STATE v. WHITE (2026)

Cleon White (“White”) appeals the judgment of the Circuit Court of Jackson County convicting him, after a jury trial, of two counts of first-degree murder, two counts of armed criminal action, and one count of unlawful use of a weapon. On appeal, White asserts the trial court erred by: 1) denying his motion to suppress evidence seized from his cell phones; 2) allowing a detective to testify that he recognized White as the individual the detective had seen in surveillance videos; and 3) prohibiting White from cross-examining the detective about whether police searched a dumpster that may have contained shell casings thrown away by the murderer. Finding no merit to these claims of error, we affirm.

Factual and Procedural Background

A jury convicted White of murdering J.G.¹ and B.R. on the evening of August 25, 2020 by shooting them multiple times while the victims were in J.G.’s vehicle. The evidence presented at trial, in the light most favorable to the verdicts,² was as follows.

Witness lived on Guinotte Street near the J. Rieger Distillery. On August 25, 2020, shortly after 7:45 p.m., he heard multiple gunshots, looked outside, and saw a white SUV drive by. The driver was a Black man with facial hair; he was wearing a white shirt. Witness believed the driver may have been on his phone as he sped away. Right down the street was a gold Honda sedan; the car was running, but not moving.

Police were dispatched to the area at 7:51 p.m. They discovered J.G. and B.R. in the gold Honda; J.G. was in the driver's seat, B.R. in the passenger seat. They had been shot multiple times, and died of their wounds. Law enforcement canvassed the area, and discovered that the J. Rieger Distillery had a security camera that captured the shooting. Video footage showed the gold Honda driving and a white SUV following behind. The gold Honda slowed down and the white SUV pulled up next to it. After a few seconds, the white SUV drove forward, did a U-turn, and sped away.

Law enforcement contacted more businesses and found additional surveillance footage. They were able to trace the path of the white SUV back to Cold Storage Lofts (“the Lofts”), which was a three- or four-minute drive from the scene of the shooting. The Lofts had a secure garage for its residents. Each resident was assigned a key fob to gain access to the garage. The Lofts tracked and recorded the usage of each key fob. At 7:49 p.m.—four minutes after the shooting—the white SUV entered the Lofts garage using key fob 349. Key fob 349 was assigned to White's aunt, who was a resident.

The Lofts had numerous security cameras in its garage and around its premises. The Lofts provided law enforcement with surveillance footage and key fob records from August 25, 2020, which revealed that at approximately 6:15 p.m.—an hour and a half before the murders—a white Acura SUV entered the garage using key fob 349. The driver's window was rolled down, and he was visible. The driver was a Black man with facial hair wearing a white t-shirt and a ball cap. At trial, the defense denied this individual was White. However, given that we view the evidence in the light most favorable to the verdicts, we hereinafter refer to the driver of the white Acura SUV as White.

At 6:42 p.m., White left the garage and drove away from the Lofts. He returned shortly after and parked in the Lofts outdoor parking lot. At approximately 7:10 p.m., a little girl was dropped off at the parking lot. At 7:23 p.m., J.G. drove into the lot, parked, and went into the Lofts. A few minutes later, J.G. came back to the parking lot, where he met up with White. They shook hands and had a conversation. While they were talking, the little girl approached White and he picked her up and held her. J.G. got back into his car and White went inside with the little girl. J.G. circled the lot, then parked again.

At 7:40 p.m.—five minutes before the shooting—White exited the Lofts and walked through the parking lot carrying a large bag. J.G. drove out of the lot, and White followed him. White followed J.G. for a few minutes, then pulled up next to him and shot J.G. and B.R. multiple times. After White returned to the Lofts garage at approximately 7:49 p.m., he parked his car and opened and shut the trunk. He then opened the passenger side doors and leaned into the car for a little while. White shut the doors, and walked away from the car. At 8:25 p.m., he came back to the car and drove out of the garage.

Detective H.P. gathered and watched the surveillance footage that tied White to the shootings. He did not recover all the footage from the Lofts at once, and had to go back multiple times. On September 9, 2020, Detective H.P. was at the Lofts to obtain additional footage and records when the Lofts property manager advised him that key fob 349 had just been used to access the garage by an individual driving a Hyundai Veracruz. Detective H.P. found the Hyundai Veracruz parked in the garage. Near the car was White; Detective H.P. recognized him from the surveillance footage as the driver of the white Acura SUV. Detective H.P. asked White his name and which car he was driving. White gave him his first and last name, but denied driving the Hyundai Veracruz.

Detective H.P. contacted his sergeant and requested law enforcement back-up to follow White. When White left the garage later that afternoon driving the Hyundai Veracruz, officers followed him and ran his license plates. The plates “didn't match the car” and they initiated a traffic stop. During the stop they discovered that White had an outstanding warrant for a municipal offense. White was arrested on that warrant and searched. Officers recovered two cell phones from White, and they were given to Detective H.P., who had arrived at the traffic stop. White was taken to jail, processed, and released that same day. Law enforcement did not release White's cell phones, however. On the morning of Friday, September 11, 2020, law enforcement applied for warrants to search the phones, asserting they had probable cause to believe that the phones contained evidence of the murders. Warrants to search the cell phones were issued that same morning at approximately 9:30 a.m.

White's cell phones were sent to the Heart of America Regional Computer Forensic Laboratory to be searched. Data was extracted from the phones, which included photos, videos, call history, contacts, location data, and web searches. The data showed that beginning at 11:23 p.m. on the night of the murders, the following web searches were conducted on White's cell phone: “kansas city news tonight killed,” “kansas city news tonight killed on 25 august,” “kansas city shooting today,” “kansas city shooting today two man shoot [sic],” and “kansas city shooting today East bottoms.”

Regarding photos and videos, there was a photo in White's phone of the little girl that was seen in the surveillance footage of the Lofts parking lot. There was also a photo taken from inside of a vehicle; an Acura emblem was visible on the steering wheel. The photo was taken at 2:22 p.m. on the day of the shooting. There was a selfie video created that same day at 6:56 p.m.; it showed White in a vehicle, wearing a white t-shirt and hat. Also visible in that video was a squiggly line and some writing on the rear driver's side window of the vehicle. Those same images were visible in the Lofts garage surveillance footage of the white Acura SUV. White attempted to delete the selfie video on September 3, 2020. This cell phone evidence was admitted at trial over White's objection.

Detective H.P. testified at trial about the surveillance footage that showed White in the Lofts parking garage a few minutes after the murders. Detective H.P. testified that in the video it “appear[ed] that the driver gets out of the car and is going through the car as if cleaning out the vehicle and going over to a location where the dumpster is located.” Detective H.P. stated that, in his training and experience, “if somebody just fired off multiple rounds to a firearm inside a car,” shell casings would be in the car. Although no dumpster was visible in the video, Detective H.P. stated that he knew from being in the garage that there was a dumpster “just behind where that car was at.”

At the conclusion of trial, the jury found White guilty of two counts of first-degree murder, two counts of armed criminal action, and one count of unlawful use of a weapon. He was sentenced to life without parole on each murder count, 25 years on each armed-criminal-action count, and 15 years for unlawful use of a weapon. The trial court ordered the sentences on the murder counts be served concurrently, and the remaining counts be served consecutively to each other and the murder counts.

This appeal followed.

Point I – Motion to Suppress Cell Phone Evidence

In his first point, White asserts the trial court erred in overruling his motion to suppress the evidence seized from his cell phones. White does not challenge that law enforcement could search him incident to his arrest on the municipal warrant and discover the cell phones. He argues, however, that law enforcement could not seize his phones and “retain them for two days before seeking a warrant to search them,” and in doing so violated the Fourth Amendment.

Preservation and Standard of Review

Prior to trial, White filed a motion to suppress the cell phone evidence, asserting his phones were seized without consent or a valid warrant, and no exception to the warrant requirement applied. Specifically, he asserted the exception that allows officers to seize items incident to arrest did not apply because there was no nexus between the crime for which he was arrested (the municipal offense) and the crimes for which the phones were seized (the murders), relying on State v. Figgins, 839 S.W.2d 630 (Mo. App. W.D. 1992). In its response to the motion, the State refuted White's interpretation of Figgins, asserted the officers lawfully seized White's cell phones incident to arrest and did not search them until they obtained search warrants, and argued exigent circumstances permitted the officers to seize the cell phones until the search warrants were obtained in order to prevent the destruction of evidence.

The trial court conducted a hearing on the motion to suppress, at which two witnesses testified: Detective H.P. and the police officer who performed the traffic stop and arrested White on September 9, 2020. After the hearing, the trial court denied the motion. During trial, White repeatedly renewed his argument from the motion to suppress and objected to the admission of the cell phone evidence. In his motion for new trial, White asserted the trial court erred in denying his motion to suppress, incorporating his previously filed motion “and all verbal objections and arguments made regarding the admission of [the cell phone] evidence.”

The State contends that White failed to preserve the argument he raises on appeal relating to the cell phone evidence. The State asserts that the argument raised by White before the trial court was that the cell phone evidence should be suppressed because there was “no nexus” between the murders and the arrest warrant, but the argument White now raises is that there was no probable cause or exigent circumstances to justify seizing White's phones and the State presented no explanation for the delay in obtaining the search warrants. The State contends that because White did not present these theories to the trial court, this point is not preserved and we can only review for plain error. See State v. Loggins, 445 S.W.3d 105, 111 (Mo. App. E.D. 2014) (“Where the objection raised on appeal is different from those stated in defendant's motion to suppress, and preserved through his continuing objection and motion for new trial, the objection, raised for the first time on appeal, is not preserved for review[.]” (internal marks omitted)); State v. Brandolese, 601 S.W.3d 519, 534 (Mo. banc 2020) (“Unpreserved issues can only be reviewed for plain error ․”).

White disagrees. He contends he has consistently raised the same argument: the seizure of his phones was made without a warrant or a lawful exception to the warrant requirement, which is a single ground under the suppression statute. See § 542.296.5(1), RSMo (A motion to suppress “may be based upon any one or more of the following grounds: (1) That the search and seizure were made without warrant and without lawful authority[.]”). He further contends that once he raised the issue of the warrantless seizure in his motion to suppress, the State bore the burden of production and proof to show the motion should be overruled. White asserts the State failed to meet its burden: although it claimed exigent circumstances justified the seizure of his phones, White argues the State failed to present evidence to support this claim.

Ultimately, we need not resolve this dispute as to whether White's argument on appeal is preserved because even presuming it is, and applying a standard of review more favorable to White, we find no merit to his claim.

When properly preserved, we review the denial of a motion to suppress for clear error. See State v. Lammers, 479 S.W.3d 624, 630 (Mo. banc 2016) (“A trial court's ruling on a motion to suppress will be reversed only if it is clearly erroneous.”). “The trial court's ruling will be deemed clearly erroneous if, after review of the entire record, this Court is left with the definite and firm impression that a mistake has been made.” Id. In reviewing the record, we defer “to the trial court's factual findings and credibility determinations and consider[ ] all evidence and reasonable inferences in the light most favorable to the trial court's ruling.” Id. “We will consider all evidence presented at trial as well as evidence presented at a pre-trial hearing on the motion to suppress.” State v. Siders, 697 S.W.3d 547, 552 (Mo. App. W.D. 2024). Whether conduct violates the Fourth Amendment, however, is an issue of law that this Court reviews de novo. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007).

Analysis

“The Fourth Amendment to the United States Constitution ensures the rights of citizens to be free from unreasonable searches and seizures and requires that no warrant shall issue except on probable cause supported by oath or affirmation.” State v. Walker, 460 S.W.3d 81, 85 (Mo. App. W.D. 2015). “As a general rule, warrantless seizures are unreasonable and unconstitutional.” Id. One exception to the warrant requirement is when a search and seizure are conducted incident to a lawful arrest. Greene v. State, 585 S.W.3d 800, 804 (Mo. banc 2019). Under this exception, officers may search the person of the arrestee and “seize any evidence on the arrestee's person in order to prevent its concealment or destruction.” Id. Generally, evidence recovered from the arrestee's person may also be searched without a warrant. See id. at 805 (officers’ search—without a warrant—of cigarette pack seized from arrestee was reasonable, as “[a] search of the personal property immediately associated with the arrestee's person incident to a lawful arrest requires no additional justification beyond that lawful arrest” (citing United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973))).

A different rule applies, however, when the evidence seized from an arrestee is a cell phone. In this scenario, “officers must generally secure a warrant” before searching the data on the cell phone. See Riley v. California, 573 U.S. 373, 386, 401, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (“Our holding, of course, is not that information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.”).³ While Riley directed officers seeking to search a seized cell phone to “get a warrant,”⁴ the opinion did not address how long officers could continue to retain a cell phone before obtaining a warrant without offending the Fourth Amendment. The Supreme Court “has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant,” but it has also noted that “a seizure reasonable at its inception ․ may become unreasonable as a result of its duration ․” Segura v. United States, 468 U.S. 796, 806, 812, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

White argues that law enforcement's seizure of his cell phones for “two days” before applying for search warrants was unreasonable and in violation of the Fourth Amendment. We find his argument unavailing.

“The duration of the seizure pending the issuance of a search warrant must still be reasonable, and reasonableness is measured in objective terms by examining the totality of the circumstances.” United States v. Mays, 993 F.3d 607, 616 (8th Cir. 2021) (internal marks and citations omitted). “To determine the reasonableness of a delay, we must balance the privacy-related and law-enforcement related concerns implicated.” Id. at 617 (internal marks omitted). “On the private-interests side, relevant considerations include the significance of the interference with the person's possessory interest, the duration of the delay, whether the person consented to the seizure, and the nature of the seized property.” Id. “On the government-interests side, relevant considerations include the government's legitimate interest in holding the property as evidence, the nature and complexity of the investigation, the quality of the warrant application and the amount of time we expect the application would take to prepare, and any other evidence proving or disproving law enforcement's diligence in obtaining the warrant.” Id.

Considering the totality of the circumstances, we conclude that the seizure of White's cell phones was reasonable. Relating to White's privacy-related interests, we find the seizure did not significantly interfere with White's possessory interest in his cell phones. The duration of the warrantless seizure was not protracted: White was arrested on Wednesday, September 9th sometime after 2:00 p.m.,⁵ and the warrants were issued Friday, September 11th at 9:31 and 9:33 a.m. The warrantless seizure thus lasted approximately one and a half days. Given the other circumstances—which we discuss below—we do not find this duration excessive. See United States v. Bragg, 44 F.4th 1067, 1073 (8th Cir. 2022) (law enforcement's seizure of cell phone—incident to arrest—for 24 days before applying for search warrant was reasonable); Mays, 993 F.3d at 618 (law enforcement's seizure of laptop for 15 days before applying for search warrant was reasonable); United States v. Burgard, 675 F.3d 1029, 1034-35 (7th Cir. 2012) (no Fourth Amendment violation where officers seized the defendant's cell phone without a warrant—but with probable cause—and waited six days before applying for a warrant to search the phone).

Additionally, although White did not consent to the seizure of his cell phones, there was also no evidence that he demanded their return or inquired about them. See Bragg, 44 F.4th at 1072 (noting there was “no evidence that either [the defendant] or anyone acting on his behalf made a request or demand for [his cell phone's] return, or even inquired about it”); United States v. Thomas, 97 F.4th 1139, 1143 (8th Cir. 2024) (there was “no evidence that [the defendant] ever requested [the phone's] return, which further weakens any Fourth Amendment Claim”); Burgard, 675 F.3d at 1033 (in determining whether the seizure affected the defendant's possessory interest, “it can be revealing to see whether the [defendant] ever asserted a possessory claim to it—perhaps by checking on the status of the seizure or looking for assurances that the item would be returned”). This, too, weighs against a finding that White's property interest was diminished by the seizure.

Turning to the government's interest, we find law enforcement had a strong legitimate interest in seizing White's cell phones until search warrants could be obtained because there was probable cause to believe White was guilty of two murders. See United States v. Smith, 967 F.3d 198, 209 (2nd Cir. 2020) (“The state has a stronger interest in seizures made on the basis of probable cause ․”). On September 9th, White used key fob 349 to access the Lofts garage. Detective H.P. knew from the Lofts records that the shooter had used key fob 349 after committing the murders. Detective H.P. had also viewed surveillance footage showing the shooter's face, and when Detective H.P. encountered White in the garage on September 9th, Detective H.P. recognized him as the person he'd seen in the surveillance footage. Additionally, Detective H.P. went to White's traffic stop and thus knew White had falsely denied ownership of the Hyundai Veracruz, which had just accessed the garage via key fob 349.

Not only did law enforcement have probable cause to believe White committed the murders, but they also reasonably believed White's cell phones contained evidence of the crimes and that seizure of the phones was necessary to prevent White from destroying the evidence. Witness believed the shooter was on the phone as he sped away from the scene of the crime. Detective H.P. testified that phones “can sync up with your car,” providing law enforcement with a way to link a phone with a vehicle. Another detective testified how cell phone activity can be used to map the time, date, and location of the phone usage. Detective H.P. expressed concern that White would destroy cell phone evidence, such as location data, text messages, images, photographs, and phone records. This was a reasonable concern given that Detective H.P. had seen White appear to remove items from inside his vehicle minutes after the murder. Moreover, it was reasonable to infer White was aware he was being investigated—providing an additional incentive for him to destroy evidence that was on his cell phones—based on the encounter between Detective H.P. and White in the garage, during which Detective H.P. questioned White about driving the Hyundai Veracruz (that had just used key fob 349). During this encounter, White appeared “clearly nervous.”

The existence of probable cause here weighs in favor of the government's interest in the seizure and diminishes White's possessory interest in his cell phones. See Bragg, 44 F.4th at 1073 (the government had a strong interest in seizing the defendant's cell phone incident to arrest where there was probable cause to believe he was guilty of “a federal law firearm offense and/or a state law felony shooting offense”); see also Burgard, 675 F.3d at 1033 (“All else being equal, the Fourth Amendment will tolerate greater delays after probable-cause seizures.”).

Finally, we consider law enforcement's diligence in obtaining the warrants and the amount of time we expect the applications to take to prepare. On these topics, White argues that “[t]he State presented no explanation for the two-day delay in obtaining a warrant,” and “there is no evidence in the record that supports a conclusion that officers diligently sought a search warrant.” White contends that, “[w]ithout this evidence, the trial court had no basis to conclude that the delay was reasonable.” We disagree.

First, while White claims on appeal “the record is devoid of any reason police detectives delayed in seeking search warrants for the phones,” we note that White did not challenge in his motion to suppress any “delay” or law enforcement's diligence in obtaining the warrants, which likely explains why neither the State nor the defense specifically asked the law enforcement witnesses about these issues. Yes, the State asserted exigent circumstances justified the warrantless seizure and bore the burden of proof, but the State's exigent-circumstances argument was that law enforcement needed to seize the phones to prevent White from destroying or hiding data evidence, not that the data evidence was in danger of being lost due to the mere passage of time.⁶ Thus, to the extent that there is not testimony directly explaining the timing of the warrant applications, it is likely for these reasons.

But even without such direct testimony, we find the record supports the conclusion that law enforcement was reasonably diligent in obtaining the warrants. After White was arrested on the afternoon of September 9th, Detective H.P. took the phones “back to [the] office” and gave them to the lead detective on the case to obtain search warrants. The warrant applications compiled information from initial responders, the arresting officer, Detective H.P., a task-force FBI agent, and the Jackson County Medical Examiner's Office. The applications summarized the surveillance footage, which was comprised of “the most surveillance video of any other case [Detective H.P. had] ever worked,” and connected key fob 349 to White and his aunt. Additionally, Detective H.P. testified at the suppression hearing that it was routine to retain phones “and get search warrants maybe the next day, because that's kind of a practical purpose for judges and prosecutors and police.” Although the warrant applications were not filed the “next day,” they were filed the following morning before 9:30 a.m. “We agree with the Seventh Circuit that ‘police imperfection is not enough to warrant reversal where the delay was not the result of complete abdication of [the officer's] work or failure to see any urgency.’ ” Bragg, 44 F.4th at 1073 (internal marks omitted) (quoting Burgard, 675 F.3d at 1034). Here, there was no indication law enforcement completely abdicated their work or failed to see any urgency in seeking the warrants. We find their actions in applying for the search warrants reasonably diligent.

Based on the above, we find no Fourth Amendment violation concerning the seizure of White's cell phones.⁷ Point I is denied.

Point II – Detective H.P.’s Testimony Identifying White

In his second point, White asserts the trial court erred in permitting Detective H.P. to identify White as the individual in the surveillance footage.

Preservation and Standard of Review

The State asserts this claim of evidentiary error is not preserved for appellate review because White did not object at trial contemporaneously with the admission of the challenged testimony. During a recess before Detective H.P. testified, defense counsel objected “to prevent Detective [H.P.] from testifying that Cleon White is in fact the same person on the video” and sought to limit Detective H.P.’s testimony:

Defense Counsel: I want to be as clear as I can be in that my objection is to prevent Detective [H.P.] from testifying that Cleon White is in fact the same person on the video. Meaning I don't believe Detective [H.P.] is in a position to personally identify Cleon White as the shooter. And I say that because I know it's ultimately the issue the jury has to decide, right? To review the evidence, to review the surveillance, to make their own determination. So my request is that Detective [H.P.], clearly he has to be permitted to talk about the work he did on this case, and I don't think that it's problematic for him to say, “I reviewed the surveillance. I saw this person at the parking garage. He appeared to be similar to the person I saw in the surveillance and that prompted me to investigate.” That's actually what his reports say as well. So I'm just trying to keep the language, I guess, consistent with that. Not for Detective [H.P.] to make a definitive statement, “Cleon White is the man on the video.” Does that make sense?

The Court: Okay.

Prosecutor: So Judge, what I'll be asking Detective [H.P.] is about all the hours he watched footage. He'll literally say he watched hundreds of hours of footage in this case, and that the moment he encountered Mr. White in that garage, he believed that was his murder suspect. And in doing so is why he then asked for his team to get in place and stop the car. So I'm going to ask him, “What did you do once you got the name of this individual Cleon White? I informed my team and let them know what car it was so they could make a stop.” And I'll ask him, “Why did you do that?” And he's going to say, “After watching hundreds of hours of footage, I believed this was my murder suspect.” And I believe that's well within his right. Any witness is allowed to testify to that. And that's where I'll keep it, that's what he'll testify to.

The Court: And that's what [defense counsel] basically just said. He believes it's the same person. And I think that's within what he can and cannot say so.

Defense Counsel: Okay.

․

Prosecutor: And I can lead him through that so he doesn't say anything other than, “Did you do that because you believed that was your suspect?” If that makes [defense counsel] more comfortable, I have no problem doing that.

Defense Counsel: Yeah.

The Court: Okay. And that might facilitate getting that information in in a manner that is acceptable to both parties.

Defense Counsel: Okay.

Detective H.P. later testified about his encounter with White in the Lofts garage on September 9th:

Q. Did you locate the driver, or did you attempt to locate the driver of this Hyundai Veracruz?

A. I did.

Q. So what happened? What did you do?

A. [The property manager] took me over to the Hyundai Veracruz, and I was walking to the Veracruz, a male who I didn't know at that time by name but - - came walking towards the car. And I immediately could recognize that person as the person I had seen in the surveillance video.

Q. So you believe because you watched hundreds of hours of footage that that person you were encountering at that time was the same person on the footage?

A. Yes.

Q. Okay. And did that person identify himself to you? Were you able to contact him?

A. He did. I contacted him, introduced myself, and asked for his name. He told me his name was Cleon White.

Although White did not object during Detective H.P.’s testimony, he asserts his claim of evidentiary error is preserved based on his pre-testimony objection. We disagree.

“To preserve an issue of evidentiary error, an objection must be made at a time contemporaneous to the challenged evidence,” State v. Brown, 596 S.W.3d 193, 207 (Mo. App. W.D. 2020), which, “[g]enerally speaking,” means that the party “must make an objection when that testimony is admitted at trial,” State v. Duke, 427 S.W.3d 336, 342 (Mo. App. S.D. 2014) (defendant's claim of evidentiary error was not preserved where defense objected to question posed to detective, the objection was sustained, the prosecutor attempted to lay further foundation, the prosecutor again asked the question that drew the initial objection, and defense did not again object).

Here, the trial court ruled—prior to Detective H.P. taking the stand—that he could testify that he believed White was the individual in the surveillance footage. The trial court also noted that the defense and the State seemed to be in agreement that he could testify to this fact. To the extent that White considered Detective H.P.’s trial testimony to be out of bounds of the trial court's earlier ruling, White was required to object to preserve this claim of evidentiary error, which he did not do. Accordingly, we review this claim for plain error pursuant to Rule 30.20. See Brown, 596 S.W.3d at 207 (“Because Brown failed to preserve his challenge to the admissibility of the propensity evidence by not objecting when it was introduced at trial, we review its admission for plain error.”); see also State v. Giles, 601 S.W.3d 594, 597 n.5 (Mo. App. S.D. 2020) (“Because no objections were raised at the time the challenged evidence was adduced, we interpret Defendant's claim to be that the trial court committed plain error by failing to sua sponte put a stop to the presentation of that evidence without having been asked to do so.”).

Under Rule 30.20, “plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” An appellate court may resolve a claim of plain error “in one of five ways under the Rule 30.20 framework:”

1. Declining plain error review when an appellant fails to facially establish substantial grounds that the circuit court committed plain error, i.e., evident, obvious, and clear error;

2. Declining plain error review when an appellant fails to facially establish substantial grounds that the circuit court committed an error affecting substantial rights;

3. Declining plain error review when an appellant fails to facially establish substantial grounds that any alleged error the circuit court committed resulted in manifest injustice or miscarriage of justice;

4. Declining to exercise its discretionary authority to review for plain error; or

5. Determining an appellant facially established substantial grounds that the circuit court committed plain error affecting substantial rights resulting in manifest injustice or miscarriage of justice, warranting exercise of the appellate court's discretion to review and grant relief.

State v. Jones, 725 S.W.3d 577, 585 (Mo. banc 2025). “Generally, the existence of manifest injustice or miscarriage of justice depends on the strength of the evidence leading to conviction and whether ‘the error was outcome determinative.’ ” Id. at 583 (quoting Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002)).

Analysis

White asserts that a “lay witness who lacks specialized knowledge of a defendant may not opine whether a defendant is the same person depicted in a video.” White contends that Detective H.P. “had no special knowledge or information that placed him in a better position than the jury to identify Mr. White,” and thus his “testimony to that effect was inadmissible,” relying on State v. Presberry, 128 S.W.3d 80, 85-90 (Mo. App. E.D. 2003) (finding the trial court plainly erred in admitting police officers’ “conclusive identifications” of the defendant that were “based solely on [the officers’] review of the evidence that was equally available to the jurors trying the case”). However, even if Detective H.P.’s testimony identifying White as the individual in the surveillance footage were inadmissible—a determination we do not make—White would not succeed on this claim because we find no manifest injustice or miscarriage of justice resulted from such testimony.

Here, there was ample evidence—other than Detective H.P.’s identification testimony—to support that White was the individual in the surveillance footage, i.e., the shooter. On September 9th, White used key fob 349, the same key fob used by the shooter; that key fob was registered to White's aunt, and the Lofts had a company policy that “[i]t's one fob per leaseholder.” Photos and videos in White's phone depicted him on the day of the murders (1) in a car that had the same writing and marking on the window as the car that was used by the shooter, and (2) in a white t-shirt, which, according to the eyewitness, was what the shooter was wearing. There was also a photo in White's phone of the little girl who appeared with the shooter and J.G. in the Lofts parking lot before the murders. Finally, White used his cell phone mere hours after the murders to conduct numerous searches relating to an August 25th shooting in the East bottoms where two men were killed. Given this evidence, we find Detective H.P.’s testimony—that he recognized White as the person he had seen in the surveillance footage—did not result in outcome-determinative prejudice. Cf. Presberry, 128 S.W.3d at 90 (“improperly admitted identification testimony resulted in apparent prejudice to Defendant given the limited other evidence used to convict Defendant of the charges”).

Moreover, it appears from the jurors’ questions during deliberations that they did not rely solely on Detective H.P.’s testimony in concluding that White was the individual in the surveillance footage, as they requested to see pictures of White “between 2020 & 2024” and the surveillance footage video. Cf. Presberry, 128 S.W.3d at 89-90 (in finding the “police officers’ conclusive identifications of Defendant may have preempted the jury's decision regarding whether Defendant was the person in the pictures or videotapes,” the Court noted “that the jury never asked to view the exhibits regarding the identification of the Defendant during deliberations”). For this reason, too, we find no outcome-determinative prejudice resulted from Detective H.P.’s testimony. See State v. Johnson, 477 S.W.3d 218, 226 (Mo. App. W.D. 2015) (“A finding of outcome-determinative prejudice expresses a judicial conclusion that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all of the evidence properly admitted, there is a reasonable probability that the jury would have reached a different conclusion but for the erroneously admitted evidence.”).

White failed to establish he suffered a manifest injustice or miscarriage of justice from Detective H.P.’s testimony. Point II is denied.

Point III – Cross-examination About Dumpster

In his third point, White asserts the trial court erred in refusing to allow him to cross-examine Detective H.P. about whether law enforcement searched a dumpster in the Lofts parking garage.

Preservation and Standard of Review

Prior to trial, the State filed a motion in limine seeking to exclude evidence of law enforcement's purported failure to collect evidence or conduct additional investigations. White did not oppose the motion and it was sustained. At trial, Detective H.P. testified on direct examination about surveillance footage showing the white SUV in the Lofts garage minutes after the murders:

A. It appears that the driver gets out of the car and is going through the car as if cleaning out the vehicle and is going over to a location where the dumpster is located.

Q. Now if somebody just fired off multiple rounds to a firearm inside a car, what could be inside that car in your training and experience?

A. Shell casings.

The defense attempted to cross-examine Detective H.P. about law enforcement's investigation into the dumpster:

Q. Now, again, a lot of what we saw here, you have offered some interpretation. For example, when the Acura returns post shooting and comes through the garage, there's kind of some black-and-white footage from the inside of the garage. And we see kind of behind a pillar or something it is parked. And then based on the State's questions, you've described it appears someone is cleaning out their car and throwing things into a dumpster from that little clip that we saw. That's your interpretation of what you see on the video, correct?

A. I - - you don't see anybody going to the dumpster. From doing my area canvas there and being in the garage - - in the video you cannot see a dumpster. But from me going there and being in the parking garage, I know that there was a dumpster just behind where that car was at.

Q. Okay. And again, the video doesn't capture everything. But you do have the benefit of a crime scene technician who would be able to come out and document things that maybe the video doesn't show, agreed?

The State objected on the ground that “that falls into the line of non-collection, non-investigative tactics that police didn't do,” which was raised in the State's motion in limine. Defense counsel argued that she should be able to ask whether the destruction of evidence suggested by the State was investigated through any other means. The trial court sustained the State's objection, finding it did not “believe whether or not they investigated or did a dumpster search is appropriate.” The defense did not make an offer of proof relating to law enforcement's investigation of the dumpster.⁸

The claim White raises in this point is not preserved for appeal. “When a trial court sustains an objection to proffered evidence, the party offering the evidence must demonstrate its relevancy and materiality by way of an offer of proof to preserve the matter for appellate review.” State v. Hodges, 529 S.W.3d 28, 30 (Mo. App. S.D. 2017). “Error in refusing evidence is not preserved for review unless an offer of proof is made,” and this includes when the evidence is sought to be admitted through cross-examination. Id. at 30-31; see also State v. Skelton, 851 S.W.2d 33, 35 (Mo. App. E.D. 1993) (the defendant failed to preserve his claim that the trial court erred by limiting his cross-examination of the detective “because defense counsel failed to make a specific offer of proof after the trial court sustained the State's objection”). Because White failed to make an offer of proof after the trial court sustained the State's objection to White's cross-examination about the investigation of the dumpster, we review this point for plain error. See State v. Ross, 292 S.W.3d 521, 526 (Mo. App. W.D. 2009) (defendant's insufficient offer of proof did not preserve his claim on appeal that the trial court erred by restricting his cross-examination of witness, therefore our review of the claim was limited to plain error). The plain-error-review standard is set out above in our discussion of Point Two.

Analysis

White asserts “the shell casings from the bullets the State alleged killed [J.G.] and [B.R.] are unquestionably relevant to proving the elements of murder,” and that because Detective H.P. “testified that he believed the shooter disposed of those shell casings in a dumpster in the Lofts’ parking garage,[⁹ ] the question whether police searched that dumpster is equally relevant.” White contends, therefore, the trial court erred by preventing him from asking Detective H.P. about the search of the dumpster. Regardless of whether the trial court erred, however, we find White did not suffer a manifest injustice or miscarriage of justice from the exclusion of evidence that law enforcement did—or did not—search the dumpster.

Because White did not make an offer of proof, we do not know what the evidence would have shown regarding law enforcement's search of the dumpster. But whether law enforcement (a) failed to search the dumpster or (b) searched the dumpster and found no shell casings, the exclusion of such evidence was not outcome-determinative in light of the strong evidence linking White to the murders (described above in our analysis of Point Two) and the evidence that it took multiple days to gather and view the surveillance footage.¹⁰ As to the latter, a juror could reasonably conclude that law enforcement did not search the dumpster—or the search of the dumpster was fruitless—due to the amount of time that may have passed between the shootings and law enforcement's discovery that the shooter may have thrown something away in the garage dumpster. Finally, we note that, despite being prohibited from asking Detective H.P. about a search of the dumpster, the defense nonetheless advanced its theory to the jury during closing arguments, contending:

In the same footage we all sat here and watched [Detective H.P.] said, “Well, I've watched it for 60 hours, so I can see better than the rest of you.” Right? “In this footage what I think is happening is I think Cleon White is emptying out his car of all the shell casings law enforcement could never recover, the gun that we could never find, and putting it in a dumpster that's not in the footage, that you can't see, that we never took a picture of, and we never searched.”

Considering the record in its entirety, we find the exclusion of evidence that law enforcement did—or did not—search the dumpster was not outcome-determinative. In other words, there was no reasonable probability that, had the evidence been admitted, the jury's verdicts would have been different. As a result, White did not suffer a manifest injustice or miscarriage of justice from the exclusion of the evidence. See Jones, 725 S.W.3d at 583 (“Generally, the existence of manifest injustice or miscarriage of justice depends on the strength of the evidence leading to conviction and whether the error was outcome determinative.” (internal marks omitted)); State v. Shade, 657 S.W.3d 282, 296 (Mo. App. W.D. 2022) (no manifest injustice resulted from admission of challenged evidence where there was ample other evidence to support conviction).

Point III is denied.

Conclusion

The judgment of the trial court is affirmed.

FOOTNOTES

1.   Pursuant to Missouri Supreme Court Operating Rule 2.02(c)(3), we do not identify the names of the victims or non-party witnesses in this opinion.

2.   “We view the evidence in the light most favorable to the jury's verdict, disregarding all contrary evidence and inferences.” State v. Latin, 710 S.W.3d 584, 587 n.1 (Mo. App. W.D. 2025).

3.   This warrant requirement is due to the nature and quantity of personal information stored in cell phones, which implicate greater privacy concerns. See Riley, 573 U.S. at 386, 394-97, 403, 134 S.Ct. 2473.

4.   “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Riley, 573 U.S. at 403, 134 S.Ct. 2473.

5.   The arresting officer testified that his shift did not begin until 2:00 p.m. on that date.

6.   In that regard, the State's claim of exigent circumstances was not undermined by the day-and-a-half delay in applying for the search warrants. Cf. State v. Berry, 92 S.W.3d 823, 830 (Mo. App. S.D. 2003) (claim that exigent circumstances related to animal-safety justified deputy's warrantless search of the defendants’ property was undermined by the fact that deputy waited four days after the search to obtain a warrant that would have enabled her to seize the defendants’ animals).

7.   White has not included in his opening brief on appeal any argument relating to State v. Figgins, 839 S.W.2d 630 (Mo. App. W.D. 1992), or the claim he raised before the trial court, namely that the seizure of his phones was unreasonable because there was no nexus between the crime for which he was arrested (the municipal offense) and the crimes for which the phones were seized (the murders). As such, White has abandoned this argument and we do not address it. See State v. Campbell, 143 S.W.3d 695, 702 (Mo. App. W.D. 2004) (defendant abandoned on appeal his argument raised before the trial court by not including it in his point relied on and by mentioning it only in passing in the argument section of his brief); State v. McMillon, 644 S.W.3d 281, 285 (Mo. App. W.D. 2022) (claim not developed in the argument section of brief was deemed abandoned); State v. Coleman, 449 S.W.3d 387, 389 n.1 (Mo. App. E.D. 2013) (arguments made for the first time in a reply brief are not preserved for review).

8.   “An offer of proof must demonstrate three things: (1) what the evidence will be; (2) the purpose and object of the evidence; and (3) each fact essential to establishing the admissibility of the evidence.” State v. Ross, 292 S.W.3d 521, 526 (Mo. App. W.D. 2009) (internal marks omitted).

9.   White mischaracterizes Detective H.P.’s testimony. Detective H.P. testified that it appeared to him that the driver was “going through the car as if cleaning out the vehicle” and “going over to” where the dumpster was located. He was then asked, from his training and experience, what could be inside a car if somebody had just fired multiple rounds of a firearm inside the car. He responded, “Shell casings.” Although a juror could have reasonably inferred from this testimony that the driver threw away shell casings in the dumpster, Detective H.P. never testified that he believed the driver disposed of shell casings in the dumpster.

10.   Of course if law enforcement searched the dumpster and did find shell casings, the exclusion of this evidence would not have been prejudicial to White.

EDWARD R. ARDINI, JR., JUDGE

All concur.