STATE v. SPEAKS (2009)

The bullet recovered from the body of Mr. Hamilton, and the bullet recovered from the body of Dale were analyzed and identified as .38dcaliber bullets and were found to be fired from the same gun. The bullets also were compared to those bullets seized from the Langdon residence and were found to be similar in design and construction, except for “the distortion and the damage to the two removed from the victims.”

The police also processed Langdon's Chevrolet Suburban, in which they found an inverted latex glove as well as a holster in the center console between the driver's seat and front passenger seat. The holster would fit a snub nose .38dcaliber revolver, but would fit other guns as well. On cross-examination, defense counsel asked Ricky Edward Luetkenhaus (Luetkenhaus) of the St. Charles County Sheriff's Department whether the police found a .357 magnum at the Langdon residence, which also fit the ammunition of a .38dcaliber revolver. Luetkenhaus answered in the affirmative. Defense counsel also asked Luetkenhaus whether he knew if Defendant owned more than one handgun, and Luetkenhaus answered that there were several handguns in Defendant's residence.

Defendant's ex-girlfriend, Brandi Cross (Cross), testified that she was dating Defendant around late 2004, early 2005, and noticed that Defendant always carried with him large sums of cash. Defendant had told Cross that he shared a safe deposit box with Langdon in Wright City. After reading some articles about Defendant's case, Cross called the police to discuss some of her concerns about Defendant. Then she decided she wanted nothing to do with Defendant. Cross told Defendant she had spoken to the police. Cross testified that three weeks later, she received a phone call message from Defendant in which he threatened to kill and decapitate her ten-year-old son. A recording of the message was played, and the transcript was passed to the jury, over Defendant's objection. Prior to Cross's testimony, Defendant renewed his objection and argued that the evidence was irrelevant and more prejudicial than probative. The State argued that Cross had told Defendant that she had gone to the police, discussed the case, and then told him that she wanted nothing more to do with him because of these allegations. Within three weeks of her going to the police, the State continued, Defendant left Cross the threatening message. The trial court overruled Defendant's continuing objection. Before trial, Defendant had filed a motion in limine seeking to prohibit the State from introducing, discussing, or making reference to Defendant's statements and tape recordings regarding threatening statements by Defendant to Cross. The trial court denied the motion in limine concerning Cross.

During the cross-examination of Dale's sister, Brenda Sue Ellis (Ellis), Defense counsel questioned whether she remembered being asked by the police if she suspected anyone who wanted to kill her brother. The State objected and counsel approached the bench. Defense counsel informed the trial court that Ellis would answer, “Craig Exner, Keith Nerberger.” The trial court then stated, “I believe this is basically in line with my pretrial ruling on the motion in limine, so I am going to have to sustain the objection at this time. It can be a continuing objection.”

Additionally, during the testimony of Mrs. Hamilton, Defense counsel asked her whether she advised the police that on two separate dates, someone came looking for her husband. The State objected, stating that Defense counsel was trying to suggest another person or people did the crime. The trial court sustained the objection as continuing “until such time as the Court has made some sort of a ruling about it.” Defense counsel also asked Mrs. Hamilton whether she told the police that her husband had had some difficulty with gambling, and the trial court sustained the State's objection as to relevancy. Outside of the presence of the jury, defense counsel told the trial court,

Judge, there is going to be testimony about Mr. Hamilton having financial difficulties. In fact, his wife had admitted to them they lost their house [as a] result of a gambling problem. They had been borrowing money. People will testify from my perspective at least that I would be calling to talk about [Mr. Hamilton] owing money, writing bad checks, things of that nature.

In sustaining the objection as continuing, the trial court stated, “I think just this mere information without something to substantiate it, or to prove direct connection with this is not permitted by the case law, as I understand it.”

Before trial, the State had filed a motion in limine to prohibit evidence that another person may have committed the crimes. The State predicted that Defendant would attempt to argue that Craig Exner (Exner), and other people as well, might have been the murderer, but there was no evidence connecting him to the crimes and the only evidence was hearsay. Defendant argued that police reports stated that Exner had used the internet to find someone to murder the victims in this case. Defendant argued that it was for the jury to decide whether he was excluded by other information. Although Defendant claimed to have an endorsed witness who supposedly observed Exner on the internet, the State argued that the police report indicated no witness actually saw Exner. Defendant did not dispute that argument. The trial court stated that it was inclined to grant the State's motion, but wanted to give the motion additional consideration prior to the presentation of evidence. The trial court later sustained the motion in limine and directed defense counsel to seek a preliminary hearing outside the presence of the jury before attempting to introduce any evidence designed to implicate other persons in the murders.

Defendant did not testify at trial.

After the conclusion of all the evidence, the jury found Defendant guilty of the charged offenses. Defendant filed a motion for a new trial, claiming that the trial court erred in overruling his objection to and request to exclude the propensity testimony of Cross and the presentation of a phone recording left on Cross's phone by Defendant; the trial court erred in denying Defendant the opportunity to cross-examine Mrs. Hamilton concerning her husband's gambling problem, that he had borrowed money from a “loan shark,” that the Hamilton family had lost their home because of his gambling trouble, and about individuals coming to her place of employment looking for her husband the Sunday before he was murdered. Defendant claimed that the trial court erred in denying his right to present testimony that another person was responsible for the victims' deaths because this denied Defendant the right to present a defense. Additionally, Defendant claimed that the trial court erred in overruling his objection to the introduction of weapons found at the Langdon residence, admitting a comparison of the weapons claimed stolen versus those found in the Langdon residence after the murder, and admitting testimony about the insurance claim filed by Langdon, admitting testimony that Defendant possessed firearms prior to the murder, and admitting the State's exhibits.

On June 16, 2008, the trial court overruled Defendant's motion for a new trial and sentenced Defendant to life in prison without parole for the first-degree murder charge and a concurrent term of thirty years of imprisonment for the armed criminal action charge with regard to the murder of Dale. Running consecutively to the sentence regarding Dale, the trial court imposed a sentence of life in prison without parole for the first-degree murder charge of Mr. Hamilton and a concurrent term of thirty years of imprisonment for the armed criminal action charge.²

This appeal follows.

Points on Appeal

Defendant raises four points on appeal. In his first point, Defendant alleges that the trial court abused its discretion in overruling his objections and allowing the State to “parade” testimony and evidence concerning numerous weapons and ammunition, because those rulings denied Defendant his rights to due process, a fair trial, and to be tried for the offense with which he was charged, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Sections 10, 17, and 18(a) of the Missouri Constitution. Defendant contends that these weapons and ammunition were not directly connected to the crime or to Defendant, were inherently prejudicial, and had no probative value since they could not assist the jury in deciding any of the issues presented in the case because the evidence was uncontroverted that the murder weapon was either a .38d or .357dcaliber gun. Accordingly, Defendant's possession of weapons and ammunition that could not have been involved in the murders was neither logically nor legally relevant and served only to color Defendant's character as someone tending to possess dangerous weapons.

In his second point, Defendant alleges that the trial court abused its discretion in allowing the State to present evidence that about five years after the charged offense, Defendant had left a phone message for his ex-girlfriend wherein he threatened to decapitate her ten-year-old son. Defendant asserts that any “marginal” probative value was outweighed by the prejudicial effect of this inflammatory evidence, thereby violating Defendant's rights to due process, a fair trial, and to be tried only for the offense with which he is charged, as guaranteed by the Fourteenth Amendment to the United States Constitution, and Article I, Sections 10, 17, and 18(a) of the Missouri Constitution. Defendant claims that this evidence of uncharged other crimes did not prove any issue in dispute, nor did it concern the charged offense; rather, it was only propensity evidence that Defendant was a bad, violent person, which only served to divert the jury's attention away from the charged offense.

Third, Defendant alleges that the trial court abused its discretion in sustaining the State's objections and not allowing the jury to hear evidence showing that Exner had a motive to kill the victims and had taken steps to have them killed. The prohibition of this evidence, Defendant argues, denied him his rights to due process, a fair trial, and to present a defense as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. Defendant alleges that he was entitled to present evidence showing that Exner had made statements about wanting the victims dead, Exner owed Dale more than $100,000, that Dale was prepared to prosecute Exner for passing bad checks, that Exner wanted to confront Mr. Hamilton about money Mr. Hamilton owed him, that Dale had caused Exner to lose everything, and that Exner had been on the internet looking for a hit man to kill the victims. Defendant argues that such evidence would have been proof that Exner committed some act directly connecting him with the crime.

Finally, in his fourth and final point, Defendant alleges that that trial court abused its discretion in sustaining the State's objections and not allowing Defendant the opportunity to cross-examine Mrs. Hamilton about: individuals coming to her place of employment looking for her husband the Sunday before he was murdered; her husband's gambling problem; her husband borrowing money from a loan shark; and losing their family home in Arkansas because of her husband's gambling trouble. Defendant argues the exclusion of this evidence denied him his rights to due process, a fair trial, and to present a defense as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. Defendant claims that he was entitled to present this evidence to show the jury that someone other than Defendant had a motive to kill the victims and that it was possible that Mr. Hamilton, and not Defendant's father, was the real target of this crime.

Standard of Review

Each of Defendant's points on appeal addresses specific evidentiary rulings made by the trial court. A trial court has broad discretion to admit or exclude evidence. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). A trial court's ruling on the admission of evidence will not be reversed unless the court has clearly abused its discretion. Id. “That discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” Id., quoting State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005). The trial court reviews for prejudice, not just error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. Id. Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial. Id.

Discussion

Point I-Evidence of Weapons and Ammunition was Relevant and Admissible.

Defendant's first point addresses the trial court's admission of evidence relating to numerous weapons and ammunition. Defendant contends that the weapons and ammunition that were the subject of the testimony and documents admitted into evidence were not directly connected to the crime or to Defendant and were inherently prejudicial. Such evidence, Defendant argues, had no probative value because it could not assist the jury in deciding any of the issues presented in the case. We disagree.

Weapons or objects connected with the defendant or the crime, when sufficiently identified, become relevant and possess probative value. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299 (Mo.1944). “As a general rule weapons and objects not connected with the defendant or the crime are not admissible unless they possess some probative value.” Id. Missouri courts subscribe to the principle that “[l]ethal weapons completely unrelated to and unconnected with the criminal offense for which an accused is standing trial have a ring of prejudice seldom attached to other demonstrative evidence.” State v. Charles, 572 S.W.2d 193, 198 (Mo.App.1978). “[A]ppellate courts of this state have been quick to brand their admission into evidence, and any display of or reference to them during closing argument, as prejudicial error.” Id. Accordingly, “[t]he legal principles in cases like Charles are not to be winked at or ignored nor to be treated as so much pap.” State v. Moore, 645 S.W.2d 109, 110 (Mo.App. W.D.1982). We are duly cognizant of these admonitions as we address Defendant's concerns.

On the other hand, weapons found at or near a crime scene or that help explain the manner in which a crime is committed are generally found to be admissible. State v. Ramsey, 820 S.W.2d 663, 666 (Mo.App. W.D.1991). “Where the evidence in question tends to connect a defendant with the crime, proves the identity of the deceased, shows the character of wounds or throws light upon a material fact in issue, it is properly admissible.” Id.

Additionally, Missouri courts follow another general rule that “evidence of uncharged crimes, wrongs, or acts is not admissible for the purpose of showing the propensity of the defendant to commit such crimes.” State v. Barton, 998 S.W.2d 19, 28 (Mo. banc 1999). Such evidence is admissible, however, “if the evidence is logically relevant, in that it has some legitimate tendency to establish directly the accused's guilt of the charges for which he is on trial and if the evidence is legally relevant, in that its probative value outweighs its prejudicial effect.” Id.

At issue here is the testimony regarding weapons and ammunition found in the home Defendant shared with his stepfather, documents relating to an insurance claim made by Defendant's stepfather in 1997 which listed various guns that were alleged to have been stolen, and the subsequent abandonment of that insurance claim in 1998. Defendant argues that State v. Perry, 689 S.W.2d 123, 125 (Mo.App. W.D.1985), is instructive in that weapons not connected with the accused or the crime charged lack any probative value and their admission into evidence is inherently prejudicial and constitutes reversible error. In Perry, a twenty-gauge shotgun was found in the back seat of the defendant's mother's car, which the defendant was driving when he was apprehended. The State presented the shotgun as evidence during the defendant's robbery trial. Id. No evidence was presented to show that the defendant owned the shotgun found in the car, or that Defendant was even aware of the shotgun's presence in the car. Id.

The State argues, on the other hand, that the holding in State v. Norman, 243 S.W.3d 466, 470d71 (Mo.App. S.D.2007), is instructive because there the State introduced evidence that a search of the defendant's home yielded several handguns, rifles and shotguns, none of which was a .25dcaliber handgun determined to have been used in the murder. Id. The search did, however, yield .25dcaliber bullets and reloading equipment. Id. The Southern District found that the trial court did not err in admitting such evidence, noting that the evidence was relevant to the State's theory that the defendant used a .25dcaliber pistol to kill the victim. Id. Although the defendant in Norman conceded that the challenged evidence was logically relevant to the State's trial theory, Defendant here does not concede the same, but argues that the evidence is not relevant. We disagree.

Defendant cites State v. Richards, 334 Mo. 485, 67 S.W.2d 58, 60 (Mo.1933), in support of his argument that the guns and ammunition found at his stepfather's house could not be found by a jury to have any relation to the murders of Dale and Mr. Hamilton. In Richards, the Supreme Court held that it was error to admit a pistol seized from a co-conspirator's home where there was no evidence that the defendant had possessed or seen the firearm. Unlike the case in Richards, however, here, sufficient testimony exists from which a trier of fact reasonably could find a connection between Defendant and the weapons found in the Langdon residence. In Richards, the “state wholly failed to show any connection between the articles found at the [co-conspirator's] home and appellant.” Id. The situation is significantly distinguished from the facts in this case.

Defendant correctly states the law that evidence of unrelated firearms is unduly prejudicial. However, Defendant's “argument [ ] begs the question.” State v. Cofield, 95 S.W.3d 202, 205 (Mo.App. S.D.2003). While the testimony and evidence of the guns recovered in the residence shared by Defendant and his stepfather is not particularly strong, neither is such evidence so tenuous so as to deprive it of the necessary probative value allowing its admission by the trial court. We cannot state that a jury could not reasonably find a connection between the guns and ammunition recovered and the crimes of which Defendant was convicted. Accordingly, the law Defendant recites under this argument is unavailing. See id. Unlike the facts in Perry, 689 S.W.2d at 125, which show no linkage of a shotgun exhibit to the crime the defendant committed, the evidence of the weapons and bullets in the instant case were shown to have a sufficient minimal connection to Defendant, and to the crime with which Defendant was charged. Here, evidence was presented that the bullets found in the Langdon residence were nearly identical to those recovered from the victims, except for the damage done to the bullets that had been fired. It was not insignificant that the bullets recovered from the Langdon residence were identical to those recovered from the victims, yet the weapons necessary to fire such bullets were missing. Moreover, testimonial evidence from Defendant's friends demonstrated that Defendant in fact had possessed and owned a weapon that matched the caliber weapon used to commit the murders, which was now missing. Testimony also linked the weapons to Langdon as their previous owner, and therefore we find it appropriate that evidence of his insurance claim regarding the weapons also was admitted. The insurance claim provided relevant evidence that weapons of the same type used to murder Dale and Mr. Hamilton were at one time in the residence that Langdon shared with Defendant. Finally, exculpatory statements, when proven false, demonstrate consciousness of guilt. State v. Williamson, 809 S.W.2d 16, 19 (Mo.App. E.D.1991). Here, the State introduced evidence that directly contradicted Defendant's denial that he had possessed or even used any gun since he was fourteen or fifteen years old. The cumulative effect of this evidence was sufficiently probative and logically relevant because it has a legitimate tendency to connect Defendant with the type of weapon used in the crime, and establish Defendant's guilt of the charges for which he is on trial.

We also find that the contested evidence is legally relevant in that its probative value outweighs its prejudicial effect. In Norman, 243 S.W.3d at 470, the Southern District noted the little prejudicial effect of the weapons admitted as evidence by explaining that defense counsel had asked during voir dire if anyone would hold the defendant's gun ownership against him, and that no one responded. Id. at 471. Similarly, here, defense counsel asked during voir dire if anyone would believe that Defendant committed the murders just because he possessed firearms, and no one responded in the affirmative. The State asked how many veniremembers owned firearms themselves and received several responses. Additionally, defense counsel received multiple responses when he asked how many veniremembers had gun permits, but none of the responses indicated the mere possession of a gun meant that the person in possession committed a murder.

In light of the logical and legal relevance of the evidence presented, Defendant's first point is denied.

Point II-Evidence of Defendant's Threat was Relevant and Admissible.

Next Defendant alleges that the trial court abused its discretion by allowing the State to present evidence of Defendant's phone message in which he threatened to decapitate his ex-girlfriend's ten-year-old son because any probative value was outweighed by the prejudicial effect of this evidence. Defendant claims that this evidence of another uncharged crime did not prove any issue in dispute, nor did it concern the charged offense; rather, it was only propensity evidence that Defendant was a bad, violent person, which only served to divert the jury's attention away from the charged offense.

Generally, evidence of uncharged crimes or acts is inadmissible to show a defendant's propensity to commit such acts. State v. Barton, 998 S.W.2d 19, 28 (Mo. banc 1999). Such evidence may cause a jury to convict a defendant on the basis of perceived propensities rather than on the basis of substantial and competent evidence. State v. Henderson, 105 S.W.3d 491, 495 (Mo.App. W.D.2003). Only when the evidence of uncharged acts clearly is logically and legally relevant to establishing the defendant's guilt of the crime for which he is on trial is it admissible. Id. Evidence is logically relevant “if it has some legitimate tendency to establish directly the accused's guilt of the charges for which he is on trial,” and legally relevant “if its probative value outweighs its prejudicial effect.” Id., quoting State v. Barriner, 34 S.W.3d 139, 144d45 (Mo. banc 2000). Several well-recognized exceptions allow admission of evidence of uncharged crimes. Id. “Conduct and declarations of a defendant that are relevant to show consciousness of guilt or a desire to conceal the offense are admissible because they tend to establish the defendant's guilt of the charged crime.” State v. Davidson, 242 S.W.3d 409, 415 (Mo.App. E.D.2007), quoting Barton, 998 S.W.2d at 28. “Specifically, evidence that the defendant threatened a witness is admissible to show consciousness of guilt.” Id.

In Barton, 998 S.W.2d at 28, the Missouri Supreme Court found that the probative value of testimony of one witness outweighed any prejudicial effect where the appellant stated to the witness that “he was going to have [his former cellmate] killed because he had discussed a murder with him and he talked about it.” The Court found that this testimony tended to establish both that the appellant described the murder to his former cellmate and that the appellant wanted to conceal the evidence of his guilt. Id. Thus, it “legitimately tended to prove that appellant was the person who murdered [the victim].” Id.

Furthermore, in State v. White, 870 S.W.2d 869, 875 (Mo.App. W.D.1993), the Western District disagreed with the appellant who argued on appeal that a detective's testimony that the appellant had threatened to “kick his ass” prejudiced him by exposing the jury to unrelated, uncharged misconduct and did nothing to establish the guilt of the crimes charged. In its ruling the court noted that the appellant's “threatening remarks are inconsistent with the demeanor of an innocent person who in self-defense accidentally shot someone.” Id.

Defendant argues that his case is comparable to State v. Batiste, 264 S.W.3d 648, 652 (Mo.App. W.D.2008), in which the appellate court reversed a child abuse conviction because the State was allowed to present evidence that the defendant had abused the same child before the charged incident. In Batiste, “[t]he evidence had no other discernible purpose than to establish that [the defendant] had abused [the victim] in the past and was, therefore, likely to have committed the charged crime. In other words, its purpose was to show that [the defendant] had a propensity to abuse [the victim], and its obvious purpose was to persuade the jury to convict him based on his propensities.” Id.

Defendant here argues that the State's argument had “surface appeal” in showing some consciousness of guilt, but that the detailed testimony and evidence exceeded what the State needed to establish Defendant's consciousness of guilt. Defendant complains that the State went too far when it accentuated Defendant's evil propensity during closing argument, although we note that Defendant did not object during such argument. Our review of the record supports Defendant's claim that the prosecutor heavily stressed this evidence during the trial and closing argument. The State could have accomplished its evidentiary goals in a less aggressive and graphic manner, and with a reduced risk of inviting error by the trial court. However, while we agree that the State could have presented a less detailed version of the happenings with Cross, we do not find that the trial court erred in allowing the evidence of Defendant's threats and the tape recording. We cannot say that Defendant's tone of voice and emotion conveyed by the tape recording may not be relevant to the jury's consideration of Defendant's consciousness of guilt. Unlike Batiste, here the evidence presented was a threat, not an actual crime committed in a similar manner in which the crime charged here was committed. The evidence had a distinct purpose of demonstrating Defendant's threat to Cross's son within three weeks after Defendant learned that Cross had spoken with the police about his case. We agree with the State that Defendant should not be heard to complain about prejudice resulting from his own words and conduct. “Any prejudice [Defendant] may have suffered from the admission of his own epithets at trial ‘can be attributed to the very probativeness of the challenged evidence.’ “ State v. McDaniel, 254 S.W.3d 144, 145 (Mo.App. E.D.2008), quoting State v. Johnson, 201 S.W.3d 551, 557 (Mo.App. S.D.2006). “A ‘[d]efendant is not entitled to exclude evidence merely because it damages his case.’ “ Id.

Finding no prejudice in admitting the evidence of Defendant's threatening message left for Cross, we deny Defendant's second point on appeal.

Point III and Point IV-The Trial Court Acted within its Discretion to Exclude Evidence of Other Suspects.

We consider together Defendant's third and fourth points, which allege that the trial court abused its discretion sustaining the State's objections and not allowing the jury to hear evidence regarding Exner's motive and steps taken to kill the victims, as well as Mrs. Hamilton's testimony about individuals looking for her husband and her husband's gambling problem. Defendant claims that the prohibition of this evidence denied Defendant's rights to due process, a fair trial, and to present a defense. Defendant asserts that he was entitled to present this evidence to show the jury that someone other than Defendant had a motive to kill the victims. Such evidence would have raised the possibility that Mr. Hamilton, and not Dale, was the real target of this crime and would have been relevant motive evidence.

The State first contends that Defendant's claims of error are not preserved, and thus, may be reviewed only for plain error. We agree. To preserve a claim that evidence was improperly excluded, the proponent of the evidence must attempt to present the evidence at trial, and if an objection is sustained, the proponent must then make an offer of proof. State v. Chambers, 234 S.W.3d 501, 511 (Mo.App. E.D.2007). “An offer of proof made before trial at a hearing on a motion in limine will not suffice.” Id., quoting State v. Marshall, 131 S.W.3d 375, 377 (Mo.App. E.D.2004). “To preserve the matter for appellate review, the offer of proof must be made during trial.” Id. An offer of proof must be sufficiently specific to inform the trial court of the specifics of the proposed evidence and demonstrate its admissibility. State v. Childs, 257 S.W.3d 655, 658 (Mo.App. W.D.2008). The offer preferably is made in question and answer format, and mere statements and conclusions are insufficient. Id. An appellate court has discretion on whether to review an unpreserved matter for plain error. Chambers, 234 S.W.3d at 511.

Regarding Defendant's third point related to Exner, Defendant only attempted to introduce evidence when he asked Dale's sister Ellis a question concerning her suspicion of Exner and another man in the murders. Regarding Defendant's fourth point related to Mrs. Hamilton's testimony about her husband's financial problems and the fact that unidentified people had been looking for him, counsel told the trial court only that he would be presenting testimony from other witnesses about Mr. Hamilton's financial difficulties. Defendant did not specify witnesses or demonstrate the specifics of what testimony the witnesses would provide. Thus, neither offer of proof was sufficient to permit the trial court to consider the evidence's relevancy and admissibility. Childs, 257 S.W.3d at 658d59.

In our discretion, we will review Defendant's claims for plain error. A request for plain error review triggers the commencement of a two-step analysis by an appellate court. State v. Campbell, 122 S.W.3d 736, 740 (Mo.App. S.D.2004). The first step of this analysis is to determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Id. If facially substantial grounds are found to exist, the appellate court should secondly engage in plain error review to determine whether manifest injustice or a miscarriage of justice has actually occurred. Id. If facially substantial grounds are not found to exist, however, the appellate court should decline to exercise its discretion to review the claim of plain error pursuant to Rule 30.20. Id. To find manifest injustice, this Court must find that the trial court's error in admitting the evidence was outcome determinative. State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006).

Evidence that another person had an opportunity or motive to commit the crime is not admissible just to cast bare suspicion on another person. State v. Woodworth, 941 S.W.2d 679, 690 (Mo.App. W.D.1997). Evidence that another person had opportunity or motive to commit the crime with which the defendant is charged is admissible only if there is also proof that the other person committed some act directly connecting him with the crime. State v. Wise, 879 S.W.2d 494, 510 (Mo. banc 1994). “The evidence ‘must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides accused as the guilty person.’ “ Woodworth, 941 S.W.2d at 690, quoting State v. Donnell, 862 S.W.2d 445, 450 (Mo.App. W.D.1993).

Regarding Defendant's third point related to Exner, Defendant failed to demonstrate that Ellis could testify to any acts committed by Exner that would directly link him to the murders. Mere evidence of Ellis's suspicion that Exner had the opportunity or motive to commit the crime is by itself inadmissible. Evans v. State, 85 S.W.3d 750, 753 (Mo.App. E.D.2002). Additionally, the evidence that Exner had been seen looking for a hitman on the internet would not alone directly connect Exner to the murders that actually occurred. Neither would the evidence have exonerated Defendant, who also had the motive and opportunity to commit the murders. See Helmig v. State, 42 S.W.3d 658, 671 (Mo.App. E.D.2001).

Furthermore, evidence related to Mrs. Hamilton's testimony about her husband's financial problems and the fact that unidentified people had been looking for him would have been inadmissible hearsay because it would have relied on the out-of-court statements of the unidentified persons to prove the truth of what they had said to Mrs. Hamilton. State v. Clark, 859 S.W.2d 782, 787 (Mo.App. E.D.1993). The testimony also pointed to financial problems but not murder, and thus, the disconnected acts of which Mrs. Hamilton may have testified did not directly link those unidentified persons to the murders. See State v. Stokes, 638 S.W.2d 715, 723 (Mo. banc 1982).

Defendant claims that because the proof against Defendant was not overwhelming in this case, the State did not rebut the presumption of prejudice. See State v. Barriner, 111 S.W.3d 396, 401 (Mo. banc 2003). Defendant argues that there was no confession, no eyewitnesses to the murders, no physical evidence placing Defendant inside the residence, and only circumstantial evidence. However, we find that the State presented a motive for Defendant to kill his father, direct testimony placing in Defendant's possession the weapon used to murder the two victims, an eyewitness as well as surveillance tapes to show Defendant had delivered and abandoned Dale's vehicle in the casino parking garage, latex gloves in the other vehicle seen with Dale's vehicle at the time it was abandoned, and Defendant's obvious untruthfulness to the police regarding an alibi. Taken together, the evidence against Defendant directly connected Defendant with the commission of the crimes, and no other proffered evidence would have changed the outcome of the trial.

We find that the exclusion of evidence that any of a number of people could have murdered the two victims was not evidence that would directly connect them with the crime and would have served only to confuse the jury. Defendant's asserted claim does not facially establish substantial grounds for believing a manifest injustice or miscarriage of justice has occurred in omitting such evidence. Defendant's third and fourth points are denied.

Conclusion

The judgment of the trial court is affirmed. Because a clerical mistake was made in the preparation of the judgment, we remand this case to the trial court for a nunc pro tunc order reflecting Defendant's status as a prior offender.

GEORGE W. DRAPER III, and ROY L. RICHTER, JJ., Concur.