STATE OF MISSOURI, )

) Respondent, ) No. SD36704 ) vs. ) Filed: March 18, 2021 ) JIMMY LEE NICHOLS, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF DADE COUNTY

Honorable Judge David R. Munton

AFFIRMED After a jury trial, Jimmy Lee Nichols ("Defendant") appeals his convictions for one count of tampering with a judicial officer, one count of making a terrorist threat in the third degree, and one count of possession of a controlled substan ce. See §§ 575.095, 574.125, and 579.015. 1 Defendant argues the trial court abused its discret ion in overruling Defendant's objection to the State's closing argument, which Defendant claims in volved improper personalization to the jury. Defendant's argument has not been preserved for our review. The trial court's judgment is

affirmed.

1 All statutory citations are to RSMo. (2016).

### 2 Analysis Before we can proceed to address the merits of an a ppeal, we must determine that the allegation of error is preserved for our review. State v. Baker , 551 S.W.3d 68, 69 (Mo. App. W.D. 2018). In one point relied on Defendant alleg es the following: The trial court abused its discretion in overruling defense counsel's objection to the prosecutor's statement in closing argument sugg esting to the jury that they would have been intimidated by [Defendant's] behavi or because this violated [Defendant's] rights to due process of law and a fa ir trial, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10, 18(a), and 22(a) of the Missouri Co nstitution, in that the prosecutor improperly personalized the matter for t he jury by appealing to jurors' sympathy for Ms. Greenwade and encouraging the juro rs to consider the personal harm [Defendant] could cause them, and improperly d irected the jury to consider an element that was not part of the offense for whi ch [Defendant] was on trial. Without this improper argument, there is a reasonab le probability that the jury would have found [Defendant] not guilty. At trial, in Defendant's closing statement, Defenda nt's counsel argued voicemails left for the prosecutor did not contain "any threats." The State's closing rebuttal contained the following exchange:

[State]: Ladies and gentlemen, I understand that t he statement was a threat, and I am so glad that it was only a threat.

. . . . [State]: But if you had to endure those messages a nd know they were towards you and listen to the agitation and the frustration in that voice, I think you would find yourself intimidated. [Defendant's counsel]: I will object to personaliz ing to the jury. [Court]: Do what? [Defendant's counsel]: Personalizing to the jury, I object. [Court]: Are you completed? [State]: I am. [Court]: All right, I will overrule the objection at this point. The jury was then instructed and left the room to d eliberate. A bench conference followed, where this exchange occurred:

### 3 [Court]: Did you want to make anything in regard t o an objection to that last question? [Defendant's counsel]: I should have probably aske d you to strike it, but I didn't do that. [Court]: All right, just a couple of things and yo u all can go hang out or whatever you need to do. Defendant's motion for new trial alleged in pertine nt part: 5. The trial [c]ourt erred in failing to instruct the jury to disregard the personalizing statements made by the State at the close of their rebuttal closing wherein counsel for the State asked the jur y to put themselves in the shoes of the victim. The court's failure denied De fendant of his right to due process and a fair trial as protected in Article 1, Section 10, 18(a), 19 and 22 of the Missouri Constitution in the Fifth and Fourte enth Amendments to the United States Constitution. (Emphasis added). Our analysis of Defendant's argument necessarily be gins with whether it has been properly preserved because this "dictates our stand ard of review." State v. Davis , 533 S.W.3d 781, 785 (Mo. App. S.D. 2017). At trial, Defendant objected on the basis of "personalizing to the jury" which was overruled by the trial court. In t he motion for new trial, Defendant alleged the trial court erred by "failing to instruct the jury to disregard the personalizing statements[.]" For an allegation of error to be preserved and rece ive more than plain error review, "it must be objected to during the trial and presented to the trial court in a motion for new t rial." State v. Loper , 609 S.W.3d 725, 733 (Mo. banc 2020) (quoting State v. Walter , 479 S.W.3d 118, 123 (Mo. banc 2016)); see Rule 29.11. 2 "To be preserved for appellate review, the claim in

the motion for new trial must be the same as the claim on the appeal." State v. Nickels , 598 S.W.3d 626, 633 (Mo. App. E.D. 2020) (emphasis adde d). Allegations of error in a motion for

2 Rule 29.11(d) provides: In jury-tried cases, allegations of error to be pre served for appellate review must be included in a motion for new trial except for quest ions as to the following: (1) Jurisdiction of the court over the offense char ged; (2) Whether the indictment or information states an offense; (3) The sufficiency of the evidence to sustain the conviction. All rule citations are to Missouri Court Rules (202 0).

### 4

new trial may not be altered or broadened on appeal

. Davis , 533 S.W.3d at 788. Defendant argued in his motion for new trial that the trial c ourt erred by not sua sponte instructing the jurors to disregard the personalizing statement. T his is not the same allegation of error contained in the point presented on appeal, which a lleges the trial court erred by overruling Defendant's objection because the prosecutor "impro perly personalized" and "improperly directed the jury to consider an element that was n ot part of the offense[.]" Defendant's argument has not been preserved. 3 Defendant's point is denied.

Conclusion The trial court's judgment is affirmed.

MARY W. SHEFFIELD, J. – OPINION AUTHOR JEFFREY W. BATES, C.J. – CONCURS GARY W. LYNCH, J. – CONCURS

3 Defendant has not requested plain error review and an appellate court does not engage in plain error review under Rule 30.20 unless the defendant facial ly establishes substantial grounds for believing th e alleged error resulted in a manifest injustice or m iscarriage of justice. State v. Brandolese , 601 S.W.3d 519, 526 (Mo. banc 2020). We decline to engage in plain error review.