# In the Missouri Court of Appeals **Eastern District** DIVISION TWO STATE OF MISSOURI, ) ED101663 ) Plaintiff/Respondent, ) Appeal from the Circuit Court ) of St. Louis County v. ) ) RENO WHITT, JR., ) Honorable Colleen Dolan ) Defendant/Appellant. ) Filed: April 14, 2015 Introduction Reno Whitt, Jr. (Appellant) appeals from th e judgment entered by the trial court upon the jury verdicts of guilty on the ch arges of resisting arrest and firs t-degree tampering, three counts. We affirm. Factual and Procedural Background Appellant contests the sufficiency of th e evidence to support his convictions for tampering. Viewed in the light most favorable to the verdicts, the following evidence was adduced at trial. At approximately 2:00 a.m. on August 14, 2012, Officer Joshua Little received a call regarding males breaking into cars at the No rmandy Court apartment complex. A similar call came in at that time from the Knoll Wood apartment complex, approximately three miles from the Normandy Court complex. Officer Robert Gerholdt received a ca ll with a descri ption of four black males in dark clothing in a red Pontiac Gr and Prix at both the Normandy Court and Knoll2 Wood apartment complexes. After arriving at th e Knoll Wood apartment complex, Officer Little and Sergeant Gerald Fitzgerald laid out spike strips between their cars to stop any vehicle attempting to pass between them. Officer Little was standing outside his car with the driver’s side door open, lights activated. He saw a red Grand Prix, driven by Appellant with three passengers, moving slowly toward him and Sergeant Fitzgerald with its headli ghts off, so he got back in his car and moved it back. Appellant made an abrupt left turn, hit ting Officer Little’s car door and slamming it shut, then drove up onto the sidewalk. Officer Little and Sergeant Fitzgerald pursued the red Grand Prix, putting out a “be on the lookout” call for it. Officer James Sieve h eard the call and pursued the vehicle after it passed him. Appellant was driving the Grand Prix at approximately 90 mph on McDonnell Boulevard when he swerved, lost c ontrol of the car, and crashed into a pole. Officer Sieve called for an ambulance. Appellant and his three passenger s were trapped in the crashed car. Appellant’s front passenger, Ricky Nelson, Jr., died the next day from injuries sustained in the accident. Inside the car, police found tw o screwdrivers, one or two cell phones, and a small DVD player. Appellant and his passengers were weari ng white gloves at the time of the accident. The State charged Appellant, as a prior a nd persistent offender, with second-degree murder, resisting arrest, second-degree assault ona law enforcement officer, and three counts of first-degree tampering. The three counts of ta mpering were for defacing (1) Rodney Campbell’s (Campbell) Dodge Ram, (2) Alice Timlin’s (Tim lin) Chrysler Sebring, and (3) Marvin King’s (King) Chevy Impala. A jury trial on Appellant’s charges was he ld April 21-23, 2014. At trial, several witnesses from the Normandy Court apartment co mplex and surrounding area testified to the3 defacement and break-ins of their cars on the night of August 14, 2012, and the personal items stolen from them. Campbell testified his Dodge Ram 1500 truck was damaged on August 14, 2012 at Normandy Court, with a hole about the size of a screwdriver punched below the door lock on the driver’s side and a broken steering column and ignition cylinder, with damage totaling $1,270. Timlin, who lived in a condominium near Normandy Court, testified that on August 14, 2012, her 2001 Chrysler Sebring had the ignition switch removed from the steering column and laid on her car seat. Her door lock had also been pried out. Damage to her car totaled about $1,500. King testified his 2010 Chevrolet Impala was broken into on August 14, 2012, at Normandy Court with a screwdriver, resulting indamage to his door lock and his door: “My driver’s side door had got -- they had, I guess, used a screw driver or whatever and popped the lock on it.” King testified his TomTom GPS and his Bible were taken from the car. Appellant was the only witness to testify on his own behalf. At trial, he admitted he knew the Grand Prix was stolen. He also admitted he wore the white gloves to wipe his fingerprints off the steering wheel. He admitted to tampering with cars on many occasions. The jury found Appellant guilty of resisting ar rest and the three counts of first-degree tampering, and acquitted Appellant of the assa ult charge. The jury was deadlocked on the murder charge, so the trial court declared a mi strial on that charge and entered judgment in accordance with the jury’s verdicts on the remaining counts. The trial court sentenced Appellant to seven years’ imprisonment on the resisting arrest charge and fifteen years’ imprisonment for each of the three tampering counts, sentences to run concurrently with each other but consecutively to an unrelated case wherein Appellant’s4 probation had been revoked, for a total of twenty years’ imprisonment. This appeal follows. Appellant presents three points on appeal. Point I In his first point, Appellant maintains the trial court erred in overruling his motion for judgment of acquittal on the three tampering charges because sufficient evidence was not presented from which a reasonable juror could ha ve found Appellant broke into the three cars that were the subject of the charges, since no one claimed to have seen Appellant or the other men in the car driven by Appella nt breaking into the cars, and there was no evidence presented that anything found in the car Appellant was drivi ng had been taken from the cars that were the subjects of the tampering charges. In reviewing a sufficiency of the evidence cl aim, we accept as true all of the evidence favorable to the State, including all favorable in ferences drawn from the evidence, and disregard all evidence and inferences to the contrary. State v. Gr im, 854 S.W.2d 403, 405 (Mo.banc 1993). Our review is limited to a determination of whether there is suffi cient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. Section 569.080, Tampering in the first degree, provides in pertinent part: 1. A person commits the crime of tampering in the first degree if:

... (2) He or she knowingly ... defaces, de stroys or unlawfully operates an automobile ... without the consent of the owner thereof.

... Here, the State charged Appellant with thr ee counts of first-degree tampering based on his or his accomplices’ defacing the three vehicl es belonging to Campbell, Timlin and King. The jury heard evidence from the three vehi cles’ owners, Campbell, Timlin and King, who lived at or adjacent to th e subject apartment complexes, attesting to the damage their5 vehicles sustained the same night four black males were reported by at least three complex residents to be wearing dark clothes, driving a red Grand Pr ix, and breaking into cars. Upon arrival at the Knoll Wood complex in resp onse to the complaints of tampering with cars, Sergeant Fitzgerald and Officer Little sa w Appellant and his three passengers, four black males in a red Grand Prix, as described by the ca llers, driving slowly through the complex with their headlights off. Upon seeing Fitzgerald and Little, Appellant fled in the Grand Prix, led the police on high-speed chase, and crashed the vehicle into a pole, killing his front seat passenger. Two screwdrivers were found by the police in the red Grand Prix. Appellant and his passengers had white gloves on, which Appellant admitted he puton after seeing the poli ce in order to wipe his fingerprints from the car he was driving, wh ich he knew was stolen. Appellant admitted he had done this kind of thing many times before. On cross-examination, the State asked Appellant why he was driving the stolen red Pontiac Grand Prix: Q. Okay, all right, so Ricky and Keith pick you up in the stolen red Grand Prix and Haquis says he want s you to drive? A. Yes. Q. Even though it’s not hi s stolen Grand Prix? A. Yes. Q. Okay, so, then Keith and Ricky ju st abide by whatever Haquis wants? A. No. Q. Well, it’s their stolen car. Why did th ey let somebody else dr ive it? Do you know? A. Because he don’t trust him driving. He trusts me. Q. Okay, so you’re the better getaway driver? A. Yes. Q. You’ve done this before?6 A. Yes. Q. Lots of times? A. Yes. The foregoing constitutes sufficient evidence from which to conclude Appellant’s guilt of tampering. Appellant’s presence at the scen e in the manner described, with the additional circumstances noted earlier and with his own ac tions, suggests inferences sufficient to a finding of guilt. State v. Wheeler, 802 S.W.2d 517,518-19 (Mo.App. E.D. 1989). While each fact, taken separately, may seem innocuous, a conviction may rest upon accumulated, interdependent facts. Id. at 519. Moreover, Appellant’s behavior before, after or duri ng the offense are circumstances from which his participation may be implied. Id. Taken together, th e facts and the logical inferences of those facts were sufficient, if be lieved by the jury, to s upport the verdict. Id. Appellant, his passengers, and the car they were in matched the description of the complaints of the individuals breaking into vehicl es at the two apartment complexes. They were at one of the complexes on the night and at the ti me of the complaints, driving slowly with their headlights off. They fled from police. They ha d screwdrivers in their car. The vandalized cars had damage consistent with screwdriver tampering. They all had gloves on admittedly to wipe off their fingerprints. A permissible inference of guilt may be drawn from acts or conduct of an accused subsequent to an offense if they tend to show a consciousness of guilt by reason of a desire to conceal the offense or role therein. Stat e v. Fitzgerald, 778 S.W.2d 689, 691 (Mo.App. E.D. 1989). Appellant’s flight from police was admissible to show a consciousness of guilt on his part. State v. Johns, 34 S.W.3d 93, 112 (Mo.banc 2000) . Coupled with ot her evidence of guilt,7 flight can be considered in support of a conviction. State v. Harrison, 698 S.W.2d 564, 566 (Mo.App. E.D. 1985). This direct and circumstantial evidence, a nd reasonable inferences derived therefrom, was sufficient for a reasonable jury to find Appellant guilty beyond a reasonable doubt of the three charges of tampering. Point I is denied. Point II In his second point, Appellant claims the tria l court abused its disc retion in not granting his request for a mistrial on the resisting arrest count during jury deliberations because, at the time Appellant asked for the mistrial, the jury had already informed the court multiple times that they could not reach a verdict and the court’s repe ated instruction to con tinue with deliberations coerced the jury into a guilty verdict. We review the denial of a motion for mistri al for abuse of discretion. State v. Johnson, 901 S.W.2d 60, 62 (Mo.banc 1995). A mistrial is a drastic remedy, which should only be employed in the most extraordinary of ci rcumstances. State v. Clemons, 946 S.W.2d 206, 217 (Mo.banc 1997). The trial court is in the be st position to determine whether a mistrial is appropriate. State v. Dewitt, 924 S.W.2d 568, 570 (Mo.App. E.D. 1996). The jury began their deliberations of the si x counts against Appellantat 12:45 p.m. At 2:55 p.m., 130 minutes later, they se nt out a note that they could not agree on the resisting arrest charge. Both defense counsel a nd the State asked the court to se nd the jury a note telling them to continue deliberating, which they did. At 4:25 p. m., 90 minutes later, the jury again sent a note regarding the resisting ar rest charge indicating th ey were “deadlocked, 11 to 1.” The court asked if they had reached verdicts on any of the six counts. At 4:52 p.m., the jury responded they had reached verdicts on three of the si x counts. The trial court announced, after8 consultation with counsel, it would accept the three verdic ts reached, dismiss the jury for the day and instruct them to return the following morning to resume deliberations on the three remaining counts. No one objected. The jury announ ced they found Appellantguilty of the three tampering counts, which the trial court accepted. The jury returned the next day and resume d their deliberations on the three remaining counts at 9:07 a.m. At 9:24 a.m., the jury aske d the court if the charge of murder could be reduced to a lesser charge and if they could find Appellant guilty of resisting arrest and not guilty of murder. The court responded to the jury they must be guided by the evidence as they recall it and the court’s instructio ns. Although defense counsel did no t object to the court giving this response to the jury, he requested a mistrial on the murder, resist ing arrest, and assault counts, which the court denied. At 11:16 a.m., the jury sent the court a note asking for a definition of “felony murder second degree” and informing the court that they may have reached a verdict on counts two and three, the resisting arrest and a ssault charges. Defense counsel again asked for a mistrial on the murder count, which was denied. The court info rmed the jury that it could not answer their questions about the definition of felony murder second degree and instructed them to continue deliberating. At 11:45 a.m., the jury informed the court they had reached verdicts on the resisting arrest and assault charges and asked to render those without th e felony murder count, on which they continued to be deadlocked. The court accept ed the jury’s verdicts of guilty of resisting arrest and not guilty of assault. The court de clared a mistrial as to the murder count. Appellant maintains the court coerced the ju ry into rendering a ve rdict on the resisting arrest count. Appellant claims the fact that the court told them to continue deliberating, even9 after reaching verdicts on three of the six counts, clearly implied to the jury that they were going to be kept in deliberations until they reached a verdict on all of the counts. This assertion is belied by the fact that the court eventually accep ted the jury’s deadlock on the second-degree murder charge. The last time the court asked the jury to continue the deliberations, they indicated they “may have” reached a verdict on th e resisting arrest charge, and it was the murder charge on which they remained deadlocked. Additionally, the jury de liberated on six charges for a total of less than seven hours. This is not an exceptional or unreas onable amount of time to spend de liberating on numerous charges, especially charges serious in nature. Furthermor e, the jury frequently an nounced their failure to reach verdicts after relati vely short spans of deliberation. Fina lly, in spite of the court’s frequent admonitions to resume deliberations, the jury ultimately failed to reach a unanimous verdict on the second-degree murder charge, which indicates they were not subject to coercion by the court to reach a verdict when they could not unanimously do so. Based on the foregoing, we find the trial court di d not coerce the jury into reaching their verdict on the resisting arrest ch arge and did not abuse its discre tion in not granting a mistrial. Accordingly, Point II is denied. Point III In his third point, Appellant a sserts the trial court erred and abused its discretion in not allowing Appellant to ask potential juro rs about the defense of duress during voir dire , because the question was within the proper scope of voir dire as an attempt to determine whether the potential jurors had any pr econceived biases regarding his theory of defense. The trial judge is vested with the discretion to judge the appropriateness of specific questions, and is generally vested wi th wide discretion in the conduct of voir dire . State v.10 Oates, 12 S.W.3d 307, 310 (Mo. banc 2000). The tria l judge is in the best position to determine whether questions raised in voir dire assure the presence of a fairand impartial jury without amounting to a prejudicial pres entation of the evidence. State v. Hunter, 179 S.W.3d 317, 321 (Mo.App. E.D. 2005). Accordingly, we review a trial court’s decision to disallow certain questions during voir dire for abuse of discretion. Id. Th e party asserting abuse has the burden of demonstrating a real probability th at he was thereby prejudiced. Id. During voir dire , defense counsel presented the venire panel with hypothetical situations involving accomplice liability and felony murder to test their understanding and opinion of the concepts. However, when defense counsel pres ented the panel with a hypothetical situation involving the defense of duress, the State objected, arguing the hypot hetical was getting into the territory of the law, which was within the purview of the court when givi ng instructions to the jury. The court sustained the objection. Prior to their deliberations, th e jury did receive an instruction regarding the defense of duress. Appellant’s defense to the resi sting arrest charge was that he initially wanted to surrender to the police at Knoll Wood, but one of his friends in the back seat put a gun to his back and told him to drive. As such, Appellant argued, he only fled from the police in the Grand Prix because he was under duress to do so. Appellant mainta ins some individuals on the jury panel might have been predisposed to be biased against the concept of duress and so he was entitled to obtain the individual prospective jurors’ reaction to hi s hypothetical. His hypothetical posed a situation in which two individuals rob a store, the police a rrive, one wants to surrende r, but the other holds a gun to his back and orders him to flee in the getaway car. The purpose of exposing prospective jurors to critical fact s of the case during voir dire is to discover bias, not to create bi as; questions may not be phrased in such a way as to attempt toelicit a c o predispo s 74 (Mo. b at trial, a react to t h counsel h intended S.W.2d 3 precondi t anticipat e the inqui answeri n react in t h 1982). T curtailin g

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