Missouri Court of Appeals Southern District
In Division STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD37762 ) Filed: October 17, 2023 KENNY JACKSON, ) ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY
Honorable Michael Pritchett, Circuit Judge
DISMISSED IN PART AND AFFIRMED
Kenny Jackson (“Jackson”) appeals the trial court’s judgment convicting him, after a jury
trial, of trafficking of a controlled substance in the first degree under Section 195.222, possession
of a controlled substance with the intent to distribute under Section 195.211, and unlawful
possession of a firearm under Section 571.070. 1 Jackson raises five points on appeal. In Point I,
Jackson argues the trial court plainly erred by submitting Instruction No. 7 as the verdict director
for Count 1 when Instruction No. 7 did not include a definition of “possessed.” In Points II and
V, Jackson argues the trial court plainly erred by not sua sponte dismissing the charges against
1 All statutory references are to RSMo 2016, including, as applicable, statutory changes effective January 1, 2017. All rule references are to Missouri Court Rules (2022). him due to a speedy trial violation and then later by failing to sua sponte declare a mistrial when
the State improperly presented other crimes evidence against Jackson. In Points III and IV,
Jackson contends the State failed to present sufficient evidence from which a reasonable juror
could convict him of Counts 2 and 3, respectively. Jackson now argues Point III is moot because
the trial court has expunged all records related to Count 2 and vacated his Count 2 sentence. We
agree. We dismiss Jackson’s Point III as moot and otherwise affirm the trial court’s judgment.
Factual Background and Procedural History
“On appeal, we view the evidence in the light most favorable to the verdict and grant the
State all reasonable inferences that can be drawn from that evidence.” State v. Hilleman, 634
S.W.3d 709, 711 (Mo.App. 2021). Viewed from this perspective, the following evidence was
adduced at trial.
On March 8, 2016, officers with the Poplar Bluff Police Department (the “officers”)
executed a search warrant at 627 Dewey Street in Poplar Bluff (the “residence”). Jackson, his
girlfriend, another man, and three children, two of whom were Jackson’s children, were inside
when the officers entered the residence. Only Jackson, his girlfriend, and their children lived at
the residence.
Lieutenant Josh Stewart (“Lieutenant Stewart”) of the Poplar Bluff Police Department
testified he and other officers breached the front door of the residence. Lieutenant Stewart
observed Jackson standing by a kitchen counter and then saw Jackson run into a bathroom.
Lieutenant Stewart followed Jackson and saw Jackson exit the bathroom about five seconds later.
Lieutenant Stewart could hear the toilet flushing and ordered Jackson to the ground. After
securing Jackson, Lieutenant Stewart observed the toilet was not filling all the way. The toilet
2 was eventually removed and the officers found a plastic bag containing 55.03 grams of
methamphetamine in the toilet drainpipe.
The officers also found two plastic bags on the kitchen counter near where Jackson was
standing when the officers breached the front door of the residence. One bag contained 3.32
grams of methamphetamine, and the other bag contained a crystalline substance used by
methamphetamine dealers as a cutting agent for methamphetamine. On the same kitchen
counter, the officers also found a digital scale, approximately $2,700 cash, and approximately
four grams of marijuana.
The officers also found two firearms in a dresser drawer in the master bedroom. In the
same dresser, the officers found Jackson’s driver’s license and non-driver’s license, his
girlfriend’s driver’s license and non-driver’s license, mail with Jackson’s name, mail with his
girlfriend’s name, a blue thermos containing 37 grams of marijuana, and a Rubbermaid container
containing loose marijuana. The officers found men’s deodorant on top of the dresser. The
officers discovered another firearm and a total of 139.63 grams of methamphetamine under the
bed in the master bedroom. In bodycam footage admitted at trial, Jackson’s girlfriend told the
officers the firearms were not hers and she did not know how the firearms came to be in the
residence.
The State charged Jackson with trafficking of a controlled substance in the first degree
under Section 195.222 (Count 1), possession of a controlled substance with the intent to
distribute under Section 195.211 (Count 2), and unlawful possession of a firearm under Section
571.070 (Count 3) (related only to the two firearms found in the dresser drawer and not the
firearm found under the master bedroom bed). The State charged Jackson as a persistent drug
offender under Section 579.170 and a persistent offender under Section 558.016. The jury found
3 Jackson guilty of all counts. The trial court entered judgment and sentenced Jackson to 20 years’
imprisonment on Count 1, 15 years’ imprisonment on Count 2, and 10 years’ imprisonment on
Count 3, with all sentences to run concurrently. Jackson appealed. To the extent additional
factual background or procedural history is necessary to resolve any point on appeal, it is
included in the discussion of each point. For ease of analysis, we consider Jackson’s points out
of order.
Point I – Instructional Error
In Point I, Jackson alleges the trial court plainly erred in submitting Instruction No. 7, the
verdict director for trafficking of a controlled substance in the first degree (Count 1), because
Instruction No. 7 contained no definition of “possessed,” which Jackson alleges resulted in
manifest injustice because possession was an essential element of the offense and the omission of
the definition of “possessed” from Instruction No. 7 relieved the State of its burden to prove
every element of the offense charged.
Jackson’s counsel affirmatively responded he had no objection to the form of Instruction
No. 7 during the instruction conference at trial, and Jackson did not raise any issue of
instructional error in his motion for new trial. Jackson requests plain error review.
Standard of Review
“Instructional error requires reversal when the error is ‘so prejudicial that it deprived the
defendant of a fair trial.’” State v. Brandolese, 601 S.W.3d 519, 531 (Mo. banc 2020) (quoting
State v. Sanders, 522 S.W.3d 212, 215 (Mo. banc 2017)). “All prejudicial error, however, is not
plain error, and plain errors are those which are evident, obvious, and clear.” Id. (quoting State
v. Baumruk, 280 S.W.3d 600, 608 (Mo. banc 2009)). “But even if the instructional error is
evident, obvious and clear, the defendant must ‘demonstrate that the trial court so misdirected or
4 failed to instruct the jury as to cause manifest injustice or a miscarriage of justice.’” Id. (quoting
State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007)). “Moreover, ‘plain error review is
discretionary,’ and ‘this Court will not use plain error to impose a sua sponte duty on the trial
court to correct Defendant’s invited errors.’” Id. (quoting State v. Bolden, 371 S.W.3d 802, 806
(Mo. banc 2012)).
Analysis
The trial court submitted Instruction No. 7 as the verdict-directing instruction for
trafficking of a controlled substance in the first degree. The instruction stated, in part:
As to Count 1, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about March 8th, 2016, in the County of Butler, State of Missouri, the defendant possessed more than 30 grams of methamphetamine, and
Second, that such conduct was a substantial step toward the commission of the offense of trafficking in the first degree by attempting to distribute more than 30 grams or more of any material containing any quantity of methamphetamine, a controlled substance, and
Third, that defendant engaged in such conduct for the purpose of committing such trafficking in the first degree,
then you will find the defendant guilty of trafficking in the first degree.
Jackson now asserts the trial court should have included in Instruction No. 7 a definition
of “possessed.” The Notes on Use to MAI-CR3d 325.11.2, the pattern instruction for trafficking
of a controlled substance in the first degree, do not list “possessed” as a term that must be
defined despite note 4 listing several terms that must be defined. 2 But note 2 in the Notes on Use
to MAI-CR3d 325.02, the pattern instruction for “Controlled Substances: Possession,” states:
“Section 195.202 makes it unlawful for any person to possess or have under his control a
2 We refer to the Missouri Approved Instructions-Criminal 3rd as MAI-CR3d. Because the alleged crime at issue in Count 1 occurred on or about March 8, 2016, MAI-CR3d was the applicable MAI.
5 controlled substance. This instruction submits that defendant possessed the substance. . . . The
term ‘possessed’ must be defined.” MAI-CR3d 325.02 sets out the following definition of
“possessed”:
As used in this instruction, the term “possessed” means either actual or constructive possession of the substance. A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who is not in actual possession has constructive possession if he has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons. (Possession may also be sole or joint. If one person alone has possession of a substance, possession is sole. If two or more persons share possession of a substance, possession is joint.)
Jackson argues State v. Farris, 125 S.W.3d 382 (Mo.App. 2004), is on-point and
demonstrates the trial court’s failure to include a definition of “possessed” in Instruction No. 7 is
plain error necessitating reversal and remand for a new trial. 3 In Farris, Farris argued the trial
court plainly erred in denying Farris’s request to instruct the jury on the definition of possession
in the verdict director for attempt to manufacture methamphetamine. Id. at 385. The court
reversed and remanded for a new trial, holding the trial court plainly erred by failing to instruct
the jury on the definition of possession, an element of attempt to manufacture methamphetamine,
as charged by the State. Id.
We agree with Jackson that Farris, along with MAI-CR3d 325.02, shows the trial court
erred by not defining “possessed” in Instruction No. 7 when the State chose to make possession
an essential element of the crime of trafficking of a controlled substance in the first degree as
charged in Count 1.
3 Jackson also relies on State v. Pliemling, 645 S.W.3d 86, 92 (Mo.App. 2022), where the court granted plain error review and relief when it determined Pliemling “suffered a manifest injustice when she was found guilty of a felony offense, rather than a misdemeanor, without the jury making all requisite findings to support the felony classification.” While Pliemling is an example of the Southern District affording plain error review and granting relief, it is so factually distinguishable to be of no guidance to our resolution of this case.
6 However, the trial court’s failure to sua sponte define “possessed” in Instruction No. 7
amounts to plain error only if Jackson’s possession of the controlled substance was in serious
dispute. See State v. Stover, 388 S.W.3d 138, 154 (Mo. banc 2012) (“Plain error exists when an
instruction omits an essential element and the evidence establishing the omitted element was
seriously disputed.”); Cooper, 215 S.W.3d at 126 (“[I]f the evidence establishing the omitted
element was not in dispute, the jury’s verdict would not have been affected and no plain error
relief need be given.”); State v. Harrell, 342 S.W.3d 908, 921 (Mo.App. 2011) (“But Farris also
does not stand for the proposition that the failure to give a definition required by the substantive
law is per se prejudicial for purposes of plain error review.”).
Jackson relies on Farris, where the court declined to find the evidence of possession
“beyond serious dispute” where Farris was one of three persons in a car he did not own. Farris,
125 S.W.3d at 394. Several items were found in the locked trunk of the car. Id. Although Farris
was a passenger in the car and some items were found on the passenger side of the road, it was
unclear whether Farris was in the front or back seat and whether items were thrown from the
front or back seat. Id. It was also disputed whether Farris was present when a witness saw some
individuals parked on the side of the road and engaged in the manufacturing process. Id. The
court also noted that the case involved constructive possession, and that the State in closing
argument argued a “concept of possession” contrary to the statutory definition of constructive
possession and explicitly rejected by the Supreme Court of Missouri. Id. Farris is
distinguishable from this case on its facts, and because it involved constructive possession only,
and because here there is no claim that the State argued a “concept of possession” contrary to
Missouri law. In fact, as discussed below, Jackson does not dispute the jury received the correct
definition of “possessed” in two other jury instructions.
7 We reject Jackson’s argument that whether he possessed methamphetamine was in
serious dispute. While Jackson did not concede he “possessed more than 30 grams of
methamphetamine,” we find his possession of more than 30 grams of methamphetamine was
“beyond serious dispute.” Even assuming Jackson contested his possession of methamphetamine
found elsewhere in the residence, it was “beyond serious dispute” that Jackson “possessed” the
methamphetamine discovered in the toilet drainpipe. See State v. Michael, 234 S.W.3d 542,
554-55 (Mo.App. 2007) (finding no plain error in the trial court failing to sua sponte define
“possession” in the verdict directors for possession of drug paraphernalia with intent to
manufacture controlled substances and possession of ephedrine with intent to manufacture
methamphetamine “when the evidence established ‘beyond serious dispute’ Defendant’s
possession of materials used to make methamphetamine”); State v. Smith, 157 S.W.3d 687, 696
(Mo.App. 2004) (finding no plain error in the trial court failing to sua sponte define “possession”
in the verdict director for attempted manufacturing when the evidence established actual
possession “beyond serious dispute” where, when officers located Smith and chemicals and
equipment commonly used in the manufacture of methamphetamine, Smith was alone and
locked in a basement accessible only by a separate stairway entrance).
The reasoning in Michael and Smith applies here. Lieutenant Stewart observed Jackson
run into and exit the bathroom and heard the toilet flush. Although Lieutenant Stewart testified
he did not observe anything, including illegal substances, on Jackson when Jackson ran,
Lieutenant Stewart’s testimony demonstrates Jackson’s possession of the methamphetamine
found in the toilet drainpipe was “beyond serious dispute.” And this is true even though, as
Jackson notes, others were in the residence when Lieutenant Stewart observed Jackson run into
and exit the bathroom and heard the toilet flush. The presence of others in the residence may
8 have created a contested issue as to methamphetamine found elsewhere in the residence but not
as to the methamphetamine found in the toilet drainpipe, which amounted to more than 30 grams
of methamphetamine, as charged by the State in Count 1.
Jackson argues that the trial court’s failure to define “possessed” in Instruction No. 7 was
even more confusing and prejudicial given that the trial court included the following definition of
“possessed” in Instruction No. 9 for Count 3, unlawful possession of a firearm:
As used in this instruction, the term “possessed” means having actual or constructive possession of an object with knowledge of its presence. A person has actual possession if he has the object on his person or within easy reach and convenient control. A person has constructive possession if he has the power and the intention at a given time to exercise dominion or control over the object either directly or through another person or persons.
The trial court also defined “possessed” in Instruction No. 8, the verdict director for Count 2,
possession of a controlled substance with intent to distribute. Jackson does not challenge the
accuracy of the definition of “possessed” in Instruction Nos. 8 and 9. Jackson argues the
prejudice from defining “possessed” in Instruction Nos. 8 and 9 but not in Instruction No. 7 was
compounded by Instruction No. 6 directing the jury (correctly and consistently with MAI-CR3d
304.12 (now Missouri Approved Instructions-Criminal 4th 404.12)) to consider each count
separately.
Jackson’s argument is not supported by Missouri law. “The established principles which
govern review of an alleged error of omission are that instructions must be considered together
and that absence of language in a particular instruction does not prejudice the defendant if the
subject matter is covered and provided elsewhere in the instruction.” State v. Sandles, 740
S.W.2d 169, 173 (Mo. banc. 1987) (no plain error when instruction erroneously omitted
language specifying the jury had the duty to determine punishment in the penalty phase where
two other instructions contained language virtually identical to the omitted language); State v.
9 Holt, 592 S.W.2d 759, 776 (Mo. banc 1980) (no plain error when the trial court failed to read to
the jury the last paragraph of an instruction setting out the State’s burden to prove guilt beyond a
reasonable doubt where three other instructions included the burden of proof language)
(“Instructions must be considered together. Reading instruction No. 4 with instructions Nos. 5
through 7, it is obvious that the jury was instructed as to the burden on the state to prove each
element of the offense beyond a reasonable doubt.”) (internal citation omitted); State v. Spry,
252 S.W.3d 261, 266 (Mo.App 2008) (no plain error when verdict directors for first-degree
assault and first-degree robbery omitted definition of “serious physical injury” where the
definition was included in the verdict director for second-degree assault); State v. Reed, 243
S.W.3d 538, 541 (Mo.App 2008) (no plain error when verdict director for second-degree
burglary omitted definition of “stealing” where the definition was included in the verdict director
for felony stealing); State v. Mickle, 164 S.W.3d 33, 60-62 (Mo.App 2005) (no plain error when
verdict directors for possession of ephedrine with intent to manufacture methamphetamine and
possession of drug paraphernalia with intent to use to manufacture methamphetamine omitted
definition of “possession” where the definition was included in a separate instruction expressly
applying to the verdict directors).
Unlike the instructions in Farris, which did not define “possession,” two instructions in
this case (Instruction Nos. 8 and 9) correctly defined “possessed” for the jury. Reading the
instructions as a whole, the instructions submitted to the jury the correct legal definition of
“possessed,” further establishing that the trial court’s failure to sua sponte define “possessed” in
Instruction No. 7 did not cause Jackson to suffer manifest injustice or miscarriage of justice
amounting to plain error. Point I is denied.
10 Point III - Sufficiency of the Evidence (Count 2), Now Claimed Moot By Expungement
In his Appellant’s Brief filed in February 2023, Jackson argued the State presented
insufficient evidence for a reasonable juror to convict him of Count 2. In January 2023, Jackson
filed a Petition for Expungement-Marijuana Related Offense(s) in a new case and sought to
vacate his sentence and expunge records related to his conviction in Count 2 for possession of a
controlled substance with intent to distribute. In March 2023, the trial court in the new case
entered its Judgment and Order of Expungement and Order to Vacate the Sentence Marijuana-
Related Offense(s) for a Defendant Currently Incarcerated and ordered Jackson’s sentence
vacated and all records related to Count 2 expunged.
Jackson now argues Point III is moot because his sentence in Count 2 was vacated and all
records related to Count 2 expunged. We agree. Because there is no longer a conviction as to
Count 2, there is nothing left for us to review or determine as to Count 2 on appeal. See
Williams v. Mo. Dept. of Corrs., 556 S.W.3d 107, 110 (Mo.App. 2018) (“Williams’s conviction
and sentence have been vacated. Thus, the ultimate relief he seeks . . . is no longer applicable as
he has neither a conviction nor a sentence.”) (finding underlying cause of action moot and
dismissing appeal); In re Est. of Pethan, 475 S.W.3d 722, 728 (Mo.App. 2015) (dismissing
point on appeal as moot where “[a]ny decision from this court resolving Brother’s current
complaint that the Sanctions Judgment was improvidently entered would have no practical
effect”).
The State argues the trial court lacked jurisdiction to vacate the sentence and expunge
records related to Count 2 during the pendency of this appeal, citing Nicholson v. Surrey
Vacation Resorts, Inc., 463 S.W.3d 358, 367 (Mo.App. 2015), for the general proposition that
“an appeal cuts off trial court jurisdiction to exercise any judicial function in the case and vests
11 the jurisdiction in the appellate court.” But, here, the trial court did not act in the case pending
on appeal and instead vacated the sentence and expunged the records as to Count 2 in an entirely
new case filed by Jackson, which the State did not oppose despite being a named party defendant
and receiving notice. 4 Article XIV, Section 2 of the Missouri Constitution provides for
expungement of certain marijuana-related convictions, and the State does not contend that the
trial court failed to follow the requirements of the Missouri Constitution. Because there is no
longer a sentence or conviction related to Count 2, there is nothing left for us to decide as to
Count 2. Point III is dismissed as moot.
Point IV - Sufficiency of the Evidence (Count 3)
Jackson argues the State failed to present sufficient evidence from which a reasonable
juror could convict him of unlawful possession of a firearm as a convicted felon in Count 3
because the State failed to prove Jackson knowingly possessed the firearms found in the master
bedroom dresser drawer.
“When considering the sufficiency of the evidence on appeal, this Court must determine
whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt.”
State v. Boyd, 659 S.W.3d 914, 925 (Mo. banc 2023) (quoting State v. Belton, 153 S.W.3d 307,
309 (Mo. banc 2005)). “[G]reat deference is given to the trier of fact, and an appellate court will
not weigh the evidence anew.” Id. (quoting State v. Alexander, 505 S.W.3d 384, 393 (Mo.App.
2016)). “The evidence and all reasonable inferences therefrom are viewed in the light most
4 The named defendants in the expungement action were the Missouri Department of Corrections, the Division of Probation and Parole, the Butler County Circuit Court, the Poplar Bluff Police Department, the Butler County Prosecuting Attorney, the Butler County Sheriff Department, and the Missouri State Highway Patrol.
12 favorable to the verdict, disregarding any evidence and inferences contrary to the verdict.” Id.
(quoting Belton, 153 S.W.3d at 309).
“We defer to the fact-finder’s ‘superior position to weigh and value the evidence,
determine the witnesses’ credibility and resolve any inconsistencies in their testimony.’”
Hilleman, 634 S.W.3d at 713 (quoting State v. Lopez-McCurdy, 266 S.W.3d 874, 876 (Mo.App.
2008)). “Circumstantial rather than direct evidence of a fact is sufficient to support a verdict.”
Id. (quoting State v. Lehman, 617 S.W.3d 843, 847 (Mo. banc 2021)). “If circumstantial
evidence supports equally valid inferences, it is up to the fact-finder to determine which
inference to believe.” Id.
Section 571.070 sets out the required elements of the crime of unlawful possession of a
firearm:
1. A person commits the offense of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and:
(1) Such person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony[.]
Jackson challenges only the sufficiency of the evidence concerning whether he
knowingly constructively possessed the firearms found in the master bedroom dresser drawer.
Because it is undisputed that Jackson did not have actual possession of the firearms found in the
dresser drawer, the only disputed issue is whether the State presented sufficient evidence from
which a reasonable juror could determine Jackson knowingly constructively possessed the
firearms found in the dresser drawer. “Possession of a prohibited object therefore has two
distinct elements: (1) ‘conscious and intentional possession . . . either actual or constructive’; and
(2) ‘awareness of the presence and nature’ of the item being possessed.” State v. Ludemann,
13 386 S.W.3d 882, 885 (Mo.App 2012) (quoting State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc
1992)). “Exclusive control of the premises where the item is found raises an inference of access
and control, but joint control requires further evidence connecting the defendant with the item.”
Id. (citing Purlee, 839 S.W.2d at 588). “Examples of such additional evidence include
incriminating statements or other acts showing a consciousness of guilt by the defendant, routine
access to the location of the item, commingling of the item with the defendant’s personal effects,
and the item being in plain view.” Id. at 885-86 (citing State v. Millsap, 244 S.W.3d 786, 789
(Mo.App. 2008)). “Constructive possession is not determined by a ‘precise formula,’ however,
and we look to the totality of the circumstances to determine whether the State has provided the
required additional incriminating evidence.” State v. Stephens, 482 S.W.3d 499, 502 (Mo.App
2016) (citing State v. Kerns, 389 S.W.3d 244, 248 (Mo.App. 2012)).
Jackson argues the State failed to present sufficient evidence of constructive possession
because the officers found the firearms in a different dresser drawer than his other possessions
and in a drawer containing his girlfriend’s items. The State presented evidence that Jackson’s
personal items were located in and on top of the same dresser as the firearms. In addition, the
State’s evidence included bodycam footage where Jackson’s girlfriend told the officers the
firearms were not hers and she did not know how the firearms came to be in the residence. The
State presented evidence that only Jackson and his girlfriend lived at the residence with their
children. The State also presented evidence that the officers found no mail or driver’s license in
the dresser belonging to the other man at the residence when the officers breached the front door
of the residence. The State presented sufficient evidence from which a reasonable juror could
conclude Jackson knowingly constructively possessed the firearms based on the totality of the
circumstances. See State v. Langdon, 110 S.W.3d 807, 813-14 (Mo. banc 2003) (holding the
14 State presented sufficient evidence of constructive possession of a firearm where the State
presented evidence the firearm was located in male defendant’s master bedroom in a dresser
filled with men’s clothes). As in Langdon, the jury could infer, from the presence of the
firearms in the dresser drawer, that Jackson knew the firearms were present, particularly where
the dresser contained Jackson’s personal items and was located in the master bedroom of the
residence where only Jackson, his girlfriend, and their children resided, and Jackson’s girlfriend
told the officers the firearms were not hers and she did not know how they came to be in the
residence. Point IV is denied.
Points II and V - Plain Error Review of Other Crimes and Speedy Trial Violation Claims
In Point II, Jackson alleges the trial court plainly erred in failing to sua sponte declare a
mistrial based on the State’s improper introduction of evidence and references to Jackson’s prior
felony conviction and other interactions with the testifying officers. Jackson alleges the State
improperly elicited testimony suggesting Jackson had prior felony convictions for controlled
substance offenses and improperly emphasized this testimony in closing argument. Jackson
challenges the State’s references in voir dire and closing argument to Jackson’s prior felony
conviction along with testimony from the officers that Jackson’s address was on file with
probation and parole, that they were familiar with Jackson from prior narcotics investigations,
and that they had previously arrested Jackson in his vehicle and at the residence. Following the
State’s opening statement, Jackson and the State entered into a joint stipulation that established
Jackson was convicted of a felony prior to March 8, 2016, and was a convicted felon at the time
of the offense for which he was on trial. Jackson acknowledges he objected to none of the
evidence about which he now complains and requests plain error review.
15 In Point V, Jackson alleges the trial court plainly erred by failing to sua sponte dismiss
the charges against him because the State violated his right to a speedy trial. 5
Because Points II and V both involve discretionary plain error review, we consider them
together.
“Generally, this Court does not review unpreserved claims of error.” Brandolese, 601
S.W.3d at 525. Rule 30.20 allows “plain errors affecting substantial rights [to] be considered in
the discretion of the court when the court finds that manifest injustice or miscarriage of justice
has resulted therefrom.” Rule 30.20. “The plain error rule is to be used sparingly and may not
be used to justify a review of every point that has not been otherwise preserved for appellate
review.” Brandolese, 601 S.W.3d at 526 (quoting State v. Jones, 427 S.W.3d 191, 195 (Mo.
banc 2014)). “Plain error review is discretionary, and this Court will not review a claim for plain
error unless the claimed error ‘facially establishes substantial grounds for believing that manifest
injustice or miscarriage of justice has resulted.’” Id. (quoting State v. Clay, 533 S.W.3d 710,
714 (Mo. banc 2017)).
5 Jackson alleges the trial court “abused its discretion overruling [Jackson]’s motion to dismiss and entering sentence and judgment against him[,]” but then acknowledges “Mr. Jackson’s trial counsel did not renew the motion prior to trial. The standard of review, therefore, would seem to be plain error.” The proper standard of review is plain error:
In cases where the defendant has failed to preserve the speedy trial issue by failing to file a motion to dismiss or failing to include the speedy trial issue in a motion for new trial, and where the argument on appeal is that the trial court failed to sua sponte dismiss the charges, we have found plain error review appropriate.
State v. Oliver, 655 S.W.3d 407, 412 (Mo.App. 2022). We also note that, contrary to his argument on appeal, Jackson did not file a motion to dismiss based on a speedy trial violation. While Jackson did note the “excessive amount of time” he spent awaiting trial in a pro se “Motion for Bail Reduction” and a pro se plea proposal, he did not seek dismissal based on a claimed speedy trial violation.
16 Analysis
As to both Points II and V, we decline plain error review because Jackson has failed to
facially establish manifest injustice or miscarriage of justice from the claimed errors. As to his
claims in Point II concerning improper admission of evidence, Jackson acknowledges he must
establish manifest injustice or miscarriage of justice, but he evaluates the claimed errors under
the five-factor test used in State v. Williams, 659 S.W.3d 376, 378-79 (Mo.App. 2023), to
determine the “prejudicial effect of uninvited evidence of other crimes.” 6 Likewise, as to his
claim of speedy trial violation in Point V, Jackson alleges prejudice under the four-factor test for
evaluating an alleged speedy trial violation. See Barker v. Wingo, 407 U.S. 514, 530 (1972).
The burden of demonstrating manifest injustice or miscarriage of justice “is much greater than
the burden of proving prejudicial error.” State v. Calahan, 589 S.W.3d 740, 743 (Mo.App.
2019) (citing State v. Deckard, 18 S.W.3d 495, 497 (Mo.App. 2000)). See also Brandolese, 601
S.W.3d at 531 (“All prejudicial error, however, is not plain error, and plain errors are those
which are evident, obvious, and clear.”) (quoting Baumruk, 280 S.W.3d at 608). Jackson has
not met his burden, and we decline plain error review. Points II and V are denied.
6 Jackson points to State v. Stockbridge, 549 S.W.2d 648 (Mo.App. 1977), as an example of the cumulative effect of inflammatory comments necessitating plain error review and the grant of a new trial. In Stockbridge, the prosecutor in closing argument referred to the defendant “as a ‘professional’, a ‘pro’, a ‘professional car thief’ and as engaged in ‘stealing cars’, and thus branded him with being a ‘criminal’ of ‘that class or kind’” even though the defendant was charged with assaulting an officer, not with car theft, and the State presented no evidence of any prior criminal conviction of the defendant. Id. at 651. This is a far different case, where the parties stipulated to Jackson’s prior felony conviction, and the alleged inflammatory comments relate to Jackson’s prior interactions with the testifying officers.
17 Conclusion
The trial court’s judgment is affirmed.
GINGER K. GOOCH, J. – OPINION AUTHOR
DON E. BURRELL, J. – CONCURS
JENNIFER R. GROWCOCK, J. – CONCURS