STATE OF MISSOURI,                                 )
                                                   )
        Plaintiff-Respondent,                      )
                                                   )
vs.                                                )        No. SD32417
                                                   )
CHRISTOPHER RYAN BEARD,                            )        Filed: April 16, 2014
                                                   )
        Defendant-Appellant.                       )


              APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                         Honorable Michael J. Cordonnier, Circuit Judge

AFFIRMED

        In September 2012, a jury found Christopher Ryan Beard (hereafter "Beard" or

"Defendant") guilty of distributing a controlled substance on three separate occasions in

February 2011. See section 195.211, RSMo Cum. Supp. 2012.1 The trial court

subsequently imposed seven-year sentences on each count to run currently with one another

but consecutively to any sentence(s) Defendant might already be serving.

        In two points relied on, Defendant asserts the trial court: 1) "abused its discretion in

overruling [Defendant]'s motion to compel disclosure of the confidential informant's

identity"; and 2) erred in not "interven[ing] sua sponte and declar[ing] a mistrial or issu[ing]


1
 Counts I and II of the amended information charged Defendant with distributing more than five grams of
marijuana on February 22, 2011 and February 28, 2011. Count III charged Defendant with distributing cocaine
on February 28, 2011.


                                                       1
a curative instruction when the State elicited testimony from [a police officer] that disclosing

the identity of confidential informants is dangerous because of the possibility that the

suspect or his friends will retaliate against the informant[.]"

        Finding no merit in either point, we affirm.

                                 Facts and Procedural Background

        Defendant does not contest the sufficiency of the evidence to support his convictions,

and we limit our summary of the facts to those necessary for an understanding and

resolution of his points.2

        In July 2012, Defendant filed a "MOTION FOR DISCLOSURE OF INFORMANT"

("the motion"). The motion alleged that a "confidential informant ["CI"] participated in the

alleged drug transactions by taking the drugs from [Defendant] and handing them to the

police officer." The motion maintained that "[d]isclosure of [CI]'s identity is necessary . . .

for [Defendant] to have a fair trial" and "[d]isclosure of [CI] will allow [Defendant] and his

counsel to conduct an investigation into the merits of the allegation[s]."

                              Evidence presented at the motion hearing

        Springfield Police officer Bryan Welch testified that on February 22, 2011, CI

contacted him and said that he "knew Christopher Beard and that Beard would sell [Officer

Welch] $100 worth of marijuana and that [they] would meet Beard at his residence at [a

particular house on] East Erie." Officer Welch testified that he had worked with CI

"[p]robably 20" times before, but he was not CI's "controlling officer[.]" A controlling

officer handles things like getting payments to confidential informants who are working for




2
 We view the facts in the light most favorable to the jury's verdicts. State v. Kerns, 389 S.W.3d 244, 246 (Mo.
App. S.D. 2012).


                                                      2
money or managing confidential informants who are cooperating with law enforcement

because of their own criminal charges.

        Officer Welch "checked DOR[3] records" for a photograph of Beard before leaving

to make the transaction, and he testified that the person's photograph he observed in those

records was "consistent" with the person he subsequently dealt with during the transactions

in question. Officer Welch also discovered that the utilities for the residence were listed

under another man's name, but he said that Beard later indicated that his cousin lived at the

residence.

        Officer Welch transported CI to the residence on East Erie "around 3:30 in the

afternoon," and he saw Beard come out of the garage. "Beard handed [CI] a bag with what

was consistent with marijuana" through the vehicle's window as Officer Welch and CI sat in

their vehicle. CI handed the bag to Officer Welch, who then reached over CI to hand Beard

$100. "Beard talked about other prices, what [Officer Welch] could get a quarter pound for,

what [he] could get an ounce and a half ounce for, and . . . he just said that this was good

stuff that [Officer Welch] was getting[.]" Officer Welch attempted to record the transaction,

which took "[t]wo minutes, maybe[,]" but due to "difficulties with the recorder[,]" no

recording was made. Beard's name was not used during the transaction.

        On February 28th, Officer Welch interacted with Beard on two separate occasions.

On the first, Officer Welch had planned on meeting Beard with CI at the East Erie address,

but Beard called CI and asked them to pick him up at a liquor store. Upon arriving at that

location "in the early afternoon[,]" around 1:00 or 1:30, Beard got into the rear passenger

side of Officer Welch's vehicle, and they drove from the liquor store to the East Erie


3
 Presumably an acronym for the Missouri Department of Revenue, which includes the Department of Motor
Vehicles.


                                                   3
address. Beard "jumped out and went inside." After a few minutes, Beard came out of the

house and got back into the vehicle. Beard handed CI a "plastic bag consistent with

marijuana inside of it." After CI handed the bag to Officer Welch, Officer Welch handed

$100 to Beard. Officer Welch then drove Beard to "a parking lot . . . at an apartment

complex." This transaction was not recorded.

       Later that night, Officer Welch believed that CI had contacted Beard again and that

Beard told CI not to "come to the house" on East Erie this time, but to park north of it.

Beard had previously discussed his willingness to sell a gram of cocaine for $60. When

Officer Welch and CI went to the location specified by Beard, Beard approached their car

and got in. Beard "handed a little bag of white powder to [CI], CI handed it to [Officer

Welch,]" and Officer Welch "handed Beard $60 in cash." Officer Welch then gave Beard a

ride back to the same apartment complex where he had taken Beard earlier in the day. This

transaction also was not recorded.

       After presenting the officer's testimony, defense counsel simply argued that

Defendant "maintains that he's not the person that was met, that met Officer Welch. Given

the short period of time that [Officer Welch] had an opportunity to view and have contact

with the seller . . . there needs to be an opportunity to cross-examine [CI] to make sure that

the person that they [sic] knew is [Defendant]." The State argued that the evidence at the

hearing did not "indicate that there's a reason why [CI] needs to be disclosed in this case[.]"

The trial court denied the motion "[s]ince [Officer Welch] was present during the buy[.]"

                                     The evidence at trial

       Officer Welch identified Defendant as the person who sold him marijuana and

cocaine on the dates in question. He testified that Defendant "had black g[au]ges in his




                                               4
earlobes" on each occasion.4 Upon request by the State, the trial court instructed Defendant

to walk to the jury rail to give the jury "a chance to look at [his] ears."

           Officer Welch testified that Defendant was in his presence for "[t]hree to five

minutes" during the first transaction. During the second transaction, Defendant spent about

"35 to 40 minutes" in Officer Welch's vehicle. The third transaction "only took a few

minutes[,]" but it then took another "10 to 15 minutes" to give Defendant a ride back to the

apartment complex.5

           Dustin Martin, a member of the police surveillance team that assisted with all three

transactions, testified that he was unable "to positively identify" the subject, but "the subject

in all three buys was consistent in . . . stature, size."

           The prosecutor elicited the following general testimony about confidential

informants from Officer Welch without drawing any objection from Defendant:

           Q.       Let me ask you, why is it important not to disclose the identity of a
                    confidential informant?

           A.       Confidential informants, they're -- we don't want to get them hurt.
                    We don't want their families to get hurt for doing the right thing on
                    trying to help the police out. We take that very seriously. So we try
                    not to disclose their information.

           Q.       And what types of dangers or risks are associated if a confidential
                    informant's identity is disclosed?



4
    Officer Welch explained:

                    A gauge is, once you have your ears pierced it's got [sic] a tiny hole, and then you
           put rings, which go inside the whole [sic] which gradually make them bigger and bigger, and
           then you have a real big hole where your earlobe is or -- well, your earlobe has a big hole in
           it.

Defense counsel impeached Officer Welch's testimony with the fact that his report did not reflect that
Defendant had ear gauges.
5
  Defense counsel impeached these time estimates with the officer's testimony from the motion hearing that the
first transaction took two minutes, the second transaction took 15 to 20 minutes, and the third took 10 minutes.


                                                         5
       A.      The suspect could do retaliation. He could have his buddies do
               retaliation on the confidential informant, and we don't want that to
               happen.

       Q.      Is it fair to say that day to day you are living in a potentially
               dangerous environment?

       A.      Yes.

       Q.      Have you personally been involved in any transaction when things did
               turn dangerous?

       A.      No.

       In her closing argument, defense counsel did not "dispute that somebody sold drugs

to Officer Welch." She also argued, "We've agreed this whole time that the drugs were sold,

that they were controlled substances and that that occurred, but my client, [Defendant],

maintains his innocence. He maintains his innocence. He was not the person that [sic] sold

the drugs to Officer Welch."

       During the prosecutor's rebuttal, the following argument and objection occurred:

              The only dispute that has arisen in this trial is whether [Defendant]
       was the one who did it.

               [Defense counsel] has just gotten up here and she has tried to imply
       that there is argument against that fact, that there is argument against the fact
       that [Defendant] was the person who [Officer] Welch met with.

               There is no support of [sic] that. There has been no proof of that,
       there has been no evidence supporting that somebody else may have been
       involved. The only thing -- evidence that you have heard is support that he
       was the one --

                       [Defense Counsel]:      Objection, Your Honor. I think that
                                               shifts the burden to us trying to --
                                               having to prove something that is the
                                               State's burden to prove.

                       [The Trial Court]:      The objection is overruled. The [trial
                                               court has] given the jury instructions as
                                               to who has the burden of proof.



                                                6
         Defendant's motion for new trial alleged error in the denial of "[D]efendant's pre-trial

motion to reveal [CI]." Defendant also alleged that "[t]he trial court erred in denying

[D]efendant's objection to the State's [rebuttal] argument during closing that [D]efendant did

not offer any evidence thereby shifting the burden[.]" The motion for new trial did not

include any reference to Officer Welch's testimony that it is generally dangerous to disclose

a confidential informant's identity because of the risk of retaliation.

         The trial court denied Defendant's motion for new trial, Defendant was sentenced as

set out above, and this appeal timely followed.

                                                     Analysis

                                  Point I – Nondisclosure of CI's identity

         Defendant argues that "the trial court abused its discretion when it overruled

[Defendant]'s motion to disclose the identity of [CI]. [Defendant] argued both at trial and

during the motion hearing that Officer Welch had mistaken him for someone else."6

Defendant asserts that CI was "crucial to [the] defense of mistaken identity," "the State did

not offer a justification for non-disclosure to outweigh the need to disclose[,] the credibility

of Officer Welch was questionable[,] . . . [and] the State used the fact that [CI] did not

testify against [Defendant] during its closing argument."7


6
  Defendant acknowledges that he did not raise the motion again during trial but argues that he was not in a
position to make an offer of proof concerning CI's testimony because he could not interview CI without
disclosure of CI's identity. He also argues that "there was no opportunity [at trial] for [him] to object to any
evidence connected to the issue of disclosure[.]" The better practice would have been for Defendant to raise
the issue again at trial, outside the hearing of the jury, and ask the trial court to reconsider its pretrial ruling.
However, the State does not argue that Defendant failed to preserve the issue for appellate review, and we will
assume, arguendo, that the issue was properly preserved.
7
  A review of the trial transcript reveals that the argument that "the State used the fact that [CI] did not testify
against [Defendant] during its closing argument" is misplaced. The State did not make use of CI's absence
from trial to suggest that CI's testimony would have supported the State's case. The prosecutor argued -- in
response to defense counsel's closing argument that Defendant was not involved in the drug deals -- that
"[t]here has been no proof of that, there has been no evidence supporting that somebody else may have been
involved. The only thing -- evidence that you have heard is support that [Defendant] was the one --[.]" And


                                                          7
         The United States Supreme Court has recognized "the Government's privilege to

withhold from disclosure the identity of persons who furnish information of violations of

law to officers charged with enforcement of that law." Roviaro v. United States, 353 U.S.

53, 59 (1957). The privilege exists to protect effective law enforcement and encourages, by

the preservation of anonymity, "citizens to communicate their knowledge of the commission

of crimes to law-enforcement officials[.]" Id. Missouri also recognizes the privilege. State

v. Edwards, 317 S.W.2d 441, 446 (Mo. banc 1958); see also Rule 25.10(B).8 The privilege

extends to situations where the informant not only provides information, but actually assists

law enforcement with an undercover transaction. See State v. Coleman, 954 S.W.2d 1, 5-6

(Mo. App. W.D. 1997) ("the informant [was] an active participant" in drug purchase, but

defendant did not establish sufficient factors to overcome the privilege protecting disclosure

of the informant's identity).

         "Concepts of fundamental fairness create exceptions to the rule in some cases,

however, and there are circumstances in which disclosure of the identity of an informant is

essential to enable defendant to adequately establish a defense." State v. Sproul, 786

S.W.2d 169, 171 (Mo. App. W.D. 1990). As the Supreme Court stated in Roviaro:

         no fixed rule with respect to disclosure is justifiable. The problem is one that
         calls for balancing the public interest in protecting the flow of information

when the argument was made, Defendant objected on the ground that the State was attempting to shift
improperly the burden of proof to the Defendant, not that it was being made to suggest than any testimony
from CI would have supported the State's case.
8
  Rule 25.10(B) provides:

         The following matters shall not be subject to disclosure:
                  ....
         (B)      An informant's identity where his identity is a prosecution secret, a failure to
                  disclose will not infringe the constitutional rights of the defendant, and
                  disclosure is not essential to a fair determination of the cause. Disclosure
                  shall not be denied hereunder as to the identity of an informant to be
                  produced at a hearing or trial.

(All rule references are to Missouri Court Rules (2013)).


                                                        8
       against the individual's right to prepare his defense. Whether a proper
       balance renders nondisclosure erroneous must depend on the particular
       circumstances of each case, taking into consideration the crime charged, the
       possible defenses, the possible significance of the informer's testimony, and
       other relevant factors.

353 U.S. at 62. Ultimately, "[i]t is the burden of the defendant to develop a record showing

the need for disclosure." Sproul, 786 S.W.2d at 171.

                The determination of whether a defendant can have a fair trial without
       disclosure of the identity of an informant rests within the sound discretion of
       the trial court. State v. Gray, 926 S.W.2d 29, 32 (Mo.App.1996); State v.
       Shannon, 892 S.W.2d 761, 764 (Mo.App.1995). In reviewing a trial court's
       ruling on this issue, the appellate court must balance the relevance and
       importance of disclosure to the defense against the State's need for
       nondisclosure.

State v. Rollie, 962 S.W.2d 412, 415 (Mo. App. W.D. 1998). "A trial court abuses its

discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary

and unreasonable as to shock the sense of justice and indicate a lack of careful

consideration." State v. Johnson, 207 S.W.3d 24, 40 (Mo. banc 2006). If reasonable

persons could disagree about whether the trial court's ruling was proper, then "no abuse of

discretion will be found." Id. And, the defendant must show "that there is a 'real

probability' that he was prejudiced by the abuse of discretion." Id. (quoting State v. Oates,

12 S.W.3d 307, 311 (Mo. banc 2000)).

       Defendant acknowledges the privilege recognized in Roviaro, but he asserts he is

entitled to prevail based on its statement that "[w]here the disclosure of an informer's

identity, or of the contents of his communication, is relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause, the privilege must give way." 353

U.S. at 60-61.




                                               9
           In Roviaro, the informer conducted a night-time narcotics transaction that

culminated with the petitioner putting a package in the informant's car while parts of the

event were observed or heard by officers located some distance away, including one officer

who was hidden in the trunk of the informant's vehicle. Id. at 56-57. The Court also noted

that there was some testimony from another government witness "that [the informant]

denied knowing petitioner or ever having seen him before." Id. at 64-65. The Court found

that "where the Government's informer was the sole participant, other than the accused, in

the transaction charged[,]" it was prejudicial to withhold the informant's identity. Id. at 64-

65. The outcome in Roviaro is not required here because CI was not the sole participant

with Defendant in the three offenses; Officer Welch was also directly involved.

           Defendant also relies on State v. Nafziger, 534 S.W.2d 480, 481, 483 (Mo. App.

K.C.D. 1975), where an informant and an officer were both present for a drug transaction,

and the reviewing court found that the "refusal to disclose the informant's identity

constituted reversible error." There, the informant told an officer that a third party was

selling cocaine from a certain house, and the officer and the informant went to the house.9

Id. at 481. The alleged seller was not present, and the officer and informant left. They

returned later, and eventually another individual at the house -- identified as "Bill" -- sold

cocaine to the officer in the informant's presence. Id. The officer later identified the

defendant as "Bill" based upon an alias name for Bill, an "examination of a photograph[,]

and a visit to the tavern where the defendant worked[.]" Id. The defendant in that case

presented evidence supporting his defense of mistaken identity by taking the witness stand

and testifying that he was not involved. Id. at 482.



9
    The time of the transaction is not disclosed in the opinion.


                                                          10
         The Nafziger court found that "the substantial issue threaded through the entire

transcript [wa]s the question of the possible mistaken identity by [the officer] of the

defendant. That the informant's testimony would have been relevant and material on the

issue of identification is apparent." Id. at 482. The court also observed that unlike some

other cases, "there [wa]s no witness other than the informant who could be called on behalf

of the defendant." Id. at 483. The court reasoned:

                 The case for disclosure is enhanced when the balancing test is
         applied. It is clear that defendant's defense at trial was mistaken identity. For
         defendant to pursue this defense, availability of the only other witness to the
         transaction—the informant—was very important. But beyond its mere
         allegation that disclosure would endanger the life of the informant, the state
         says nothing. Indeed, the evidence is that the informant is no longer being
         used by the police, and no effort was made by the state to present any facts to
         weigh the scales toward nondisclosure.

Id. at 483-84.

         In Wandix, our high court "conclude[d] that disclosure of the identity of the

informant was 'essential to a fair determination' on the facts and issues of th[e] case. The

trial court abused its discretion in failing to require disclosure." 590 S.W.2d at 86. In

Wandix, the investigation began on an "early evening" in the month of July when two

officers met an informant and went to a location for a single drug transaction.10 Id. at 83.

One officer did not know the seller in advance, and one officer "may have seen him before."

Id. at 83. The informant had identified the seller by the defendant's name. Id. The opinion

does not disclose whether the defendant testified at trial as to mistaken identity, but it does

reveal that he presented alibi testimony from four witnesses. Id.

10
  In Wandix, there was "uncertainty as to whether the informant entered the residence" where the transaction
actually occurred as two officers gave conflicting testimony on the subject, but the informant was the
individual who introduced the officer who purchased the drugs to the seller. 590 S.W.2d at 83. Our high court
reasoned that more important than whether the informant was present for the purchase was the broader
question of whether the informant was present "'at some critical stage of the proceedings so that he is qualified
to testify concerning the essential facts in the case.'" Id. at 85 (quoting Nafziger, 534 S.W.2d at 482).


                                                       11
        Under those circumstances, the Court stated:

                In summary, the rule requires disclosure where the informant was in a
        position to offer testimony relevant and crucial to the defense; [i]. e.
        disclosure would not be required if the testimony were on minor or collateral
        issues or if the testimony would be merely cumulative of that of other neutral
        parties. The degree of cruciality necessary to require disclosure must be
        balanced against the State's need for non-disclosure; [i]. e. possible non-
        disclosure where the informant is still active in other investigations and the
        accused's need is minimal.

Id. at 85.

        The Court cited Roviaro's suggestion of "three possible defenses for which the

informant's testimony could be vital: entrapment, [m]istaken identity of the person or

package, and lack of knowledge of the contents of the package." Id. (citing 353 U.S. at 64).

The Court engaged in a balancing analysis, determining that the defendant's "need for the

testimony was great" because despite having alibi witnesses, "there were no other witnesses

who could offer direct testimony except for the police officers. In such circumstances of

relevancy and need, the State's interest on balance, is weak." Id. at 86. The Court observed

that the informant was not "being used in ongoing investigations" and the "interest in being

able to tell an informant that his identity will never be revealed, even after he is inactive"

was "not of sufficient magnitude to justify non-disclosure where the informant could provide

relevant testimony at trial." Id.

        Consistent with the principle from Roviaro "that no fixed rule with respect to

disclosure is justifiable[,]" 353 U.S. at 62, and given that the competing interests must be

balanced in each case, id., it cannot be said that the informant's identity must always be

disclosed when the informant participated in some aspect of a controlled buy. See Coleman,

954 S.W.2d at 5 ("Although participation is a major factor for the trial court to consider,

participation alone does not always mandate disclosure").



                                               12
       The State relies on Coleman, a case in which the western district of our court found

that the defendant had failed to satisfy his burden "to develop a record showing the need for

disclosure" of an informant's identity when the informant made the drug transaction while

the officer watched from about "forty to fifty feet" away. Id. at 3, 5. The Western District

stated that in addition to the informant's participation, "other factors, such as mistaken

identity, contradictory testimony, or a denial of the accusation, or where the informant is the

sole witness to the crime charged," may require the disclosure of the informant's identity

"for purposes of fairness." Id. at 5. Applying that test, it found that the defendant had "not

sufficiently established any of the other factors which might necessitate the disclosure of the

informant's identity." Id. at 6. In particular, "[t]here was no contradictory testimony, and no

denials of the accusation, as [the defendant] did not present any evidence." Id. The court

also reasoned that the informant was not the only witness, as the officer "watched the entire

transaction from his vehicle." Id.

       While the defendant in Coleman did assert mistaken identity, the Western District

found that "he was required to demonstrate more than bare assertions or speculative or

conclusory allegations in support of his claim. Arguments and statements of counsel are not

evidence of the facts presented." Id. Significantly, the defendant

       failed to show, either by demonstrating weakness in the State's case or by
       development of a defense, that disclosure was needed because of a genuine
       question of mistaken identity or any other issue. [The defendant] did not
       raise a substantive question as to [the officer's] ability to identify him as the
       seller; on the contrary, [the officer's] identification of [the defendant] was
       positive and unequivocal, despite vigorous cross-examination by [defense
       counsel].

Id. Cf. State v. Dowell, 25 S.W.3d 594, 609 (Mo. App. W.D. 2000) ("the appellant did not

make a record sufficient to support his motion for disclosure of the" informant's identity




                                               13
where the only support for the theory that the informant was an active participant in the

offense was argument by defense counsel).

         The State argues that in the instant case, as in Coleman, Defendant failed to develop

a record to show "that there was a viable mistaken identity defense which depended on the

disclosure of the informant."11 We agree.

         Defendant replies that Coleman is inapposite "because it appears that there was no

evidence at all presented during the hearing on the motion to disclose the confidential

informant." The Coleman opinion states that "[a]t the pre-trial hearing on the motion, [the

defendant's] trial counsel reiterated some of these factual allegations [made in the pre-trial

motion], adding that [the officer] was forty-five to fifty feet away from the actual scene of

the crime, and that [the officer] had never stopped or arrested [the defendant] before." Id. at

5. Defendant does not explain why any failure by the State to present evidence would

excuse a defendant from meeting his obligation to present evidence supporting his mistaken

identity defense.

         The relevant facts here are similar to those present in Coleman, and are

distinguishable from those present in Nafziger and Wandix. In each of the latter cases, the

defendant presented some evidence which suggested that disclosure of the informant's

identity was essential to the defense theory of the case. In Nafziger, the defendant testified.

534 S.W.2d at 482. In Wandix, the defendant presented the testimony of four alibi

witnesses. 590 S.W.2d at 83. Indeed, even in Roviaro, a government witness testified that

the informant had denied that he knew the petitioner or had ever seen him before. 353 U.S.

11
   The State also cites State v. Myers, 997 S.W.2d 26, 34-35 (Mo. App. S.D. 1999), but that case focused on
whether the identity of two informants had been disclosed in a timely fashion. No relief was granted because
the "[d]efendant did not develop a need for further or earlier disclosure, and there [wa]s no showing of
fundamental unfairness or that the trial court abused its discretion in refusing to grant [the] defendant's [pre-
trial] motion." Id. at 35.


                                                        14
at 64-65. Unlike Defendant and the defendant in Coleman, the defendants in these cases did

not rely on "bare assertions or speculative or conclusory allegations in support of [their]

claim[s]." 954 S.W.2d at 6.

         Here, defense counsel's assertion that mistaken identity was at issue was not

evidence, and while Defendant attempted to impeach Officer Welch's testimony, no

evidence was presented at either the motion hearing or at trial that suggested Defendant

could not have been the person who sold Officer Welch the drugs.12 Here, as in Coleman,

         [Defendant] has not sufficiently established any of the other factors [beyond
         participation in the event] which might necessitate disclosure of [CI]'s identity.
         There was no contradictory testimony, and no denials of the accusation, as
         [Defendant] did not present any evidence. [CI] was not the sole witness to the
         crime charged[.]

954 S.W.2d at 6.

         Defendant's argument that "the State did not attempt to justify its need for

nondisclosure at the hearing" misses the mark. It was Defendant's burden "to develop a

record showing the need for disclosure." Sproul, 786 S.W.2d at 171. "[T]he rule requires

disclosure where the informant was in a position to offer testimony relevant and crucial to

the defense . . . [and] [t]he degree of cruciality necessary to require disclosure must be

balanced against the State's need for non-disclosure[.]" Wandix, 590 S.W.2d at 85

(emphasis added).13


12
   As noted by the State during oral argument, this was not a case where such a showing would have required
Defendant to testify. This case is unlike the situation in Nafziger, where the defendant testified that he was not
involved and the court found that there was no other witness except the informant who could be called to
testify. 534 S.W.2d at 482-83. Here, evidence presented at the motion hearing included that the drug seller
said that his cousin also lived in the house on East Erie, and that the officer learned that the utilities for the East
Erie address were in another person's name. Assuming as true the defense theory of mistaken identity,
someone other than Defendant could presumably have testified that Defendant did not live in the house on East
Erie.
13
   If Defendant had met his burden to produce evidence in support of his mistaken identity defense so as to
require the trial court to engage in the balancing test required by Roviaro, the fact that there were three
meetings between Officer Welch and the drug seller here as compared to the single meetings that occurred in


                                                         15
         Defendant's failure to present any evidentiary support for his asserted defense of

mistaken identity left the trial court with nothing to balance against the State's general need

for nondisclosure. As a result, the State's general privilege to withhold disclosure of CI's

identity was not overcome, and Point I fails.14

                    Point II – Unchallenged generic testimony about informants

         Defendant's second point contends the trial court should have "intervene[d] sua

sponte and declared[d] a mistrial or issue[d] a curative instruction" when Officer Welch

testified "that disclosing the identity of confidential informants is dangerous because of the

possibility that the suspect or his friends will retaliate against the informant[.]" Defendant

asserts this testimony "was presented only to imply to the jury that [Defendant] was

dangerous." Because Defendant lodged no objection to the testimony when it was presented

at trial, he concedes that we may only review his claim for plain error.

         "A claim not properly preserved for appellate review may be considered for plain

error at our discretion[,]" State v. Irby, 254 S.W.3d 181, 192 (Mo. App. E.D. 2008), and

such discretion "is to be used sparingly[.]" State v. Thesing, 332 S.W.3d 895, 899 (Mo.

App. S.D. 2011). "Unless a claim of plain error facially establishes substantial grounds for

believing that manifest injustice or miscarriage of justice has resulted, we will not exercise

our discretion to review for plain error." Id. "On direct appeal, plain error can serve as the

basis for granting a new trial only if the error was outcome-determinative." State v. Bartlik,

363 S.W.3d 388, 391 (Mo. App. E.D. 2012). "The burden of proving the existence of such a


Wandix and Nafziger would then have been a significant factor for the trial court to consider in determining
whether disclosure was "crucial to [the] defense of mistaken identity[.]" 590 S.W.2d at 83; 534 S.W.2d at 481.
14
   Even if we had found that the trial court abused its discretion by refusing to order the State to disclose CI's
identity, a reversal would not have been required in this case because Defendant has not shown "a 'real
probability' that he was prejudiced by the abuse of discretion." Johnson, 207 S.W.3d at 40 (quoting Oates, 12
S.W.3d at 310). Officer Welch had face-to-face contact with the drug seller on three separate occasions, two
of which occurred during daylight hours.


                                                       16
manifest injustice or miscarriage of justice rests on Defendant." State v. Campbell, 122

S.W.3d 736, 740 (Mo. App. S.D. 2004).

       Here, Officer Welch testified that the police generally "try not to disclose . . .

information" about informants in an effort to protect them from possible retaliation by a

suspect or "his buddies" and thereby place the informant in a potentially dangerous

environment. Defendant argues that "it is likely that because the informant was not

disclosed in the present case, the jury would infer that [Defendant] was a dangerous person

with respect to the informant." But a risk that the jury might draw such an inference was not

present here because Officer Welch also specifically testified that he had not "personally

been involved in any transaction when things did turn dangerous[.] As a result, no facial

demonstration of manifest injustice or miscarriage of justice appears.

       Point II is also denied, and the judgment of conviction and sentence is affirmed.



DON E. BURRELL, J. - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, P.J. - CONCURS

MARY W. SHEFFIELD, J. - CONCURS




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