STATE OF MISSOURI v. PAVEL SAMSINAK

• Court: Missouri Court of Appeals
• Decided: February 28, 2024
• Docket: SD37559
• Status: Published

Opinion

Missouri Court of Appeals Southern District

In Division

STATE OF MISSOURI, ) ) Respondent, ) ) No. SD 37559 v. ) ) Filed: February28, 2024 PAVEL SAMSINAK, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Becky J.W. Borthwick, Judge

AFFIRMED

Pavel Samsinak bludgeoned Victim to death in her living room then lit her house

on fire. A jury found Samsinak guilty of second-degree murder, second-degree arson,

armed criminal action, and felony tampering with physical evidence. On appeal, he

challenges two evidentiary rulings, the refusal to give a jury instruction, and the

sufficiency of the evidence to support his tampering conviction. We affirm.

Background

Samsinak is a fit, middle-aged man who stands six feet six inches tall. He owned a

vacant lot adjacent to the home of Victim, a 67-year-old woman who shared her home

with her two dogs. Victim and Samsinak argued when Samsinak began building a privacy fence on what Victim considered to be her side of the property line. Samsinak was

“yelling” and “very intense;” Victim was “upset” and “swinging her arms.”

One evening about two weeks later, sometime between 7:00 and 8:00 p.m.,

Victim’s neighbor thought she heard arguing and Victim screaming for help, but the

sounds were faint. The neighbor looked toward Victim’s house and saw Samsinak in

Victim’s living room “with his hands above his head with something in his hands.”

Samsinak turned and glared at the neighbor through the window. Not seeing Victim, the

neighbor thought she must have heard something else and went about her business.

A fire ignited in Victim’s house later that evening. The fire marshal later would

conclude the fire had been intentionally set. When firefighters arrived shortly after 10:30

p.m., they found Victim’s house engulfed in flames and smoke. They retrieved Victim’s

lifeless body from within the house. Investigators found a burned, sooty, metal baseball

bat leaning against some furniture.

The medical examiner ruled Victim’s death a homicide, arising from numerous

blunt force injuries to her head, face, neck, and spine. Victim also had defensive injuries

on her forearms and hands. Several bruises on her body were linear and consistent with

being struck by a bat.

When investigators searched Samsinak’s phone, they found a video from the

security camera at his home. The video shows Samsinak approaching his house at night

with blood stains on his shirt and pants.

At trial, a criminalist testified about blood and DNA testing she performed on

evidence gathered in this case. Prior to her testimony, the defense offered her report into

evidence “for the jurors to have the report as an exhibit so that they can better understand

the testimony of [the criminalist] who is being offered as an expert . . . .” The report

2 outlined evidence gathered, tests performed, and results obtained. The State objected on

the basis of hearsay, assumption of facts not in evidence, and relevance. The objection

was sustained, with the court noting that experts’ reports are not just routinely admitted

and that the criminalist would be available for examination.

During cross-examination of the criminalist, defense counsel asked, “[W]ithout

telling us what happened, can you just tell us how many other items you tested in this

time period?” When the State objected, defense counsel clarified, “I have no intention to

ask anything other than how many items [the criminalist] tested and that’s -- during that

time period. That’s all I’m asking. I’m not going to ask anything further.” The court

sustained the State’s objection that the total number of tests performed was irrelevant

and may be confusing to the jury. Defense counsel submitted the criminalist’s lab report

in an offer of proof.

During the jury instruction conference, the defense requested and proffered

verdict directors on second-degree murder with sudden passion language and voluntary

and involuntary manslaughter verdict directors. The defense argued a voluntary

manslaughter instruction was necessary because the jury could find Samsinak acted with

sudden passion based on evidence Samsinak argued with Victim. The court found

Samsinak had not made a showing of sudden passion and accordingly refused the

voluntary manslaughter verdict director and second-degree murder verdict director with

sudden passion language. The jury was given conventional second-degree murder and

involuntary manslaughter verdict directors.

Twenty minutes into deliberations, the jury sent written questions to the court:

“Who owned the bat? Was it determined?” The court replied, “The jury will be guided by

the evidence as each juror remembers it.” Less than 30 minutes later, the jury returned

3 guilty verdicts on all counts.

Tampering with Physical Evidence (Point 1)

Samsinak first contends the State did not present sufficient evidence to support

the felony charge of tampering with physical evidence. He asserts that none of the State’s

witnesses “testified that the alteration of the contents of the house by the fire in any way

impaired their determination that Mr. Samsinak caused Victim’s death by striking her or

did so with the requisite intent.”

We review to determine whether a rational fact-finder could find each essential

element of the crime beyond a reasonable doubt. State v. Russell, 656 S.W.3d 265, 282

(Mo.App. 2022). We must accept as true all evidence favorable to the State, including

favorable inferences to be drawn from the evidence, and disregard contrary evidence and

inferences. Id.

The elements of the felony offense of tampering with physical evidence in the

context of this case are: (1) the alteration of the contents of Victim’s house, (2) with

purpose, (3) to impair its availability in an investigation, and this tampering (4) resulted

in the impairment or obstruction of a felony prosecution. See id. Only the fourth

element, resulting impairment, is at issue here.

Defense counsel asked the court to dismiss the tampering count at the close of the

evidence based on the same argument presented now on appeal. The State responded

that the bat, which it postulated to be the murder weapon, was not consumed in the fire

but it was charred and the handle was melted such that it could not “be tested for blood

and other things.”

The bat was highly relevant to Samsinak’s murder and armed criminal action

charges. The jury wanted more evidence or testimony about the bat, as evidenced by their

4 questions during deliberations. Although no direct testimony established an inability to

test the bat, it reasonably could be inferred that alteration of the bat by the fire precluded

testing the bat for the presence of Victim’s blood, which would tend to show it was the

murder weapon, or Samsinak’s fingerprints, which would connect him to the bat. With

the evidence it had, the State could not argue the baseball bat was in fact the dangerous

instrument Samsinak used to kill Victim, only that it was consistent with the object that

inflicted deadly, blunt force trauma. Point 1 is denied.

Jury Instructions (Point 2)

Samsinak next contends the court erred in refusing to give the jury a second-degree

murder verdict director with sudden passion language and a voluntary manslaughter

verdict director.

We review de novo the decision whether to give a requested jury instruction for a

lesser-included offense. State v. Rice, 573 S.W.3d 53, 63 (Mo. banc 2019). The jury

must be instructed on a lesser-included offense when: “(1) ‘a party timely requests the

instruction;’ (2) ‘there is a basis in the evidence for acquitting the defendant of the charged

offense;’ and (3) ‘there is a basis in the evidence for convicting the defendant of the lesser

included offense for which the instruction is requested.’” Id. at 63-64 (citing State v.

Jackson, 433 S.W.3d 390, 396 (Mo. banc 2014)); § 556.046.3.1 For this determination,

“[t]he evidence is viewed in the light most favorable to the defendant and, when in doubt,

the court should instruct on the lesser-included offense.” Id. at 63.

Voluntary manslaughter is a lesser-included offense of second-degree murder. Id.

(citing § 565.025).

1 All statutory references are to RSMo. (2016).

5 Voluntary manslaughter is defined as causing the death of another person under circumstances that would constitute murder in the second degree, except that the death was caused under the influence of sudden passion arising from adequate cause. To warrant a lesser-included offense instruction on voluntary manslaughter, there must be a basis in the evidence for the jury to find that [the defendant] acted out of sudden passion arising from adequate cause. “Sudden passion” is defined as “passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation.” The provocation must be of a nature calculated to inflame the passions of the ordinary, reasonable, temperate person. There must be a sudden, unexpected encounter or provocation tending to excite the passion beyond control. Adequate cause, meanwhile, is cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person’s capacity for self-control.

Id. at 64 (internal citations and punctuation omitted). “The defendant shall have the

burden of injecting the issue of influence of sudden passion arising from adequate cause

. . . .” Section 565.023.2.

“‘Words alone, no matter how opprobrious or insulting, are not sufficient to show

adequate provocation.’” State v. Deckard, 18 S.W.3d 495, 500 (Mo.App. 2000)

(quoting State v. Redmond, 937 S.W.2d 205, 208 (Mo. banc 1996)). Furthermore,

sudden passion must arise from a contemporaneous provocation, not a former

provocation after which a defendant’s passion had time to cool. Id. at 501.

Every case on which Samsinak relies involved some provocation by the victim

beyond a verbal argument: victim physically attacked the defendant, victim brandished

a weapon, etc. Only two persons were present in Victim’s home immediately before and

at the time Victim was bludgeoned to death. One is dead, the other invoked his right not

to testify and did not present any evidence or testimony in his defense. Samsinak argues

the jury could infer that Victim angered Samsinak and physically attacked him, causing

him to kill her out of sudden passion, based on the following testimony adduced from the

6 State’s witnesses: (1) Victim was known to upset people, (2) Samsinak previously became

angry and yelled during a prior argument in which Victim yelled and waved her arms, (3)

a neighbor heard arguing coming from Victim’s house and saw Samsinak in the house the

night Victim was killed, and (4) wounds were found on Victim’s forearms and hands.

The State’s evidence directly shows or supports inferences that Samsinak and

Victim verbally argued prior to and on the night Victim was killed, that she most likely

was beaten with a bat, and that she used her hands and arms to try to shield herself from

blows. Even when viewed in the light most favorable to the giving of the defense-proffered

instruction, it is pure speculation to suggest that Victim provoked the attack. “While we

view the evidence in the light most favorable to [Samsinak’s] defense, after-the-fact

speculation is not evidence, and jury instructions cannot be based on speculative or forced

inferences not supported by the evidence introduced at trial.” State v. Greer, 588

S.W.3d 623, 627 (Mo.App. 2019).

Samsinak failed to carry his burden to inject the issue of sudden passion arising

from adequate cause that would support a voluntary manslaughter verdict director or a

second-degree murder verdict director with sudden passion language. Point 2 is denied.

Surveillance Video (Point 3)

In Point 3, Samsinak argues the trial court abused its discretion in admitting the

home surveillance video clip into evidence. He does not challenge the authenticity of the

video, that he was the person depicted in the video, its relevance, or the like. His

argument, raised below and reasserted on appeal, is that the video lacks foundation

because it was not time-stamped or dated.

“The trial court is vested with broad discretion in the admission of visual evidence,

including photographs and videos.” State v. Griffin, 670 S.W.3d 105, 112 (Mo.App.

7 2023). We review a trial court’s evidentiary rulings for abuse of discretion. Id. at 111. An

abuse of discretion occurs only when a ruling is clearly against the logic and circumstances

then before the court and is so arbitrary and unreasonable as to shock the sense of justice

and indicate a lack of careful consideration. State v. Brandolese, 601 S.W.3d 519, 533

(Mo. banc 2020).

“The principles governing admission of photographs also apply to videos. One

must establish that the video accurately represents what it purports to show and may do

so through any witness familiar with the subject matter and competent to testify from

personal observation.” State v. McNear, 343 S.W.3d 703, 705 (Mo.App. 2011). “[A]

witness testifying to such matters need not be familiar with the specific circumstances

surrounding the creation of the video itself, nor does the witness need to have observed

the exact view of the subject matter depicted in the video.” State v. King, 626 S.W.3d

828, 841 (Mo.App. 2021).

Officers testified that Samsinak had a specific brand of surveillance camera

mounted near the front door of his house. The State’s forensic expert, who was

acquainted with that brand of security camera system, testified that the video clip had

been uploaded to that brand’s app on Samsinak’s phone between September 19 and 22,

inclusive, because recordings were saved for only three days and that particular video clip

was opened and viewed on Samsinak’s phone on September 22 at 10:08 a.m. The same

expert testified the video most likely was recorded at night because it was in black and

white, while daytime videos would be recorded in color.

Samsinak did not object to the authenticity of the video and the State’s witness

linked the video to a three-day range that included the night Victim was killed. This was

sufficient for the court to admit the video into evidence. “So long as sufficient evidence

8 justifies the trial court’s admission of evidence as authentic, any weaknesses as to the

authenticity of the evidence are for the jury to consider.” Miller v. State, 636 S.W.3d

197, 205 (Mo.App. 2021) (quoting State v. Abdi, 611 S.W.3d 536, 540 (Mo.App. 2020)).

The defense could, and did, argue why the jury should give the video little or no weight.

The trial court did not err in admitting the home surveillance video clip into

evidence. Point 3 is denied.

Criminalist’s Report and Testimony (Point 4)

In his final Point, Samsinak claims the trial court erred in refusing to admit the

criminalist’s reports or to allow the defense to ask the criminalist how many other items

she tested. We review this claim of evidentiary error under the same standard as in Point

3: abuse of discretion. Griffin, 670 S.W.3d at 112.

Samsinak’s offer of the report was premature. At that point in the trial, there had

been testimony about some, but not all, of the evidence gathered by investigators and

listed in the report, but nothing about the criminalist, the tests she had performed, the

validity of such tests, etc. Defense counsel candidly admitted that some of the items listed

in the report “were not part of the evidence that’s been presented in terms of chain of

custody.” Samsinak did not attempt to lay a foundation for the parts of the report not

covered in the State’s direct examination of the criminalist.

Defense counsel submitted the reports in an offer of proof at the conclusion of the

criminalist’s testimony, at which time some of the State’s prior objections would have

been satisfied at least as to some parts of the report. However, the criminalist also

testified in the offer of proof that she did not personally collect any of the evidence and

the only way she knew what it was or where it came from was what had been written on

the label of the evidence bags. Thus, the report still contained hearsay and assumed facts

9 not in evidence. The trial court did not abuse its discretion in refusing to admit the

criminalist’s report.

As to testimony about the number of tests performed, defense counsel had no

response to the State’s argument that the issue was irrelevant and may confuse the jury.

Even if defense counsel did not ask about the results of those tests, the State was

concerned that the jury would wonder what those results were and why they were not

addressed by testimony or evidence. In his motion for new trial, Samsinak argues such

testimony was relevant to the criminalist’s credibility and possible cross-contamination

of DNA evidence. Assuming these theories were properly raised below and preserved for

appeal, Samsinak does not argue, much less convince us, how testimony about the

number of tests performed was relevant in any way. His arguments go to the substance

or results of the tests, not the number of tests performed. The trial court did not abuse

its discretion in denying testimony about the total number of tests the criminalist

performed.

Point 4 is denied. Judgment and convictions affirmed.

JACK A. L. GOODMAN, C.J. – OPINION AUTHOR

MARY W. SHEFFIELD, J. – CONCURS

JENNIFER R. GROWCOCK, J. – CONCURS