STATE OF MISSOURI, Plaintiff-Respondent v. BRYON G. PETTIJOHN

• Court: Missouri Court of Appeals
• Decided: July 16, 2024
• Docket: SD38068
• Status: Published

Opinion

Missouri Court of Appeals Southern District

In Division STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD38068 ) BRYON G. PETTIJOHN, ) Filed: July 16, 2024 ) Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

Honorable John D. Beger

AFFIRMED

Bryon G. Pettijohn (“Defendant”) presents two points that seek a new trial based

upon plain-error review of the circuit court’s “admission” of two categories of evidence

adduced during his jury trial. 1 We decline Defendant’s request for plain-error review and

affirm the presumed-correct judgment of the circuit court.

1 Defendant was charged with second-degree kidnapping under section 565.120, third-degree domestic assault under section 565.074, and second-degree property damage under section 569.120. The jury found Defendant not-guilty of the second-degree kidnapping charge and not-guilty of its lesser-included offense of third-degree kidnapping. The jury also found Defendant not-guilty of third-degree domestic assault, finding instead that Defendant was guilty of the lesser-included crime of fourth-degree domestic assault (see section 565.076). Finally, the jury found Defendant guilty as charged of second-degree property damage. Unless otherwise indicated, all statutory references are to RSMo 2016, including, as applicable, statutory changes effective January 1, 2017. Defendant does not challenge “the sufficiency of the information or indictment, verdict, judgment, or sentence.” See Rule 30.20. Unless otherwise indicated, all rule references are to Missouri Court Rules (2023).

1 Standard of Review

“The threshold issue in plain error review is whether the circuit court’s error was

facially ‘evident, obvious, and clear.’” State v. Wood, 580 S.W.3d 566, 579 (Mo. banc

2019) (quoting State v. Jones, 427 S.W.3d 191, 195 (Mo. banc 2014)). “If the appellant

establishes a facially ‘evident, obvious, and clear’ error, then this Court will consider

whether the error resulted in a manifest injustice or miscarriage of justice.” Id. This is

founded upon Rule 30.20, which grants us discretion to review unpreserved claims of

error if we find “that manifest injustice or miscarriage of justice has resulted therefrom”

(emphasis added). The “therefrom” refers to an “‘evident, obvious, and clear’” error

committed by the circuit court. State v. Brandolese, 601 S.W.3d 519, 531 (Mo. banc

2020) (quoting State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009)). “To obtain a

new trial on direct appeal based on a claim of plain error, the appellant must show ‘the

error was outcome determinative.’” Wood, 580 S.W.3d at 579 (quoting State v. Baxter,

204 S.W.3d 650, 652 (Mo. banc 2006)).

Analysis

Defendant’s first point claims that testimony about methamphetamine found

inside Defendant’s residence should not have been “admitt[ed]” because it was evidence

of prior bad acts and was not legally relevant to the charges brought against Defendant. 2

2 Point 1 states, in its entirety:

The trial court plainly erred in admitting evidence of [Defendant]’s possession of methamphetamine at the time of his arrest because this evidence violated [Defendant]’s rights to be tried only on the charged offenses, due process of law, and a fair trial under the United States Constitution, amendments V, VI, and XIV, and Missouri Constitution article I, sections 10, 17, and 18(a) in that this testimony amounted to improper evidence of ancillary bad acts, with no true admissible purpose, encouraging the jury to convict [Defendant] based upon the implication that he is a drug dealer, rather than their conclusion that the state proved [Defendant] guilty of the charged offenses.

2 Defendant’s second point claims the circuit court plainly erred in “admitting” improper

character evidence of Defendant’s violent, erratic, and unstable behavior. 3 We address

both points together as they fail for the same reason.

Defendant’s claim that the circuit court erred in “admitting” the unchallenged

testimony is an ineffectual attempt to characterize inaction (the lack of action) as a ruling

or action taken by the trial judge. See Rule 84.04(d)(1)(A) (appellant shall “[i]dentify the

trial court ruling or action that the appellant challenges” (emphasis added)). No action

was taken by the trial judge because Defendant never objected to any of the questions

that elicited the testimony that Defendant now challenges on appeal. See State v.

Fulliam, 154 S.W.3d 423, 426 (Mo. App. S.D. 2005) (“A specific objection to evidence

when offered at trial is required to preserve the issue of the admissibility of the evidence

for appellate review”).

Defendant was not charged or convicted of possession of methamphetamine. “As a general rule, evidence of prior uncharged crimes and prior bad acts are inadmissible for the purpose of showing the propensity of the defendant to commit such crimes.” State v. Cosby, 976 S.W.2d 464, 468 (Mo. App. E.D. 1998). “However, evidence of prior bad acts is admissible if it is both legally and logically relevant.” Id. 3 Point 2 states, in its entirety:

The trial court plainly erred in overruling admitting [Victim] to testify to [Defendant]’s general character as violent, erratic, and unstable person because this evidence violated [Defendant]’s rights to be tried only on the charged offenses, due process of law, and a fair trial under the United States Constitution, amendments V, VI, and XIV, and Missouri Constitution article I, sections 10, 17, and 18(a) in that this testimony amounted to improper general character evidence which [Victim] did not qualify as within her personal knowledge and such evidence held no true admissible purpose, encouraging the jury to convict [Defendant] based upon their belief that is dangerous and unpredictable, rather than their conclusion that the state proved [Defendant] guilty of the charged offenses.

“[C]haracter evidence does not involve proof of specific prior instances of conduct, but constitutes evidence that concerns a person’s reputation, such as whether someone in the defendant’s community views the defendant as a law-abiding citizen, a peaceable person, a truthful person, or as having any other general character trait.” State v. Shockley, 410 S.W.3d 179, 193 (Mo. banc 2013).

3 What Defendant actually claims -- without citation to any relevant authority -- is

that the trial judge had a duty to, sua sponte, take some kind of “action” to interrupt the

testimony at issue, presumably by cutting off the witness’s answer and either issuing a

curative instruction or declaring a mistrial. To the contrary, the “failure” of the judge to

do so is understandable and laudable, in that “[u]ninvited 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. Paine, 631 S.W.3d 691, 694 (Mo. App. W.D.

2021).

The general rule is that if otherwise inadmissible evidence is elicited without

objection, it may be considered in determining whether a submissible case has been

made, its weight being an issue for the jury to determine. State v. Gibbs, 664 S.W.3d

742, 749 (Mo. App. S.D. 2023) (citing State v. Edwards, 116 S.W.3d 511, 545 (Mo. banc

2003)). “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.

Because Defendant has failed to establish a facially evident, obvious, and clear

error was committed by the circuit court, we decline plain-error review and affirm the

presumed-correct judgment of the circuit court. See State v. Pendergraft, 688 S.W.3d

762, 766 (Mo. App. W.D. 2024) (The defendant “bears the burden of showing that plain

error occurred . . . .”) (internal quotation omitted).

DON E. BURRELL, J. – OPINION AUTHOR

JACK A. L. GOODMAN, C.J. – CONCURS

MATTHEW P. HAMNER, J. – CONCURS