STATE OF MISSOURI, Plaintiff-Respondent v. TRAVIS STERLING

• Court: Missouri Court of Appeals
• Decided: September 5, 2024
• Docket: SD38212
• Status: Published

Opinion

Missouri Court of Appeals Southern District

In Division STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD38212 ) ) Filed: September 5, 2024 ) TRAVIS STERLING, ) ) Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY

Honorable David Andrew Dolan, Judge AFFIRMED

Defendant Travis Sterling (“Defendant”) appeals his conviction for second-degree

trafficking of methamphetamine under §579.068. 1 In his sole point on appeal, Defendant contends

that the trial court abused its discretion when it permitted the State to introduce evidence that the

substance found on scales in his possession was methamphetamine because the State failed to

demonstrate that Corporal J.H.’s expert testimony was reliable. Because Defendant did not make

a foundational objection at trial, and because this Court does not review issues of inadequate

1 Unless otherwise noted, all statutory references are to RSMo 2016, as amended through December 8, 2021, the date of the alleged crimes.

1 foundation raised for the first time on appeal, we decline to consider this point or engage in plain

error review. The Judgment is affirmed.

Factual Background and Procedural History

On December 8, 2021, Defendant was stopped by Corporal J.H. for failing to signal. After

Defendant consented to a search of his person, Corporal J.H. found digital scales in Defendant’s

pocket. Corporal J.H. observed a “white, chalky residue” on the scales and conducted a field test.

The field test indicated a positive result for methamphetamine. The residue on the scales was not

sent to a laboratory for testing. Corporal J.H. then searched Defendant’s vehicle, where he

discovered fourteen small plastic bags and 37 grams of methamphetamine under the driver’s seat.

The evidence discovered under the driver’s seat was sent to the Missouri State Highway Patrol

Crime Lab, where it was confirmed to be methamphetamine. Defendant was charged with second-

degree trafficking of methamphetamine, failure to signal, and failure to maintain proof of

insurance.

At a pretrial conference, Defendant objected to the admission of the scales and the field

test as “proof that [the] substance [was] methamphetamine when no chemical lab tests were

performed” and as highly prejudicial evidence of an uncharged prior act. The Court allowed the

evidence, but granted Defendant a standing objection “as to the admissibility of the evidence of

[Corporal J.H.] regarding any field tests conducted on the scale and of the admission of the scale

into evidence.” Defendant did not object to any foundational issue regarding Corporal J.H.’s

testimony.

At trial, the State introduced photos of the scales, and Corporal J.H. testified that the scales

field-tested positive for methamphetamine. On cross-examination, Corporal J.H. acknowledged

that “field tests are not conclusive” and that he did not send the residue to a laboratory to obtain

2 conclusive results. Defendant did not object to any foundational issue regarding Corporal J.H.’s

testimony. The jury convicted Defendant on all counts.

In his motion for new trial, Defendant argued that Corporal J.H.’s testimony constituted

“testimony of a prior bad act and uncharged crime committed by Defendant.” Defendant did not

object to any foundational issue regarding Corporal J.H.’s testimony. The trial court denied

Defendant’s motion, and sentenced Defendant to twenty years in the Department of Corrections

under §579.068.

Discussion

In his only point on appeal, Defendant argues that the trial court abused its discretion when

it permitted Corporal J.H.’s testimony regarding the scales and field test because the State failed

to demonstrate the reliability of his alleged expert testimony. If, in the alternative, the Court finds

that Defendant failed to preserve the issue for appeal, Defendant requests that this Court engage

in plain error review.

Claims of inadequate foundation or lack of foundation will not be considered for the first

time on appeal. “It is particularly important that, where an inadequate foundation has been laid

for admission of evidence, the objection made be specific as such foundation deficiencies can

frequently be remedied. We will not review the contention of inadequate foundation raised for the

first time on appeal.” State v. Shutters, No. SD 37951, 2024 WL 2932430 at *5 (Mo. App. S.D.

June 11, 2024) (quoting State v. Honsinger, 386 S.W.3d 827, 829 (Mo. App. 2012)).

Defendant contends that there was inadequate foundation for Corporal J.H.’s alleged expert

testimony regarding the scales and field test. Defendant, however, raises this objection for the first

time on appeal. At pretrial conference, Defendant argued that evidence of the field test was highly

prejudicial evidence of an uncharged prior act. While Defendant was granted a standing objection,

3 it was not directed at the foundation for the evidence. At trial, Defendant made no specific

objections when the evidence was introduced. In his motion for new trial, Defendant argued that

Corporal J.H.’s testimony about the field test was evidence of a prior bad act and an uncharged

crime. At no time did Defendant object to Corporal J.H.’s testimony on the grounds of inadequate

foundation. This Court will not review such claim for the first time on appeal.

Failure to make a specific objection to the alleged lack of foundation justifies a denial of

plain error review. See State v. Tisius, 362 S.W.3d 398, 407 (Mo. banc 2012). Further, “[a] claim

after a trial that there was no adequate foundation for an expert’s opinion is not a subject for plain

error review.” Honsinger, 386 S.W.3d. at 829. Even if Defendant had not waived his claim by

failing to make a foundational objection at trial, we would still decline to engage in plain error

review because the record does not facially establish substantial grounds for “manifest injustice.”

Appellate courts have discretion to review “plain errors affecting substantial rights . . .

when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule

30.20. “[A] defendant’s Rule 30.20 burden is much greater – not merely to show prejudice, but

manifest injustice or a miscarriage of justice – which in this context means outcome-determinative

error.” State v. Pike, 614 S.W.3d 651, 656 (Mo. App. W.D. 2021). Conversely, if there is no

facial showing of manifest injustice or miscarriage of justice, appellate courts should decline to

exercise plain error review. State v. Brandolese, 601 S.W.3d 519, 536 (Mo. banc 2020).

Here, there is no facial showing of manifest injustice. The trial judge permitted the State

to introduce evidence of the field test to show that Corporal J.H. conducted a field test that gave a

positive result, not to show “conclusively” that the substance found on the scales was

methamphetamine. Corporal J.H. informed the jury that the field test is not conclusive evidence,

and that no conclusive finding was obtained from a laboratory.

4 Appellant cites State v. Nettles, 216 S.W.3d 162 (Mo. App. S.D. 2006), in arguing that the

field test cannot serve as “sufficient evidence regarding the ultimate fact of whether or not the

substance tested is actually a controlled substance . . . .” At no time did Corporal J.H. testify, or

the State argue, that the substance on the scales was conclusively methamphetamine or that the

field test established that the substance was methamphetamine. The State instead introduced

conclusive evidence that the 37 grams of substance found under Defendant’s seat was

methamphetamine. Nettles is inapposite.

The Court finds that Defendant’s argument does not facially establish substantial grounds

that manifest injustice or miscarriage of justice has resulted in this case. Thus, even if Defendant

had not waived his foundational objection, plain error review would be denied.

Conclusion

The Judgment of the trial court is affirmed.

MATTHEW P. HAMNER, J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCURS

BECKY J.W. BORTHWICK, J. – CONCURS