# In the Missouri Court of Appeals **Eastern District**

DIVISION THREE STATE OF MISSOURI, ) No. ED107356 ) Plaintiff/Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) ) VICTOR C. WHITTIER, ) Honorable Thomas C. Clark II ) Defendant/Appellant. ) Filed: October 1, 2019 Introduction Victor C. Whittier (Appellant) ap peals from the trial court’s judgment entered after a jury trial convicting him of first -degree murder. We affirm. Facts and Background Appellant was convicted of murde ring his estranged girlfriend (Victim) by shooting her from outside of her window at night . Victim was in her apartme nt she shared with her younger brother, Reggie Jackson (Re ggie), who was 13 years old at the t ime of his sister’s shooting. On the evening Victim was shot, Re ggie was in the living room play ing video games. Reggie testified he heard Appellant yell “F--- you” followed by gunsho ts. Reggie testified he was familiar with the sound of gunshots in their neighborhood, and usually when he heard them his sister would yell for him to ge t down. That night, Reggie did not hear his sister yell, so he went to her room to check on her. Re ggie entered his sister’s room and saw blood everywhere, and then ran from their apartment to a neighbor’s house.2 Emergency services responded, fi nding Victim dead at the scene . She had been shot four times from outside th e apartment; it was not clear how many sho ts had been fired in total. Police interviewed Reggie at the scene. Reggie recounted whathe had observed. He told police Victim had a restraining or der against Appellant, who wa s the individual he heard yell before Victim was shot. Police accessed security camera footage from the apartment com plex. The footage depicted a male subject pacing a round the complex shortly befor e the shooting. The subject was wearing a dark shirt and jeans with distinctiv e tearing and ble ach marks. The shooting itself was not shown, but the individual stal ked the area outside of Victi m’s window sometime before the shooting, and then suddenly ran away. Investigators spoke with a neighbor who had witnessed an indiv idual walking around the apartment complex that night . The neighbor recognized the indi vidual as a man who been at the complex on numerous occasions, and who drove a noisy car with e ngine troubles. While dating Victim, Appellant had been to the apartment complex numerous ti mes. At trial, R eggie testified about Appellant’s battered car with noisy engine troubles. Police obtained the restraining order Victim had recently obta ined against Appellant from Victim’s apartment. Investiga tion led police to a residence inSt. Louis where Appellant had been staying. A vehicle connect ed with Appellant was located o utside the residence. Inside the residence police found a box cont aining Appellant’s belongings, including his driver’s license. In the closet of a bedroom occupi ed by another i ndividual, poli ce found a .38 caliber revolver with five spent shell casings . An examination of the revolver could not conclusively determine whether the bullets t hat killed Victim were fired from it, nor could fingerprints be identified. However, examiners were able to c onclude the revolver was the s ame caliber as the murder3 weapon. Examiners also concluded the revolver had the same eig ht-right barrel rifling that would produce the same type of lands and grooves as were found on the slugs fired into Victim’s apartment. Appellant was arreste d wearing clothes similar to the subject depicted in the surveillance footage. Additional facts will be adduced as necessary. Points on Appeal Appellant brings three points i n this appeal. Point I claims the trial court erred by excluding evidence of an alternat ive suspect. Point II claims the trial court erred by admitting into evidence the security camer a footage from the apartment wi thout a proper foundation. Point III claims the trial court erred by admitting into evidence the revolver found in the closet at the residence where Appellant was staying. Point I At trial, Appellant sought to int roduce evidence that Nelson Ha ll, Jr. (Hall), an individual Victim had dated before Appellant, was the actual shooter. The State of Missouri (State) filed a motion in limine to exclude such e vidence. At a pretrial heari ng on the State’s motion in limine, Appellant told the trial court he wished to introduce evidence of a number of violent incidents between Victim and Hall, includi ng one incident where Hall bran dished a gun and punched a hole in Victim’s wall. Appellantalso stated he wished to elic it testimony from Reggie that Hall continued to appear at Victim’s and his apartment after Hall an d Victim broke up, including one instance where Reggie saw Hall lingering outside their window. The State argued there was no evidence placing Hall at the scen e of the shooting that night, and all the other ev idence was thus inadmissible. When the trial c ourt asked whether Appellant had any evidence directly4 connecting Hall to the shooti ng, Appellant stated he did not. The trial court ruled evidence regarding Hall as an alternative suspect was inadmissible. At the conclusion of Reggie’s testimony, Appellant made an off er of proof consisting of testimony from Reggie regarding H all. At the end of the offer of proof, Appellant asked Reggie whether the voice he heard yell “ F--- you” the night his sister was shot could have been Hall’s, and Reggie replied, “Maybe.” Standard of Review “The trial court is v ested with broad discr etion to exclude or admit evidence at trial.” State v. Wright, 551 S.W.3d 608, 616 ( Mo. App. E.D. 2018), citi ng State v. Bowman, 337 S.W.3d 679, 686 (Mo. banc 2011). “We review the trial court’s evidentiary rulings for an abuse of that broad disc retion.” Id. An abuse of discretion occurs when the trial court’s decision is so against the logic of the circumstances then before it, or so unreasonable and arbitrary, that it shocks one’s sense of justice a nd indicates a l ack of careful c onsideration. State v. Shegog, 521 S.W.3d 628, 633 (Mo. App. W. D. 2017). We reverse on such a bas is only when an appellant establishes both error an d resulting prejudice. Id.
Discussion Appellant claims the evidence he offered to the trial court wa s sufficient under Missouri law to entitle him to present to the jury as evidence of an alt ernative suspect. “Generally a defendant may int roduce evidence tending to show that another person committed the offense, if a proper foundation is laid, unless t he probative value of the evidence is substantially outweighed by its costs (such as undue delay, prejudice or confusion).” State v. Barriner, 111 S.W.3d 396, 400 (Mo. banc 2003). Missouri courts have been consistent in holding evidence showing anothe r person had a motive or an oppo rtunity to commit the crime is5 not admissible to cast a bare suspicion on another person. State v. Speaks, 298 S.W.3d 70, 86 (Mo. App. E.D. 2009), citing Sta te v. Woodworth, 941 S.W.2d 679 , 690 (Mo. App. W.D. 1997). Such evidence may be admissible , provided the defendant can sat isfy the so-called “direct connection rule.” State v. McKay, 459 S.W.3d 450, 458 (Mo. App . E.D. 2014). In order to satisfy this rule, “[t]he evid ence must be such proof as direct ly connects the other person with the corpus delicti, and tends clear ly to point out someone besides [the defendant] as the guilty person.” Speaks, 298 S.W.3d at 86. We find the evidence referred t o in the State’s motion in limi ne, and during the pretrial hearing on the same, was properly c lassified by the trial court as inadmissible evidence of a possible motive and opportunity for Hall to have committed the shooting. Appellant wished to introduce Reggie’s testimony that Hall was violent towards Vict im in the past, possessed a gun, and continued to stalk Victim after they broke up. None of thi s evidence directly connects Hall with the shooting. Appellant con ceded as much when he told the trial court he had no evidence placing Hall at Victim’s apartm ent that night. Without evidenc e directly connecting Hall to the shooting itself, evidence he was violent towards Victim in the past, threatened her, or was otherwise abusive and ho stile is precisely t he sort of evidence Missouri courts consider inadmissible. See Helmig v. State, 42 S.W.3d 658, 671-72 (Mo. App. E.D. 2001); State v. Stokes, 638 S.W.2d 715, 723 (Mo. banc 1982). On appeal, Appellant argues his evidence met the “direct conne ction” threshold because during his offer of proof, when Re ggie was asked whether the vo ice he heard may have been Hall’s, Reggie responded, “Maybe.” This “maybe,” standing alon e, is insufficient to meet Appellant’s burden of producing evi dence that “tends clearly to point out someone besides [the defendant] as the guilty person.” Speaks, 298 S.W.3d at 82, qu oting Woodworth, 941 S.W.2d at6 690. Reggie had consistently ident ified Appellant as the indiv idual whom he heard yell before Victim was shot. Appellant cannot point to any other evidence to show a direct connection between Hall and Victim’s murder . Bereft of any further contex t, Reggie’s one ambiguous answer during the offer of proof does not clearly connect Hall to the shooting, and can at most serve to cast on him bare suspicion. Appellant argues this case is similar to State v. McKay, where this Court reversed the trial court based on its exclusi on of several substantial piece s of evidence that directly connected an alternative suspect to the commission of the offense. 459 S .W.3d at 459-60. We find this case bears a stronger resemblance to State v. Bowens ̧ 550 S.W.3 d 84 (Mo. App. E.D. 2018). There, the appellant also atte mpted to invoke McKay, arguing th e trial court’ s exclusion of evidence of several other robberies committed by an individual wearing the same Chicago Bulls cap worn by the appellant during th e commission of his offense was error. Id. at 99-100. The appellant argued the direct conne ction rule was satisfied by th e perpetrators wearing similar hats. Id. This Court disagreed, holdi ng that, unlike the clear and s ubstantial evidence discussed in McKay, the hat connection “does not tend to clearly point to [t he alternative suspect] as the guilty person in this case. At most, the evidence only raises a bare suspicion or conjectural inference that another person c ommitted the crimes....” Id. at 100. From Bowen’s holding, we take th e principle that the direct co nnection rule cannot be satisfied on evidence so lacki ng in probative value it is outwe ighed by its potential to confuse and mislead the trier of f act. See also State v. Harding, 528 S.W.3d 362, 377-78 (Mo. App. E.D. 2017) (offered evidence “must establish a clear link between the alleged alternative perpetrator and a key piece of evidence in the crime”) (emphasis added). B ereft of context, Reggie’s monosyllabic response during the offer of proof does not meanin gfully put at issue whether Hall7 was involved with Victim’s shoo ting, nor does it justify giving Appellant an unfettered opportunity to introduce evidence that is otherwise inadmissibl e. In so holding, we are also mindful of the substantial ev idence of Appella nt’s guilt, whichincludes two witnesses recognizing his voice and his car , his possession of clothes si milar to the clothes worn by the assailant on security camera, a nd the fact a weap on of the same type used to kill Victim was found where Appellant was staying. In light of the record as awhole, we cannot conclude the exclusion of Reggie’s “maybe” ha d an outcome determinative effe ct. Nor did that “maybe” justify allowing Appellant to dre dge up another unfortunate pas t relationship of Victim’s, and create a substantial risk the jury would be confused, misled, a nd unduly prejudiced. See McKay, 459 S.W.3d at 459-60 (showing prejudi ce requires error to have had reasonable probability of affecting outcome). Accordingly, Appellant’s first point is de nied. Point II In his second point, Appellant cla ims the trial court plainly erred by admitting security camera footage for which the State failed to lay a proper found ation. At trial, the State sought to a dmit the security camera footag e obtained from Victim’s apartment’s surveilla nce system. The footage depicted the indi vidual that the State argued was Appellant as he stalked about the apartment’s exterior before p ausing outside of Victim’s window for some time, then suddenly running away. At trial, the footage was in troduced through one of the invest igating police officers. The officer testified he was able to remotely access the apartment complex’s security footage due to having accessed it for a prior investigation. The officer stat ed he was familiar with the security camera system, had used it before, and based on his experience the footage was of above-average quality. After observing the foot age, the officer requested an d received a copy. When the State8 sought to admit this footage into evidence, Appellant objected, stating he believed the proper foundation had not been laid becau se the officer could not test ify as to his personal knowledge of whether the footage depicted a f air and accurate representation of what occurred. The trial court overruled Appellant’s objection and the footage was admitted. Standard of Review Appellant objected to the intr oduction of the footage at trial , but did not include the claim in his motion for new trial. Appe llant concedes he has not pre served this issue for appellate review. Rule 29.11(d). 1 Thus, this claim may only be reviewed for plain error. “Plain error is a t wo-step process.” State v. Speed, 551 S.W. 3d 94, 98 (Mo. App. W.D. 2018), citing State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2 009). First, we determine whether the trial court committed evident, obvious and clear error affecting the defendant’s substantial rights. If the def endant does not get past the first step, our inquiry e nds. If we determine that a plain error occurred, however, we then must decide whe ther the error actually resulte d in manifest injustice or a miscarriage of justice. State v. Smith, 370 S.W.3d 891, 894 (Mo. App. E.D. 2012). “The trial court is v ested with broad discr etion to exclude or admit evidence at trial.” Wright, 551 S.W.3d at 616, citing Bowman, 337 S.W.3d at 686. “ We review the trial court’s evidentiary rulings for an abus e of that broad d iscretion.” Id . An abuse of discretion occurs when the trial court’s decision is so against the logic of the circumstances then before it, or so unreasonable and arbitrary, that it shocks one’s sense of justi ce and indicates a lack of careful consideration. Shegog, 521 S.W.3d at 633. We reverse on such a basis only when an appellant establishes both error an d resulting prejudice. Id.

1 Mo. R. Crim. P. 2018.9 Discussion The State argues sufficient f oundation was laid for the video under State v. Moyle, 532 S.W.3d 733 (Mo. App. W.D. 2017). Moyl e involved a defendant ontrial for attempting to return items she had not purchased to a store. Id. at 735. The State sought to introduce surveillance footage of the defendant taking items from a store shelf and th en proceeding directly to the return desk to obtain a fraudulent re fund. Id. The defendant objecte d because the State had no witness to testify as to their own firsthand knowledge that the footage was a fair and accurate representation of what it depi cted. Id. at 736. The trial court overruled the objection and the footage was admitted. Id. at 735. On appeal, the Western District affirmed the trial court’s ruling under the so-called “sile nt witness” theory. Id. at 738 . Under this theory of authentication, the routinely col lected security camera footage was admissible evidence of an event’s occurrence even though no witn ess could verify its accu racy from firsthand knowledge. Id. at 737. The theory is so named because under it the footag e itself is treated as a proxy witness of the event it depict s. Id. If the camera and securi ty system used to capture the footage displayed sufficient indicia of reliability, the footage should be admissible to prove the occurrence of the eve nt it depicts. Id. In Moyle, the Western District set forth its view on what fact ors trial courts should consider when evaluating the re liability of the surveillance fo otage evidence. The nonexhaustive list includes: (1) w hether the camera, recording sys tem and storage method were working properly at the time of t he event depicted; (2) the his toric reliability of the system including whether it was suffici ently protected from tampering by third parties; and (3) whether the recording in the medium pres ented at trial is a fair and ac curate portrayal of the recording in its original form, or that any m odification is sufficiently exp lained and does not affect the10 reliability or accuracy of the evidence. Id. at 738. The Moyl e court noted its l ist was not meant to be comprehensive, and, dependi ng on the circumstances, the trial court may conduct additional inquiry to ensure the system is sufficiently reliabl e. Id. On appeal, Appellant claims the State met none of its foundati onal burdens under Moyle. We disagree. The foundation was s ufficient to show the camera was working properly, as the officer testified he was familiar with the system, had used it in the past, had utilized it in the instant case withoutany indication of malfunction, and in his experience it was of above-average quality. As to the third factor , the officer also testified he had accessed the feed from the camera system near the time of the shoo ting, had later requested a cop y of that footage, and that the copy matched his initial observation of the feed. If the State’s foundation was l acking in any respect, it was w ith regard to the second factor. The State argues the f oundation was sufficient to show historic reliability because the officer testified he had utilized t hat same camera system for a prior investigation. This may be sufficient to establish a general historic reliability, but the Moyle factor includes a more specific inquiry: whether the system is pr otected from third-party tampe ring. As far as we can tell, the State laid no foundation to show whe ther the surveillance syste m itself was sufficiently protected from third-party tampering. However, this deficiency does not rise to the level of plain e rror. Notably, Appellant does not argue the video footag e may have been tampered with, o r was readily available to be tampered with. Nor does Appellant argue the State would have b een unable to establish the system was sufficiently protect ed from tampering. Rather, he p oints only to the lack of foundation on the record estab lishing such protections. Even i f we were to agree the trial court erred by accepting the footage w ithout such assurance by the St ate, Appellant would still have11 the burden of establishin g he was prejudiced. Shegog, 521 S.W. 3d at 633. Without any suggestion the State would have been unable to lay a proper foundation for the footage, it is questionable whether Appellant can establish any resulting prej udice, much less the higher burden he now bears of showing a m anifest injus tice resulted. See Kulhanek v. State, 560 S.W.3d 94, 104 (Mo. App. E.D. 2018) (no pr ejudice results from admitting evidence without foundation where appellant cannot argue State was actually unab le to lay foundation). In the instant case, the surve illance footage was highly proba tive and otherwise displayed strong indicia of reliability. Further, as the Moyle court poi nts out, the traditional rules governing the admission of video evi dence are too restrictive a nd illogical to apply in the instant case, as they may have resulte d in the exclusion of video evide nce that was useful to the jury in evaluating the State’s case agai nst Appellant. However, Moyle should not serve as a license for the unrestricted admission of suc h footage without the prerequi site inquiries prescribed by the Moyle court. Here, the trial court admitted the security camer a footage into evidence without assurances from the State the sy stem was historically reliable with regard to its protections from third-party tampering. However, gi ven the standard of review, Appellant is unable to establish this amounts to plain error. Aft er considering the entire reco rd, including the footage’s other strong indicia of reliability and the substantial evidence of A ppellant’s guilt, we find neither a manifest injustice nor a misca rriage of justice occurred. Appellant’s Point II is denied. Point III Appellant next claims the tri al court abused its discretion by allowing the State to enter into evidence the revolver found i n the closet at the residence where Appellant was staying. He argues the evidence was not logica lly or legally relevant becau se the revolver was found in the12 closet of a room occupied by anot her individual, and the State was unable to establish the revolver was the same one used to shoot Victim. Standard of Review “The trial court is v ested with broad discr etion to exclude or admit evidence at trial.” Wright, 551 S.W.3d at 616, citing Bowman, 337 S.W.3d at 686. “ We review the trial court’s evidentiary rulings for an abus e of that broad d iscretion.” Id . An abuse of discretion occurs when the trial court’s decision is so against the logic of the circumstances then before it, or so unreasonable and arbitrary, that it shocks one’s sense of justi ce and indicates a lack of careful consideration. Shegog, 521 S.W.3d at 633. We reverse on such a basis only when an appellant establishes both error an d resulting prejudice. Id.
Discussion “Evidence of weapons not connect ed to the accused or the offen se at issue are generally inadmissible.” State v. Wood, --- S.W.3d ---, 2019 WL 3144027 (Mo. banc July 16, 2019), citing State v. Hosier , 454 S.W.3d 883, 895 (Mo. banc 2015). [E]vidence is relevant to show that the accused owned, possesse d or had access to tools, implements, or any article s with which the particular cr ime was or might have been committed, and that he owned or had such weapons in h is possession prior to or shortly after the commission of the crime. State v. Miller, 208 S.W .3d 284, 287 (Mo. App. W.D. 2006), quot ing State v. Stancliff, 467 S.W.2d 26, 30 (Mo. 1971). In order to be admissible, evi dence must be both logically and legally relevant. Id. Logical relevance means it makes a material fact more or less l ikely. Id. Legal relevance means its probative value must outwe igh its potential to cause undue prejudice, by misleading or inflaming the passions of the jury. Id.13 We hold the revolver was both log ically and legally relevant. The revolver’s logical relevance was established because the State showed it was the s ame caliber as the murder weapon, with the same eight-rig ht barrel that would produce a p attern of lands and grooves similar to the ones found on the bul lets used to shoot Victim. The spent shell casings in the revolver corresponded to the approx imate number of shots that h ad been fired into Victim’s apartment. Additionally, the revolver was found at a residence where Appellant was staying. This tends to make more likely the fact that Appellant had acce ss to the weapon that may have killed Victim. The revolver was thus connected to both Appella nt and the crime, making it relevant and highly probative of Appellant’s guilt. Speaks, 29 8 S.W.3d at 81. Appellant argues the State cannot tie the revolver to him suffi ciently to establish logical relevance, citing State v. McCauley, 528 S.W.3d 421 (Mo. App. E .D. 2017). McCauley involved a defendant who had been a cquitted notwithstanding a g uilty verdict of being a felon in possession of a firearm. The Stat e appealed the trial court’s granting the defendant’s motion for acquittal. On appeal, this Court held the trial court’s judgme nt was proper where the State failed to prove beyond a reasonable doubtthe defendant knowingly poss essed the firearm found concealed in a kitchen drawer in a shared apartment. McCauley is largely unhelpful to Appellant, because the standard for establishing logical relevance and the standard for convicting someone of illegally possessing a n item, which is proof beyond a reasonable doubt they knowingly possessed it, are substa ntially different. See State v. Prince, 534 S.W.3d 813, 819 (Mo. banc 2017) (“Determining wheth er evidence is logically rel evant is a very low-level test that is easily met.” ) (citation and interna l quotation marks om itted). Appellant also argues the revol ver’s probative value was outwe ighed by its tendency to unfairly prejudice the jury aga inst him, but he does not identi fy any such unfair prejudice.14 Appellant claims the revolver unfairly prejudiced him by allowi ng the State to argue the revolver tied Appellant to the offense. T his argument begs the question , as it presumes the probative value of the evidence and the unf airly prejudicial effect are o ne and the same. But it is insufficient to merely show the damning evidence was prejudicia l; any evidence that establishes a defendant’s guilt necessarily prejudices him. State v. Rush, 949 S.W.2d 251, 256 (Mo. App. S.D. 1997). Appellant must establish such prejudice is unfair , and outweighs the evidence’s probative value. Appellant has failed to do so. Of all the cases cited by Appe llant, none supports his claim t hat where, as here, the State establishes a clear link between the crime, the evidence, and t he defendant, the evidence must nonetheless be excluded. Appe llant’s Point III is denied. Conclusion The judgment of the trial court is affirmed.

SHERRI B. SULLIVAN, J. Mary K. Hoff, P.J., and Angela T. Quigless, J., concur.