STATE OF MISSOURI v. EUGENE CULPEPPER, JR.

505 S.W.3d 819, 2016 Mo. App. LEXIS 1146
CourtMissouri Court of Appeals
DecidedNovember 9, 2016
DocketSD34231
StatusPublished
Cited by11 cases

This text of 505 S.W.3d 819 (STATE OF MISSOURI v. EUGENE CULPEPPER, JR.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE OF MISSOURI v. EUGENE CULPEPPER, JR., 505 S.W.3d 819, 2016 Mo. App. LEXIS 1146 (Mo. Ct. App. 2016).

Opinions

WILLIAM W. FRANCIS, JR., J.

Eugene Culpepper, Jr. (“Culpepper”), appeals the judgment of the trial court following his convictions for the class B felony of first-degree assault, the unclassified felony of armed criminal action, and the class C felony of second-degree assault. Culpepper challenges the judgment of the trial court in twelve points on appeal. Finding no merit to any of Culpep-per’s points, we affirm the judgment of the trial court.

[823]*823Factual and Procedural Background

“Appellate review of sufficiency of the evidence is limited to whether the state 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). This Court “does not reweigh the evidence but, rather, considers it in the light most favorable to the verdict and grants the state all reasonable inferences.” Id. All evidence and inferences contrary to the verdict are disregarded. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011). The following summary of the relevant facts is presented in accordance with these governing principles. r

Jessica Duck (“Duck”) and Jason Dur-gan (“Durgan”) were in a long and contentious romantic relationship. On February 9, 2015, Duck and Durgan rented a motel room at the Battlefield Inn (“the motel”) in Springfield. In the late evening of February 9, 2015, or early morning of February 10, 2015, Jackie Merryman (“Merryman”)1 and Culpepper arrived at the motel room. Thereafter, Culpepper and Durgan got into an argument. Culpepper threatened to shoot Durgan with a pistol, and when Duck tried to intervene, Culpepper shot her in the wrist. Culpepper then left the motel.

The police were called. When Officer Robert Douglas (“Officer Douglas”), of the Springfield Police Department, arrived at the motel room, Duck told him that Cul-pepper shot her.

The police found a gun lying in the grass between the pool and the fence of the motel. The police also found a bullet hole in the motel room wall and'a shell casing on the motel room floor. Police found Cul-pepper’s EBT2 card on a table in the motel room.

Culpepper was arrested on March 3, 2015, three weeks after the shooting, when a vehicle Culpepper was riding in was stopped for having a broken taillight. When the driver got out of the vehicle, Culpepper jumped into the driver’s seat and drove away. Culpepper was apprehended after a brief chasé, and officers found illegal drugs in the vehicle.

Culpepper was charged by amended information, as a persistent offender, with the class B felony of assault in the first degree (Count I), pursuant to section 565.050; the unclassified felony of armed criminal action (Count II), pursuant to section 571.015; and the class C felony of assault in the second degree (Count III), pursuant to section 565.060.3

Before trial, defense counsel told the trial court that he had an ethical dilemma if the State called Durgan as a witness. He indicated that he had not prepared for Durgan to be a witness, that Culpépper had refused to ask for a continuance, and that he might not be prepared to “effectively represent [Culpepper’s] interests” as a result. The prosecutor stated that Dur-gan was not going to be called as a witness. Defense counsel did not object, but pointed out to the trial court that Culpep-per did not want a continuance. The trial court stated it would not prevent the witness from testifying.

Also prior to trial, the State filed a motion in limine seeking to preclude the introduction of evidence regarding any in[824]*824cidents between Duck and Durgan that did not result in a conviction, and to preclude the introduction of any evidence of any orders of protection that Duck had involving Durgan. Culpepper’s theory of the case was that it was Durgan who shot Duck, and not Culpepper. During the pretrial conference, the State argued that such evidence was inadmissible because there was no direct evidence linking Durgan to the crime. The trial court declined to make an explicit pretrial ruling, but in response to the argument of Culpepper’s defense counsel that Culpepper was the “scapegoat,” the trial court'responded:

Well, what about the point that nobody says—there’s no witness to establish that anybody but your client did the shooting? ... [Yjour client can testify and tell his side of the story [that Dur-gan was the shooter.] Then you can get into all that. ... Well, I mean, you’ll probably have some leeway; I just don’t know that you’re going to have as much as you want. ... And [Culpepper’s] offer of proof may change my mind.

A jury trial commenced on July 28,2015. Culpepper did not testify. Duck testified that prior to the shooting, she had gone into the motel bathroom to take a bath. She testified she heard Culpepper and Durgan arguing, and then heard someone get violently slapped. Duck indicated that, at this point, she got dressed and exited the bathroom. She testified that after Cul-pepper threatened to shoot Durgan, she moved to Durgan’s side. Culpepper then discharged the pistol into her arm.

Duck indicated that when Officer Douglas arrived on the scene, she told him that Culpepper had shot her. She testified she was “kind of shocked that he did it because—I was just shocked.”

Before his cross-examination of Duck, Culpepper’s attorney made an offer of proof concerning the ex parte order of protection Duck had obtained against Dur-gan in October 2014 because of violent behavior toward her in the presence of her children. The ex parte order of protection was still in effect at the time of the shooting. Duck testified that Durgan had been violent with her on another occasion in August 2012. Duck denied she was aware of Durgan’s previous convictions for domestic assault, assault, and harassment prior to her relationship with him. After the offer of proof, the trial court made no further ruling. Culpepper’s attorney then began his cross-examination of Duck.

Before trial on the second day, Culpep-per’s defense counsel—anticipating the testimony of Officer Douglas—made an objection to Officer Douglas being allowed to recite Duck’s statement to him that Cul-pepper was the one who shot her. Defense counsel argued that it was hearsay and did not fall under any hearsay exceptions; that if the State intended to say that the statement was an “excited utterance,” it would not qualify as such because there was sufficient time between the shooting and when Officer Douglas arrived for Duck and Durgan to have fabricated a story; and that it was also cumulative, improper bolstering, and not legally admissible because its probative value outweighed its prejudice. The State rebutted by arguing that the statement was spontaneous and was made at a time of stress and physical pain. The trial court overruled the objection and allowed the testimony.

Officer Douglas testified he arrived at the scene within five minutes of the 911 call. When he arrived, Durgan was in the parking lot “frantically” flagging him down. When the prosecutor asked Officer Douglas what Durgan initially told him in the parking lot, defense counsel made a hearsay objection. The objection was overruled. Officer Douglas testified that Dur-[825]

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Cite This Page — Counsel Stack

Bluebook (online)
505 S.W.3d 819, 2016 Mo. App. LEXIS 1146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-missouri-v-eugene-culpepper-jr-moctapp-2016.