State v. Solis

87 S.W.3d 44, 2002 Mo. App. LEXIS 2121, 2002 WL 31360617
CourtMissouri Court of Appeals
DecidedOctober 22, 2002
DocketNo. WD 59890
StatusPublished
Cited by3 cases

This text of 87 S.W.3d 44 (State v. Solis) 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 v. Solis, 87 S.W.3d 44, 2002 Mo. App. LEXIS 2121, 2002 WL 31360617 (Mo. Ct. App. 2002).

Opinion

EDWIN H. SMITH, Presiding Judge.

Theodore Solis appeals the judgment of his convictions, after a jury trial in the Circuit Court of Benton County, for one count of robbery in the first degree, § 569.020; one count of armed criminal action (ACA), § 571.015; two counts of assault in the second degree, § 565.060; and five counts of unlawful use of a weapon, § 571.030. As a result of his convictions, the appellant was sentenced to consecutive terms in the Missouri Department of Corrections of eighteen years for robbery, ten years for ACA, five years for each count of assault, and two years for each count of unlawful use of a weapon.

In his sole point on appeal, the appellant claims that the trial court plainly erred in failing to exclude, sua sponte, trial testimony referring to him by his nickname “Loco” because said references were irrelevant to any legitimate issue in the case and worked to impugn his character and inflame the jury with respect to its recommendation of punishment.

We affirm.

Facts

The appellant’s convictions arose out of a robbery at the Snappy Convenience Store in Sedalia, Missouri, on August 11, 2000. At approximately 10:00 p.m., Esther Kostis had stopped by the store to visit with Dixie Baker, who was working as a clerk at the store. As the two women conversed, the appellant came into the store wearing a ski mask, waving a gun, and demanding money. Baker put her hands in the air and began walking to the cash register. The appellant then walked over to where Kostis was sitting and hit her in the mouth with his gun. Baker opened the cash register and started to remove the money, but the appellant told her that she was too slow and took the money out himself. The appellant then ripped the phone out of the wall, hit Baker in the face and on the head with the gun, and exited the store.

As the appellant was leaving, a car occupied by Angela Butler, Amanda Wade, and Wade’s son Keynan, pulled into the store’s parking lot. Butler, who was driving, saw the appellant emerge from the store with a gun and walk toward a red vehicle driven by a woman, who was later identified as the appellant’s girlfriend, Myra Moore. The appellant shot at the car Butler was [47]*47driving, hitting it five times before leaving in his girlfriend’s vehicle.

A passing motorist supplied a partial license plate number of the getaway car, which led authorities to a residence in Knob Noster, Missouri, where the appellant was arrested. Following his arrest, the appellant made both verbal and written statements admitting his guilt, stating that he was remorseful about striking the women in the convenience store.

The appellant was charged in the Circuit Court of Benton County with one count of robbery in the first degree, one count of ACA, two counts of assault in the second degree, and five counts of unlawful use of a weapon. At the appellant’s jury trial, which was held on February 26-27, 2001, the State presented, inter alia, the testimony of Chief Deputy Gary Klote of the Johnson County Sheriff’s Department and Corporal Bruce Houston of the Missouri State Highway Patrol, both of whom were present when the appellant was arrested. During the direct examination of Chief Deputy Klote by the State, he testified:

Q. Later that day after daylight did you go to a house on north Adams in Knob Noster?
A. Yes, sir, I did.
Q. Who were you looking for when you went to the house?
A. Myra Moore and an individual by the name of Loco.

Similarly, the following exchange occurred during the direct examination of Corporal Houston:

Q. Did you decide, you and other officers decide to go to a particular house in Knob Noster?
A. Yes, sir.
Q. Who were you looking for at that house?
A. A subject by the name of Solis whose nickname was Loco.

The appellant made no objection to either officer’s reference to the appellant’s nickname.

The only evidence offered by the appellant at trial was a letter of apology which he had written to the victims. From this, the appellant’s trial counsel argued to the jury that the appellant was under extreme stress at the time he committed the crimes, and that he was remorseful for the injury he caused the victims.

After deliberating, the jury found the appellant guilty on all counts. He was subsequently sentenced to consecutive prison terms of eighteen years for robbery, ten years for ACA, five years for each conviction for assault, and two years for each conviction for unlawful use of a weapon.

This appeal followed.

I.

In his sole point on appeal, the appellant claims that the trial court plainly erred in failing to sua sponte exclude the trial testimony of Chief Deputy Klote and Corporal Houston, referring to him by his nickname “Loco,” because said references were irrelevant to any legitimate issue in the case, impugned his character and worked to inflame the jury with respect to its recommendation of punishment. Specifically, he contends that the references to his nickname cast him in an unfavorable light to the jury, “suggesting to the jury that he was known to be unstable,” which resulted in its recommending harsher sentences than it would have otherwise recommended.

The appellant concedes that he did not properly preserve his claim of error for appellate review because he failed to object to the testimony at trial or raise the claim in his motion for a new trial, but [48]*48asks for plain error review under Rule 30.20. Rule 80.20 provides, in pertinent part, that “[wjhether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Carr, 50 S.W.3d 848, 853 (Mo.App.2001). In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether on the face of the appellant’s claim substantial grounds exist for believing that the trial court committed a “plain” error, which resulted in manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001). “Plain” error for purposes of Rule 30.20 is error that is evident, obvious and clear. State v. Hibler, 21 S.W.3d 87, 96 (Mo.App.2000).

If the court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious and clear. Hibler, 21 S.W.3d at 96. As in the case of regular error, not every plain error requires reversal. Carr, 50 S.W.3d at 853. In the case of regular error, to be reversible, the error must have prejudiced the appellant. State v. Taylor, 67 S.W.3d 713, 715 (Mo.App.2002).

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Bluebook (online)
87 S.W.3d 44, 2002 Mo. App. LEXIS 2121, 2002 WL 31360617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-solis-moctapp-2002.