the

proponent must then make an offer of proof.” State v. Speaks, 298 S.W.3d 70, 85 (Mo.

App. E.D. 2009), citing State v. Chambers, 234 S.W.3d 501, 511 (Mo. App. E.D. 2007).

“An offer of proof made before trial at a hearing on a motion in limine will not suffice.”

Id., quoting Chambers, 234 S.W.3d at 501. “To preserve the matter for appellate review,

the offer of proof must be made during trial.” Id. (quotation marks omitted).

       At the pretrial hearing, the trial court indicated its belief the prosecutor’s

statements could not be used to impeach Lombardo. However, the trial court left open

the possibility Lombardo may be impeached with his own recorded statements depending

on his testimony at trial. At trial, Appellant never cross-examined Lombardo on his own

statements in the phone call or sought to have just those statements admitted after the trial

court’s initial interlocutory ruling. To the extent Appellant now complains he should

have been allowed to do that which he never attempted to do, we find that claim of error

is not preserved. Thus, we review Appellant’s claim only for plain error.



                                             11
        Plain error involves a two-step analysis by this Court. Id. at 86. The first step is

to determine whether the claim facially establishes “substantial ground for believing a

manifest injustice or miscarriage of justice has occurred.” Id. If no such grounds appear,

the analysis ends. Id. However, should such grounds be found, the second step is to

determine whether a manifest injustice or miscarriage of justice actually occurred. Id.

                                         Discussion

        Appellant fails to establish a facial claim of a manifest injustice or miscarriage of

justice. As to the portions of the phone call containing the prosecutor’s statements, the

trial court was correct to be wary of their admissibility, as they are not Lombardo’s own

statements, nor was there an indication of how they might directly contradict his

testimony. See State v. Duncan, 397 S.W.3d 541, 544 (Mo. App. E.D. 2013) (error to

allow State to impeach witness with statement of another not materially inconsistent with

testimony). To the extent the evidence attacked Lombardo’s credibility by showing he

had an ulterior motive in testifying, the recording was of low probative value and largely

cumulative of other evidence presented by Appellant. Appellant was granted ample

leeway by the trial court to attack Lombardo’s credibility on cross-examination by

showing, inter alia, he had received or hoped to receive favorable treatment from the

State in exchange for his testimony, as well as his alleged personal animosity towards

Appellant, and his drug addiction. Given the sufficient opportunity otherwise afforded to

Appellant to attack Lombardo’s credibility, exclusion of the jail call does not rise to the

level of plain error.

        Point III is denied.




                                             12
                                         Point IV

       Next, Appellant claims the trial court erred by overruling his objection to

testimony by Det. Herzberg regarding investigators’ search utilizing a K-9 unit at the

scene of the crime.

       On direct examination Det. Herzberg testified a witness at the scene observed

Appellant run south after the shooting, towards Keokuk Avenue. After this testimony,

the following exchange was had:

       Prosecutor: Okay. And what is the – what is the significance of the 3400
       block of Keokuk to your investigations?

       Det. Herzberg: Two things. The first is that the K-9 tracked – the police
       K-9 unit and its handler – I think he’s retired now, Officer Dobbs, and an
       Officer Simms from the Third District. The dog led them on a track to
       3451 Keokuk. And the – later when we were advised of the identity of the
       shooter, somebody reported the identity of the shooter, that person lived at
       3443 Keokuk.

       Prosecutor: Okay. And so the information that you were given is that a
       K-9 officer –

       Defense: Your honor, I’m going to object to lack of personal knowledge
       and foundation.

       Trial Court: Well, that’s sustained.

       Prosecutor: Judge, he’s testified that he’s the lead officer and he’s – he’s
       directing his investigation based on information so it goes to explain
       subsequent content – or conduct.

       Defense: Your Honor, he didn’t conduct this so-called search.

       The Court: First of all, you’re asking him leading questions. So ask him
       open-ended questions and walk him through his investigation, and I think
       you’ll be fine.

       Prosecutor: Okay. So let’s start again. So what did you learn – where did
       you learn this K-9 led?




                                              13
       Det. Herzberg: To – I was advised that the K-9 track went from the scene
       of the incident to – and ended at 3451 Keokuk when the dog lost the scent.

       Defense: Your Honor, I’m going to again object for lack of foundation.

       Trial Court: That’s overruled.

                            Standard of Review and Discussion

       On appeal the State argues Appellant’s objection at trial was not timely, and did

not preserve the issue for appeal. We agree.

       “A trial court’s ruling on an objection is preserved for appellate review only if the

objection was timely or the party timely moved to strike the answer.” Blurton, 484

S.W.3d at 774. “An objection to testimony must be made at the earliest possible

opportunity to allow the trial court to invoke remedial remedies.” Id. An exception to

this rule exists where “the witness answers so quickly that it is impossible to object or if

the grounds for the objection become apparent only when the answer is given.” Id.

Under those circumstances, “the opposing attorney must object to the answer as soon as

possible.” Id.

       Appellant’s delayed objection does not fall under this exception. Although the

prosecutor’s question did not mention or elicit information about the K-9 tracking dog,

Det. Herzberg spoke at some length about it without drawing an objection from the

defense. Det. Herzberg used the term “dog” or “K-9” three times over the course of

answering the prosecutor’s question, even digressing to recall the names of the handler

and another officer involved in the search. It was not until the prosecutor had finished his

next question, which also mentioned the K-9 search, that the defense objected.

       Pursuant to Blurton, we find Appellant did not timely object to testimony

regarding the K-9 such that he preserved it for appellate review. Regarding further

                                             14
objections made by the defense to testimony about the K-9 search, “admission of

testimony over objection is not reversible error if similar questions have previously been

asked and answered without objection.” Id., citing State v. Taylor, 408 S.W.2d 8, 11

(Mo. 1966).

       Point IV is denied.

                                          Point V

       Appellant’s fifth point claims the trial court erred by overruling the defense’s

objection to Lombardo’s testimony regarding his own out-of-court statement.

       As discussed, Appellant’s theory of the case hinged on painting Lombardo’s

testimony as dishonest and self-serving. The State attempted to rebut this

characterization in several ways, including demonstrating to the jury Lombardo had

received little to no actual favorable treatment in exchange for his testimony, and

showing his testimony was corroborated with other evidence, including the testimony and

earlier statements of Massey. Particularly, the State attempted to show Lombardo’s and

Massey’s statements corroborated one another and could be relied upon because at the

time of their initial interview by police they had been separated, and thus were not able to

coordinate a fabricated story. To show this, on direct examination the prosecutor asked

Lombardo what he had told investigators about the crime when initially interviewed. The

defense objected on the grounds of hearsay, which was overruled. Lombardo then

answered, “I told Detective Herzberg what happened, what I just told you here. What

happened on Dunnica. What I seen [sic].” The prosecutor then asked if he had

coordinated his story with Massey; Lombardo answered, “No.”




                                            15
                                      Standard of Review

       Appellant challenges an evidentiary ruling of the trial court. The standard of

review is identical to Point I, supra.

                                         Discussion

       Hearsay is an out-of-court statement used to prove the truth of the matter asserted.

State v. Douglas, 131 S.W.3d 818, 823 (Mo. App. W.D. 2004). However, “[n]ot all out-

of-court statements are hearsay in that to constitute hearsay the statement must be offered

for the truth of the matter asserted.” Id. “Thus, an out-of-court statement that is not

offered for the truth of the matter asserted is not hearsay and is, therefore, admissible

even though it does not fall within a recognized exception.” Id.

       Here, the prosecutor did not offer Lombardo’s out-of-court statement to

investigators to establish what it asserted, which was Lombardo’s narrative of the crime.

Rather, it was offered to rebut Appellant’s assertion that Lombardo and Massey had

fabricated and coordinated a false story about Appellant shooting Victim because of their

personal animosity towards Appellant and to obtain favorable treatment from the State.

Because the statement was not offered for the truth it asserted, it was not hearsay, and the

trial court did not abuse its discretion by overruling Appellant’s objection.

       Point V is denied.

                                           Point VI

       Next, Appellant claims the trial court erred by overruling his objection to the

testimony of Det. Herzberg referencing a statement made by a witness at the scene of the

crime who did not testify at trial.




                                             16
       After defense’s cross-examination of Det. Herzberg, the prosecutor asked him

what information corroborated the information he received from Lombardo and Massey.

Det. Herzberg answered that the statements of Debra Glenn, a witness interviewed at the

scene but not called to testify, corroborated such information. The defense objected on

the grounds of hearsay. The trial court overruled this objection.

                                    Standard of Review

       Appellant challenges an evidentiary ruling of the trial court. The standard of

review is identical to Points I and V, supra.

                                         Discussion

       As previously discussed, hearsay is an out-of-court statement used to prove the

truth of the matter asserted. Douglas, 131 S.W.3d at 823. However, “[n]ot all out-of-

court statements are hearsay in that to constitute hearsay the statement must be offered

for the truth of the matter asserted.” Id. “Thus, an out-of-court statement that is not

offered for the truth of the matter asserted is not hearsay and is, therefore, admissible

even though it does not fall within a recognized exception.” Id.

       The prosecutor had at minimum two other reasons to offer Debra Glenn’s out-of-

court statements other than for the truth they asserted. First, on cross-examination

Appellant attempted to characterize Det. Herzberg’s investigation as deficient because he

had focused on Appellant to the exclusion of other viable suspects based solely and

unreasonably on the incredible testimony of Lombardo and Massey, doing so out of a

desire to close the case at any cost. Debra Glenn’s statement corroborated Lombardo’s

and Massey’s testimony, rebutting the defense’s theory of the deficiencies of the

investigation. Second, Debra Glenn’s out-of-court statements provided explanation for



                                                17
the subsequent conduct of Det. Herzberg over the course of his investigation. Out-of-

court statements offered to explain subsequent police conduct in the course of an

investigation are not hearsay. Id. at 824. Thus, the trial court did not abuse its discretion

by overruling Appellant’s hearsay objection.

        Appellant’s Point VI is denied.

                                          Point VII

        Point VII claims the trial court erred by overruling the defense’s objection to the

prosecutor eliciting sympathy and fear evidence from Massey and Lombardo, as it was

irrelevant.

        On direct examination Massey testified she was fearful of Appellant, and feared

reprisal from his family for testifying. Appellant objected for relevance and was

overruled. Massey further testified she had been in hiding, and did not come into court to

testify willingly.

        When Lombardo testified, he similarly stated his reluctance to testify against

Appellant in court. The prosecutor also elicited testimony from Lombardo regarding

difficulties in his life, including testimony about his mother’s recent violent death.

Appellant’s objections for relevance were overruled.

                                    Standard of Review

        Appellant challenges an evidentiary ruling of the trial court. The standard of

review is identical to Points I, V, and VI, supra.

                                          Discussion

        For evidence to be admissible, it must be relevant. State v. Anderson, 76 S.W.3d

275, 276 (Mo. banc 2002). Relevance is a two-part test: first, the evidence must be



                                             18
logically relevant; second, it must be legally relevant. Id. “Evidence is logically relevant

if it tends to make the existence of a material fact more or less probable.” Id. “Logically

relevant evidence is admissible only if legally relevant.” Id. “Legal relevance weighs the

probative value of the evidence against its costs – unfair prejudice, confusion of the

issues, misleading the jury, undue delay, waste of time, or cumulativeness.” Id.

        “The credibility of witnesses is always a relevant issue in a lawsuit.” Hays v.

State, 360 S.W.3d 304, 313 (Mo. App. W.D. 2012). Evidence that the witnesses were

fearful to come forward is relevant to their credibility because it tends to show their

testimony is not solely motivated by self-interest. Id. This was especially applicable in

the instant case because it rebutted the theory advanced by Appellant, that Lombardo and

Massey were lying on the stand for personal gain. As to the prosecutor eliciting evidence

of Lombardo’s life difficulties, this information was relevant to rebut Appellant’s attacks

on Lombardo’s credibility and character based on his drug addiction. The prosecutor

sought to rehabilitate his credibility by explaining to the jury his struggle with addiction

had roots in past difficulties.

        While such evidence is logically relevant, it still must be legally relevant,

meaning its probative value must outweigh its potential to confuse or mislead the jury.

Appellant argues the legal irrelevance of the evidence is shown by its tendency to invite

the jury “to feel bad for Lombardo and Massey and make him appear more credible.”

But the credibility of the witnesses is precisely what makes the evidence logically

relevant. Appellant points to no countervailing prejudicial effect on the jury that makes

the evidence inadmissible. While testimony regarding Lombardo’s mother’s death

somewhat strains the limits of logical relevance, “[w]e defer to the trial court’s better



                                              19
position to weigh the probative value of the evidence against its prejudicial effect.” State

v. Taylor, 770 S.W.2d 531, 535 (Mo. App. E.D. 1989). The trial court’s ruling has not

shocked our sense of justice, nor indicated a lack of careful deliberation.

          Point VII is denied.

                                           Point VIII

          In his final point, Appellant claims the cumulative errors of the trial court resulted

in prejudice to him, such that the judgment must be reversed.

          “An appellate court may grant a new trial based on the cumulative effects of

errors, even without a specific finding that any single error would constitute grounds for a

new trial.” State v. West, 551 S.W.3d 506, 525 (Mo. App. E.D. 2018), quoting Koontz v.

Ferber, 870 S.W.2d 885, 894 (Mo. App. W.D. 1993). However, as discussed we find all

of Appellant’s claims of error on appeal to be without merit. Because Appellant has

established no errors by the trial court, cumulative or otherwise, Appellant’s Point VIII is

denied.

                                           Conclusion

          The judgment of the trial court is affirmed.




                                                 SHERRI B. SULLIVAN, J.

Colleen Dolan, C.J., and
James M. Dowd, J., concur.




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