State of Missouri v. Jason Brownlee

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
STATE OF MISSOURI, ) No. ED103418
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. ) 1422-CR01649-01
)
JASON BROWNLEE, ) Honorable Steven R. Ohmer
)
Appellant. ) Filed: June 28, 2016
Jason Brownlee (“Defendant”) appeals the judgment entered upon a jury verdict
convicting him of one count of unlawful possession of a firearm pertaining to the possession of a
.38 caliber revolver (“.38 caliber revolver” or “revolver”). We affirm.
I. BACKGROUND
In addition to the above crime, Defendant was charged with unlawful use of a weapon
and resisting a lawful stop. A jury trial took place with respect to the three charges on June 29-
30, 2015. During the trial, the State and Defendant, through defense counsel, filed a joint
memorandum stipulating Defendant was previously convicted of a felony on January 17, 2002.
A. Evidence Presented by the State at Trial
Viewed in the light most favorable to the verdict, the following evidence was presented
by the State at Defendant’s trial. After conducting an investigation into information obtained
from a confidential informant, City of St. Louis (“City”) police officers determined a man named
Charles Henderson was selling narcotics from 5115 Terry Avenue (“the residence”). Officers
obtained a search warrant for the residence, which they executed on May 2, 2014 with the
assistance of a SWAT team.
The SWAT team approached the front of the residence and saw a man, later identified as
Defendant, seated on the front porch. Officer Joshua Becherer, who was one of the members of
the SWAT team, ordered Defendant to show his hands and to step down off the porch, but
Defendant failed to comply with the officer’s commands. Instead, Defendant stood up and
clutched his waistband. Officer Becherer testified that based on his knowledge and experience,
Defendant’s action of clutching his waistband led the officer to believe Defendant was armed.
Defendant subsequently went inside the residence and closed and locked the door behind
him. The SWAT team then used a battering ram to open the door, threw a flashbang device 1
inside the residence to divert any occupants away from the door, and entered the residence.
Once inside the residence, Officer Becherer saw Defendant in the living room standing in
front of an entertainment center, facing away from the officer. Officer Becherer could see
Defendant’s arms and hands moving and shuffling about waist height in front of his body, but
the officer could not see what Defendant was doing. Officer Becherer ordered Defendant to
show his hands and move toward the officer, but Defendant again failed to comply with the
officer’s commands. Officer Becherer then approached Defendant from behind, grabbed him by
the back near his shoulder, and forced him to the ground. Officer Becherer testified that as
Defendant was falling down, Defendant extended his arm in front of his body and discarded a .38
caliber revolver, causing it to land on one of the shelves of the entertainment center. Defendant
was subsequently handcuffed and arrested.
1
Officer Becherer testified a flashbang device is a non-lethal, noise-diversion device which makes a loud bang and
flash.
2
Police officers then removed the other people who were in the residence, apprehended
and arrested Henderson, and searched the residence. Officers seized the revolver from the
entertainment center which was discarded by Defendant, and later testing determined the
revolver and its cartridges were functional.
Detective Daniel Chamblin testified that in addition to the .38 caliber revolver Defendant
was ultimately charged with possessing, officers also found “lots of contraband” and another
firearm in the residence. Specifically, Detective Chamblin testified he and his partner found
“cocaine base, powder cocaine, crack cocaine,” packaging material, and a scale in the living
room; marijuana in the bathroom including in the toilet; and a .45 caliber handgun in the
bedroom. Defense counsel did not object to any of the preceding testimony from Detective
Chamblin.
During the presentation of the State’s case, the prosecutor offered into evidence a number
of pictures relating to the execution of the search warrant, including Exhibits 14-17. Exhibit 14
is a picture of marijuana, drugs, and a scale, Exhibit 15 is a picture of marijuana in a toilet, and
Exhibits 16 and 17 are pictures of the .45 caliber handgun. Defendant objected to the admission
of Exhibits 14-17 on the grounds they represented uncharged illegal conduct. The trial court
overruled Defendant’s objections, and Exhibits 14-17 were admitted into evidence.
Nevertheless, during defense counsel’s cross-examination of Detective Chamblin, counsel
established the items shown in Exhibits 14-17 were not attributed to Defendant and that the
drugs were specifically attributed to Henderson.
B. Evidence Presented by Defendant at Trial
Defendant called one witness in his defense, Tranice Peete, who gave a version of the
events on the day of the alleged offenses which was contrary to the State’s evidence. Peete
testified she was at the residence when the search warrant was executed and Defendant
3
immediately put his hands up when the SWAT team entered the house. Peete further testified
officers proceeded to hit Defendant in the face with the butt of a gun, Defendant was not near the
entertainment center, and Defendant did not have or throw a gun. In addition, Peete testified she
never saw the .38 caliber revolver Defendant was charged with possessing.
On cross-examination, the prosecutor attempted to impeach Peete through the use of prior
inconsistent statements she allegedly made to a defense investigator prior to trial. While Peete
admitted to the prosecutor that she remembered talking to the defense investigator over the
phone “back in March,” she repeatedly denied and/or stated she did not remember the
prosecutor’s suggestions regarding the contents of the conversation.
C. Relevant Procedural Posture
At the close of the State’s evidence and at the close of all of the evidence, Defendant filed
motions for judgment of acquittal, and the trial court denied both motions. After the prosecutor
and Defendant gave their closing arguments, 2 the jury acquitted Defendant of the charges of
unlawful use of a weapon and resisting a lawful stop but found him guilty of the charge of
unlawful possession of a firearm.
Defendant then filed a motion for judgment of acquittal notwithstanding the verdict of the
jury, or in the alternative, for a new trial (“post-trial motion”). Defendant’s post-trial motion
asserted there was insufficient evidence to support a conviction for unlawful possession of a
firearm and the trial court erred in admitting Exhibits 14-17. The trial court denied Defendant’s
post-trial motion, entered a judgment in accordance with the jury’s verdict convicting Defendant
of unlawful possession of a firearm, and sentenced Defendant as a prior and persistent offender
to fifteen years of imprisonment. Defendant appeals.
2
Relevant portions of the prosecutor’s closing argument are discussed below in Section II.B.
4
II. DISCUSSION
Defendant raises four points on appeal. In his first point, Defendant contends there was
insufficient evidence to support his conviction. In his second point, Defendant asserts the trial
court erred in failing to declare a mistrial sua sponte during the prosecutor’s closing argument.
And in his third and fourth points, Defendant argues the trial court erred in admitting Exhibits
14-17 into evidence.
A. Sufficiency of the Evidence
In Defendant’s first point on appeal, he contends there was insufficient evidence to
support his conviction for unlawful possession of a firearm.
Appellate review of a challenge to the sufficiency of the evidence supporting a criminal
conviction is limited to a determination of “whether the [S]tate has introduced sufficient
evidence from which a reasonable juror could have found each element of the crime beyond a
reasonable doubt.” State v. Hosier, 454 S.W.3d 883, 898 (Mo. banc 2015). In making that
determination, all evidence and inferences favorable to the State are accepted as true, and all
contrary evidence and inferences are disregarded. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc
2011). In addition, great deference is given to the trier of fact, and an appellate court will not
weigh the evidence anew. Id.
Section 571.070.1 RSMo Supp. 2011 3 states in relevant part: “A person commits the
crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her
possession and: (1) [s]uch person has been convicted of a felony under the laws of this state . . ..”
In this case, Defendant’s conviction for unlawful possession of a firearm pertains to his
alleged possession of the .38 caliber revolver seized from the entertainment center of the
3
All further references to section 571.070.1 are to RSMo Supp. 2011, which incorporates amendments through
2010.
5
residence. Defendant does not dispute he was a convicted felon within the meaning of section
571.070.1(1) when the .38 caliber revolver was seized. 4 Instead, Defendant only claims there
was insufficient evidence from which a reasonable juror could have found, beyond a reasonable
doubt, that he had possession of the .38 caliber revolver as required by the statute.
“Possession” is defined as “having actual or constructive possession of an object with
knowledge of its presence.” State v. Ludemann, 386 S.W.3d 882, 885 (Mo. App. S.D. 2012)
(quoting section 556.061(22) RSMo Supp. 2014 5). Moreover, a person has actual possession of
an object, including a firearm, if he has the object on his person or within his easy reach and
convenient control. Ludemann, 386 S.W.3d at 885-86 (citing section 556.061(22)).
Here, after the SWAT team arrived at the residence, Officer Becherer ordered Defendant
to show his hands and to step down off the porch, but Defendant failed to comply with the
officer’s commands. Instead, Defendant stood up and clutched his waistband. Officer Becherer
testified that based on his knowledge and experience, Defendant’s action of clutching his
waistband led the officer to believe Defendant was armed.
Defendant subsequently went inside the residence and closed and locked the door behind
him. After Officer Becherer entered the residence with assistance from the rest of the SWAT
team, he saw Defendant in the living room standing in front of an entertainment center, facing
away from the officer. Officer Becherer could see Defendant’s arms and hands moving and
shuffling about waist height in front of his body, but the officer could not see what Defendant
was doing. Officer Becherer ordered Defendant to show his hands and move toward the officer,
but Defendant again failed to comply with the officer’s commands. Officer Becherer then
4
During Defendant’s trial, the State and Defendant, through defense counsel, filed a joint memorandum stipulating
Defendant was previously convicted of a felony on January 17, 2002.
5
All further references to section 556.061(22) are to RSMo Supp. 2014, which incorporates amendments through
2013.
6
approached Defendant from behind, grabbed him by the back near his shoulder, and forced him
to the ground. Officer Becherer testified that as Defendant was falling down, Defendant
extended his arm in front of his body and discarded a .38 caliber revolver, causing it to land on
one of the shelves of the entertainment center.
Viewing the preceding testimony and all inferences therefrom in the light most favorable
to the State, which our standard of review requires us to do, Nash, 339 S.W.3d at 509, a
reasonable juror could have found, (1) Defendant had the .38 caliber revolver on his person and
within his easy reach and convenient control, i.e., that Defendant had actual possession of the
firearm; and (2) Defendant had knowledge of the presence of the firearm. Accordingly, there
was sufficient evidence from which a reasonable juror could have found, beyond a reasonable
doubt, that Defendant had possession of the .38 caliber revolver within the meaning of section
571.070.1. See Ludemann, 386 S.W.3d at 885-86; section 556.061(22).
Defendant argues the evidence was insufficient to support the jury’s finding that he had
possession of the .38 caliber revolver because there were contrary evidence and inferences
adduced at trial. In support of his argument, Defendant cites to evidence including testimony
from Officer Becherer indicating the revolver was found situated “nicely” between papers on the
entertainment center and testimony from Peete that she did not see Defendant with a gun.
However, this argument and its supporting evidence ignores our standard of review, which
requires us to disregard all evidence and inferences which are contrary to the verdict. Nash, 339
S.W.3d at 509. Similarly, “[t]he credibility and the effects of conflicts or inconsistencies in
testimony are questions for the jury” and are beyond this Court’s scope of review. State v. Steed,
455 S.W.3d 479, 484 (Mo. App. E.D. 2015) (quotations omitted).
7
Based on the law defining possession and our standard of review, the State presented
sufficient evidence from which a reasonable juror could have found, beyond a reasonable doubt,
that Defendant had possession of the .38 caliber revolver. Point one is denied.
B. The Trial Court’s Failure to Declare a Mistrial Sua Sponte During the Prosecutor’s
Closing Argument
In Defendant’s second point on appeal, he claims the trial court erred in failing to declare
a mistrial sua sponte during the prosecutor’s closing argument, after the prosecutor repeatedly
referred to the existence of a gun problem in the City, and the prosecutor repeatedly referred to
Peete’s alleged trial testimony concerning prior inconsistent statements she allegedly made to the
defense investigator. Defendant concedes his claim is not preserved for review because defense
counsel did not object to the portions of the prosecutor’s closing argument at issue in this point
and because he did not raise the claim in his post-trial motion. See, e.g., State v. Shaffer, 251
S.W.3d 356, 357 (Mo. App. S.D. 2008).
Pursuant to Rule 30.20, 6 our Court may review a defendant’s unpreserved claim for plain
error. State v. McKay, 411 S.W.3d 295, 304 (Mo. App. E.D. 2013). Under this standard of
review, we will only grant a defendant relief if we find an error occurred and the error affected
his rights so substantially that a manifest injustice or miscarriage of justice resulted. Id.; State v.
Brown, 996 S.W.2d 719, 732 (Mo. App. W.D. 1999). Plain errors are those which are evident,
obvious, and clear, and our Court determines whether such errors exist based on the
circumstances of each case. McKay, 411 S.W.3d at 304-05. The defendant has the burden of
demonstrating a manifest injustice or miscarriage of justice resulted from the trial court’s alleged
error. Id. at 304.
6
All references to Rules are to Missouri Supreme Court Rules of Criminal Procedure (2015).
8
Counsel is permitted substantial latitude in closing argument, and an appellate court will
rarely grant relief on a claim that the trial court plainly erred in failing to sua sponte take
remedial action during oral argument. State v. Plummer, 860 S.W.2d 340, 349 (Mo. App. E.D.
1993). Where, as in this case, there is no objection or request for relief during closing argument,
any action taken by the trial court is considered uninvited interference with summation and may
itself be error. State v. Hall, 955 S.W.2d 198, 208 (Mo. banc 1997); Plummer, 860 S.W.2d at
349. Accordingly, a conviction will be reversed for improper closing argument on plain error
review only if the defendant demonstrates the comments had a decisive effect on the outcome of
the trial, amounting to a manifest injustice or miscarriage of justice. Hall, 955 S.W.2d at 208;
McKay, 411 S.W.3d at 304; Plummer, 860 S.W.2d at 349.
1. The Prosecutor’s References to the Existence of a Gun Problem in the City
In three separate instances during closing argument, the prosecutor referred to the
existence of a gun problem in the City. First, the prosecutor stated, “Gun violence is an issue in
this [C]ity. That’s why we’re here today.” Later in closing argument, the prosecutor stated, “. . .
[L]ike we said, this happened in the [C]ity of St. Louis. Gun violence is an issue in the [C]ity.”
Finally, the prosecutor stated, “Gun violence is a problem in the [C]ity whether you want to
admit it or not.”
Defendant asserts the preceding comments were impermissible because there was no
evidence in the record that a gun problem actually existed in the City. For the reasons discussed
below, we disagree.
It is improper for a prosecutor’s closing argument to suggest personal danger to the jurors
or their families if a defendant is acquitted or to suggest a defendant’s criminal proclivities and
the necessity for specifically deterring the defendant from future crimes. State v. Hatcher, 835
S.W.2d 340, 344 (Mo. App. W.D. 1992) (citing State v. Raspberry, 452 S.W.2d 169, 172 (Mo.
9
1970)). However, a prosecutor is permitted to argue propositions including the prevalence of
crime in the community and the personal safety of its residents, and such pleas may call upon
common experience. State v. Preston, 861 S.W.2d 627, 631 (Mo. App. E.D. 1993). A
prosecutor is also permitted to argue “the necessity of law enforcement to deter crime and the
evils that may befall society if a jury fails its duty.” Id.
In this case, the prosecutor’s comments referring to the existence of a gun problem in the
City were within the parameters of permissible argument because they concerned the prevalence
of crime in the community, the personal safety of its residents, the necessity of law enforcement
to deter crime, and the evils that may befall society if the jury failed its duty. Id. The
prosecutor’s argument in this regard did not need to be supported by specific evidence in the
record but permissibly called upon the juror’s common experience. See id. Moreover, similar
arguments have been found to be permissible by this Court and the Western District. See
Preston, 861 S.W.2d at 631-32 (holding a prosecutor’s comments “[y]ou have to realize that
drugs are out on the street [in] St. Louis” and “[w]e have a drug problem” were permissible in
closing argument); Hatcher, 835 S.W.2d at 344 (holding a prosecutor’s repeated references to
the city having a drug problem were permissible in closing argument). Accordingly, the trial
court did not plainly err in failing to declare a mistrial sua sponte after the prosecutor referred to
the existence of a gun problem in the City.
2. The Prosecutor’s References to Prior Inconsistent Statements Defense
Witness Peete Allegedly Made to the Defense Investigator
Defendant also maintains the trial court erred in failing to declare a mistrial sua sponte
during the prosecutor’s closing argument, after the prosecutor twice referred to Peete’s alleged
trial testimony concerning prior inconsistent statements she allegedly made to the defense
investigator. First, the prosecutor argued:
10
And then I talked to [Peete] about her testimony – her – the statements she gave to
the [D]efendant’s investigator back in March. She said no, she never said – she
never said anything about the flashbang. She said the [D]efendant came in – back
in March she said the [D]efendant came in and said that the cops were around the
block.
Later, the prosecutor argued, “[Peete] has nothing to gain. She came in here and her testimony
was completely different from what she told the investigator back in March.”
Defendant argues the preceding comments were improper because there was no evidence
of what was actually said during the conversation between Peete and the defense investigator in
March, and therefore, the prosecutor’s argument went beyond the evidence presented. See State
v. Deck, 303 S.W.3d 527, 543 (Mo. banc 2010) (“[t]he State has wide latitude in closing
arguments, but closing arguments must not go beyond the evidence presented”). We agree. In
this case, the investigator who was allegedly a party to the conversation with Peete was never
called as a witness, and the prosecutor did not present an offer of proof as to the contents of the
conversation. In addition, a review of Peete’s testimony reveals that while she admitted to the
prosecutor she remembered talking to the defense investigator over the phone “back in March,”
she repeatedly denied and/or stated she did not remember the prosecutor’s suggestions regarding
the contents of the conversation. Because the prosecutor’s closing arguments regarding Peete’s
prior inconsistent statements she allegedly made to the defense investigator went beyond the
evidence presented at trial, they were improper. See id.
Nevertheless, a conviction will be reversed for improper closing argument on plain error
review only if the defendant demonstrates the comments had a decisive effect on the outcome of
the trial, amounting to a manifest injustice or miscarriage of justice. Hall, 955 S.W.2d at 208;
McKay, 411 S.W.3d at 304; Plummer, 860 S.W.2d at 349. In support of his claim that a manifest
injustice or miscarriage of justice occurred as a result of the prosecutor’s comments in this case,
Defendant heavily relies on Berger v. U.S., 295 U.S. 78 (1935).
11
In Berger, the defendant was convicted of conspiring with others to use counterfeit notes.
Id. at 79-80. The defendant appealed his conviction, claiming the U.S. attorney who prosecuted
the case committed misconduct during his cross-examination of witnesses and his argument to
the jury. See id. at 80. Notably, defense counsel objected to some of the U.S. attorney’s
questions, insinuations, and misstatements, and the trial court sustained counsel’s objections and
instructed the jury to disregard them. Id. at 85. The U.S. Supreme Court found:
[The U.S. attorney] was guilty of misstating the facts in his cross-examination of
witnesses; of putting into the mouths of such witnesses things which they had not
said; of suggesting by his questions that statements had been made to him
personally out of court, in respect of which no proof was offered; of pretending to
understand that a witness had said something which he had not said and persistently
cross-examining the witness upon that basis; of assuming prejudicial facts not in
evidence; of bullying and arguing with witnesses; and, in general, of conducting
himself in a thoroughly indecorous and improper manner.
...
The [U.S.] attorney’s argument to the jury was undignified and intemperate,
containing improper insinuations and assertions calculated to mislead the jury.
Id. at 84, 85. The Berger Court held the defendant was prejudiced as a result of the U.S.
attorney’s repeated misconduct because, (1) the evidence of the defendant’s guilt was weak in
that it depended on the testimony of an accomplice with a long criminal record; and (2) the U.S.
attorney’s misconduct was not slight but “pronounced and persistent, with a probable cumulative
effect upon the jury which cannot be disregarded as inconsequential.” Id. at 88-89. Further, the
Court held the circumstances of the case “called for stern rebuke and repressive measures and,
perhaps, if these were not successful, for the granting of a mistrial,” reversed defendant’s
conviction, and granted him a new trial. Id. at 85, 89. In rendering its decision, the U.S.
Supreme Court did not explicitly discuss the standard of review which governed the case, and
similarly, did not find the U.S. attorney’s actions amounted to a manifest injustice or miscarriage
of justice. See id. at 79-89.
12
The circumstances of this case are distinguishable from those in Berger for several
reasons. First, unlike in Berger, in this case there were no objections to the prosecutor’s
comments concerning Peete’s alleged trial testimony, and therefore, in this case defense counsel
completely failed to make the trial court aware of the prosecutor’s alleged improper argument. 7
See id. at 85. Moreover, a review of the record reveals the prosecutor’s comments in this case do
not rise to the level of the U.S. attorney’s improper argument and conduct in Berger. Among
other reasons, we cannot find the prosecutor’s argument in this case was “undignified and
intemperate, containing improper insinuations and assertions calculated to mislead the jury.” See
id. at 85. Nor can we find the prosecutor’s argument in this case was “pronounced and
persistent, with a probable cumulative effect upon the jury which cannot be disregarded as
inconsequential.” See id. at 89. Rather, although the prosecutor in this case improperly
characterized Peete’s testimony and went beyond the evidence in two instances, a review of the
record reveals those instances were minimal in light of the entirety of the prosecutor’s closing
argument. In addition, unlike the evidence of the defendant’s guilt in Berger which was weak
and dependent on the testimony of an accomplice with a long criminal record, see id. at 88-89,
Defendant’s guilt in this case was strong and depended on the testimony of a police officer.
Finally, if not most importantly, it is undisputed that the standard of review which
governs this point on appeal is plain error, under which a conviction will be reversed for
improper closing argument only if the defendant demonstrates the prosecutor’s comments
amounted to a manifest injustice or miscarriage of justice. Hall, 955 S.W.2d at 208; McKay, 411
S.W.3d at 304; Plummer, 860 S.W.2d at 349. In contrast, in Berger the standard of review was
not explicitly mentioned, and there was no language suggesting reversal was based upon a
7
As stated previously, in addition to failing to lodge any objections to the complained-of portions of the
prosecutor’s closing argument, defense counsel also did not raise the issue in his post-trial motion.
13
finding that the U.S. attorney’s actions amounted to a manifest injustice or miscarriage of justice.
See Berger, 295 U.S. at 79-89.
In sum, Berger is distinguishable from and inapplicable to this case. Moreover, we find
Defendant has not demonstrated the prosecutor’s comments concerning Peete’s alleged trial
testimony concerning prior inconsistent statements she allegedly made to the defense
investigator had a decisive effect on the outcome of the trial, amounting to a manifest injustice or
miscarriage of justice. Therefore, the trial court did not commit reversible error in failing to
declare a mistrial sua sponte with respect to this portion of the prosecutor’s argument. See Hall,
955 S.W.2d at 208; McKay, 411 S.W.3d at 304; Plummer, 860 S.W.2d at 349.
3. Conclusion as to Point Two
Based on the foregoing, the trial court did not plainly err in failing to declare a mistrial
sua sponte during the prosecutor’s closing argument. Point two is denied.
C. The Trial Court’s Admission of Exhibits 14-17
In Defendant’s third and fourth points on appeal, he argues the trial court erred in
admitting Exhibits 14-17 into evidence. Exhibit 14 is a picture of marijuana, drugs, and a scale,
Exhibit 15 is a picture of marijuana in a toilet, and Exhibits 16 and 17 are pictures of the .45
caliber handgun. Defendant asserts the trial court committed reversible error in admitting
Exhibits 14-17 because they constituted inadmissible evidence of uncharged offenses, in that
Defendant was not charged with any drug offenses or with unlawfully possessing or using the .45
caliber handgun.
It is within a trial court’s broad discretion to admit or exclude evidence at trial and an
evidentiary ruling is reviewed for an abuse of discretion. State v. Hood, 451 S.W.3d 758, 765
(Mo. App. E.D. 2014). A trial court abuses its discretion when its decision “is clearly against the
logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.”
14
Id. We will only reverse an evidentiary error if prejudice is demonstrated, i.e., if there is a
reasonable probability the trial court’s alleged error affected the outcome of the trial. Id.
“Generally, prejudice does not exist when the objectionable evidence is merely cumulative of
other evidence that was admitted without objection and that sufficiently establishes essentially
the same facts.” State v. Kelly, 367 S.W.3d 629, 630 (Mo. App. E.D. 2012) (quotations omitted).
In this case, even assuming arguendo that Exhibits 14-17 were erroneously admitted,
Defendant has not demonstrated he was prejudiced as a result of their admission. During defense
counsel’s cross-examination of Detective Chamblin, counsel affirmatively established the items
shown in Exhibits 14-17 were not attributed to Defendant and that the drugs were specifically
attributed to Henderson. Accordingly, we find there is not a reasonable probability the trial
court’s alleged errors in admitting the exhibits affected the outcome of the trial.
Moreover, the drugs, drug paraphernalia, and .45 caliber handgun which were pictured in
the exhibits were merely cumulative of other evidence admitted without objection and which
sufficiently established essentially the same facts. Detective Chamblin testified that in addition
to the .38 caliber revolver Defendant was ultimately charged with possessing, officers also found
“lots of contraband” and another firearm in the residence. Specifically, Detective Chamblin
testified he and his partner found “cocaine base, powder cocaine, crack cocaine,” packaging
material, and a scale in the living room; marijuana in the bathroom including in the toilet; and a
.45 caliber handgun in the bedroom. Defense counsel did not object to any of the preceding
testimony from Detective Chamblin.
Based on the foregoing, there is not a reasonable probability the trial court’s admission of
Exhibits 14-17 affected the outcome of the trial, and the objectionable evidence was merely
cumulative of other evidence admitted without objection and which sufficiently established
essentially the same facts. Accordingly, Defendant has not demonstrated he was prejudiced by
15
the admission of Exhibits 14-17 8 or that the trial court committed reversible error in admitting
the exhibits. Hood, 451 S.W.3d at 765; Kelly, 367 S.W.3d at 630. Points three and four are
denied.
III. CONCLUSION
The trial court’s judgment is affirmed.
ROBERT M. CLAYTON III, Presiding Judge
Lawrence E. Mooney, J., and
James M. Dowd, J., concur.
8
In support of his argument that admission of Exhibits 16 and 17, pictures of the .45 caliber handgun, were
prejudicial, Defendant cites to State v. Williams, 543 S.W.2d 563 (Mo. App. 1976). In Williams, the appellate court
reversed a defendant’s conviction for carrying a concealed weapon where the trial court admitted a second weapon
which was not connected to the defendant or the offense for which he was tried. Id. at 563-66. The Court held the
trial court erred in admitting the second weapon “[g]iven the absence of any logical connection with the offense
charged and the inherently prejudicial nature of the demonstrative evidence of the [ ] weapon.” Id. at 566. As
discussed above, in this case defense counsel affirmatively established the .45 caliber handgun pictured in Exhibits
16 and 17 was not attributed to Defendant, and the objectionable evidence was merely cumulative of other evidence
admitted without objection and which sufficiently established essentially the same facts. Because neither of those
circumstances was present in Williams, it is distinguishable from and inapplicable to this case. See id. at 563-66.
16