State of Missouri v. David Paine

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
)
Respondent, )
)
v. ) WD83500
)
DAVID PAINE, ) Opinion filed: September 21, 2021
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
THE HONORABLE JOEL P. FAHNESTOCK, JUDGE
Division Three: Gary D. Witt, Presiding Judge,
Edward R. Ardini, Judge and W. Douglas Thomson, Judge
David Paine (“Paine”) appeals from his conviction of the class E felony of
unlawful use of a weapon. In his sole point on appeal, Paine argues that the trial
court plainly erred in not sua sponte excluding evidence that Paine assisted Westport
security in a nearby shooting just prior to the incident charged. The judgment is
affirmed.
Factual and Procedural History
On January 12, 2018, Victim was working as a security guard and bouncer at
Johnny Kaw’s bar in the Westport District of Kansas City. Between 2:45 and 3:00
a.m. that morning while helping close the bar, Victim and co-workers heard gunshots
and saw Westport security guards running east towards the sound of the gunshots,
away from the bar. Immediately thereafter, Victim and his co-workers observed a
taxi cab approach from the east and park awkwardly in front of the bar. With the
engine still running and the windows down, the driver of the taxi cab, later identified
as Paine, ran from the taxi cab towards the shooting with his hand on his holstered
handgun, leaving the door to his taxi cab open. Paine later explained that his unusual
actions stemmed from his desire to be of assistance to the security guards, who were
friends of his, in addressing the gunshots heard.
Because the taxi cab was parked awkwardly, Victim approached the taxi cab
and wrote with his finger the word “sucker” in the dust on the back window. Victim
held nothing in his hands. As Victim was doing this, he heard yelling and saw Paine
running towards him, visibly angry. When Victim began to walk away, Paine grabbed
his forearm. Victim spun around, broke free of Paine’s hold, and asked Paine what
he was doing. Paine responded with angry cursing. Paine continued to curse at
Victim for touching his vehicle and then reached for his holstered handgun and
yelled, “I will shoot you right now, motherfucker.” Paine then drew his handgun and
pointed it at Victim’s face. The yelling and cursing continued until one of Victim’s co-
workers began recording the event on his cell phone. Paine then returned to his taxi
cab, and Victim and his co-workers walked away.
The following morning, David Gillespie (“Gillespie”), assistant director of
Chesley Brown Security, a private company that provides armed security to
Westport, reviewed the security camera footage of the incident. According to
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Gillespie, Paine neither worked for Westport security nor was he a Kansas City police
officer or a Jackson County Sheriff’s Deputy. Gillespie further stated that it would
not have been proper protocol for Westport security to have an armed civilian assist
with or intervene in an incident involving gunfire. Accordingly, Gillespie contacted
Kansas City Police Sergeant Caleb Lenz to review the security footage. After review
of the footage, Paine was arrested on the felony charge of unlawful use of a weapon.
Paine was interviewed by law enforcement and provided varying accounts of the
events which transpired. Among his accounts of the night’s events, Paine claimed
that he drew his gun against the Victim in self-defense, a claim rebutted by security
footage of the incident.
Prior to trial, Paine filed a motion in limine requesting that the court preclude
the State from offering evidence that he aided or assisted Westport security when
shots were fired just prior to Paine’s altercation with Victim. The State argued that
the admission of such evidence was necessary to provide context to the incident and
that it went to show Paine’s state of mind at the time of the offense, why Paine “might
have been at a heightened sense of alertness,” and “why he decided to pull a firearm
on a victim who merely had written on the back windshield of his cab.” The State
also argued that it was necessary to rebut Paine’s allegation that he drew his weapon
in self-defense and whether that was reasonable. In response, Paine argued that it
was not necessary to provide context, but instead only served to portray him as a
“loose cannon.” The court found that the evidence was more probative than
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prejudicial because it was part of the events surrounding the incident charged, and
overruled Paine’s motion.
During opening statements at trial, Paine's counsel stated to the jury that they
“will see and [they] will hear” that Paine heard gunshots and went to “assess the
situation.” During the trial, the State elicited testimony that just prior to the charged
incident, Paine had been assisting or aiding Westport security in a nearby shooting,
to which no objection was made. The State offered a copy of the security footage
showing Paine running towards the shots fired with his hand on his holstered
firearm, to which Paine’s counsel replied, “no objection,” and the exhibit was
admitted. The State also offered still-shot photographs taken from the video footage.
After review of the photographs, Paine’s counsel again replied, “no objection,” and the
exhibits were admitted. The jury found Paine guilty of the class E felony of unlawful
use of a weapon. The court sentenced Paine to four years imprisonment pursuant to
shock incarceration under Section 559.115.
Paine appeals, seeking plain error review in arguing that the trial court should
have sua sponte excluded evidence that Paine assisted Westport security in
responding to the nearby shooting prior to the incident charged.
Standard of Review
Where there is no objection to the admission of the evidence, our review, if any,
is for plain error only under Rule 30.20.1 State v. McElroy, 520 S.W.3d 493, 495 (Mo.
App. W.D. 2017) (internal citations and quotations omitted). Plain error review is
1
All references to Rules are to the Missouri Rules of Civil Procedure (2018), unless otherwise
indicated.
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discretionary. State v. Michaud, 600 S.W.3d 757, 762 (Mo. banc 2019). “Plain error for
purposes of Rule 30.20 is error that is evident, obvious, and clear.” State v. Beggs,
186 S.W.3d 306, 311 (Mo. App. W.D. 2005) (citing State v. Mickle, 164 S.W.3d 33, 58
(Mo. App. W.D. 2005)). Under plain error review, this Court will not reverse
appellant’s conviction unless the alleged error resulted in manifest injustice or a
miscarriage of justice to the appellant. Rule 30.20; see also State v. Simpson, 846
S.W.2d 724, 726 (Mo. banc 1993). Plain error review involves two steps. “First, the
court must determine whether the trial court committed an evident, obvious and clear
error, which affected the substantial rights of the appellant.” State v. Beggs, 186
S.W.3d at 311 (citing State v. Mickle, 164 S.W.3d at 58-59). “[I]f obvious and clear
error is found in the first step of the review, the second step of plain error review
requires the court to determine whether manifest injustice or a miscarriage of justice
resulted therefrom.” Id. at 311-12.
Uninvited interference by the trial court in trial proceedings is generally
discouraged because it risks injecting the court into the role of a participant and
invites error. State v. Kunonga, 490 S.W.3d 746, 755 (Mo. App. W.D. 2016). The trial
court should take independent action only in the most unusual or exceptional
circumstances. Id. Thus, an appellate court will rarely find plain error where a trial
court has failed to act sua sponte with regard to the proceedings. Id.Analysis
In his sole point on appeal, Paine argues that the trial court erred in not sua
sponte excluding evidence that Paine assisted Westport security in responding to a
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nearby shooting prior to the incident charged because such evidence was more
prejudicial than probative and constituted improper propensity evidence. Paine
contends that the court erred in allowing the State to both elicit testimony that Paine
aided Westport security prior to the incident charged, and admit into evidence the
video footage and still-shot photograph exhibits. Paine acknowledges that because
he made no objection at the time the exhibits were offered into evidence and because
no objection was made at the time the testimonial evidence was elicited, his claim
was not preserved for appellate review. As such, Paine requests that this Court
exercise our discretion and grant plain error review pursuant to Rule 30.20. See State
v. Clay, 533 S.W.3d 710, 717 (Mo. banc 2017).
Paine, in asserting the trial judge should have sua sponte excluded such
evidence, directs us to well-established Missouri law that the State may try a criminal
defendant only for the offense for which he is on trial. Mo. Const. art. I, §§ 17, 19.
Indeed, “[t]he general rule concerning the admission of evidence of uncharged crimes,
wrongs, or acts is that evidence of prior uncharged misconduct is inadmissible for the
purpose of showing the propensity of the defendant to commit such crimes.” State v.
Harris, 156 S.W.3d 817, 824 (Mo. App. W.D. 2005) (citing State v. Carr, 50 S.W.3d
848, 854 (Mo. App. W.D. 2001)).
However, Paine fails to mention that in his own opening statement the judge
and jury were told by his counsel, “[y]ou will see and you will hear that on this
occasion, a couple of [Paine’s] extremely near and close friends with Westport security
[. . . ] were called because shots were fired, he also had a firearm on him. He goes to
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assess the situation . . . . He doesn’t draw his firearm, but he bolts out of the car
because he’s in a hurry to try to make sure that those guys are okay.”
"The primary purpose of an opening statement is to inform the judge and jury
of the general nature of the case, so they may appreciate the significance of the
evidence as it is presented." State v. Rutter, 93 S.W.3d 714, 727 (Mo. banc 2002)
(quoting State v. Thompson, 68 S.W.3d 393, 394 (Mo. banc 2002)). In informing the
judge in his opening statement of the events which transpired prior to threatening
Victim with his weapon, Paine put the trial court on notice of what evidence Paine
would expect to be presented at trial, and sought to exploit that evidence to paint
Paine in a positive light. Being put on notice of what Paine expected the evidence to
be, the trial judge would have been interjecting herself into the trial had she sua
sponte acted to exclude that very evidence, and, ironically, would have risked inviting
trial error for the exact opposite reason as Paine now contends. See State v. Roper,
136 S.W.3d 891, 902 (Mo. App. W.D. 2004). "When counsel has affirmatively acted in
a manner precluding a finding that failure to object was a product of inadvertence or
negligence, or it is clear that counsel acted for a trial strategy reason, plain error
review is waived." State v. Marr, 499 S.W.3d 367, 376-77 (Mo. App. W.D. 2016)
(internal quotation marks and citations omitted). Paine’s opening statement has
waived the claim of plain error review he now requests.2
2
Even had Paine not waived plain error review, his point would not succeed. “[A]dmission of
evidence only violates the general rule as to uncharged crimes evidence if it shows that the defendant
has committed, been accused of, been convicted of or definitely associated with another crime or
crimes.” State v. Harris, 156 S.W.3d at 824. Here, the testimony elicited was not of any uncharged
crime at all. Rather, the evidence elicited was that Paine merely exited his taxi hastily and went to
the aid of Westport security in a nearby shooting. Paine returned to his taxi shortly thereafter where
he found Victim writing in the dust on his taxi’s window. This evidence, which Paine now asserts
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Irrespective of the statements made during Paine’s opening statement, we
find that Paine has waived plain error review as to the exhibits offered and admitted
into evidence for yet another reason. Here, the State offered the security video
showing Paine running in the direction from where the gunshots were fired with his
hand on his holstered firearm. The prosecutor stated, “[y]our Honor, at this point, I
would move for admission of [the security footage].” In response to the State’s offer
of the exhibit, Paine’s counsel stated, “[n]o objection.” Likewise, the still-shots
obtained from the security footage were offered. Again, the prosecutor stated, “[y]our
Honor, I’d move for admission of State’s Exhibit[s] 2 through 19,” to which Paine,
after asking to see the exhibits, stated, “[n]o objection.”
“Plain error review does not apply when a party affirmatively states that it has
no objection to evidence an opposing party is attempting to introduce.” State v. Tillitt,
552 S.W.3d 571, 577 (Mo. App. W.D. 2018) (quoting State v. Johnson, 284 S.W.3d 561,
582 (Mo. banc 2009)). Here, Paine did not challenge the State’s offered exhibits, but
rather affirmatively stated that he had no objection to them. In doing so, he waived
any plain error review as to such evidence. Id. Point denied.
Conclusion
The judgment of the trial court is affirmed.
__________________________________________
W. DOUGLAS THOMSON, JUDGE
All concur.
should have be sua sponte excluded, is not evidence that Paine “has committed, been accused of, been
convicted of or definitely associated with another crime or crimes” at all. See id.
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