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

DIVISION THREE STATE OF MISSOURI, ) No. ED107999 ) Respondent, ) Appeal from the Circuit Court of ) St. Charles County vs. ) 1611-CR04052-01 ) LARRY E. NORTHCUTT, ) H onorable Deborah J. Alessi ) Appellant. ) Filed: September 29, 2020
Angela T. Quigless, P.J., Kurt S. Odenwald, J., and James M. Dowd, J. OPINION Larry Northcutt was convicted following a January 2019 jury trial in the Circuit Court of St. Charles County of one count of murder in the first degree, § 565.020, 1 and one count of armed criminal action, § 571.015, in connection with the July 23, 2016 stabbing death of Victim Chris Gernigan. In this appeal, Northcutt raises two claims of trial court error. In Point One, Northcutt claims the trial court plainly erred in admitting the testimony of Detective Splittorff regarding certain cellular phone messages between Northcutt and an associate that were exchanged around the time of the murder becaus e the messages were hearsay. In Point Two, Northcutt claims the trial court erred in admittin g Northcutt’s statement to Detective O’Neill that

1 All statutory references are to RSMo 2016 unless otherwise indicated.2 revealed his cellular phone number because he made the statement to the detective before he had been Mirandized . Finding no error, we affirm. Background The evidence viewed in the light most favorab le to the verdict is as follows: Just after midnight on July 23, 2016, Victim Chris Gernigan died on the si de of Highway 67 near West Alton, Missouri after Northcutt fa tally stabbed him in the chest. The prosecution relied heavily on (1) cell phone records, text me ssage records, and surveillance vi deo that helped investigators establish the relevant locations and movements of the Victim a nd Northcutt, (2) incriminating statements Northcutt made during text message conversations with tw o witnesses, and (3) Northcutt’s statement to the police after he waived his Miranda rights. On July 22, 2016, Victim, who lived in Roxanna, Illinois, was trying to get a ride to his girlfriend Kaylyn Davis’s home in Alton, Illinois, approximately 12 miles away. Natasha Smith, a mutual friend of both Victim and Northcutt, ev entually agreed to drive Victim to Davis’s home. Surveillance video at a convenience store in Wood River, Illinois, a town near Roxanna, showed Victim getting picked up by Smith at 12:13 a.m. on July 23 rd . Unknown to Victim, Smith had agreed to allow Northcutt to hide in the trunk of the vehicle. During the ride, Northcutt exchanged text messages with both Smith and with another person named Tara Clark. To Clark, Northcutt boasted from in side the trunk that he “got this bitch t oday,” and told Clark the next day that “I did it, I got him.” In his statement to the police after he waived his Miranda rights, Northcutt stated that when Smith stopped the car on the side of Highway 67 near West Alton, Missouri, 2 Northcutt got

2 West Alton, Missouri is on the opposite side of the Mississippi River fr om Alton, Illinois. Victim told Davis that Smith said she was going to cross over the bridge to the Missouri side to get gas since it was apparently cheaper in Mi ssouri before taking Victim to Davis’s home.3 out with his knife drawn, confront ed Victim, and stabbed Victim in the chest. Northcutt claimed he stabbed Victim only after he sa w a shiny object in Victim’s hand. Victim’s girlfriend Davis, for her part, calle d Victim at 12:27 a.m. on his cellular phone. Victim told her he found a ride and was on his way. Davis heard a female voice in the background then heard Victim scream. The conn ection was lost and her efforts to call back unsuccessful. Eight minutes la ter, Victim’s friend Timothy Booth called Victim’s phone. Northcutt answered. Booth said he was surpri sed because Victim and Northcutt did not get along well. Northcutt told Booth th at Victim might need some help back on the side of the road but Northcutt would not provide Booth with Victim ’s location despite Booth’s repeated requests. Eventually, Victim was sighted by a passing truck driver who called 911. Standard of Review A trial court's decision regarding the admissibil ity of evidence is revi ewed for an abuse of discretion. State v. Winfrey, 337 S.W.3d 1, 5 (Mo. banc 2011). A trial court abuses its discretion only if its decision to exclude evidence is “clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” Mitchell v. Kardesch, 313 S.W.3d 667, 675 (Mo. banc 2010). Evidentiary error is revi ewed “for prejudice, not mere error,” and error is only prejudicial if the court's error affected the outcom e of the trial with “reasonable probability” and deprived the defendant of a fair trial. State v. Clark, 364 S.W.3d 540, 544 (Mo. banc 2012). Analysis
1. Point One – Northcutt’s text messages with Smith Northcutt concedes that he failed to object to the admission of the text messages at issue which were contained in State’s exhibit 42 and th erefore he seeks our review for plain error.4 Supreme Court Rule 30.20 grants this Court the au thority to consider “p lain errors affecting substantial rights.” See State v. DeWeese , 79 S.W.3d 456, 457 (Mo. App. W.D. 2002). Under Rule 30.20, plain error review i nvolves a two-step process. State v. Kidd , 75 S.W.3d 804, 811 (Mo. App. W.D. 2002). First, the reviewing c ourt must determine whether plain error has occurred. DeWeese , 79 S.W.3d at 457. Plain error is error that is evident, obvious, and clear. Id . Second, if this Court finds that plain error occurred, it may reverse if it concludes that the error resulted in a miscarriage of justice or a mani fest injustice, which requires more than a mere showing that the defendant was prejudiced. State v. Creamer , 161 S.W.3d 420, 427 (Mo. App. W.D. 2005). To obtain a new trial on direct appeal based on a clai m of plain error, the appellant must show that the error was outcome determinative. State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019). We are dubious whether Northcutt is entitled even to plain error review. He told the court that he had no objection to the admission of the text messages exchanged between he and Smith. Plain error review does not apply when a party affirmatively states that it has no objection to evidence an opposing part y is attempting to introduce. State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009). Nevertheless, even if we were to consider pl ain error review, Northcu tt is not entitled to any relief because he cannot make the required s howing of a manifest injustice or miscarriage of justice since the alleged hearsay contained in th ose text messages was merely cumulative to the testimony Detective Splittorff had already offered. “An allegedly wrongful admission of hearsay evidence does not constitute plain error if such testimony is merely cumulative to other evidence properly admitted.” State v. Goodwin , 43 S.W.3d 805, 818 (Mo. banc 2001). When the State sought to question Detective Splittorff regarding th e contents of the challenged text messages,5 the detective had already testif ied in detail, based on other properly admitted phone records, regarding Northcutt’s and Smith ’s cell phone locations during the time of the murder and furthermore, the contested text messages were similar in tone to those between Northcutt and Clark which had previously been admitted. Likewise, the Northcutt-Smith text messages were largely cumulative inasmuch as Northcutt confessed voluntarily to police that he was in the trunk of Smith’s vehicle, that he and Smith had exchanged text messages during that time, and that he had stabbed Victim. See Id.
2. Point Two – Northcutt’s pre- Miranda disclosure to police of his cell phone number Northcutt claims the trial court erred in ad mitting his statement to Detective O’Neill in which he disclosed his cellular phone number before the detective had given Northcutt the Miranda warnings. At the outset, we are again doubtful whether Northcutt preser ved this claim of error. While Northcutt indeed moved pret rial to suppress his statement to the detective which contained his cell phone number, he was still required to ma ke a specific objection when the evidence was offered at trial in order to preser ve the issue for appellate review. State v. Cook , 273 S.W.3d 562, 568 (Mo. App. E.D. 2008). Here, Northcutt’s objection when the statement was introduced at trial was “[s]ubject to what we put on the re cord already no additional objection.” From our review of the recor d, it is not altogether clea r to what this statement refers and whether it may be considered. But we will give Northcutt the benef it of the doubt and consider the merits of this point of error. So, regarding the trial court’s decision to allow into evidence his statement to the investigating officer th at included his cell phone number, we consider both the evidence presented at the suppression hearin g as well as at trial to determine whether sufficient evidence6 exists in the record to s upport the trial court’s ruling. State v. Gaw , 285 S.W.3d 318, 319 (Mo. banc 2009). The facts and the reasonable inferences from those facts are considered favorably to the trial court’s ruling, and contrary evidence and infe rences are disregarded. Id . Deference is given to the trial court’s superi or opportunity to determine th e credibility of witnesses. Id . at 320. This Court gives deference to the trial court’s factual findings but reviews questions of law de novo. Id. Viewed in that context, Northc utt’s claim is without merit for at least three reasons. First, at the stage of the investigation in which Northcutt made the statement at issue, Miranda warnings were not required. Questions desi gned to elicit basic background and pedigree information are within the “routine booking exception” to Miranda and Missouri courts have held that questions seeki ng background information on a de fendant do not constitute interrogation under Miranda

. See State v. Ream , 223 S.W.3d 874, 875-76 (Mo. App. S.D. 2007). Second, the record here demonstrates that inve stigators were already aware of Northcutt’s phone number so therefore his claim at best woul d be considered harmless error. Under the harmless error standard, the State must demons trate beyond a reasonabl e doubt that the error complained of did not contribu te to the verdict obtained. State v. Ramirez , 447 S.W.3d 792, 797 (Mo. App. W.D. 2014). And when evidence challe nged on constitutional grounds is cumulative of other properly admitted evidence, the disputed evidence could not have contributed to the defendant’s conviction and is ha rmless beyond a reasonable doubt. Id . at 798. Finally, Northcutt gave a post- Miranda confession that he was in the trunk of the car and that he stabbed Gernigan. He does not challenge the admissibility of that confession. Given that confession, Appellant’s acknowledgement of his phone number cannot be said to have contributed to the verdict.7 Conclusion Finding no error, we affirm th e judgment of the trial court.

______________________________ James M. Dowd, Judge Angela T. Quigless, P.J., and Kurt S. Odenwald, J., concur.