STATE OF MISSOURI, )

)

Respondent, )

)

v. ) No. SD35443

) Filed: January 27, 2020

LORENZO DARNELL ROY, )

)

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Thomas E. Mountjoy, Judge

AFFIRMED

Lorenzo Darnell Roy (“Roy”) appeals his convictions, following a jury trial, of one count

of first

- degree murder, and one count of armed criminal action. Roy challenges his convictions in

seven points on appeal. Finding no merit to Roy’s points, we affirm the judgment of the trial court.

Facts and Procedural Background

We recite the facts of this matter in accord with the principle that we view the evidence

(and the reasonable inferences therefrom) in the light most favorable to the verdict. State v.

Lammers , 479 S. W .3d 624, 630 (Mo. banc. 2016).2 Roy and Victim met in 2012

— the y began a stormy relationship and moved in to Victim’s

house together

. On April 9, 2014, the couple looked at wedding rings. On the evening of April 9

or the early morning of April 10, Victim found a “chat app” or text messages from other women

on Roy’s phone and accused Roy of cheating on her. The couple argued at the ho us e

, and at

approximately 2:00 a.m. on April 10, 2014

, Roy left the house

. A lengthy argument ensued

through text messages between the couple

.

At approximately 9:30 a.m. on April 10, the couple went to breakfast at Hardee ’ s. There,

Roy recognized a woman wit h whom he had previously worked and spoke to her. This led to a

fresh round of argument between Roy and Victim. The couple left the restaurant separately

, and

at around noon

, Victim texted Roy and continued arguing about Roy’s infidelity

.

At approxima tely 4:53 p.m. on the same day

, Roy took a bus to his si ster’s house. Around

10:00 p.m., Victim called Richard Snodgrass (“Snodgrass ” ), and asked him to drive her on various

errands. Snodgrass picked Victim up from her house at approximately 10:31 p.m. They returned

to Snodgrass’ apartment, had sex, and then Victim called Roy from Snodgrass’ phon e. 1 They ran

a few more errands

, and Snodgrass drove to an ATM where he withdrew $200

, which he gave to

Victim. When Snodgrass returned Victim to her home

, he observed a man walk out of the house

and wave at him

— he “figured it was [Roy].” Then Snodgrass drove home.

Sometime after 1:32 a.m. on April 11, when Snodgrass brought Victim home, Victim was

stabbed 20 to 30 times 2 (suffering several defensive woun ds), and sustained blunt force injuries

from a cylindrical obj ect. She bled to death from tho se injuries.

1 Roy knew Victim had been with Snodgrass because she called Roy from Snodgrass’ phone. Roy was also aware

that Victim was accepting money from Snodgrass, and in his text messages to Victim around the time of the murder,

Roy implied Victim was guilty of cheating on him

.

2 The evidence at trial reflected that several of the wounds ove rlapped, making it difficult to determine the precise

number of stabs responsible for Victim’s wounds.3 At approximately 6:54 p.m. on April 11, 2014, police arrived at Victim’s home on a

dispatch regarding a possible stabbing

. Officer Taylor Bolton (“Officer Bolton”) observed a man

and a woman (later identified as Victim’s mother) on the porch. Victim’s m other (“Mother”) was

frantic and upset : “ She was screaming that her daughter was dead inside the residence,” and that

Roy “h ad killed her daughter.” Police searched the house after obtaining a warrant

— they found

Victim dead on the kitchen floor. There were no signs of forced entry.

In an alley down the street, officers found a pair of yellow rubber gloves turned inside out

(o ne had Victim’s blood on it), a large kitchen

- style butcher knife (with Victim’s blood on it),

Victim’s driver’s license, fingernail polish, a black bra, a plastic handle to a pot, a trash bag with

a knife blad e sticking out of it (the blade had Victim’s b lood on it), a purse, a wallet containing

Victim’s Social Security card, a prescription for Victim, Roy’s paystub, and a piece of mail

addressed to Roy at Victim’s address.

Next to the alley on the other side of a fence, officers also found a frying pan with blood

on it, a dented saucepan missing its handle, a mop, and Roy’s baseball cap which Roy was seen

wearing in bus security footage on the afternoon of April 10, 2014, and which now had blood “all

over it.”

Police interviewed Mother and Snodgrass, and sought Roy out at the home of his sis ter,

Brenda Boykins (“Boykins”). Roy agreed to accompany police and was interviewed at the police

station

.

On August 12, 2014, Roy was charged by felony information with the class A felony of

murder in the first degre e (Count I), pursuant to section 565.020; 3 and armed criminal action

(Count II), pursuant to section 571.015.

3 All references to statutes are to RSMo 2000, unless otherwise indicated.4 A jury trial commenced on December 11, 2017. Roy testified in his own defense

. The

jury found Roy guilty of first

- degree murder and armed criminal action

. The trial court sentenced

Roy to life imprisonment, and 50 years ’ imprisonment

, respectively

, with the sentences to run

concurrently.

Roy challenges his convictions in seven points on appeal. Additional facts are included

below as necess ary to address each of Roy’s points.

Principles of Review

A trial court has broad discretion to admit or exclude evidence during a

criminal trial, and error occurs only when there is a clear abuse of this discretion.

A trial court abuses its discretion only if its decision to admit or exclude evidence

is clearly against the logic of the circumstances then before the court and is so

unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of

careful, deliberate consideration. T his Court will reverse the trial court’s decision

only if there is a reasonable probability that the error affected the outcome of the

trial or deprived the defendant of a fair trial.

State v. Wood

, 580 S.W.3d 566, 574 (Mo. banc 2019) ( internal quotations and citations omitted).

Point I: No Confrontation Clause Violation

In his first point, Roy argues that the trial court “erred” and “abused its discretion” in

overruling defense counsel’s objection to Officer Bolton’s testimony that Mother said Roy kill ed

Victim. Roy claims that this evidence was “testimonial,” and therefore inadmissible pursuant to

the Confrontation Clause.

Roy’s challenge directs us to the following proceedings at trial, which comprise the

underlying substance of his argument:

[STATE : ] And on [April 11, 2014], were you called to 1121 North Sherman in

Springfield, Missouri?

[BOLTON : ] I was.

. . . .5 [STATE : ] Why were yo u dispatched to that location?

[BOLTON : ] We had a report that a possible stabbing had occurred at this

location.

[STATE : ] Was that all the information you had as you went to that residence?

[ BOLTON : ] That there was a female to the home that had been stabbed and that

there was another person there at the home that had called 9

- 1

- 1.

[STATE : ] Were you alone or with so meone else when you went to t hat

residence on North Sherman?

[BOLTON : ] I was with another officer as an Adam unit, whic h is two officers to

a vehicle.

[ STATE: ] And who was that officer?

[BOLTON : ] Of ficer Bowling.

. . . .

[STATE : ] You said that [ Mother ] was standing out there by the front porch

--

or by the front door when you arrived at the house. Can you describe

for the jury her de meanor at that time?

[BOLTON : ] She was very frantic and upset. She was screaming that her daughter

was dead insi de the residence.

[STATE : ] Did she make any other statements about what she thought had

h appened?

At this time, defense counsel asked to approach the bench, and the following colloquy

ensued:

[ DEFENSE COUNSEL : ] Judge, I’m going to object at this time to

any elicitation as to what [ Mother ] said to the officer as to what her opinion is of

what happened, for a number of reasons. One, because although it does get over

the hearsay hurdle of excited utterance, because she was clearly distraught

-- I do n’t

challenge that

-- but she was making it to an officer; so, it’s testimonial. Therefore,

I would respectfully submit it viola tes the right to confrontation.

And, two, if I’m correct, [the prosecutor] is trying to elicit [ Mother ]’s

statements that she believes Lorenzo Roy did it. That’s an ultimate fact and invades

the province of the jury. Obviously the State believes he did, but I don’t believe6 it’s appropriate for [ Mother ] ’s statements to come in. It is speculative. It goes to

an ultimate issue which is for the jury alone. She’s not an expert.

[ STATE : ] First, there is a hearsay exception that applies. It’s an

excited utterance; so

, I don’t think that’s an issue.

As far as about what the actual content of the statement is, there won’t be

a ny evidence that she saw the crime committed or really that this is anything other

than speculation on her part.

I think what’s significant for the jury to hear is because it helps start to shape

the course of the investigation of the law enforcement officers. When knowing that

the police officers could have looked into all of these other people, but they decided

from the git

- go they thought it was Lorenzo Roy and started investigating him first,

I think it makes sense to then share the statement that was made by [ Mother ].

She obviously had an interest in finding who murdered her daughter, and

the first thing she said, that it was Lorenzo Roy, is what caused the law enforcement

officers to start looking in to [sic] Lorenzo Roy.

THE COURT: Okay

. Well

, your point about it being testimonial

and, therefore subject to [ Crawford v. Washington, 541 U.S. 36

, 124 S.Ct. 1 354,

158 L.E.2d 177 (2004) ], I suppose is what you’re telling me, that’s what makes the

hearsay rule applicable if it’s going to be appl icable. Excited utterance is an

exception to that; so, that’s a circular argument.

The fact it goes to the ultimate issue

, the entire trial is about the ultimate

issue, and the evidence presented goes to the ultimate issue. The jury makes that

determination. It’s not an opinion. It’s excited utterance and part of what happened

there during the res gestae of the offense itself. [ 4 ]

4 Curiously, Roy claims in his reply brief that the application of res gestae was superfluous to the jury’s purposes in

that: (1) Victim “was killed in her house, which she shared with her boyfriend, [Roy]”; (2) published studies indicate

that “[h]omicide s perpetrated against women overwhelmingly involve the perpetrators bei ng husbands, ex

- husbands,

or boyfriends”; and (3) the “data shows it was unnecessary to explain why the police subsequent conduct [sic] would

have focused on [Roy] and it was unnecessary for Bolton to testify [Mother] believed [Roy] killed [Victim] because

[Roy] would naturally have been a suspect because of their romantic relationship in which [Roy] and [Victim] lived

together at [Victim ] ’s house.”

Roy’s reliance on “necessary” and “unnecessary” as the criteria for the admissibility or inadmissibility of the State’s

evidence is misplaced. See Wood

, 580 S.W.3d at 575 (“Although [defendant] admitted he killed [victim], the state,

having the burden of proving defendant’s guilt beyond a reasonable doubt, should not be unduly limited in its quantum

of proof.”) (internal quotation and citation omitted).

Moreover, to the extent that Roy’s reply brief concedes

— as it seems to do

— that it was so overwhelmingly obvious

that Roy would “naturally have been a suspect” that it effectively went without saying, it is uncle ar how any prejudice,

as necessary for reversal, would attach to: (1) the admission of evidence redundant to such a foregone conclusion

(such as that complained of in Roy’s Point I ); and (2) the trial court’s exclusion of evidence as to allegations of police

failure “to conduct thorough meaningful investigation” by focusing on Roy instead of following up on other leads

(Roy’s Point IV).7 So objecti on’s overruled. It’s received.

“We typically review a trial court’s evidentiary rulings for an abuse of discretion but

determining whether a criminal defendant’s rights were violated under the Confrontation Clause

is a question of law that this Court reviews de novo.” State v. Edwards

, 579 S.W.3d 249, 255

(Mo.App. E.D. 2019).

The United States Supreme Court in Ohio v. Clark

, 135 S.Ct. 2173, 2179

– 81, 192 L.Ed.2d

306 (2015)

, summarized precedent and principles applicable to the instant challenge:

The Sixth Amendment’ s Confrontation Clause

, [ 5 ] which is binding on the States

through the Fourteenth Amendment, provides: “In all criminal prosecutions, the

accused shall enjoy the right

. . . to be confronted with the witnesses against him.”

In Ohio v. Roberts

, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)

, we

interpreted the Clause to permit the admission of out

- of

- court statements by an

unavailable witness, so long as the statements bore “adequate ‘indicia of

reliability.’” Such indicia are present, we held, if “the evidence falls within a firmly

rooted hearsay exception” or bears “particularized guarantees of trustworthiness.”

Ibid

.

In Crawford v. Washington

, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)

,

we adopted a different approach. We e xplained that “witnesses,” under the

Confrontation Clause, are those “who bear testimony,” and we defined “testimony”

as “a solemn declaration or affirmation made for the purpose of establishing or

proving some fact.” Id., at 51, 124 S.Ct. 1354 (internal quotation marks and

alteration omitted). The Sixth Amendment, we concluded, prohibits the

introduction of testimonial statements by a nontestifying witness, unless the witness

is “unavailable to testify, and the defendant had had a prior opportunity for cr oss

examination.” Id., at 54, 124 S.Ct. 1354

. Applying that definition to the facts in

Crawford

, we held that statements by a witness during police questioning at the

station house were testimonial and thus could not be admitted. But our decision in

Cra wford did not offer an exhaustive definition of “testimonial” statements.

Instead, Crawford stated that the label “applies at a minimum to prior testimony at

a preliminary hearing, before a grand jury, or at a former trial; and to police

interrogations.” Id.

, at 68, 124 S.Ct. 1354

.

Our more recent cases have labored to flesh out what it means for a statement to be

“testimonial.” In Davis an d Hammon v. Indiana

, 547 U.S. 813, 126 S.Ct. 2266,

165 L.Ed.2d 224 (2006)

, which we decided together, we dealt with statements given

to law enforcement officers by the victims of domestic abuse. The victim in Davis

5 The Missouri Constitution also provides that “in criminal prosecutions the accused shall have the right to

. . . meet

the witnesses against him face to face [

. ] ” M O C ONST

. art. I, § 18(a).8 made statements to a 911 emergency operator during and shortly after her

boyfriend’ s violent attack. In Hammon

, the victim, after being isolated from her

abusive husband, made statements to police that were memorialized in a “‘battery

affidavit.’” Id., at 820, 126 S.Ct. 2266

.

We held that the statements in Hammon were testimonial, while the statements in

Davis were not. Announcing what has come to be kno wn as the “primary purpose”

test, we explained: “Statements are nontestimonial when made in the course of

police interrogation under circumstances objectively indicating that the primary

purpose of the interrogation is to enable police assistance to meet an ongoing

emergency. They are testimonial when the circumstances objectively indicate that

there is no such ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” Id., at 822, 126 S.Ct. 2266

. Because the cases involved

statements to law enforcement officers, we reserved the question whether similar

statements to individuals other than law enforcement officers would raise similar

issues under the Conf rontation Clause. See id., at 823, n.2, 126 S.Ct. 2266

.

In Michigan v. Bryant

, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011)

, we

further expounded on the primary purpose test. The inquiry, we emphasized, must

consider “all of the relevant circumst ances.” Id., at 369, 131 S.Ct. 1143

. And we

reiterated our view in Davis that, when “the primary purpose of an interrogation is

to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial

and thus is not within the scope of the [ Confrontation] Clause.” 562 U.S., at 358,

131 S.Ct. 1143

. At the same time, we noted that “there may be other circumstances,

aside from ongoing emergencies, when a statement is not procured with a primary

purpose of creating an out

- of

- court substitute for trial testimony.” Ibid. “[T]he

existence vel non of an ongoing emergency is not the touchstone of the testimo nial

inquiry.” Id., at 374, 131 S.Ct. 1143

. Instead, “whether an ongoing emergency

exists is simply one factor

. . . that informs the ultimate inquiry regarding the

‘primary purpose’ of an interrogation.” Id., at 366, 131 S.Ct. 1143

.

One additional factor is “the informality of the situation and the interrogation.” Id.

,

at 377, 131 S.Ct. 1143

. A “formal station

- house interrogation,” like the questioning

in Crawford

, is more likely to provoke testimonial statements, while less formal

questioning is less likely to reflect a primary purpose aimed at obtaining testimonial

evidence against the accused. Id., at 366, 377, 131 S.Ct. 1143

. And in determining

whether a statement is testimonial

, “standard rules of hearsay

, designed to identify

some statements as reliable, will be relevant.” Id., at 358

– 359, 131 S.Ct. 1143

. In

the end, the question is whether, in light of all the circumstances, viewed

objectively, the “primary purpose” of the conversation was to “creat[e] an out

- of

court substitute for trial testimony.” Id., at 358, 131 S.Ct. 1143

. Applying these

principles in Bryant

, we held that the statements made by a dying victim about his

assailant were not testimonial because the circumstances objectively indicate d that

the conversation was primarily aimed at quelling an ongoing emergency, not

establishing evidence for the prosecution. Because the relevant statements were9 made to law enforcement officers, we again declined to decide whether the same

analysis appli es to statements made to individuals other than the police. See id., at

357, n.3, 131 S.Ct. 1143

.

Thus, under our precedents, a statement cannot fall within the Confrontation Clause

unless its primary purpose was testimonial. “Where no such primary purp ose

exists, the admissibility of a statement is the concern of state and federal rules of

evidence, not the Confrontation Clause.” Id., at 359, 131 S.Ct. 1143

. But that does

not mean that the Confrontation Clause bars every statement that satisfies the

“ primary purpose” test. We have recognized that the Confrontation Clause does

not prohibit the introduction of out

- of

- court statements that would have been

admissible in a criminal case at the time of the founding. See Giles v. California,

554 U.S. 353, 358

– 359, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); Crawford

, 541

U.S., at 56, n.6, 62, 124 S.Ct. 1354

. Thus, the primary purpose test is a necessary,

but not always sufficient, condition for the exclusion of out

- of

- court statements

under the C onfrontation Clause.

Id. (bolding added to citations ).

“I t seems ap parent that the Sixth Amendment’ s Confrontation Clause and the evidentiary

hearsay rule stem from the same roots.” Giles

, 554 U.S. at 365

, 128 S.Ct. at 2686 ( internal

quotation and citation omitted). Likewise

, both hearsay 6 and testimonial evidence 7 exclude from

their purview testimony offered for a le gitimate purpose other than to establish the truth of the

matter asserted

. Williams v. Illinois

, 567 U.S. 50, 78, 132 S.Ct. 2221, 2240, 183 L.Ed.2d 89

(2012)

. 8

6 See State v. McFadden

, 391 S.W.3d 408

, 431 (Mo. banc 2013) (“Hearsay is an out

- of

- court statement offered for

the truth of the matter asserted.”); State v. Winfrey

, 337 S.W.3d 1, 6 (Mo. banc 2011) (“However, if an out

- of

- court

statement is not admitted to prove the truth of the matter asserted, but for some other purpose that is independently

relevant without reference to the truthfulness of the statement, then the statement is no n

- hearsay.”)

.

7 See Woods v. Etherton

, 136 S.Ct. 1149, 1152, 194 L.Ed.2d 333 (2016) (“The Confrontation Clause prohibits an out

of

- court statement only if it is admitted for its truth.”).

8 In such circumstances, defense counsel is at liberty to request a limiting instruction to the jury “that out

- of

- court

statements cannot be accepted for their truth[.]” Williams

, 567 U.S. at 81. In the instant matter, defense counsel did

not request such a limiting instruction.10 Here, the challenged statement was not offered to prove the truth of the matter asserted

, 9

but rather to facilitate the development of res gestae

. As the prosecutor explained following

defense counsel’s objection:

As far as about what the actual content of the statement is, there won’t be

any evidence that [Mother] saw the crime committed or really that this is anything

other than speculation on her part.

I think what’s significant for the jury to hear is because it helps start to shape

the course of the investigation of the law enforcement officers. When knowing that

the police officers could have looked into all of these other people, but they decided

from the git

- go they thought it was Lorenzo Roy and started investigating him first,

I think it makes sense to then share the statement that was made by [ Mother ]

.

[This] is what caused the law enforcement officers to start looking in to [sic]

Lorenzo Roy.

Because the challenged testimony was not offered to prove the truth of the matter asserted

( i.e

., that Roy killed Victim), it was not testimonial, and not within the purview of the

Confrontation Clause.

Even if the testimony had been offered for the truth of the matter asserted, the record in the

instant matter, as considered in accord with the “primary purpose test” and other relevant

9 In support of his argument, Roy directs us to State v. Robinson

, 196 S.W.3d 567 (Mo.App. S.D. 2006). Robinson

is unavailing. There, defendant was convicted of murder in the second degree and armed criminal action, where the

State’s case depended on esta blishing conspiracy (as defendant did not shoot the victim), and defendant’s defense was

that he did not know his charged co

- conspirator would shoot the victim. We reversed and remanded for a new trial

where the prosec utor adduced testimony from a sheriff ’s department investigator that he learned from witnesses “that

they overheard ‘ information ’” that defendant and his charged co

- conspirator were talking about shooting victim, and

displayed a pistol and talked about it to other people. Id. at 572.

The St ate claimed on appeal that the statements were not offered for the truth of the matter asserted

— however, the

record revealed no legitimate purpose for the admission of the statements other than for their truth, i.e.

, such as to

establish an element of the State’s case, and undercut an element of defendant’s defense. Id. at 571

- 72. In the instant

appeal, however, there were legitimate alternative purposes other than the truth of the matter asserted ( e.g.

, res gestae ),

and there was strong evidence of Roy’s guilt without the now

- challenged statement (unlike Robinson ). Moreover, in

Robinson

, there is no indication that at the time the State offered the evidence

, the State designated it for some purpose

other than the truth of the matter asserted (seemingly, the argument appeared for the first time on appeal). Whereas

in the instant appeal, the prosecutor was explicit

— the now

- c hallenged statement was not offered for the truth of the

matter asserted at the time the prosecutor offered it. For all of these reasons, Robinson is distinguishable and unhelpful

to Roy’s position.11 considerations as set out in Ohio v. Clark

, supra

, demonstrates that t he challenged statement was

not testimonial. Officer Bolton responded to a 911 call “ [ t ] hat there was a female to the home that

had been stabbed and that ther e was another person there that had called 9

- 1

- 1.” 10 Upon arrival,

Officer Bolton observed a woma n ( whom he would later find to be Victim’s mother ) “very frantic

and upset.” 11 Without being asked any questions by Officer Bolton, “[s]he was screaming that her

daughter was dead inside the residence.” 12 At the time Mother made the statement identifying

R oy, police had not independently confirmed the identities of the man and the woman standing on

the front porch, or independently confirmed the identity or medical status of Victim (or for that

matter the number of victims). Nor did police yet have any inf ormation to suggest that whomever

10 See Bryant

, 562 U.S. at 375

– 7 6

, 131 S.Ct. at 1165:

For their part, the police responded to a call that a man had been shot. As discussed above,

they did not know why, where, or when the shooting had occurred

. Nor did they know the

location of the shooter or anything else about the circumstances in which the crime occurred.

Id. ( e mphasis added).

11 M other’s evident emotional distress and the quick and punctuated substance of her communication does not signal

that she would have a “primary purpose” to establish or prove past events for use in prosecution. See Bryant

, 562

U.S. at 374

- 75, 13 1 S.Ct. at 1165:

The circumstances of the encounter provide important context for understanding [victim]’s

statements to the police. When the police arrived at [victim]’s side, their first question to him was

“What happened?” [Victim]’s response was eith er “Rick shot me” or “I was shot,” followed

very quickly by an identification of “Rick” as the shooter

. [] In response to further questions,

[victim] explained that the shooting occurred through the back door of Bryant’s house and provided

a physical description of the shooter. When he made the statements, [victim] was lying in a gas

station parking lot bleeding from a mortal gunshot wound to his abdom en. His answers to the police

officers’ questions were punctuated with questions about when emergency medical services would

arrive. He was obviously in considerable pain and had difficulty breathing and talking. From this

description of his condition a nd report of his statements, we cannot say that a person in [victim]’s

situation would have had a primary purpose to establish or prove past events potentially relevant t o

later criminal prosecution.

Id. ( i nternal quotations and citations omitted) (interna l footnote omitted) ( e mphasis added).

12 Even if Officer Bolton had asked Moth er what happened before the now

- challenged statement came out (he did

not), such a solicitation would not cause Mother’s statement to be testimonial in nature under the instant c ircumstances.

See Bryant

, 562 U.S. at 376, 131 S.Ct. at 1165

- 66:

The questions they asked

— what had happened, who had shot him, and where the sho oting had

occurred, were the exact type of questions necessary to allow the police to assess the situation, the

threat to their own safety, and possible danger to the potential victim and to the public, including to

allow them to ascertain whether they would b e encountering a violent felon. In other words, they

solicited the inform ation necessary to enable them to meet an ongoing emergency.

Id. (internal quotations and citations omitted).12 stabbed Victim was not still in the house or in the immediate vicinity. 13 An objective view of the

parties and circumstances does not indicate that the “primary purpose” of Mother’s statement was

to establish or prove past events for possible future use in prosecution. See Williams

, 567 U.S. at

57

– 58

, 132 S.Ct. at 2228 ( finding that there was no Confrontation Clause violation where a lab

report admitted at trial “was sought not for the purpose of obtaining evidence to be used against

[defendant], who was not even under suspicion at the time, but for the purpose of finding a rapist

who was on the loose.”). Roy’s Point I is denied.

Point II: Ultimate Issue

In his second point, Roy argues that the trial court abused its discretion in “overruling

counsel s ’ objection to Officer Bolton testifying that [ Mother ] said that Lorenzo Roy killed

[ Victim ] ” because this “was the ultimate issue that was reserved for the jury to decide

- whether

[Roy] committed the charged offense.” 14

It is not ordinarily proper for a witness, expert or otherwise, “ to express [an] opinion on

the ultimate issue of whether [defendant] was guilty of the offense charged [

. ] ” 15 “ However, an

opinion

. . . may be admissible if based on the personal knowledge or observation of the witness.” 16

13 See Bryant

, 562 U.S. at 377

, 131 S.Ct. at 1166

. Nothing in [victim]’s responses indicated to the police that, contrary to their expectation upon

responding to a call reporting a shooting, there was no emergency or that a prior emergency

had ended

. [Victim] did indicate that he had been shot at another location about 25 minutes earlier,

but he did not know the location of the shooter at the time the police arrived and, as far as we can

tell from the record, he gave no indication that the shooter, having shot at him twice, would be

satisfied that [victim] was only wounded. In fact, [victim] did not indicate any possible motive for

the shooting, and thereby gave no reason to think that the shooter would not shoot again if he arrived

on the scene.

Id. ( e mphasis added).

14 The relevant portion of trial testimony is recited, supra

, in our discussion of Roy’s first point.

15 State v. Paglino

, 319 S.W.2d 613, 624 (Mo. 1958).

16 State v. Linzia

, 412 S.W.2d 116, 120 (Mo. 1967).13 The resolution of an objection that evidence goes to the ultimate issue is within the sound discretion

of the trial court, and reviewed for abuse of discretion. State v. McWilliams

, 564 S.W.3d 618, 623

(Mo.App. W.D. 2018). Nevertheless, t he testimony of a single witness may provide sufficient

evidence to support a criminal conviction, 17 and a witness’ s testimony can (and must) to some

extent go to the ultimate issue s if it is to be probative and a dmissible. 18

Here, Officer Bo lton did not testify as to his opinion that Roy committed first

- degree

murder and armed criminal action. Rather, in line with the legitimate purpose for which this

evidence was admitted, Officer Bolt on testified to the relevant events of his response and initial

investigation as they occurred in order to explain why the investigation’s initial focus was on Roy.

As the trial court explained in rejecting defense counsel’s objection at trial

, “[t]he fact it goes to

the ultimate issue, the entire trial is abo ut the ultimate issue, and the evidence presented goes to

the ultimate issue. The jury makes that determination. It’s not an opinion.”

Roy fails to demonstrate that the trial court abused its discretion in rejecting defense

counsel’s objection to Officer Bolton’s testimony. Point II is denied.

Point III: Alleged Police Deception During Roy Interview

Roy’s third point argues that the trial court abused its discretion in sustaining the

prosecutor’s objections to defense counsel’s cross

- examination of Detective Shipley, wherein

defense counsel sought to elicit testimony that during Roy’s police interrogation, Detective Shipley

17 State v. Alexander

, 505 S.W.3d 384, 395 (Mo.App. E.D. 2016) ( “ [ T ] he testimony of only one witness may be

sufficient to sustain a conviction, even if the testimony is inconsistent.” )

.

18 Wood

, 580 S.W.3d at 574

– 75:

Evidence must be logically and legally relevant to be admissible. Evidence is logically relevant if

it tends to make the existence of a material fact more or less probable. Evidence is legally relevant

when the probative value of the evidence out weighs unfair prejudice, confusion of the issues,

misleading the jury, undue delay, waste of time, or cumulativeness.

Id. (internal quotations and citations omitted).14 deceived Roy in suggesting Snodgrass “claimed he knew that [Roy] killed [Victim]” in an effort

to obtain Roy’s confession. Roy suggests that the anticipated answer to this question “called into

question the entire credibility of [ Detective ] Shipley’s testimony[.]”

During the State’s case

- in

- chief, defense counsel cross

- examined Detective Shipley,

resulting in the following colloq uy (as relevant here):

[ DEFENSE: ] Okay. Now, in the interview

-- well, let me ask

-- let me back up a

minute. When you interview a suspect, would it be fair to say that

at times your goal is to elicit a confession?

[SHIPLEY : ] To elicit the truth, yes.

[ DEFENSE: ] Okay. And is it true that police officers are allowed to use deception

to do that?

[SHIPLEY : ] Yes, they are.

[ DEFENSE: ] Okay. Did you do that with Mr. Roy?

[SHIPLEY : ] Yes, I did.

[ DEFENSE : ] Okay. And how did you do that?

The prosecutor then objected on the bases that : (1) the anticip ated testimony would be hearsay;

(2) the State did not present evidence of “conversations between Detective Shipley and [Roy] in

which the detective asserted facts that may or may not have been true to [Roy] to see how [Roy]

would respond” ; and (3) Roy was attempting to elicit “self

- serving hearsay [

. ] ”

Defense counsel indicated that he did not intend to elicit any statements from Detective

Shipley as to what Roy said, but instead intended to ask Detective Shi pley: “[I]isn’t it true you

told him Richard Snodgrass identified him? Detective will probably say yes. And I’ll say that:

And that didn’t elicit a confession, did it? There’s not any hearsay in that.” The prosecutor

suggested that this was self

- serv ing hearsay because the effect would be a denial from Roy. The

trial court made the following ruling: “The question only has value to the extent that there’s an15 answer. If you can’t ask

-- if you can’t expect to hear the answer, then you can’t ask the q uestion.

So the objection is sustained. It’s in the category of self

- servin g.”

We are doubtful that the described testimony regarding Roy’s silence represented “self

serving hearsay” subject to exclusion. 19 Nevertheless, “[w]e will uphold the court’s ru ling on the

admissibility of evidence if it is sustainable under any theory.” State v. Townsel

, 564 S.W.3d 731,

736 (Mo.App. S.D. 2018). “The exclusion of evidence is harmless beyond a reasonable doubt

where the excluded evidence is cumulative of other evidence which was admitted at trial.” State

v. Ellis

, 512 S.W.3d 816, 825 (Mo.App. W.D. 2016) ( internal quotation and citation omitted)

.

Here, defense counsel successfully adduced testimony from Detective Shipley that “police officers

are allowed to use d eception” to elicit confessions

, and Detective Shipley used deception with

Roy

. The jury heard no evidence that Roy confessed (wherefrom the jury was at liberty to infer

that no confession was obtained). The additional testimony sought to be adduced

— a specific

instance of deception, 20 and Roy’s silence in response to that specific instance of decep tion

— was

substantively cumulative to the evidence already adduced, and its reasonable available inferences.

See id

. at 825. 21

19 “[A]s a general rule, a defendant cannot create exculpatory evidence by introducing self

- serving

, hearsay statements

made by the defendant to another.” Ellis

, 512 S.W.3d at 835 (internal quotation and citation omitted). See Coday v.

State

, 179 S.W.3d 343, 357 (Mo.App. S.D. 2005) (discussing requirements of “tacit admission rule” such as “to show

acquiescence to the truth of an incriminating statement when the accused fails to deny, contradict, or object to an

accusatory statement made in h is or her presence

. ”).

20 In its brief, the State contends that there was no underlying factual basis for Roy’s claim of deception. Detective

Shipley testified at trial that Snodgrass reported having seen Roy on Victim’s porch on the night of the murder.

However, we need not reach that issue, as Roy’s claim would fail regardless.

21 Further, while the trial court “cannot bar cro ss

- examination into [a witness’ s bias or interest] completely [

, ] ” it does

have “discretion in limiting the scope and extent of cross

- examination bearing” on those issues. Winfrey

, 337 S.W.3d

at 8 (emphasis added). Assuming arguendo that there was probative value

— as to Detective Shipley’s credibility

— in

evidence that police are allowed to use deception, and that Detective Shi pley used deception with Roy, the trial court

would have been within its discretion to find that the ceiling of reasonable probity had been reached when the State’s

(different) objection was lodged and sustained. See Townsel

, 564 S.W.3d at 736.16 Roy fails to demonstrate that the trial court abused its discretion in sustaining the

prosecutor’s objection to defense counsel’s proposed cross

- examination of Detective Shipley

.

Point III is denied.

Point IV: Police Investigation

In his fourth point, Ro y argues that the trial court abused its discretion in sustaining the

prosecutor’s objection to defense counsel’s cross

- examination of Detective Shipley such as to

adduce testimony that “both he and the Springfield police generally failed to conduct thorou gh

meaningful investigation into [ Mother ] ’s concerned reporting to Shipley about” (1) Victim’s drug

involvement; and (2) Victim’s previous theft of a drug dealer.

The prosecutor filed a motion in limine to exclude any evidence that someone other than

Roy w as responsible for Victim’s death, or that some other person had motive or opportunity to

commit the charged offenses. At the pre

- trial hearing on this motion, the trial court made the

following ruling:

I suppose, by definition, if a defendant denies comm itting the crime, it is inherently

a suggestion that someone else did it, assuming that there’s been a crime committed.

So that’s not what we’re dealing with

.

. . . .

What we’re dealing with is innuendo and some showing

, by evidence or

otherwise, that someone had motive or opportunity, which just simply isn’t enough.

It’s got to go beyond those. So I’m going to grant [the prosecutor’s motion].

But having said that, if there is a change in circumstances, based upon t he

evidence presented by the State or whatever developed, then the defense can

approach outside the presence of the jury to argue that there’s been some exception

created based on what’s come into evidence. That’s always true in regard to

motions in limin e, but it’s true in this specific. Just as a statement of black

- letter

law, then, it’s granted.

At trial, during the State’s case

- in

- chief, defense counsel made the following argument

outside the presence of the jury:17 [ DEFENSE COUNSEL ]: [O] ne of the issue s in this case that the

State has brought up objecting to is us presenting what is known as the SODDI

defense, which is “some other dude did it.” And my questions with Detective

Shipley are going to be for the purpose of impeaching his thoroughness a nd the

quality and bias of his investigation

. I think that’s the extent of examination

-- or

the questioning on cross

- examination is extensive. I believe that the State has

clearly raised an inference through the testimony that his

-- that Detective Ship ley’s

investigation was thorough, and they are certainly permitted to do that. I believe

that I am entitled to impeach that.

Roy made an offer of proof on this issue wherein defense counsel adduced testimony from

Detective Shipley that a week after Vict im’s murder, Mother reported to him that on the day of the

murder, Victim brought several half

- gram bags of methamphetamine to her house and said she

was going take it to a friend’s house to use. Mother explained that she had not thought to disclose

this fact earlier because it happened “every other day [

. ] ” Defense counsel also adduced testimony

from Detective Shipley that Mother had concerns that Victim might have “ripped off” a drug

dealer

, and that Victim did this all the time. The prosecutor adduced testimony from Detective

Shipley that he did not “have any evidence that connects [the drug dealer] with the homicide in

this case [

, ] ” and that Detective Shipley had reviewed numerous police reports reflecting domestic

violence by Ro y against Victim.

Defense counsel argued that the evidence as to Victim’s drug use was admissible to

corroborate Roy’s statement to police that Victim had a drug problem, in order to bolster Roy’s

credibility. As to the testimony that Victim was in the practice of “rip p [ing] off” a drug dealer,

defense counsel argued such was admissible “to show that the detective was given a lead by the

victim’s mom and didn’t pursue it[,]” and that “this was, in fact, a rush to judgment, and they

zeroed in on Mr. Roy, to the e xclusion of any other leads.”

In relevant part, the trial court made the following ruling on this issue:

Well, [defense counsel] you’ve dressed it up nicely, but it is still an attempt

to get before the jury the fact that someone else may have com mitted the offense,18 and that is a very precise area of the law in Missouri that says you cannot do that

just because you have

-- there is motive or opportunity.

In this instance, you’re talking about motive. That’s exactly what someone

telling the office r that she had a conflict with someone else, that’s what that is. It

is motive. If you don’t have anything more than motive, you cannot bring that in

front of the jury. The law is clear on that. You can dress it up in some other purpose,

but it is what it is.

The fact that that excited utterance came out with the initial arrival of law

enforcement does not create any sort of hole that you can drive that particular truck

through. So, at any rate, I’ll maintain the ruling as far as the motion in limine is

concerned, and I’ll sustain any objection to that line of inquiry.

“Evidence that another person had an opportunity or motive for committing the crime for

which the defendant is being tried is not admissible without proof that such other person commit ted

some act directly connecting him with the crime.” State v. Schaal

, 806 S.W.2d 659, 669 (Mo.

banc 1991) (internal quotation and citation omitted)

. “When the evidence is

. . . disconnected or

remote and there is no evidence that the other person committ ed an act directly connected to the

offense, the minimal probative value of the evidence is outweighed by its tendency to confuse or

misdirect the jury.” State v. Bowman

, 337 S.W.3d 679, 686 (Mo. banc 2011).

To be admissible, evidence that another person had an opportunity or motive for

committing the crime for which a defendant is being tried must tend to prove that

the other person committed some act directly connecting him with the crime. The

evidence must be of the kind that directly connects the othe r person with the corpus

delicti and tends clearly to point to someone other than the accused as the guilty

person. Disconnected and remote acts, outside the crime itself cannot be separately

proved for such purpose; and evidence which can have no other e ffect than to cast

a bare suspicion on another, or to raise a conjectural inference as to the commission

of the crime by another, is not admissible.

State v. Nash

, 339 S.W.3d 500, 513 (Mo. banc 2011) ( internal quotation and citation omitted).

In support of his claim, Roy directs us to State v. White

, 81 S.W.3d 561 (Mo.App. W.D.

2002) and State ex rel

. Koster v. McElwain

, 340 S.W.3d 221 (Mo.App. W.D. 2011). As the

prosecutor pointed out at trial, as the trial court pointed out in its ruling, an d as the State now points19 out in its brief, White and McElwain were both Brady 22 violation cases dealing with discovery

issues, not the admissibility of evidence. 23 As such, these cases are inapplicable here, and yield

no support to Roy’s argument.

Roy fail s to demonstrate that the trial court abused its discretion in sustaining the

prosecutor’s objection to defense counsel’s cross

- examination of Detective Shipley. Point IV is

denied.

Point V: Alleged Hearsay Testimony (Davis/Boykins)

In his fifth point, Roy argues that the trial court “erred” and “abused its discretion” when

it “overruled the hearsay ob jection to Tedrick O’Neal Davis testifying that [] Roy’s sister, Brenda

Boykins, asked Davis to tell the police that [Roy] was at her house the entire time and had not left

there to go to [Victim ]’s house as the state claimed [

. ] ” Specifically, Roy points to the fact that

“the state had successfully moved to exclude any statements from Boykins as hearsay because she

was deceased [

, ] ” and claims “it was prejud icial and fundamentally unfair to inject Boykins’

statement to advance its case after successfully having moved to exclude any use of Boykins’

statements by the defense.”

22 Brady v

. Maryland

, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed

. 2d 215 (1963).

23 In White

, the Western District was explicit about the limitations of its holding: “ In the particular circumstances

of this case

, the State’s intentional decision to withhold the information in question sufficiently undermines

confidence in the verdict that it was an abuse of discretion for the trial court to deny the motion for new trial.”

81 S.W.3d at 571 (emphasis added)

. The Western District was just as explicit in McElwain

, where the court observed

that evidence that another person merely had opportunity and motive

— though warranting a new trial for non

disclosure pursuant to Brady

— “ would not have been admissible at [defendant’s] first trial under the authority of

[ State v. ] Chaney [, 967 S.W.2d 47, 55 (Mo. banc 1998)].” McElwain

, 340 S.W.3d at 253 n.29 (emphasis added).

Roy also directs us to McLaughlin v. State

, 378 S.W.3d 328, 354 (Mo. banc 2012), wherein the Supreme Court recited

that “[i]f evidence i s admissible for one purpose but improper for other purposes, it should be received, subject to

limiting instruction, if requested.” (internal quotation and citation omitted). While limiting instructions are favored

as to admissible evidence, Roy fails to direct this Court to any authority indicating that “lack of thoroughness in police

investigation” or “rush to judgment” by the police are independent bases for admissibility.20 The State filed a motion in limine requesting the exclusion of any statements Boykin s made

regarding Roy’s location at the time of the crimes charge d

, for the reason that Boykins was

deceased at the time of trial, and such statements would be inadmissible hearsay. At the pre

- trial

hearing on the State’s motion, defense counsel represente d to the trial court that he did not oppose

the motion, and the trial court granted it accordingly.

During the defense ’s case

- in

- chief, the State elicited the following testimony during its

cross

- examination of defense witness Davis (in relevant part):

[STATE : ] Sir, let me get this straight. The defendant learned about [Victim]’s death

there at Brenda’s house?

[ DAVIS : ] Yes.

[ STATE: ] Now, the defendant came over to that house the early

- morning hours of

Friday, April 11th; isn ’ t that true?

[DAVIS : ] I was barbec uing, so I

— it was that evening.

. . . .

[STATE : ] And i sn’t it true Brenda told you to tell the police that he was there the

whole time?

[DAVIS : ] Yes.

[DEFENSE COUNSEL]: Objection. Hearsay.

THE COURT: Asked and answered.

[STATE]: Nothing else, Your Honor.

“ An objection to testimony must be made at the earliest possible opportunity to allow the

trial court to invoke remedial remedies.” State v. Blurton

, 484 S.W.3d 758, 774 (Mo. banc 2016).

“A trial court’s ruling on an objection is preserved for appellate review only if the objection was

timely or the party timely moved to strike the answer.” Id

. Roy did not object until after : (1) the

prosecutor finished his question, clearly presaging the manner of substance to be adduced by the21 witness’ s answer; and (2) the witness answered in the affirmative, consistent with the substance

anticipated by the prosecutor’s question. When Roy lodged this untimely objection, he requested

no relief. 24

Relying on Blurton

, 484 S.W.3d at 774, Roy argues his claim is nevertheless preserved in

that “[t]he objection made here was timely because Davis answered so quickly with a one word

response that it was impossible to object sooner.” Roy fails to account for the requirement, recited

in Blurton

, that the objecting party (in such instance) move to strike the witness’ s answer. Id

.

Roy failed to do so, and his preservation argument is therefore unavailing. 25

Roy fails to demonstrate rev ersible error in his Point V

, 26 and we therefore deny the same.

24 It is said that a party “has no claim of reversible error [] ” who “received the relief he requested [

. ] ” Blurton

, 484

S.W.3d at 744 (internal quotation and citation omitted)

. Thus, it follows that “[a] party cannot fail to request relief,

gamble on the verdict, and then, if adverse, request relief for the first time on appeal.” State v. Bennett

, 201 S .W.3d

86, 88 (Mo.App. W.D. 2006).

25 Roy requests that “[i]f this Court believes the objection was untimely, then plain error review is requested[.]” This

request is confounded by the absence in Roy’s brief of the manner of sua sponte relief Roy suggests the trial court

plainly erred in failing to effect. Nevertheless, due to the seriousness of the matters at issue, this Court has

independently reviewed the record, and discerns no plain error in the vein complained of in Roy’s fifth p oint.

Moreover, we are compelled to take note of the guidance provided in United States v. Jorn

, 400 U.S. 470, 486, 91

S.Ct. 547, 558, 27 L.Ed.2d 543 (1971): “[I] n the final analysis, the judge must always temper the decision whether

or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his

confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.”

Thus, defense counsel’s (and Roy’s ) decision to request specific relief (or not) in light of perceivedly objectionable

matters at trial is entitled to significant deference.

26 Roy’s argument relies on State v. Weiss

, 24 S.W.3d 198 (Mo.App. W.D. 2000) and State v. Luleff

, 729 S.W.2d 530

(Mo .App. E.D. 1987). Both cases are inapposite in that they concern deviations from rulings made by the trial court

at trial

. The instant matter concerns an in limine ruling

— “ a ruling on a motion in limine is interlocutory and subject

to change during trial .” Wood

, 580 S.W.3d at 577. Rather, the proponent of evidence excluded in a motion in limine

“must attempt to present the excluded evidence at trial, and if an objection to the proffered evidence is sustained, the

proponent must then make an offer of pro of.” State v. Cole

, 71 S.W.3d 163, 175 (Mo. banc 2002). In accord with

these principles, a motion in limine

— in and of itself

— preserves and presents no issue on appeal. State v. Prince

, 534

S.W.3d 813, 818 n.2 (Mo. banc 2017).

Here, Roy’s argument implicitly presents Roy as the disappointed proponent of the Boykins evidence

— in his brief,

Roy suggests that the State “got all possible use of statements by the defense and attributable to Brenda Boykins

excluded, but when it perceived her hearsay statem ents advanced its case it injected them during its questioning of

Davis.” To the extent Roy wished to present such evidence, he could have requested permission via bench conference,

or attempt to adduce it (as the State did) subject to objection or trial court intervention. See Cole

, 71 S.W.3d at 175.

Roy failed to do so. Moreover, when the State ad duced the Boykins evidence, it opened the door to such evidence to

Roy

— nevertheless, Roy did not adduce

, or attempt to adduce such evidence

, his failure as t o which he now

(ineffectually) lodges grounds for complaint on appeal.22 Point VI: Substantial Evidence Supported Convictions

In his sixth point, Roy challenges that the State “failed to present sufficient evidence that

[Roy] killed [Victim].” 27

To determine whether the evidence presented was sufficient to support a

conviction and to withstand a motion for judgment of acquittal, this Court does not

weigh the evidence but rather accepts as true all evidence tending to prove guilt

together with all reasonable inferences that support the verdict, and ignores all

contrary evidence and inferences. This Court’ s review is limited to determining

whether there was sufficient evidence from which a reasonable juror might have

found the defendant guilty beyon d a reasonable doubt. This is not an assessment

of whether this Court believes that the evidence at trial established guilt beyond a

reasonable doubt but rather a question of whether, in light of the evidence most

favorable to the State, any rational fact

- finder could have found the essential

elements of the crime beyond a reasonable doubt.

State v. Ess

, 453 S.W.3d 196, 206 (Mo. banc 2015) ( internal quotations and citations omitted).

“The State may prove its case by presenting direct or circumstantial ev idence. Upon

appellate review, circumstantial evidence is given the same weight as direct evidence and the fact

finder may make reasonable inferences from the evidence presented.” State v. Cordell

, 500

S.W.3d 343, 345 (Mo.App. S.D. 2016). 28

A challenge to the sufficiency of the evidence to support a criminal conviction requires

appellant to complete three distinct analytical steps: (1) “Identify a challenged factual proposition

27 Relying on State v. Bennett

, 6 S.W.2d 881, 882 (Mo. 1928) for the proposition that evidence “ improperly admitted

cannot be considered in deciding whether there was sufficient evidence [

, ] ” Roy claims that the admitted evidence

challenged in his first and second points should not be considered in evaluating his substantial

- evidence challenge.

Roy’s evidentiary arguments in his first and second points are unavailing, rendering this argum ent moot. Nevertheless,

we observe that Roy’s substantial

- evidence challenge would fail regardless of whether the evidence challenged in his

first and second points were considered.

28 As the United State Supreme Court has indicated:

Circumstantial eviden ce

. . . is intrinsically no different from testimonial evidence. Admittedly,

circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally

true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence

correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the

jury must use its experience with people and events in weighing the probabilities. If the jury is

convinced beyond a reasonabl e doubt, we can require no more.

Holland v. U.S.

, 348 U.S. 121, 139

- 40, 75 S.Ct. 127, 137

– 38, 99 L.Ed. 150 (1954).23 needed to sustain the conviction ” ; (2) “Identify all favorable evidence in the record tending to

prove that proposition ” ; and (3) “Show why such evidence, when considered along with its

reasonable inferences, is so non

- probative that no reasonable fact

- finder could believe the

proposition.” State v. Finch

, 398 S.W.3d 928, 929 (Mo.App. S.D. 2013). Roy’s challenged

factual proposition (step 1) is that Roy killed Victim. Thus, his evidentiary challenge is properly

reduced to the actus reus of section 565.020.1

— that Roy “caused the death of another person [

. ] ”

State v. Hudson

, 15 4 S.W.3d 426, 429 (Mo.App. S.D. 2005) ( internal quotation and citation

omitted). 29

To a significant degree, Roy’s substantial

- evidence challenge hinges on the success of the

evidentiary challenges in his other points. For the reasons indicated in our discu ssions of those

claims, Roy’s evidentiary challenges are unavailing individually, and as to Roy’s substantial

evidence argument. 30

Viewed in the light most favor able to the verdict

, the following evidence is pertinent to

Roy’s challenge.

29 Roy does not challenge the sufficiency of the remaining elements of murder in the first degree

, pursuant to section

565.020.1

— i.e.

, that his actions were: (1) knowingly

— aware of the nature of his conduct, or aware that his conduct

is practically certain to cause that result; or (2) performed after deliberation. While Roy’s brief does not state so

directly, his challenge to the actu s reus element of murder in the first degree serves as an implied challenge to his

armed criminal action conviction

, pursuant to the commission of felony element of that offense. See § 571.015

(“[A]ny person who commits any felony under the law s of this state by, with, or through the use, assistance, or aid of

a dangerous or deadly weapon is also guilty of the crime of armed criminal action[.]”).

30 Roy relies on State v. Taylor

, 422 S.W.2d 633 (Mo. 1968), for the proposition that the jury’s disb elief of a

defendant’s testimony “is not probative and does not constitute substantive proof on a material issue not theretofore

proved.” Id. at 638. This premise has been rejected by our appellate courts, and the opposite rule now prevails:

‘ “[t]he fac tfinder is entitled to consider a party’s dishonesty about a material fact as affirmative evidence of guilt.” ’

State v. Woods

, 284 S.W.3d 630

, 640

- 41 (Mo.App. W.D. 2009) (quoting Reeves v. Sanderson Plumbing Prods., Inc

. , 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). See State v. Mitchell

, 442 S.W.3d 923, 931 (Mo.App.

S.D. 2014); cf

. Copher v. State

, 570 S.W.3d 178, 184 (Mo.App. S.D. 2019) (“If [defendant] took the stand, and was

as thoroughly impeached and discredited as trial counsel reasonably feared, the jurors could have just as easily found

[defendant’s] testimony to be incredible, thus solidifying their conclusion as to his guilt [

. ] ”); Payne v. State

, 509

S.W.3 d 830, 839 (Mo.App. W.D. 2016).24 Roy and Victim bega n dating in 2012. Though their relationship was stormy, Roy moved

into Victim’s house. On April 9, 2014, the y looked at wedding rings. Sometime that evening or

the early morning of April 10

, Victim found either a “chat app” or text messages from other women

on Roy’s phone, and accused Roy of cheating on her. Roy took his phone back from Victim and

left their house at around 2:00 a.m. At approximately 2:20 a.m., Roy and Victim began a heated

and extensive argument through text message s

. Th e substance of the text conversation was that

each accused the other of cheating. The two continued to fight through text message s for the

remainder of the day.

At around 10:00 p.m. on April 10, Victim called Snodgrass for a ride to run some er rands.

Snodgrass picked her up and drove to Snodgrass’ apartment where they had sex. Victim called

Roy from Snodgrass’ house. Then Snodgrass drove to an ATM and withdrew $200

, which he

gave to Victim

. The two drove to Walgreens, filled a prescription for Victi m, and returned to

Victim’s house at 1:32 a.m. As Victim walked to the house, Snodgrass saw Roy walk out onto the

porch and wave to him

.

Meanwhile, Roy knew Victim was with Snodgrass because she called from his apartment

phone. Roy was also aware that V ictim was accepting money from Snodgrass, and in his text

messages to Victim around the time of the murder, Roy implied Victim was guilty of cheating on

him

. Roy testified that Victim taking money from Snodgrass made him “ feel like less of a man.”

During the day of April 11, 2014, Roy claimed to be at work on a construction site where

he was “not supposed to be on [his] phone.” Nevertheless, he decided to call and text Victim

multiple times

, to which he received no response

. He claimed to have been so c oncerned that he

call ed Victim’s mother at 4:00 p.m.

— an hour before he got off work

— and “I told her: Have you25 seen [Victim]? Is she still PO’d? You know, I was kind of worried about her seeing the PO. And

she said: She’s probably just out and asleep; I’ll check on her later.”

When Roy got off work at 5:00 p.m.

, he did not return home to check on Victim (despite

his supposedly immediate concern for her throughout the day). Instead, he went to his sister’s

house “because I wanted to change clothes. I didn’t know if she was still on one or what, you

know, so I didn’t need any confusion.” Roy claimed he attended a barbeque at his sister’s house

that evening

, left and went to a local grocery store

, and then went back to his sister ’ s.

Two knives with Vic tim’s blood on them and other items from Victim’s house were found

in an alleyway down the street. Roy’s hat was found in the alley covered in Victim’s blood

— bus

security camera footage on April 10 show ed Roy wearing the same hat at approximately 5:02 p.m

.

Roy’s statements to the police and his testimony at trial also suggested that Roy

committed the murder

. Roy asserted to Detective Shipley that his sister told him Victim had

been stabbed, but Detective Shipley had not informed her of such

, and there was no evidence

that Roy’s sister would have had any inde pendent knowledge of the murder. Roy claimed he did

not know how his sister knew and did not know when his sister told him

. A reasonable fact

finder could infer that Roy knew Victim had been stabbed b ecause he was the one who stabbed

her

, and he was trying to hide this fact by suggesting he heard about the crime from someone

else.

Roy, in both of his statements to police, denied seeing Victim after the afternoon of April

10 when they met getting on and off the bus

. When confronted, Roy could not explain why his

hat was found in the alley with the murder weapons, covered in Victim’s blood

. At trial,

however, Roy for the first time claimed he saw Victim on the evening of April 10 and that she26 took his h at. A reasonable fact

- finder could infer that Roy fabricated this version of events in an

attempt to obscure his underlying guilt of the crimes charged.

This is by no means an exhaustive recitation of all the evidence in the record lending

support to Roy’s conviction, but the evidence recited was sufficient for a reasonable fact

- finder

to find Roy gui lty of murder in the first degree and armed criminal act ion. Roy’s Point VI is

denied.

Point VII: Juror Disqualification

In his seventh point, Roy argues that the trial court abused its discretion in rejecting his

request that venireperson Shortt be dismissed for cause “in that Shortt expressed a per se par tiality

for police officer testimony[.]”

The circuit court’ s ruling on a challenge for cause will not be disturbed on appeal

unless it is clearly against the evidence and constitutes a clear abuse of discretion.

Deference to the trial court is appropriate because it is in a position to assess the

demeanor of the venire

, and of the individuals who compose it, a factor of critical

importance in assessing the attitude and qualifications of potential jurors

. The

qualifications for a prospective juror are not determined from a single response, but

rather from the entire examination.

Wood

, 580 S.W.3d at 580 ( internal quotations and citations omitted).

During voir dire, the prosecutor asked the venire panel whether they would “automatically

believe a law enforcement officer just because they come in wearing a uniform and say I’m a law

enforcement officer?” A second venireperson answered in the affirmati ve. The prosecutor also

asked the venire panel whether “you agree with me that when you’re judging the credibility of any

witness, any sort of training, background, experience they’ve had would be something that you

would want to know as you’re trying to decide whether or not to believe what they’re telling you?”

Again, the second venireperson answered in the affirmative. Thereafter, the prosecutor asked the27 following: “If a police officer comes in here and says, yes, I am a police officer, are you goin g to

believe everything they say after that?” A third venireperson answered in the affirmative.

During the defense portion of voir dire, defense counsel recalled the prosecutor’s earlier

questioning regarding whether any of the venire members would automa tically believe a police

officer, and asked if anyone felt in accord therewith. A fourth and fifth venireperson answered in

the affirmative. Defense counsel then asked whether anyone else agreed. Receiving no affirmative

response (including from Shortt) , defense counsel persi sted in the inquiry as follows:

If credibility is measured on a scale of one to ten for a police officer as a

witness, number one being not credible and number ten being very credible, let’s

say

-- we’ll say every witness in a case. So every witness starts out at zero, and

then you would give each one a rating.

If you had a police officer, would you start out at zero, or would you start

out at one

- half or one and a half or two versus starting at zero, before you make a

determination after hearing the evidence?

Numerous venirepersons responded that they would rate police officers at “ten” or in a

“h igh range.” Venire person Shortt responded that she “would not start at zero with a police

officer. I would be inclined to start more at a high range.”

Defense counsel lodged challenges for cause for thirteen venire members (including

Shortt), arguing that their responses to his one through ten scale indicated that they would give

more weight to law enforcement testimony. The trial court responded (appropriately) as follows:

It is not a principle of law that a police officer or any other witness has a credibility

scale from zero to ten or whatever it may be. There’s nothing in the instructions

about that. There’s nothing in the law about that, to my knowledge.

And the

-- I have no i dea what these people would have been asked if they’d

said: If you had a priest testify, where would you start them on a credibility scale?

Or if you had a

-- if you had a schoolteacher testify, where would you put them on

a credibility scale? Or if you had somebody that sold drugs, where would

-- where

would they be on the credibility scale?28 It’s just all anecdotal as far as I’m concerned. It became very clear through

that whole colloquy back and forth that that became a referendum on whether they

thought highly of police officers or not, and there was a lot of speaking in favor of

that. But the crucial questions actually had been asked by [the prosecutor] on State

voir dire in terms of giving greater weight to a law enforcement officer’s testimony.

We have at least two people who answered in such a way that they were

subject to be stricken for cause

.

. . . .

But the rest of this anecdotal exchange about where you would put them on

a scale I don’t believe rises to the level of anything that would require them to be

stricken.

A trial court’s decision not to re place a juror with an alternate closely depends on

determinations of credibility and fact, which are properly for the trial court. Sta te v. Stewart

, 517

S.W.3d 680, 683

– 84 (Mo.App. S.D. 2017).

The proponent of such a claim must demonstrate, in light of the trial court’s authorized

explicit and implicit fact findings, the venireperson’s experience would (or did ) “produce bias or

prejudice against the defendant on trial.” Id. at 684 (internal quotation and citation omitted)

(emphasis added). This is a high bar: a venireperson’s admission that a family member had been

the victim of a very similar crime, that she would be “unable to put aside this experience,” and that

she “could not refrain from using that experience to persuade others during deliberation[,]” woul d

not oblige the trial court to strike that venireperson for cause even if explicitly requested to do so.

Id. at 684 n.3 ; see State v. Kinder

, 942 S.W.2d 313 (Mo. banc 1996). “ When there is ambiguity

in the venireperson’s statements, the circuit court ca n resolve the ambiguity in favor of the state.”

Wood

, 580 S.W.3d at 581.

Roy fails to meet his high burden to demonstrate, in light of the convoluted nature of

defense counsel’s questioning, the extremely limited colloquy as relevant to the challenged jur or,

and the trial court’s implicit fact findings, that Juror Shortt’s presence on the jury would (or did)29 produce bias against Roy. Stewart

, 517 S.W.3d at 683

- 84; see Kinder

, 942 S.W.2d at 336. The

trial court did not abuse its discretion. Point VII is denied.

The judgment of the trial court is affirmed.

WILLIAM W. FRANCIS, JR., J.

– OPINION AUTHOR

GARY W. LYNCH, P. J.

– CONCURS

NANCY STEFFEN RAHMEYER, J.

– CONCURS