State of Missouri v. Marvin Young ( 2019 )

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
STATE OF MISSOURI, ) ED106574
)
Respondent, ) Appeal from the Circuit Court
) of Warren County
v. ) 15BB-CR00578-01
)
MARVIN YOUNG, ) Honorable Wesley C. Dalton
)
Appellant. ) FILED: June 18, 2019
OPINION
Marvin Young (“Appellant”) appeals from a sentence and judgment of conviction for
first-degree tampering. He argues the trial court erred in overruling his motions in limine,
admitting certain evidence, denying his motion to dismiss for a speedy trial violation, denying
his motion for acquittal and imposing sentence because there was insufficient evidence to
support the verdict, sustaining the State’s objection during closing arguments, and ordering
restitution. We affirm Appellant’s sentence and judgment of conviction, but we vacate the
restitution order.
Appellant has filed a motion to strike the State’s Supplemental Legal File containing the
Sentencing Assessment Report (SAR), and his motion was taken with the case. The State’s
Supplemental Legal File was timely filed and properly includes portions of the trial court record.
See Rule 81.12(b), (e). Appellant’s motion to strike the State’s Supplemental Legal File is
denied.
Background
In an Amended Information dated September 8, 2016, the State charged Appellant with
one count of the class C felony of first-degree tampering in violation of Section 569.080. 1 The
Information dated April 22, 2016, and the Amended Information alleged that on or about April 5,
2015, Appellant, acting alone or with others, altered automobiles by removing the wheels and
tires without the consent of the owner, Rick Gastorf of Warren County, Missouri. The Amended
Information further alleged Appellant was a prior and persistent offender. Before trial, Appellant
filed a motion in limine to exclude evidence of prior bad acts, specifically: (1) that Appellant had
been charged with and admitted to other wheel thefts at car dealerships in jurisdictions other than
Warren County, and (2) Appellant’s statements regarding his use of heroin. After a hearing, the
trial court denied the motion in limine. In July 2017, approximately fifteen months after
Appellant was first charged by the original Information, Appellant filed a motion to dismiss for
violation of his right to a speedy trial. The trial court denied the motion after a hearing. The
week before trial, Appellant filed another motion in limine seeking to exclude evidence that
Appellant was a passenger in a vehicle stopped by the Wentzville Police Department on March
26, 2015, arguing that because this stop occurred more than a week before the charged April 5
tampering, it was not relevant. After a hearing, the trial court denied this motion in limine.
The following evidence was adduced at the November 13, 2017, trial, viewed in the light
most favorable to the verdict. 2 On March 23, 2015, wheels were stolen off of vehicles on a car
dealership in Fenton, Missouri. Surveillance system photographs showed that the suspects drove
1
All statutory references are to RSMo. (2016), unless otherwise indicated.
2
State v. Moyers, 266 S.W.3d 272, 275 (Mo. App. W.D. 2008).
2
a tan or light-colored SUV with a distinctive aftermarket black hood with black hood “scoops”
on it. On March 26, 2015, an officer with the Wentzville Police Department stopped a goldish-
tan late 90’s Chevy Tahoe for reasons unrelated to the theft. The vehicle had a “distinctive”
sticker in the lower left-hand corner of the rear window. The driver was identified as Milliard
Carpenter (“Carpenter”) and the passenger was identified as Appellant.
On April 5, 2015, tires and wheels were stolen from two vehicles on the Gastorf
Chevrolet car dealership in Warren County, Missouri, and the vehicles were placed up on
cinderblocks. A surveillance video showed two people rolling tires to their vehicle, which was
identified as a golden-color late model Chevy Tahoe SUV with a black “scoop” hood,
aftermarket chrome wheels, and marking on one of the windows. The two people were not
identifiable from the video. Police submitted photographs of the suspects’ Chevy Tahoe SUV to
the Highway Patrol’s Missouri Informational Analysis Center.
On April 14, 2015, wheels were stolen off vehicles at a car dealership in Collinsville,
Illinois. Surveillance video showed a gold colored Chevy Tahoe SUV with aftermarket wheels
and a distinctive sticker on the back window enter the car dealership lot around 2:30 a.m., and
two people exited the vehicle and proceeded to remove wheels from the dealership’s vehicles.
Police reviewed video surveillance from nearby businesses from around the same time, and
video footage from a convenience store about three blocks from the car dealership showed the
same gold SUV with aftermarket wheels and white rear-window sticker was there around 2:00
a.m. with two male occupants. The Collinsville Police Department circulated the men’s pictures
in a press release, and anonymous callers identified the two men as Carpenter and Appellant and
provided an address. Police set up surveillance at the address and quickly observed Appellant
leaving the residence, but when police attempted to apprehend Appellant, he fled, leading them
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to a trailer. A subsequent search of the trailer revealed mail addressed to Appellant and multiple
lug nuts, hub caps, latex gloves, and tools for removing wheels.
Appellant was subsequently arrested. During the police interview—the videotape of
which was played to the jury—Appellant admitted to going to car dealerships with Carpenter and
acting as the look out while Carpenter stole the wheels and that he would sometimes drive, assist
with removing wheels, and help load the wheels. He stated Carpenter chose each of the victims
and he could not remember each victim; however, he stated they stole wheels from all over. He
initially stated he probably committed all of the wheel-theft incidents being investigated, but he
later stated while he participated in the majority of the thefts, he did not participate in every
single one. As for the April 2015 wheel theft at the Gastorf Chevrolet car dealership in Warren
County at issue on appeal here, Appellant initially responded “yeah” when asked if he stole
wheels in Warren County, but later he stated that Warren County did not sound familiar. The
State’s witness testified on direct examination and on redirect examination that Appellant did not
specifically deny committing the wheel theft in Warren County, but the witness testified on
cross-examination that Appellant denied committing a wheel theft in Warren County.
As for additional co-defendants, Appellant stated as far as he knew, he was the only one
helping Carpenter. Detective Keith Jackson (“Detective Jackson”) from the Collinsville, Illinois
Police Department testified one time without objection that the police were only looking at
Carpenter and Appellant as suspects because neither suspect gave any other names of co-
defendants. Then when asked again if either Carpenter or Appellant provided the names of
anyone else they had worked with on this type of crime, Detective Jackson answered “no.” After
Detective Jackson answered, counsel for Appellant objected on hearsay grounds, which the trial
court overruled. Similarly, Detective Patrick Trentham (“Detective Trentham”) from the St.
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Louis County Police Department testified over a hearsay objection that neither Carpenter nor
Appellant identified any other persons working with either of them to steal wheels, and police
had not identified any additional suspects other than Carpenter and Appellant.
During his police interview, Appellant admitted he was a heroin addict and had been
using heroin on a regular basis for the past several months. He stated he had been spending
about $100 per day on heroin. He admitted he did not work but he had been funding his heroin
use by helping Carpenter to steal wheels throughout the St. Louis metropolitan area and Illinois,
which was his only source of income. We will address additional testimony and evidence during
the Discussion as needed for our analysis.
Appellant presented no evidence in his defense, and at the close of all the evidence, he
moved for a judgment of acquittal, which the trial court denied. The jury convicted Appellant of
the single count of first-degree tampering. Appellant moved for a judgment of acquittal
notwithstanding the verdict or for a new trial, which the trial court denied. The trial court
sentenced Appellant as a prior and persistent offender to twelve years in the Missouri
Department of Corrections, and it further ordered Appellant to pay restitution in the amount of
$8,520.81. This appeal follows.
Discussion
Points I and VII
In his first and seventh points on appeal, Appellant argues the trial court abused its
discretion in overruling the pretrial motions in limine regarding the admission of evidence of
other wheel-theft crimes other than the charged crime and of his heroin use, in that this evidence
was highly prejudicial evidence of his propensity to commit other crimes. We disagree.
5
A trial court has broad discretion to admit or exclude evidence at trial, and we review the
trial court’s ruling for an abuse of that discretion. State v. Blurton, 484 S.W.3d 758, 769 (Mo.
banc 2016). An abuse of discretion occurs when the trial court’s ruling clearly offends the logic
of the circumstances or is so arbitrary and unreasonable that it shocks the sense of justice and
indicates a lack of careful consideration. Id. Our review is for prejudice, not mere error, and we
will reverse only if the defendant demonstrates that the error was so prejudicial as to deprive him
of a fair trial and there was a reasonable probability the trial court’s ruling affected the outcome
of the trial. Id.; see also State v. Anderson, 76 S.W.3d 275, 277 (Mo. banc 2002). The burden
lies on the defendant on appeal to overcome the presumption that the trial court’s discretionary
ruling was correct. State v. Adams, 443 S.W.3d 50, 53 (Mo. App. E.D. 2014).
In general, evidence of uncharged misconduct and prior convictions is inadmissible to
show a defendant’s propensity to commit such crimes, for fear that the jury would convict the
defendant based on the propensity rather than on the evidence presented to support the particular
crime charged. Adams, 443 S.W.3d at 55. There are, however, several established exceptions to
this general rule, such as where the evidence tends to establish a motive or the identity of the
person charged with the commission of the crime on trial. State v. Primm, 347 S.W.3d 66, 70
(Mo. banc 2011). Evidence of uncharged misconduct must be both logically relevant, in that it
must tend to establish guilt for the crime charged, and legally relevant, in that its probative value
must outweigh its prejudicial effect. Adams, 443 S.W.3d at 55.
First, regarding Appellant’s first point challenging the admission of evidence of other
wheel-theft crimes, this evidence was relevant to establish Appellant’s identity. The surveillance
video from the Gastorf Chevrolet car dealership in Warren County following the April 2015 theft
showed only the general appearance of the suspects and the vehicle they were driving, and thus
6
the suspects’ identity was at issue. While the suspects were not identifiable from the surveillance
footage, they were driving a distinctive golden-color Chevy Tahoe SUV with a black “scoop”
hood and aftermarket chrome wheels.
To identify Appellant as one of the suspects, the State presented the following evidence
connecting Appellant to the distinctive Chevy Tahoe SUV used in the crime. First, Appellant
confessed to committing a wheel theft at a Fenton, Missouri car dealership, and surveillance
footage from that car dealership showed two suspects driving a tan or light-colored SUV with a
distinctive black hood with black scoops. Second, when police pulled over a goldish-tan late
90’s Chevy Tahoe with a distinctive sticker in the lower left-hand corner of the rear window, the
passenger identified himself as Appellant. Third, Appellant confessed to a wheel theft from a car
dealership in Collinsville, Illinois, and surveillance video from that car dealership showed a gold
GMC Yukon or Chevy Tahoe SUV with aftermarket wheels and a distinctive sticker on the back
window enter the lot around 2:30 a.m., after which two people exited the vehicle and proceeded
to remove wheels from the dealership’s vehicles.
When considered together, the Fenton, Missouri wheel theft, the Wentzville traffic stop,
and the Collinsville, Illinois wheel theft tended to establish Appellant’s identity as the person in
the Gastorf Chevrolet surveillance footage. See State v. Naylor, 510 S.W.3d 855, 862-63 (Mo.
banc 2017) (evidence from uncharged burglaries was admissible to identify defendant based on
similarities between crimes). The vehicle present during all crimes with its distinctive
contrasting goldish-tan exterior and black “scoop” hood, its distinctive window sticker, and its
aftermarket wheels was so unusual and distinctive as to resemble a signature of the defendant’s
involvement in both crimes. See State v. Carter, 523 S.W.3d 590, 600-01 (Mo. App. W.D. 2017)
(evidence of uncharged crime admissible to identify defendant based on near-identical
7
similarities between charged crime and uncharged crime: namely, that both crimes involved
luring victims to public parking lot to purchase cell phone and both crimes were committed by
two men in red Kia).
Moreover, the evidence of the other crimes was not overused, as Appellant argues on
appeal. Rather, the State elicited the evidence as necessary to connect Appellant to the Chevy
Tahoe SUV and the Chevy Tahoe SUV to two additional crimes that were nearly identical to the
charged offense.
Second, regarding Appellant’s seventh point challenging the admission of evidence of his
heroin use, this evidence was relevant to establish Appellant’s motive to commit the charged
crime. Wide latitude is given in the development of motive. State v. Phillips, 890 S.W.2d 698,
699 (Mo. App. E.D. 1995). Missouri courts have upheld the admission of drug use to establish a
motive for the charged crime where the record explicitly included the admission of motive. State
v. Allen, 274 S.W.3d 514, 522 (Mo. App. W.D. 2008). Similarly, here, the State elicited
testimony that Appellant admitted to police he was a heroin user and that he spent $100 per day
on buying heroin. He further confessed that he stole the wheels to fund his heroin use and had
no other source of income. This evidence of his heroin use was admissible to establish his
motive to commit the charged offense.
Because the challenged evidence was relevant to establish Appellant’s identity as one of
the suspects shown in the surveillance video from the Gastorf Chevrolet car dealership and to
establish Appellant’s motive to steal wheels, the probative value of this evidence far outweighed
any prejudicial effect. See Adams, 443 S.W.3d at 55. The trial court did not abuse its discretion
in overruling Appellant’s motions in limine and in admitting this evidence.
Points I and VII are denied.
8
Point II
In his second point on appeal, Appellant argues the trial court abused its discretion in
overruling his objections to the testimony of Detective Jackson and Detective Trentham that
Carpenter never provided the names of anyone beside Appellant who helped him to steal wheels,
in that such testimony was hearsay. We disagree.
Hearsay evidence is any out-of-court statement offered to prove the truth of the matter
asserted, and such statements are generally inadmissible unless they fit within certain hearsay
exceptions. See State v. Edwards, 537 S.W.3d 848, 853 (Mo. App. E.D. 2017). It has long been
held that an objection to the admission of evidence must be made to preserve the issue for
appeal. State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009). “It is well-established law in
Missouri that hearsay may properly be considered as evidence by the trier of fact.” State v.
Goodwin, 43 S.W.3d 805, 818 (Mo. banc 2001).
Here, the State elicited the evidence Appellant challenges as hearsay three times. The
first time Appellant did not object to the State’s questions to Detective Jackson:
Q: Throughout the course of your investigation were you looking for two
suspects?
A: Yes.
…
Q: And based on your review of the evidence were you looking for anyone
else in connection to these cases?
A: No.
Q: Did either suspect ever give you any other names of any other people to
look for?
A: No.
9
The second time, the State asked, “[d]id either [Appellant] or [Carpenter] ever provide any
names of anyone else they’d worked with on this type of job,” and Appellant objected just after
Detective Jackson answered, “[n]o.” The third time, when the State asked Detective Trentham if
“throughout the course of this investigation did either suspect ever give you any names of
anyone else they had been working with to steal wheels and tires from the car dealerships,”
Appellant objected on the basis of hearsay. The objection was overruled and Detective
Trentham answered, “[n]o.”
Setting aside the issue of whether or not Carpenter’s failure to identify any other co-
defendant can be considered a “statement” for hearsay purposes, because Appellant did not
object each time this same evidence was admitted, his objection is not preserved for appellate
review. See State v. Perdue, 317 S.W.3d 645, 653 (Mo. App. S.D. 2010) (when defendant
objected to portion of hearsay testimony but failed to object to other portions of hearsay
testimony, hearsay objection was not preserved). Appellant here requested plain error review if
this Court found his objection to be unpreserved; however, even under a plain-error analysis,
“hearsay evidence offered without objection is not plain error.” Id. at 653-54; Masden v. State,
62 S.W.3d 661, 670 n.4 (Mo. App. W.D. 2001). We decline to exercise our discretionary plain
error review here. See Rule 29.12.
Point II is denied.
Point III
In his third point on appeal, Appellant argues the trial court erred in denying his motion
to dismiss for a violation of his right to a speedy trial, in that his trial was unreasonably delayed
by the actions of the court and the State, causing him prejudice. We disagree.
10
We review de novo the trial court’s ruling on whether a defendant’s Sixth Amendment
right to a speedy trial was violated, while giving deference to the trial court’s findings of fact.
State v. Sisco, 458 S.W.3d 304, 313 (Mo. banc 2015). A criminal defendant’s right to a speedy
trial is guaranteed by the United States and the Missouri constitutions. Id. We balance four
factors when determining whether a defendant’s right to a speedy trial has been violated: (1) the
length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4)
the prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 515
(1972); State ex rel. Garcia v. Goldman, 316 S.W.3d 907, 910-11 (Mo. banc 2010).
Initially, the length of the delay “triggers the analysis of whether a defendant’s
constitutional right to a speedy trial has been violated,” in that the length of the delay must
exceed a certain amount before it is considered “presumptively prejudicial,” triggering the
court’s obligation to consider the other three factors. State v. Wright, 551 S.W.3d 608, 618 (Mo.
App. E.D. 2018). Missouri courts have found that “a delay of greater than eight months is
presumptively prejudicial.” Sisco, 458 S.W.3d at 313 (internal quotation marks omitted). The
State’s delay in bringing a defendant to trial is measured from the time of a formal indictment or
information, or upon arrest. Wright, 551 S.W.3d at 618-19. Here, the parties agree that the
length of the delay exceeded eight months, which is presumptively prejudicial, triggering the
remainder of the speedy-trial analysis.
Second, in determining whether the delay rose to the level of a Sixth Amendment
violation, the burden is on the State to justify the reasons for any substantial delay. Id. at 619.
While deliberate attempts to delay the trial weigh heavily against the State, neutral reasons, such
as negligence and overcrowded dockets, weigh slightly against the State, and valid reasons, such
as missing witnesses, are not held against the State. Id. Requests for continuances by the
11
defendant are weighed heavily against the defendant. Id. Here, there was no evidence of
deliberate attempts by the State to delay the trial: one delay was due to an unavailable State’s
witness, one delay was due to insufficient staffing for the State, and the remainder of delays was
due to the trial court “not reach[ing]” the case or “remov[ing]” the case from its docket. Thus,
while this record shows the State to be responsible for the pretrial delay, the record does not
demonstrate that the State deliberately attempted to postpone the trial in order to prejudice the
defense. Thus, this second factor weighs only slightly against the State. Third, Appellant
promptly asserted his right to a speedy trial, which weighs in his favor. See Sisco, 458 S.W.3d at
317; State v. Smith, 491 S.W.3d 286, 307 (Mo. App. E.D. 2016).
The fourth and final factor, actual prejudice suffered by the defendant as a result of the
delay, is the most important. Wright, 551 S.W.3d at 620. Whether the delay causes a defendant
actual prejudice is evaluated in light of three concerns: (1) prevention of oppressive pretrial
incarceration, (2) minimization of anxiety or concern to the accused, and (3) limitation of the
possibility of impairment to the defense. Sisco, 458 S.W.3d at 317. The burden to prove actual
prejudice rests on the defendant. Wright, 551 S.W.3d at 620. Prejudice must be apparent, or at
least reasonably inferable, from the record, and claims of speculative or possible prejudice are
not sufficient to meet this burden. Id.
Here, because Appellant was incarcerated on other charges in addition to the present
charges, he cannot show oppressiveness of pretrial incarceration. See State v. Williams, 120
S.W.3d 294, 300 (Mo. App. W.D. 2003). He would have been incarcerated regardless of any
delays in this matter. Although Appellant asserts on appeal he felt “intense anxiety” regarding
whether he would get credit for jail time served pending trial, this “intense anxiety” is neither
apparent nor reasonably inferable from the record itself. Moreover, the judgment ordered
12
Appellant to receive credit for time served between his arrest and conviction. Finally, Appellant
makes no allegation that the delay impaired his defense. Thus, without a showing of actual
prejudice, this fourth factor weighs heavily in the State’s favor.
Upon considering all four factors, we find that the time between the charges filed against
Appellant and his trial did not violate his right to a speedy trial. Although he served an extended
period of time before his trial due to delays by the State, because he suffered no actual prejudice
from this delay, we conclude there was no Sixth Amendment violation. The trial court did not
err in denying his motion to dismiss for a speedy-trial violation.
Point III is denied.
Point IV
In his fourth point on appeal, Appellant argues the trial court erred in denying his motion
for acquittal at the close of all evidence, denying the motion for new trial, and in imposing
sentence because the evidence was not sufficient to prove beyond a reasonable doubt that he
committed the charged offense. We disagree.
In general, we review challenges to the sufficiency of the evidence supporting a criminal
conviction for whether the State introduced sufficient evidence at trial from which a reasonable
juror might have found the defendant guilty beyond a reasonable doubt of all the essential
elements of the crime. State v. Nash, 339 S.W.3d 500, 508-09 (Mo. banc 2011). We accept as
true all evidence supporting the jury’s verdict, including all favorable inferences therefrom, and
disregard all contrary evidence and negative inferences. Id. In our review, we do not act as a
“super juror” with veto powers and will not reweigh the evidence on appeal; rather, we give
great deference to the trier of fact, who may believe all, some, or none of the testimony of a
witness. State v. Davidson, 521 S.W.3d 637, 643 (Mo. App. W.D. 2017).
13
A person commits the class C felony of first-degree tampering if he or she “knowingly …
alters … an automobile … without the consent of the owner thereof.” Section 569.080.1(2).
Here, the jury heard evidence that on April 5, 2015, wheels were stolen from two vehicles on the
Gastorf Chevrolet car dealership in Warren County by two men driving a golden-color late
model Chevy Tahoe SUV with a black “scoop” hood, aftermarket chrome wheels, and markings
on the rear window. They heard that at least two other car dealerships in nearby jurisdictions
also had wheels stolen in March and April 2015 by two men driving a gold or tan Chevy Tahoe
with a distinctive black hood with black “scoops,” aftermarket wheels, and a distinctive white
sticker on the rear window. The jury heard that a search of Appellant’s home revealed multiple
lug nuts, hub caps, latex gloves, and tools for removing wheels. They heard that when Appellant
was arrested, he confessed to partnering with Carpenter to steal wheels from car dealerships “all
over” the St. Louis metropolitan area, in order to fund his $100 per day addiction to heroin. The
jury heard that Appellant alternatively stated he probably committed all of, or he committed the
majority but not all of, the wheel-theft incidents being investigated; he also stated that as far as
he knew, he was the only person helping Carpenter. The jury heard that Carpenter did not
identify anyone else who stole wheels with him. The jury heard Appellant state he did not
remember each victim, and while he initially responded “yeah” when asked if he stole the wheels
from the Gastorf Chevrolet car dealership in Warren County, he later said Warren County did not
sound familiar. This evidence was properly admissible, as discussed elsewhere in this opinion.
Considered in its totality, the State presented sufficient admissible evidence here from
which a jury could reasonably infer that Appellant committed each element of the charged crime.
The State argued Appellant did not definitely deny committing the wheel theft in Warren
County, while Appellant argues he did and this denial was his theory of defense. The jury is
14
tasked with resolving conflicts in evidence, and it is free to believe or disbelieve the testimony of
any witness. See Davidson, 521 S.W.3d at 643; see also State v. Newberry, 605 S.W.2d 117, 121
(Mo. 1980). The jury, thus, was free to credit the testimony that Appellant initially stated he
probably committed all of the crimes and he participated in the charged wheel theft in Warren
County, and it was free to disregard his later denial of committing the wheel theft in Warren
County. By its verdict, the jury credited Appellant’s initial admission over his later denial. On
review, we neither reweigh the evidence nor substitute our judgment for that of the jury’s. See
Davidson, 521 S.W.3d at 643.
The trial court did not err in denying Appellant’s motion for acquittal at the close of all
evidence, in denying the motion for new trial, and in imposing sentence, because the evidence
here was sufficient to support each element of Appellant’s conviction.
Point IV is denied.
Point V
In his fifth point on appeal, Appellant argues the trial court erred in sustaining the State’s
objection to his statement during closing arguments, which violated his right to present his
defense because it prevented him from arguing that he would be held accountable for the crimes
he committed in other jurisdictions and the jury should not base its conviction on those crimes.
We disagree.
A trial court has broad discretion in controlling the scope of closing argument. State v.
Tate, 561 S.W3d 483, 490-91 (Mo. App. E.D. 2018). We review the trial court’s rulings during
closing arguments for an abuse of that broad discretion, finding an abuse only where the ruling is
clearly against the logic of the circumstances or is so arbitrary and unreasonable so as to shock
the sense of justice and indicate a lack of careful reasoning. Id.
15
While the trial court should take care not to unduly restrict closing arguments, it should
confine arguments to issues raised by the evidence. State v. Forrest, 183 S.W.3d 218, 226 (Mo.
banc 2006). Counsel may argue inferences justified by the evidence but may not argue facts
outside the record or inferences not supported by the facts. Id.
Here, during closing arguments, counsel for Appellant argued:
[APPELLANT]: It just doesn’t make sense. It doesn’t make sense.
Why admit to a bunch of others and not this one? They gave you excuses.
None of them really track. That doesn’t make sense.
And once again, follow your head. It’s not like Marvin’s getting’
off the hook here. He admitted to committing crimes in a bunch of
different places. He isn’t just walking free.
[STATE]: Objection, your Honor. That’s beyond the scope of
what the jury has to determine.
THE COURT: Sustained.
Appellant claims that by sustaining the State’s objection to the statement “[h]e isn’t just walking
free,” the trial court prevented him from presenting his theory of the case in closing argument.
This argument fails. Facts about potential convictions or potential sentences for crimes charged
in different jurisdictions were not in evidence, and thus his argument asserting he would serve
prison time on the other uncharged crimes was properly excluded. See Forrest, 183 S.W.3d at
226.
Moreover, Appellant was not prevented from presenting his theory of defense in closing
argument. During closing arguments he was able to argue without objection that it did not make
sense for him to confess to committing some thefts then to deny the Warren County theft unless
he was in fact innocent of the Warren County theft. He was able to argue without objection that
although the State proved he committed thefts in St. Louis County and Illinois through his
confession, the State did not prove he committed the theft in Warren County. He was able to
16
argue without objection that the jury should not convict Appellant for the Warren County offense
with no evidence and no confession, just because he confessed to other offenses.
The trial court did not abuse its discretion in sustaining the State’s objection to
Appellant’s statement during closing argument that referred to facts not in evidence.
Point V is denied.
Point VI
In his sixth point on appeal, Appellant argues the trial court erred in ordering and entering
in the judgment and sentence that Appellant must pay $8,520.81 in restitution because the oral
pronouncement made no mention of ordering restitution and there was no evidence that Gastorf’s
loss was $8,520.81. We agree.
Chapter 559 grants the trial courts broad authority to determine the conditions of a
defendant’s parole or probation. Specifically, Section 559.105.1 provides that “[a]ny person who
has been found guilty or has pled guilty to an offense may be ordered by the court to make
restitution to the victim for the victim’s losses due to such offense.” We review the trial court’s
exercise of this discretionary authority for an abuse of that discretion. State v. Fleming, 541
S.W.3d 560, 562 (Mo. App. W.D. 2018).
The restitution order must be supported by evidence quantifying the victim’s losses “due
to” the defendant’s offense. See Section 559.105.1; Fleming, 541 S.W.3d at 563-64. Frequently,
the SAR can provide such supporting evidence. See Fleming, 541 S.W.3d at 563. However, the
SAR must clearly quantify the victim’s unrecovered losses due to the offense for it to serve as
the basis for the restitution order. See id. at 564-65 (vacating restitution order where SAR did
not establish how restitution amount was determined and amounts mentioned in SAR did not
correlate to restitution order).
17
Here, the SAR Victim Impact statement declared that the property loss to one vehicle
totaled $4,523.67 and the property loss to the second vehicle totaled $3,847.14; however, it also
noted the company had a deductible of $1,000.00 per vehicle plus 25% of parts and labor. First,
the stated losses of $4,523.67 and $3,847.14 equals $8,370.81, not $8,520.81, which was the
restitution order. Second, the vehicles were insured, thus reducing the victim’s unrecovered
losses. Because the State’s evidence here failed to quantify the losses due to Appellant’s
conviction of first-degree tampering, the restitution order does not comply with Section
559.105.1. The State does not “‘receive a second opportunity to prove its case’ on remand,” and
thus we vacate the restitution order. See id. (quoting State v. Collins, 328 S.W.3d 705, 709 (Mo.
banc 2011)).
Point VI is granted.
Conclusion
The sentence and judgment of conviction of the trial court is affirmed, but the restitution
order of $8,520.81 is vacated.
____________________
Robin Ransom, J.
Sherri B. Sullivan, P.J., and James M. Dowd, J., concur.
18