IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT
STATE OF MISSOURI, ) ) Respondent, ) ) WD84845 v. ) ) OPINION FILED: ) August 22, 2023 JEFFERY E. MORGAN, ) ) Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Charles H. McKenzie, Judge
Before Division One: Gary D. Witt, Chief Judge, Presiding, and Mark D. Pfeiffer and Anthony Rex Gabbert, Judges
Mr. Jeffery Morgan (“Morgan”) appeals from the judgment entered by the Circuit
Court of Jackson County, Missouri (“trial court”), following a jury trial in which he was
found guilty of the felonies of unlawful use of a weapon, armed criminal action, and
unlawful possession of a firearm. We affirm. Facts and Procedural History 1
Morgan and Victim had a “tumultuous” relationship, which included incidents of
abuse, since their marriage in 2015. On June 5, 2015, Morgan became enraged when a
male friend texted Victim to inquire how she was doing. Morgan proceeded to beat
Victim with a belt. In order to document her injuries, Victim took pictures that showed
bruises covering her body. Victim also sustained a vaginal injury when the belt buckle
on the belt Morgan was swinging hit Victim between her legs and sliced her vagina. On
July 19, 2015, Morgan broke a bathroom window to enter Victim’s locked house and
tried to drag Victim out of the closet in which she was hiding. A neighbor called the
police to report an intruder climbing in the window of Victim’s house, and the police
responded. On December 11, 2016, Morgan and Victim argued over Victim’s phone.
Morgan took the phone and refused to give it back. When Victim tried to get it back,
Morgan hit her in the face with his fist. On September 3, 2017, Victim accidently caused
several of Morgan’s laptops to fall off a table. Morgan became upset and choked Victim.
After Morgan left, Victim called the police, and Morgan was arrested. Morgan was not
prosecuted for any of these incidents.
On June 29, 2019, Morgan had not come home or answered Victim’s calls by
3:00 a.m., so she went for a drive in Morgan’s Ford F-150 truck to clear her head. On her
drive, she saw Morgan at a 7-Eleven convenience store. She pulled up behind his
1 “On appeal from a jury-tried case, we view the facts in the light most favorable to the jury’s verdict.” State v. Bowman, 663 S.W.3d 916, 918 n.1 (Mo. App. W.D. 2023) (internal quotation marks omitted).
2 motorcycle. When he approached her vehicle, she asked him where he had been. He
said he had been with a friend, came to get gas at 7-Eleven, and was on his way home.
Victim thought Morgan had a “nonchalant attitude, kind of like . . . a f[*&]k you type
attitude.” When he told her that he was going back in the store, she “looked at his
motorcycle and I wanted to hit it and I hit it. . . . I knew he loved that motorcycle more
than he loved me, so I hit it.” Her truck got stuck after running over the motorcycle, so
she reversed the truck to back over the motorcycle; she then hit the gas as hard as she
could to leave the parking lot. She heard gunshots, and bullets shattered the driver’s side
window and hit the body of the truck. When Victim was about a block away, the truck
stalled, so she ran and hid in someone’s yard and called the police.
A Kansas City Police Department patrol officer was dispatched to the 7-Eleven at
about 4:00 a.m. and recovered twelve shell casings, all 9x19 millimeter fitting in a
nine-millimeter handgun. A Kansas City Police Department detective executed a search
warrant at Morgan and Victim’s residence. He found one live nine-millimeter round,
seventy-nine other live rounds, and boxes for a nine-millimeter Taurus handgun and a .45
caliber Glock 30. The detective also found a black and chrome Harley-Davidson
motorcycle with damage to the right side. At the tow lot, the detective inspected the Ford
F-150 truck Victim was driving that night and found two bullet holes in it.
On August 23, 2019, Morgan was charged with the class B felony of unlawful use
of a weapon for knowingly discharging a firearm at a motor vehicle; the unclassified
felony of armed criminal action for committing the felony of unlawful use of a weapon
with a deadly weapon; and the class D felony of unlawful possession of a firearm for
3 knowingly possessing a 9 mm handgun after previously being convicted of the felony of
trafficking in drugs/attempted trafficking in drugs in the second degree. Subsequently,
the trial court granted the State leave to file a first amended information in lieu of
indictment, charging Morgan as a prior and persistent offender.
On October 22, 2019, the State filed a motion to deny Morgan’s phone, mail, and
visitation privileges. The trial court held a hearing on the motion. The trial court
sustained the motion in part, relating to phone and mail privileges, and denied the motion
in part, permitting visitation.
On November 5, 2020, Morgan’s counsel moved for leave of court to withdraw as
his attorney of record. After a hearing, the trial court denied the motion on January 11,
2021.
On June 23, 2021, the State moved the trial court to admit evidence of prior bad
acts committed by Morgan against Victim, arguing that the evidence established
Morgan’s intent, motive, common scheme, absence of mistake or accident, and identity;
related to Morgan’s actions leading up to the charged offenses; and provided the jury
with a complete picture of the incident, putting both Morgan’s conduct and Victim’s
reactions into context. The trial court sustained the State’s motion.
The trial court found beyond a reasonable doubt that Morgan was a prior and
persistent offender and conducted a jury trial on July 6-8, 2021. The State’s evidence
included the testimony of Victim, the patrol officer, and the detective. Morgan moved
for acquittal at the conclusion of the State’s evidence and at the close of all evidence.
The trial court denied the motions. Morgan also moved for a directed verdict, which the
4 trial court denied. Morgan testified on his own behalf, admitting that he shot at Victim’s
truck twelve times but claiming that he fired the weapon in self-defense.
The jury found Morgan guilty beyond a reasonable doubt of the offenses as
charged. The trial court entered its judgment on the jury’s verdict on September 17,
2021, and sentenced Morgan to the following terms of imprisonment: fifteen years on
the unlawful use of a weapon charge, three years on the armed criminal action charge,
and three years on the unlawful possession of a firearm charge, with all sentences to run
concurrently. Morgan filed a motion for new trial, challenging, in pertinent part, the trial
court’s admission of Morgan’s prior bad acts. The trial court denied the motion.
Morgan timely appealed. Additional facts will be addressed in our analysis of
Morgan’s claims on appeal.
Points on Appeal
Morgan asserts three points on appeal. In Morgan’s first two points, he contends
that the trial court abused its discretion in overruling his objection to the admission of
testimonial prior-bad-acts evidence (Point I) and to the admission of photographic
prior-bad-acts evidence (Point II). Because the points are related, we will address them
together. In Morgan’s third point, he argues that the trial court erred in denying him mail
and telephone privileges after he asserted his right to self-representation.
Standard of Review
“We review the trial court’s decision to admit or exclude evidence at trial for
abuse of discretion.” State v. Bowman, 663 S.W.3d 916, 923 (Mo. App. W.D. 2023). “A
trial court abuses its discretion when its ruling admitting or excluding evidence is clearly
5 against the logic of the circumstances then before the court and is so unreasonable and
arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate
consideration.” Id. (internal quotation marks omitted). “Evidentiary error alone does not
require reversal; the appellant must have suffered prejudice as a result of the admission of
the evidence.” Id. “Trial court error in the admission of evidence is prejudicial if the
error so influenced the jury that, when considered with and balanced against all of the
evidence properly admitted, there is a reasonable probability that the jury would have
reached a different conclusion without the error.” Id. (internal quotation marks omitted).
Because Morgan’s claim of error concerning the trial court’s denial of mail and
telephone privileges was not included in his motion for new trial, it is not preserved for
our review. State v. Hilbert, 663 S.W.3d 462, 465 (Mo. banc 2023). However,
Rule 30.20 gives appellate courts discretion to review “plain errors affecting substantial
rights . . . when the court finds that manifest injustice or miscarriage of justice has
resulted therefrom.” 2 Plain error review is a two-step process:
The first step requires a determination of whether the claim of error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear. If plain error is found, the court then must proceed to the second step and determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.
Hilbert, 663 S.W.3d at 465 (quoting State v. Minor, 648 S.W.3d 721, 731 (Mo. banc
2022)).
2 All rule references are to I MISSOURI COURT RULES – STATE 2023.
6 Analysis
Points I and II
In Morgan’s first and second points, he contends that the trial court abused its
discretion in overruling his objection to the admission of prior-bad-acts evidence because
the prior bad acts were neither logically nor legally relevant to the issues before the jury
and the prejudicial effect of the prior-bad-acts evidence outweighed its probative value.
Prior to trial, the State filed a motion to admit evidence of prior bad acts
committed by Morgan against Victim, arguing that the evidence established Morgan’s
continuing animus toward Victim, which was especially probative in establishing motive
and intent. The State further argued that Morgan’s prior abusive behavior directed at
Victim tended to put Morgan’s behavior in the proper context, which allowed the State to
present a complete and coherent picture of the events that led up to the current charges
against Morgan. Morgan countered that the State’s use of prior-bad-acts evidence was
for propensity purposes and would unduly prejudice the jury. The trial court sustained
the State’s motion.
At trial, the State questioned Victim about her relationship with Morgan, which
she described as “[t]umultuous.” When the State asked Victim whether there were
incidents where Morgan abused her prior to the charged incident, Morgan renewed his
objection to admission of the prior-bad-acts testimony. The trial court overruled the
objection, and Victim testified that Morgan had abused her four times in the past: when
he struck her with a belt, when he tried to pull her out of a closet, when he struck her in
the face after taking her phone, and when he choked her after they argued. The State then
7 asked Victim to identify seven photographs that she took of her injuries after Morgan
beat her with a belt. The trial court overruled Morgan’s objection to admissibility, and
the photographs were published to the jury.
Generally, evidence of prior uncharged crimes, wrongs, or acts is excluded in
order to prevent the jury from “us[ing] the evidence of the uncharged crime to infer the
defendant has a general criminal disposition, a bad character, or propensity or proclivity
to commit the type of crime charged, and in turn, basing a finding of guilt on the
uncharged crime.” State v. Jackson, 636 S.W.3d 908, 920 (Mo. App. W.D. 2021)
(internal quotation marks omitted). However, such evidence may be admissible if
otherwise logically and legally relevant. Id. at 921.
“Evidence is logically relevant if it tends to make the existence of a material fact
more or less probable.” Id. “Evidence of uncharged crimes, wrongs, or acts may be
logically relevant to establish the defendant’s motive, intent, absence of mistake or
accident, identity, or common scheme; a complete and coherent picture of the
circumstances and events surrounding the charged crime; or any other material fact.” Id.
(internal quotation marks omitted). “[L]ogical relevance is a very low-level test that is
easily met.” Id. (internal quotation marks omitted).
Particularly in cases involving an alleged assault of a victim by the defendant, 3
Missouri courts have held that “prior misconduct by the defendant toward the victim is
3 Morgan argues that the exceptions to the exclusion of prior-bad-acts evidence for prior acts of domestic abuse in assault, murder, or attempted murder cases do not support the inclusion of the prior-bad-acts evidence in this case because Morgan was charged with unlawful use of a weapon for firing at a motor vehicle, armed criminal action, and
8 logically relevant to show motive, intent, or absence of mistake or accident.” State v.
Tolliver, 101 S.W.3d 313, 315 (Mo. App. E.D. 2003) (citing State v. Danikas, 11 S.W.3d
782, 789-90 (Mo. App. W.D. 1999) (collecting cases)). “Such evidence is only
admissible for those purposes, however, if the defendant puts motive, intent, mistake or
accident at issue in the case.” Id. (citing State v. Conley, 873 S.W.2d 233, 237 (Mo. banc
1994)). “Raising self-defense to an assault charge puts motive and intent squarely at
issue, thereby making evidence of prior assaults against the same victim relevant.” Id.;
see also State v. Arney, 731 S.W.2d 36, 41 (Mo. App. S.D. 1987) (“[W]here a defendant
asserts self-defense, in general, prior criminal acts of violence between the parties is held
admissible.”).
Morgan put motive and intent squarely at issue in this case by claiming that he
only discharged his weapon at the truck Victim was driving in self-defense because the
truck was headed back in his direction and he felt he was in danger. Morgan testified that
unlawful possession of a firearm, and not with assault or domestic assault. But, the prior-bad-acts “exceptions” referred to in these cases (motive, intent, absence of mistake or accident, common scheme, identity) are not limited to assault or murder cases. See State v. Arney, 731 S.W.2d 36, 40 (Mo. App. S.D. 1987) (itemizing cases applying these evidentiary exceptions to cases of burglary, drug possession, and embezzlement). Instead, the focus of cases applying such evidentiary exceptions relates to whether the prior acts of the defendant bear logical and legal relevance regarding defendant’s claims, relating to, for example, the “motive” or “intent” with regard to the actions of the defendant in the current criminal case for which he has been charged. Here, Morgan put motive and intent at issue by claiming that he acted in self-defense. See State v. Morgan, 137 S.W.3d 477, 480 (Mo. App. S.D. 2004) (“When motive or intent is at issue in an assault case (as it is here), prior misconduct by the defendant is logically relevant to demonstrate such motive or intent. . . . [P]rior incidents of misconduct further showed Defendant’s animosity toward Victim and his willingness to commit violence toward her.”).
9 when Victim left the 7-Eleven parking lot, she hit water, lost control of the truck, and
spun out. Morgan testified that:
the truck was pointed dead at me coming back towards the parking lot. . . . And as she was coming up to the entrance on the side of 7-Eleven, the truck started veering like she was coming back in the entrance. I pulled my weapon at that time. And when I fired, she yanked the wheel and ducked down and hit the gas.
According to Morgan, Victim began to leave after the second or third shot, but he
continued to shoot, shooting a total of twelve times. Morgan testified that he felt he was
in danger and using his weapon was reasonable “[b]ecause I’m a 185-pound man up
against a 4,000 pound truck.” “[E]vidence that [Morgan] committed numerous assaults
on [Victim] in the past was probative of whether [he] acted in self-defense during the
charged incident[ ] or in fact intended to cause [Victim] serious physical injury.”
Tolliver, 101 S.W.3d at 316.
“If evidence of uncharged crimes, wrongs, or acts tends to prove something other
than the defendant’s propensity to commit the crimes for which he is charged, then the
question becomes whether the evidence is legally relevant.” Jackson, 636 S.W.3d at 921.
“Evidence is legally relevant if its probative value outweighs its costs—‘unfair prejudice,
confusion of the issues, misleading the jury, undue delay, waste of time, or
cumulativeness.’” Id. (quoting State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002)).
Victim’s testimony about Morgan’s prior uncharged acts of abuse put Morgan and
Victim’s relationship in context, showed Morgan’s animus toward Victim, provided a
potential explanation for Victim’s intentional action in hitting Morgan’s motorcycle and
Morgan’s lethal response in firing his gun at the vehicle she was driving, and gave a
10 “complete and coherent picture of the events that transpired” on June 29, 2019. See State
v. Primm, 347 S.W.3d 66, 71 (Mo. banc 2011) (“[E]vidence of uncharged crimes may be
admissible to provide the trier-of-fact with a ‘complete and coherent picture of the events
that transpired.’” (quoting State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994))).
Our “standard of review affords great deference to the trial court’s assessment of
whether evidence is legally relevant.” State v. Kelly, 604 S.W.3d 672, 680 (Mo. App.
W.D. 2020) (quoting State v. Clover, 924 S.W.2d 853, 856 (Mo. banc 1996)). The trial
court is in a better position to assess the possible prejudicial effect of evidence against the
probative value of the evidence, a determination that necessarily requires the trial court
“to consider and understand the circumstances within the trial.” Id. (quoting Clover, 924
S.W.2d at 856).
The trial court could reasonably have determined that the probative value of the
evidence that Morgan committed numerous assaults on Victim in the past was not
outweighed by any prejudicial effect it may have had. The trial court did not abuse its
discretion in admitting the prior-bad-acts evidence.
Points I and II are denied.
Point III
In Morgan’s third point, he argues that the trial court erred in denying him mail
and telephone privileges after he asserted his right to self-representation. He contends
that the trial court’s ruling coerced his waiver of the right to self-representation. Because
this claim of error was not included in Morgan’s motion for new trial, our review is for
plain error.
11 On October 18, 2019, the trial court scheduled Morgan’s jury trial for July 13,
2020. On October 22, 2019, the State filed a motion to deny Morgan’s phone, mail, and
visitation privileges. The trial court held a hearing on the motion on November 8, 2019.
The prosecutor informed the court that she had “voluminous” letters and evidence of
telephone calls made by Morgan to Victim during the pendency of the action. According
to the prosecutor, when she drafted the motion, Morgan had placed 177 calls to Victim’s
cell phone and 232 calls to her home phone; and when the prosecutor checked on the day
of the hearing, she found that the last phone call Morgan made to Victim was on
October 29, about a week before the hearing.
The prosecutor also informed the court that Morgan continued to contact Victim
indirectly by having his nephew or daughter three-way call the Victim so Victim would
not know it was Morgan on the phone. Morgan also asked his nephew to send Victim
text messages. The prosecutor read highlights from sixteen letters Morgan sent Victim,
asking Victim to not come to court and to not participate in the prosecution, which
dissuasion the prosecutor described as “victim tampering.” The prosecutor told the court
that Morgan called Victim’s son and said, “Man, I need you to do me a favor because you
got—make sure she does not show.” Morgan also called his nephew almost every day
asking him to go over to Victim’s house to check up on her and see what she was doing,
and to tell Morgan what cars were parked there.
The prosecutor advised the trial court that Victim was “very afraid” of the
communication that Morgan had with her and of Morgan’s nephew driving by her house.
Victim was very fearful that Morgan would influence other people to do something to
12 her. The prosecutor advised the court that even though defense counsel told Morgan not
to call Victim any more, Morgan still made fourteen phone calls to Victim since the last
court date, and he told his nephew to keep checking up on Victim and updating him.
Based upon Morgan’s actions, the State asked the trial court to deny Morgan all
privileges for the phone, mail, and visitation other than to consult with his attorney on his
defense.
Defense counsel argued that the majority of Morgan’s calls to Victim had to do
with their marital situation. Counsel agreed that Morgan should not be writing Victim
letters but said that Morgan’s conversations with family members and friends were
“absolutely necessary for him to obtain assistance in supporting his defense, financially
or otherwise.”
The trial court sustained the motion in part, relating to phone and mail privileges,
and denied the motion in part, permitting visitation. The trial court reasoned: “I think
there has to be an analysis of this, not only as it relates to the rights of the defendant and
communication, but also balancing with that the right to a fair administration of justice
and also the right of people being free of any unwanted communication.”
On July 10, 2020, the trial was rescheduled. Defense counsel filed a motion for
leave of court to withdraw as attorney of record on November 5, 2020. The trial court
held a hearing on the motion on December 2, 2020, at which Morgan confirmed that he
13 wanted to represent himself. The trial court stated it would prepare a waiver of counsel
form for Morgan to review before holding a Faretta 4 hearing.
On January 4, 2021, Morgan filed a motion requesting that the trial court reinstate
all of his privileges. The trial court held a hearing on that motion on January 11, 2021.
Victim testified that, despite the trial court’s order denying Morgan mail privileges, she
had continued to receive written correspondence from Morgan. In the correspondence,
Morgan asked Victim to not testify against him. The trial court found that Morgan wrote
the letters to Victim in violation of the trial court’s previous order because the trial court
ruled that Morgan “didn’t have mail privileges other than with his lawyer and he’s
obviously getting mail to [Victim],” telling her to not testify and to not go to depositions.
The trial court explained:
And so, Mr. Morgan, I’m not going to change the privileges. That makes it a situation where you will not have the ability to use a telephone and you will not have the capability, as far as I’m concerned, to write letters. You can still conduct discovery, I’ll still let you take depositions if that’s what you wanted to do.
But anyway, Mr. Morgan, you would always be able to file motions and send correspondence to the Court, but I’m not going to change the phone privileges, I’m not going to change that you—the issue of writing letters because I find that it appears to be an issue where you’re trying to persuade one of the State’s witnesses from testifying and cooperating with the State.
So with that in mind, do you still want to represent yourself knowing that you don’t have phone privileges, and I find it other than getting documents to us, that you want to proceed as your own lawyer?
Mr. Morgan: No, I find that it is unable to do [sic] without my privileges.
4 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
14 The Court: I understand. So do you want [defense counsel] to continue to represent you at this time?
Mr. Morgan: Yes.
Tr. vol. 4, 24-25. 5 Morgan was represented by counsel at his jury trial conducted on
July 6-8, 2021.
“A trial court may use its inherent powers and impose sanctions when parties act
in bad faith.” Hale v. Cottrell, Inc., 456 S.W.3d 481, 488 (Mo. App. W.D. 2014). “Trial
courts are encouraged to use them sparingly, wisely, temperately, and with judicial
self-restraint.” Id. (internal quotation marks omitted). “[S]anctions imposed under the
court’s inherent powers should be limited to situations in which it is reasonably necessary
to preserve the court’s existence and protect it in the orderly administration of its
business.” Id. (internal quotation marks omitted). “While there is no concrete definition
of ‘bad faith,’ it embraces something more than bad judgment or negligence.”
Shuttlewagon, Inc. v. Higgins, 628 S.W.3d 185, 200 (Mo. App. W.D. 2021) (internal
quotation marks omitted). “Bad faith embraces actual intent to mislead or deceive
another, or imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach
of a known duty through some ulterior motive or ill will partaking of the nature of fraud.”
Id. (internal quotation marks omitted).
The trial court restricted Morgan’s privileges to write letters and make phone calls
after Morgan had communicated inappropriately with Victim by placing hundreds of
5 As the foregoing colloquy demonstrates, the trial court did not deny Morgan’s request to represent himself; rather, Morgan voluntarily withdrew his request for self-representation.
15 calls to Victim’s cell phone and to her home phone and by sending numerous letters to
Victim, asking Victim to not come to court and to not participate in the prosecution,
which dissuasion the prosecutor described as “victim tampering.” Morgan claims that the
trial court’s refusal to restore his privileges to write letters and make phone calls
effectively coerced his waiver of the right to self-representation by depriving him of the
ability to perform the basic tasks necessary to investigate the case and mount an effective
defense. The record refutes Morgan’s claim. The trial court explained to Morgan that he
was permitted to conduct discovery, take depositions, file motions, and send
correspondence to the court but was prohibited from telephoning and writing letters in
order to dissuade one of the State’s witnesses from testifying and cooperating with the
State. The trial court did not plainly err by restricting Morgan’s phone and letter-writing
privileges.
Conclusion
The trial court’s judgment is affirmed.
______________________________________ Mark D. Pfeiffer, Judge
Gary D. Witt, Chief Judge, and Anthony Rex Gabbert, Judge, concur.