STATE v. FULLER (2026)

Introduction

Joseph O. Fuller (Fuller) appeals the trial court's judgment following jury convictions for first-degree domestic assault, armed criminal action, and third-degree domestic assault. His sole point on appeal claims the trial court plainly erred in failing to sua sponte declare a mistrial when the State argued in closing that Fuller left the jury with unanswered questions, contending this constituted an impermissible comment on his election not to testify. We decline Fuller's request for plain error review because he fails to demonstrate facial grounds for believing that the trial court's alleged error was evident, obvious, and clear. Accordingly, we affirm the trial court's judgment.

Factual and Procedural Background

Fuller lived with C.P. (Girlfriend) and her children. Girlfriend described Fuller as abusive and controlling. On December 30, 2023, Fuller and Girlfriend argued after drinking. The argument escalated, and Fuller punched Girlfriend in the face twice. Girlfriend fought back, and the fight ended shortly afterward.

Girlfriend's ten-year-old daughter (Daughter) overheard Fuller fighting with and threatening Girlfriend from her room and called Girlfriend's aunt (Aunt). Aunt answered the call via speakerphone and Girlfriend's cousin (Cousin), who was with Aunt at the time, listened to the conversation. Daughter told Aunt she wanted to leave the apartment because she feared Fuller was going to make good on this threat to “blow [Girlfriend's] brains out and hit her with a bat.” Aunt and Cousin went to pick up Daughter, and called 911 on the way. After arriving at Girlfriend's apartment, Aunt and Cousin called the police again to make sure they were on their way.

The police arrived at the apartment and asked Girlfriend if anyone had been assaulted or if there had been a fight. Girlfriend denied an altercation or assault took place. The police left the apartment, but shortly after returned with Girlfriend's Aunt and Cousin, and Girlfriend let them come inside. The police interviewed Girlfriend. While crying and shaking back and forth, Girlfriend told the police that she fought with Fuller, he punched her twice, and threatened to shoot her with his gun. Girlfriend decided not to leave the apartment, but allowed Aunt and Cousin to take Daughter with them.

After the police and her relatives left, Girlfriend was alone in the apartment. At some point Fuller returned with two prostitutes. Fuller pushed Girlfriend out of the bedroom, and brought one of the prostitutes in with him. Girlfriend, angered by Fuller's behavior, entered the bedroom to pack up her belongings in order to leave. As she was removing items from the closet, Fuller grabbed his shotgun from behind the bed, put it in a pillow, and shot Girlfriend in the chest. While Girlfriend was bleeding, Fuller told her “we got to get our story straight,” and instructed Girlfriend to tell law enforcement that she had been outside taking out the trash and was shot out of nowhere. Fuller eventually called the police. Outside the apartment, Girlfriend relayed the story Fuller instructed her to give to the responding officers while he stood next to her. Fuller claimed that he was not present at the time of the shooting. An ambulance arrived and took Girlfriend to the hospital, where she eventually told the police the truth.

The State charged Fuller with first-degree domestic assault, armed criminal action, unlawful possession of a firearm, and third-degree domestic assault. Later, the State filed a nolle prosequi memorandum for the unlawful possession of a firearm charge. The case proceeded to trial.

At trial, a detective testified that although ballistic damage was found in the bedroom closet, no blood, spent shells, or firearms were found in the apartment. The detective intimated that the scene was cleaned up before the police were able to execute the search warrant for the apartment five days after the charged events. Fuller opted not to testify in his own defense. In closing, the State argued the following:

Every officer that testified stated that they did not find ballistic damage, blood, or shell casings consistent with being shot outside. So where is the gun?

Remember that [a police officer] testified that when they learned that [ ] [Fuller] had previously assaulted [Girlfriend], they attempted to go back to that location. They attempted to get in contact with [ ] [Fuller] at his apartment. No one would open the door. [ ] [Fuller] had left the scene. And by the time they were able to get a search warrant, [a detective] said, five days later, plenty of time to clean up and remove evidence. If anything is missing, if anything leaves you with questions in your mind, it's because the defendant left you with those unanswered questions.

(emphasis added). In his Motion for New Trial, Fuller alleged that the State's argument was an impermissible reference to Fuller's decision not to testify. However, because Fuller failed to raise any objection to the argument at trial the issue is not preserved. This appeal follows, in which he requests plain error review.

Standard of Review

“Plain error review is discretionary, and this Court will not review a claim for plain error unless the claimed error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.” State v. Creekmore, 721 S.W.3d 917, 923 (Mo. App. S.D. 2025) (internal quotation omitted). Missouri courts define “[p]lain errors ․ as errors that are facially evident, obvious, and clear.” State v. Jones, 725 S.W.3d 577, 583 (Mo. banc 2025) (internal quotation and quotation marks omitted). Additionally, “[p]lain error will seldom be found in [an] unobjected closing argument.” State v. Walters, 363 S.W.3d 371, 376 (Mo. App. E.D. 2012) (citing State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992)).

Analysis

Point One: This Court declines to conduct plain error review because Fuller fails to demonstrate facially substantial grounds for believing the trial court's alleged error was evident, obvious, and clear

In his only point on appeal, Fuller claims the trial court plainly erred by failing to sua sponte declare a mistrial after the State allegedly commented on Fuller's choice not to testify in his own defense during its closing argument. We decline to exercise plain error review as the State's argument made no reference to Fuller's exercise of his right not to testify and this precludes a determination that the trial court erred plainly or otherwise.

Our federal constitution, state constitution, and state statutory law protect a criminal defendant's right not to testify. U.S. Const. amend. Fifth; Mo. Const. art. One, section 19; Section 546.270.¹ Accordingly, “[i]t is impermissible for a prosecutor to comment, either directly or indirectly, on a defendant's failure to testify.” State v. McCarthy, 725 S.W.3d 619, 624 (Mo. App. W.D. 2025) (internal quotation omitted).

A direct reference occurs when the State “uses words such as defendant, accused, and testify or their equivalent.” State v. Nieto, 689 S.W.3d 239, 244 (Mo. App. S.D. 2024) (internal quotation, quotation marks, and alterations omitted). If objected to and overruled, a direct reference will almost always lead to the reversal of the conviction. Christian v. State, 502 S.W.3d 702, 712 (Mo. App. S.D. 2016) (quoting State v. Neff, 978 S.W.2d 341, 344 (Mo. banc 1998)) (emphasis added). Whereas, unpreserved claims—of even a direct reference—often do not warrant plain error review as the trial court can cure any prejudice by instructing the jury to disregard the statement. Walters, 363 S.W.3d at 376 (internal citations omitted).

An indirect reference occurs when the State's comment “is one reasonably apt to direct the jury's attention to the defendant's failure to testify.” Nieto, 689 S.W.3d at 244 (internal quotation and quotation marks omitted). Only if the State demonstrates a calculated intent to highlight for the jury the defendant's decision not to testify will an indirect reference lead to reversal. Id. (citing State v. Rice, 573 S.W.3d 53, 75 (Mo. banc 2019)).

The State has wide latitude in making its closing argument and “it may argue the evidence and all reasonable inferences from the evidence ․.” State v. Boyd, 659 S.W.3d 914, 929 (Mo. banc 2023) (internal quotation and quotation marks omitted). “A permissible inference of guilt may be drawn from [the defendant's actions] ․ if they tend to show a consciousness of guilt by reason of a desire to conceal the offense or [defendant's] role therein.” State v. Brown, 701 S.W.3d 917, 932 (Mo. App. S.D. 2024) (internal quotation omitted). Thus, we must analyze closing arguments in the “context of the entire record.” Boyd, 659 S.W.3d at 929–30 (internal citation omitted).

The State's argument did not make a direct reference to Fuller's election not to testify as it did not use the words “testify or any of its equivalents.” Moreover, the State's argument in light of the entire record cannot be construed as an indirect reference to Fuller's decision not to testify. See Nieto, 689 S.W.3d at 244–45 (declining plain error review in a child molestation case, where in closing the State argued the defense could not explain why a mark on the child's body was not a “hickey,” and holding defense could have, although not obligated to, “presented other evidence that might explain the mark's nature and presence; [the State's comment]; ․ did not have to be seen as the absence of direct testimony by [defendant].”). Here, the State permissibly argued a logical inference based on the evidence presented at trial—they found no blood, spent shells, or firearm in the apartment because Fuller cleaned up the crime scene before the police executed their search warrant—five days after the offense occurred. The State's argument directly refutes Fuller's theory that he was not present at the time of the shooting because it occurred outside the apartment while Girlfriend was taking out the trash.

The inference made by the State falls well within the wide latitude provided to it during closing as the evidence supports such an inference. Even if the State had made a direct reference, which it did not, Fuller not preserving the point is fatal to plain error review. See Kempker, 824 S.W.2d at 911 (declining plain error review despite the State making a direct reference: “[g]et up on the stand and testify.”). Here, even more so than in Kempker, the circumstances do not warrant the exercise of our discretion to perform plain error review. Moreover, a claim of error for failure to sua sponte intervene during the State's closing, ignores the fact that trial counsel's failure to object may have been purely strategic. Nieto, 689 S.W.3d at 244 (internal quotation omitted). Because the State's argument, viewed in its full context, was not something the trial court definitively should have recognized as error; it was not facially evident, obvious, and clear, so we decline to review for plain error. Point One is denied.

Conclusion

The trial court's judgment is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to RSMo (2016).

Rebeca Navarro-McKelvey, Judge

Lisa P. Page, Presiding Judge and Kathleen S. Hamilton, Judge concur.