In the Missouri Court ot Appeals Eastern Districtt
DIVISION TWO STATE OF MISSOURI, ) EDl029l7 ) Respondent, ) Appeal from the Circuit Court ) of Cape Girardeau County v. ) 14CG-CR0l467-Ul ) ROBERT D. RODRIGUEZ, ) Honorable Michael E. Gardner' ) Appellant. ) FILED: February 9, 2016
Introduction
Robert D. Rodriguez (Defendaiit) appeals from the sentence and judgment entered following a bench trial convicting him of robbery in the first degree. Defendant asserts
there was insufficient evidence to support the conviction and the trial court abused its
discretion in allowing certain testiinoiiy. We afi`n'm.
Backgrollnd
The State charged Defendant with robbery in the first degree (Count I) and armed criminal action (Count II). Defendant waived his right to a jury trial in exchange for the
State dismissing Count il. The evidence at trial, viewed in a light most favorable to the
verdict,l revealed the following.
1 Willlalns v. State, 386 S.W.$d 750, 754 (Mo. banc 2012).
On August 12, 2014, Serle Thomas (Victim) was in Cape Girardeail for a ineeting with a mutual acquaintance to purchase a vehicle, described as a “box Chevy." Victim had brought $5,000 in cash divided into $I,OOO amounts wrapped in multi-colored rubber bands with him to purchase the vehicle. He met with the mutual acquaintance, later identified as Defendant, who instructed Victim to follow him in his trucl<. 'I`hey drove a circuitous route to an apartment building where there was a box Chevy. Rather than discussing the sale of the vehicle, Defendant demanded Victiin’s money and wallet at gunpoint and drove away.
Cape Girardeau police officer Josiah Mehl (Officer Mehl) responded to the reported robbery. Upon arriving, Officer Mehl encountered Victim who appeared to be
"shaken up.’ Victim gave Officer Mehl a physical description of the suspect and the vehicle the suspect was driving, which Officer Melil shared over a radio bulletin. Soon after, Detective Mattlrew Ballew (Detective Ballew) with the Ste. Genevieve County Sheriff’s Office pulled over a vehicle inatcliiiig Offlcer Mehl’s description After rennoviiig Defendant and two others froin the vehicle and placing them in custody, Detective Ballew conducted a search. Detective Ballew found Victim’s wallet inside the vehicle along with a large quantity of money wrapped in different colored rubber bands. According to Detective Ballew’s report, the money amounted to over $5,000. Detective Ballew then took Defendant to the Ste. Genevieve County Jail.
Defendant testified that he had obtained the money found during Detective Ballew’s search by gambling Furtlier, Defendant testified that lre and Victi1n were both
drug dealers, and that he had met with Victim for the purpose of buying seven pounds of
Inarijuana from him. According to Defendant, Victim met with him and entered into his
vehicle with a small sample of the niarijuana; Victim stated the remaining seven pounds of lnarijualla was in his truck. However, Defendant ultimately chose not to purchase any drugs from Victim, and left. Defendant claimed that Victirn must have left his wallet in his vehicle during this meeting.
At trial, Officer Mehl testified he had looked in and around Victim’s truck to help him find his keys and did not detect "anything unusual." The State asked Officer Mehl whether in his experience rnarijuana has a distinct odor and whether, hypothetically speaking, he would have been able to smell seven pounds of niarijuana hidden inside a vehicle,_ Counsel for defense objected that the question was hypothetical and called for speculation. The trial court overruled the objection and Office1' l\/Iehl testified he "expect[ed]" he would be able to smell that quantity of lnarijuana inside a vehicle. The trial court found Defendant guilty of robbery in the first degree beyond a reasonable doubt and sentenced him to ten years’ imprisonment in the Missotlri Departinent of Corrections. This appeal follows.
Discussion
Point l
In his first point on appeal, Defendant challenges the sufficiency of the evidence and argues the trial court erred in finding Defendant guilty of robbery in the first degree in violation of his right to due process, in that the State did not prove beyond a reasonable doubt that the incident was a robbery rather than a failed drug transaction. We disagree.
We review challenges to the sufficiency of the evidence supporting a criminal conviction by determining whether the state presented sufficient evidence at trial from
which a reasonable juror might have found the defendant guilty of all essential elements
of the crime. State v. Gibbs, 306 S.W.?)d 178, 181 (Mo. App. E.D. 2()10). We accept as true all evidence supporting the jury’s verdict, including all favorable inferences drawn front the evidence, and disregard all evidence and inferences to the contrary. @ This Court does not re~vveigh the evidence, but instead gives great deference to the trier of fact. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011).
A person commits first-degree robbery \.vheti he or she forcibly steals property while displaying or threatening the use of a deadly weapon Section 569.020, RSl\/io (2090)',1 State v. Neal, 328 S.W.3d 374, 379 (Mo. App. W.D. 2010).
Here, the testimony given by Victim directly contradicts Defendant’s testiniony. Victim testified that Defendant held him up at gunpoint and took $5,000 wrapped in different colored rubber bands, while Defendant claimed the money was his and he met Victim to purchase seven pounds of inarijllaiia. However, Officer Mehl testified that he had looked inside Victim’s truck and had detected nothing unusual, and he fl.lttbei' speculated that he would have been able to smell seven pounds of ntarijtlaiia in a vehicle. Detective Ballew testified that when he apprehended Defendant, Defendant had in his vehicle over $5,000 wrapped in different colored rubber bands and Victim’s wallet. lt is the responsibility of the trier of f`act, not this Cottrt, to determine the weight and credibility of the witnesses State v. Raff-Covington, 410 S.W.Bd 268, 271 (Mo. App. E.D. 2013). The trier of fact may believe or reject all, some, or none of the testimony given at trial. I_d, 'i`his Court does not act as a "super juror" with veto powers, but gives great deference to the trier of f`act. §:_e l_\l_ti§_h, 339 S.W.3d at 509.
The trial court here believed Victiin’s testimony over Defendant’s, and we defer
to that determination Accepting Victi1n’s testimony as true, there was sufficient
evidence in the record here to show that Defendant took Victiin’s wallet and money at
gunpoint, which is sufficient to support a conviction of robbery in the first deg1'ee. §
Section 569.()20, RSl\/lo (2000); _(jjjig"lgms, 306 S.W.3d at 18]; Nmemarl, 328 S.W.?>d at 379.
Thus, the trial court did not err in finding Defendant guilty of robbery in the first degree. Point denied.
Point il
In his second point on appeal, Defendant argues the trial court abused its discretion in admitting Officer Melil’s testirnony stating that he would have been able to smell a large quantity of marijuana hidden in a vehicle. Defendant argues the prejudicial impact of Officer Mehl’s testimony clearly ottt\,veiglied its probative value We disagree
We first address whether this error was preserved for review on appeal and conclude it was not. Defendant objected to the challenged testimony at trial on the basis of speculation, but argues on appeal the testimony was more prejudicial than probative. "To preserve an objection to evidence for [appellate] review, the objection must be
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In the Missouri Court ot Appeals Eastern Districtt
DIVISION TWO STATE OF MISSOURI, ) EDl029l7 ) Respondent, ) Appeal from the Circuit Court ) of Cape Girardeau County v. ) 14CG-CR0l467-Ul ) ROBERT D. RODRIGUEZ, ) Honorable Michael E. Gardner' ) Appellant. ) FILED: February 9, 2016
Introduction
Robert D. Rodriguez (Defendaiit) appeals from the sentence and judgment entered following a bench trial convicting him of robbery in the first degree. Defendant asserts
there was insufficient evidence to support the conviction and the trial court abused its
discretion in allowing certain testiinoiiy. We afi`n'm.
Backgrollnd
The State charged Defendant with robbery in the first degree (Count I) and armed criminal action (Count II). Defendant waived his right to a jury trial in exchange for the
State dismissing Count il. The evidence at trial, viewed in a light most favorable to the
verdict,l revealed the following.
1 Willlalns v. State, 386 S.W.$d 750, 754 (Mo. banc 2012).
On August 12, 2014, Serle Thomas (Victim) was in Cape Girardeail for a ineeting with a mutual acquaintance to purchase a vehicle, described as a “box Chevy." Victim had brought $5,000 in cash divided into $I,OOO amounts wrapped in multi-colored rubber bands with him to purchase the vehicle. He met with the mutual acquaintance, later identified as Defendant, who instructed Victim to follow him in his trucl<. 'I`hey drove a circuitous route to an apartment building where there was a box Chevy. Rather than discussing the sale of the vehicle, Defendant demanded Victiin’s money and wallet at gunpoint and drove away.
Cape Girardeau police officer Josiah Mehl (Officer Mehl) responded to the reported robbery. Upon arriving, Officer Mehl encountered Victim who appeared to be
"shaken up.’ Victim gave Officer Mehl a physical description of the suspect and the vehicle the suspect was driving, which Officer Melil shared over a radio bulletin. Soon after, Detective Mattlrew Ballew (Detective Ballew) with the Ste. Genevieve County Sheriff’s Office pulled over a vehicle inatcliiiig Offlcer Mehl’s description After rennoviiig Defendant and two others froin the vehicle and placing them in custody, Detective Ballew conducted a search. Detective Ballew found Victim’s wallet inside the vehicle along with a large quantity of money wrapped in different colored rubber bands. According to Detective Ballew’s report, the money amounted to over $5,000. Detective Ballew then took Defendant to the Ste. Genevieve County Jail.
Defendant testified that he had obtained the money found during Detective Ballew’s search by gambling Furtlier, Defendant testified that lre and Victi1n were both
drug dealers, and that he had met with Victim for the purpose of buying seven pounds of
Inarijuana from him. According to Defendant, Victim met with him and entered into his
vehicle with a small sample of the niarijuana; Victim stated the remaining seven pounds of lnarijualla was in his truck. However, Defendant ultimately chose not to purchase any drugs from Victim, and left. Defendant claimed that Victirn must have left his wallet in his vehicle during this meeting.
At trial, Officer Mehl testified he had looked in and around Victim’s truck to help him find his keys and did not detect "anything unusual." The State asked Officer Mehl whether in his experience rnarijuana has a distinct odor and whether, hypothetically speaking, he would have been able to smell seven pounds of niarijuana hidden inside a vehicle,_ Counsel for defense objected that the question was hypothetical and called for speculation. The trial court overruled the objection and Office1' l\/Iehl testified he "expect[ed]" he would be able to smell that quantity of lnarijuana inside a vehicle. The trial court found Defendant guilty of robbery in the first degree beyond a reasonable doubt and sentenced him to ten years’ imprisonment in the Missotlri Departinent of Corrections. This appeal follows.
Discussion
Point l
In his first point on appeal, Defendant challenges the sufficiency of the evidence and argues the trial court erred in finding Defendant guilty of robbery in the first degree in violation of his right to due process, in that the State did not prove beyond a reasonable doubt that the incident was a robbery rather than a failed drug transaction. We disagree.
We review challenges to the sufficiency of the evidence supporting a criminal conviction by determining whether the state presented sufficient evidence at trial from
which a reasonable juror might have found the defendant guilty of all essential elements
of the crime. State v. Gibbs, 306 S.W.?)d 178, 181 (Mo. App. E.D. 2()10). We accept as true all evidence supporting the jury’s verdict, including all favorable inferences drawn front the evidence, and disregard all evidence and inferences to the contrary. @ This Court does not re~vveigh the evidence, but instead gives great deference to the trier of fact. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011).
A person commits first-degree robbery \.vheti he or she forcibly steals property while displaying or threatening the use of a deadly weapon Section 569.020, RSl\/io (2090)',1 State v. Neal, 328 S.W.3d 374, 379 (Mo. App. W.D. 2010).
Here, the testimony given by Victim directly contradicts Defendant’s testiniony. Victim testified that Defendant held him up at gunpoint and took $5,000 wrapped in different colored rubber bands, while Defendant claimed the money was his and he met Victim to purchase seven pounds of inarijllaiia. However, Officer Mehl testified that he had looked inside Victim’s truck and had detected nothing unusual, and he fl.lttbei' speculated that he would have been able to smell seven pounds of ntarijtlaiia in a vehicle. Detective Ballew testified that when he apprehended Defendant, Defendant had in his vehicle over $5,000 wrapped in different colored rubber bands and Victim’s wallet. lt is the responsibility of the trier of f`act, not this Cottrt, to determine the weight and credibility of the witnesses State v. Raff-Covington, 410 S.W.Bd 268, 271 (Mo. App. E.D. 2013). The trier of fact may believe or reject all, some, or none of the testimony given at trial. I_d, 'i`his Court does not act as a "super juror" with veto powers, but gives great deference to the trier of f`act. §:_e l_\l_ti§_h, 339 S.W.3d at 509.
The trial court here believed Victiin’s testimony over Defendant’s, and we defer
to that determination Accepting Victi1n’s testimony as true, there was sufficient
evidence in the record here to show that Defendant took Victiin’s wallet and money at
gunpoint, which is sufficient to support a conviction of robbery in the first deg1'ee. §
Section 569.()20, RSl\/lo (2000); _(jjjig"lgms, 306 S.W.3d at 18]; Nmemarl, 328 S.W.?>d at 379.
Thus, the trial court did not err in finding Defendant guilty of robbery in the first degree. Point denied.
Point il
In his second point on appeal, Defendant argues the trial court abused its discretion in admitting Officer Melil’s testirnony stating that he would have been able to smell a large quantity of marijuana hidden in a vehicle. Defendant argues the prejudicial impact of Officer Mehl’s testimony clearly ottt\,veiglied its probative value We disagree
We first address whether this error was preserved for review on appeal and conclude it was not. Defendant objected to the challenged testimony at trial on the basis of speculation, but argues on appeal the testimony was more prejudicial than probative. "To preserve an objection to evidence for [appellate] review, the objection must be
speciiic, and the point raised on appeal must be based upon the same theory." State v.
ml§mnnemse, 985 S.W.Zd 759, 766 (Mo. banc 1999). Defendant here has not inaintained the same grounds for the objection at trial and on appeal, and thus we can review only for plain error pursuant to Rule 30.20.2
We review for plain error using a two-step analysis. State v. Floyd, 347 S.W.3d 115, 123-24 (Mo. App. E.D. 2011). First, we determine whether the record facially establishes substantial grounds to believe plain error occurred, which is error that is
evident, obvious, and clea1'. lgl_._ if so, we then consider whether the error resulted in
2 All rule references are to Mo. R. Crim. P. (20 l 5), tlnless otlier\vise noted. 5
manifest injustice or a miscarriage ofjustice. § Plain error revie\.v requires that the alleged error have a decisive effect on the verdict. State v. White, 247 S.W.3d 557, 563 (Mo. App. E.D. 2007).
To be admissible, evidence must be both logically and legally relevant. _S§g §t_zi_tg v. Houston, 467 S.W.?)d 894, 898 (Mo. App. E.D. 2015). "Evidence is logically relevant if it tends to make the existence of a inaterial fact more or less probable, and evidence is legally relevant if its probative value outweighs any costs related to its admission, such as unfair prejudice, confusion, misleading the jury, or cuinulativeliess." I_d_. We review clialleriges to the admissibility of evidence for prejudice, not mere error, and we will reverse only where the error was so prejudicial that it deprived the defendant of a fair trial. _I_c_:l_. In a bench trial, we presume the trial court disregards improper evidence in reaching itsjudginent, unless the record was clear the trial court considered and relied on the inadmissible evidence State v. Eriist, 164 S.W.3d 70, 74-75 (Mo. App. S.D. 2005); see_als_o State v. Brooks, 397 S.W.3d 454, 457 (Mo. App. E.D. 20l3).
Here, Defendant’s version of the facts was that he was meeting Victim to engage in a drug sale and that Victirn reportedly had seven pounds of nrarijttana in his truck. Officer Mehl testified at trial that he looked inside Victim’s truck while helping Victim search for his keys after the robbery and did not notice anything unusual, and he further testified that he generally believed he would have been able to smell seven pounds of rnarijuaiia in a vehicle. While Defendant argues this testimony was irrelevant, Defendant raised the issue of inarijtlana in Victim’s truck and the State can properly present evidence that tends to explain, counteract, repel, or disprove evidence offered by
defendant. State v. Gillespie, 401 S.W.?)d 560, 563 (Mo. App. E.D. 2013). Because
Defendant injected the issue by claiming he was meeting Victim to purchase a la1'ge quantity of inarijtialia, rebuttal testimony from Offtcez' Mehl inferring no inarijuaria existed was relevant to explain, counteract or disprove Defendant’s testiniony. §§ igL Thus, Officer Mehl’s testiinoiiy was admissible
Furtlier, Defendant failed to show that the probative value of Officer Mehl’s testimony was outweighed by any potential costs from the admission of that testimony In a court-tried case we presume the trial court disregarded any improper evidence § BLI
Regardless, even if the trial court admitted the challenged evidence in error, no manifest injustice resulted While Officer Melil’s testimony corroborated Victiin’s, it was not indispensable to the verdict, and thus it did not have a decisive effect on the verdict, as is iiecessary for a finding of plain error §§ State v. Mead, 105 S.W.Bd 552, 556-57 (Mo. App. W.D. 2003); §e_eu@ h, 247 S.W.3d at 563. Officer l\/lehl’s testiinony rebutted Defendant’s theory of defense, but had it been excluded, there was sufficient evidence in the record from which the trial court could still have found Defeiidalit guilty. The trial court did not plainly err in admitting Officer Mehl’s testimony.
Point denied.
Conclusion
The judgment of the trial court is aff`n'med.
Philip M. Hess, P. J., concurs. Angela T. Quigless, J., concurs.