STATE OF MISSOURI v. LAWRENCE ALLEN COLE II 1003260 (2026)

Lawrence Allen Cole II (“Cole”) appeals from his conviction after a jury found him guilty of felony resisting a lawful stop. Cole raises five points on appeal. Finding no merit in these points, we affirm.

Factual and Procedural History

The chain of events at issue in this appeal took place in the early morning hours of January 25, 2022. A lieutenant with the Benton County Sheriff's Office (“Lieutenant”) was investigating an unrelated incident when he saw a white Ford pickup truck (“Truck”) drive by him on the highway traveling slower than normal for the area. Lieutenant found that unusual and suspected the Truck may have been associated with the incident he was currently investigating. He could not tell who was driving the Truck, but he observed that there appeared to be two males riding in the cab. Lieutenant ran the license plate number through dispatch and was advised the plates were associated with a vehicle reported stolen out of Kansas. Lieutenant shared this information with the three officers who were with him—a sergeant with the Benton County Sheriff's Office (“Sergeant”) and two deputies.

Sergeant then left the scene of the unrelated incident to see if he could find the Truck. Approximately 15 minutes after Lieutenant was informed the license plates were stolen, Sergeant spotted the Truck. After verifying it was the same vehicle Lieutenant had previously observed, Sergeant activated his lights and siren. In response, the Truck rapidly accelerated and a pursuit ensued. The pursuit lasted for approximately one hour and reached speeds of over 100 miles per hour. During the pursuit, the driver of the Truck committed several traffic violations including driving at an excessive speed around dangerous road conditions, running stop signs, failing to use their turn signal, and driving in the oncoming lane of traffic. Ultimately, another officer took over the pursuit while Sergeant deployed stop sticks. While deploying the stop sticks, Sergeant was able to identify the driver of the vehicle, and he testified at trial that it was Cole. Sergeant was about ten feet away from the vehicle when he identified Cole as the driver. Sergeant wrote a report in this case a few days after the pursuit which does not include the fact that he was able to identify Cole as the driver of the Truck.

The pursuit ended when the Truck drove through a driveway, knocked over a swing set, and crashed into a tree line. When Sergeant and two deputies caught up to the Truck, they found it abandoned and running with the lights on and the driver's door open. Neither of the deputies were able to see the driver. As soon as Sergeant saw the Truck was empty, he contacted the K-9 unit. The K-9 handler walked the canine around the Truck, and the officers began a search through a cedar grove. The officers ultimately found Cole approximately 400 yards into the cedar grove, up in a tree.

The officers then transported Cole to the Benton County Detention Center. There, Cole told a deputy with the Benton County Sheriff's Office (“Deputy”), to “tell [Sergeant], once I hit the gravel, I had him.”

The matter proceeded to a jury trial where Cole was found guilty of resisting a lawful stop pursuit to section 575.150 ¹ and not guilty of driving without a valid license. Cole timely appealed. On appeal, he raises five points over a broad array of the investigation, his arrest, and various portions of his trial. We affirm.

Point I

In Point I, Cole argues the trial court erred in overruling his motions for judgment of acquittal at the close of the State's evidence and at the close of all evidence because there was insufficient evidence to convict him of resisting a lawful stop. Specifically, he argues “there was no evidence from which a reasonable juror could convict [Cole] of being the driver of the truck that was fleeing police.”

Standard of Review

“When reviewing a challenge to the sufficiency of the evidence, the standard of review is ‘whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.’ ” State v. Jones, 479 S.W.3d 100, 105 (Mo. banc 2016) (quoting State v. Letica, 356 S.W.3d 157, 166 (Mo. banc 2011)). “In determining whether there is sufficient evidence ․ this Court does not weigh the evidence but rather accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignores all contrary evidences and inferences.” State v. Parrish, 684 S.W.3d 752, 756 (Mo. App. E.D. 2024) (internal quotation marks omitted) (quoting State v. Lehman, 617 S.W.3d 843, 846-47 (Mo. banc 2021)). “This is not an assessment of whether this Court believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt.” State v. Naylor, 510 S.W.3d 855, 859 (Mo. banc 2017) (internal quotation omitted) (quoting State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011)).

Analysis

The jury found Cole guilty of resisting a lawful stop. “Section 575.150 sets out the elements for the offenses of resisting an arrest, detention, or stop.” State v. Smith, 679 S.W.3d 599, 602 (Mo. App. S.D. 2023). As relevant here,

[t]he elements of resisting a lawful stop are: (1) the defendant knew or reasonably should have known that a law enforcement officer was making a lawful stop; (2) the defendant resisted the stop by fleeing from the officer ․ ; and (3) the defendant did so for the purpose of preventing the officer from completing the stop.

State v. Steward, 608 S.W.3d 184, 189 (Mo. App. E.D. 2020) (citing section 575.150.1(1); and State v. Nelson, 505 S.W.3d 437, 445 (Mo. App. W.D. 2016)). “Resisting [a stop] also becomes a class E felony where the resistance is accomplished by flight and ‘the person fleeing creates a substantial risk of serious physical injury or death to any person.’ ”² State v. Pitiya, 623 S.W.3d 217, 222 (Mo. App. W.D. 2021) (citation modified) (quoting section 575.150.5). Cole admits, “[t]here is no dispute the [Truck's] driver committed that crime.” Thus, the only question presented in Point I is the identity of the driver.

Cole primarily takes issue with Sergeant's testimony that when he was deploying the stop sticks he was able to identify Cole as the driver of the Truck. Cole argues that Sergeant perjured himself because he did not include an identification of Cole in his police report and he never affirmatively identified Cole in his dashcam video. Instead, during the chase, Sergeant testified he “had [his] assumptions” that the driver was Cole.

Cole essentially asks us to determine the credibility of Sergeant's testimony at trial in stating he was able to identify Cole. This is not our role. “It is for the jury to decide reliability and credibility of a witness.” State v. Arnold, 700 S.W.3d 325, 332 (Mo. App. S.D. 2024) (citing State v. Edwards, 365 S.W.3d 240, 250 (Mo. App. W.D. 2012)). Appellate courts must defer to the factual determinations made by the trier of fact because it is “in a better position not only to judge the credibility of the witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” State v. Porter, 439 S.W.3d 208, 212 (Mo. banc 2014) (quoting Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 652 (Mo. banc 2009)). “As the trier of fact, the jury is the sole arbiter of witness credibility, and it is free to believe or disbelieve all, part, or none of any witness's testimony.” See State v. Lowery, 652 S.W.3d 783, 788 (Mo. App. E.D. 2022) (quoting State v. Perkins, 600 S.W.3d 838, 848 (Mo. App. E.D. 2020)).

Cole's trial counsel thoroughly highlighted these alleged deficiencies during the Sergeant's cross examination and during closing argument. See Id. at 787 (“[Witness's] credibility, and any inconsistent statements or bias, were imitable fodder for cross-examination and closing argument at trial.”). Sergeant testified on cross examination that he wrote his report while it was fresh on his mind, he had time to concentrate, he was trained and experienced in writing accurate reports, and that he knew all important information needed to be included. Yet, he overlooked including his identification of Cole as the driver. The jury was aware of Sergeant's testimony, yet, combined with the other evidence adduced at trial, determined Cole was the driver. While Sergeant was the only officer who was able to identify the driver, “[t]he testimony of a single witness is sufficient to support a conviction even if the testimony of the witness is inconsistent.” State v. Yaggy, 704 S.W.3d 418, 423-24 (Mo. App. S.D. 2025) (quoting State v. Dodd, 637 S.W.3d 659, 668 (Mo. App. W.D. 2021)). We will not disturb the credibility determinations of the jury.

Additional evidence was also presented from which a reasonable juror could have found Cole was the driver. Lieutenant testified that although it was dark, there appeared to be two males in the Truck. Cole was located approximately 400 yards away from the abandoned Truck, in a tree, in the woods, between 2:00 a.m. and 4:00 a.m. And, once at the police station after his arrest, Cole was recorded on bodycam video stating, “tell [Sergeant], once I hit the gravel, I had him.” Cole admits this phrase cuts against his claim but states that it “merely suggests that [Cole] was in the [Truck], which is not new information given his proximity to the abandoned [Truck].” Thus, Cole also admits that he was at least riding in the Truck during the high-speed chase, in further support of Sergeant's statement.

Considered together, the State presented sufficient evidence at trial for a reasonable juror to find that Cole was the driver. Because Cole admits the driver of the Truck committed the crime of resisting a lawful stop, our analysis ends there. Point I is denied.

Point II

In Point II, Cole argues the trial court erred in admitting Lieutenant's testimony “that a computer check revealed the [T]ruck's license plate was reported stolen[.]” Cole acknowledges this testimony was admitted to explain subsequent police conduct. However, he argues it was nevertheless inadmissible hearsay offered for the truth of the matter asserted as it was the sole evidence of an element of the charged offense. Because Lieutenant's testimony was neither offered for the truth of the matter asserted nor an element of the offense, we disagree.

Standard of Review

The trial court has “broad discretion to admit or exclude evidence during a criminal trial, and error occurs only when there is a clear abuse of this discretion.” State v. Hollowell, 643 S.W.3d 329, 336 (Mo. banc 2022) (quoting State v. Loper, 609 S.W.3d 725, 731 (Mo. banc 2020)). “An abuse of discretion occurs only if the [trial] court's ruling admitting or excluding evidence ‘is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.’ ” Loper, 609 S.W.3d at 731 (quoting State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016)).

Analysis

Lieutenant's testimony that the dispatcher advised him the Truck's license plate had been reported stolen was elicited in the following exchange:

[The State]: Okay. As [the Truck] passed, what did you do?

[Lieutenant]: I looked inside the [Truck] to see if I could see who was in the vehicle. I could only tell it looked like two people in the [Truck] – in the cab. And as it passed, I – I obtained the plate and ran the plate through dispatch.

[The State]: Okay. What did dispatch advise?

[Lieutenant]: They advised the plate I –

Cole then objected as to hearsay, asserting this violated his right to confrontation. The trial court overruled Cole's objection and the exchange continued:

[The State]: Okay. Lieutenant [ ], I'm going to ask the question again. What did dispatch advise?

[Lieutenant]: Dispatch advised that the plate that I ran came back as a – to a vehicle that was reported stolen out of Kansas.

[The State]: Okay. After dispatch advised the license plate was reported stolen, what did you do next?

[Lieutenant]: I – I took off to go catch up to it.

Cole argues Lieutenant's testimony is not admissible to explain subsequent police conduct because it is a hearsay statement offered as the sole evidence of an element of the charged offense. His argument however, misunderstands the subsequent police conduct rationale as described in State v. Hollowell, 643 S.W.3d 329 (Mo. banc 2022).

There, our Supreme Court explained:

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and depends on the statement's veracity for its value. State v. Kemp, 212 S.W.3d 135, 146 (Mo. banc 2007). Hearsay statements are inadmissible unless the statements fall under a recognized exception to the rule against hearsay. Id. If out-of-court statements are not offered for the truth of the matter asserted, however, the statements do not constitute hearsay, and “there is no basis for requiring the proponent of the testimony to fit within an exception to the hearsay rule[.]” State v. Bell, 62 S.W.3d 84, 89 (Mo. App. [W.D.] 2001) (internal quotation omitted); [State v.] Douglas, 131 S.W.3d [818,] 823-24 [Mo. App. W.D. 2004)]. Out-of-court statements offered not for the truth of the matter asserted but rather to explain and provide context for subsequent police action are not hearsay and are admissible.

Hollowell, 643 S.W.3d at 337 (first alteration in original). It is thus clear that statements admitted to explain subsequent police conduct are not hearsay because they are not admitted for the truth of the matter asserted, but instead to supply background and context to the officer's actions. Id. Such is the case here. Lieutenant's statement that dispatch informed him the Truck's license plate had been reported stolen is relevant non-hearsay necessary to explain the continuity of Lieutenant's actions—why he attempted to stop the Truck. Without such testimony the jury would have been left to “speculate on the cause or reasons for the officer's subsequent activities.” State v. Burroughs, 627 S.W.3d 69, 79 (Mo. App. E.D. 2021) (citation omitted). The statement was not offered to prove its truth—that the Truck or license plate was actually stolen or actually reported stolen. Cole's assertion that Lieutenant's testimony is inadmissible hearsay is therefore incorrect from the outset.

Such out-of-court statements, however, must not “go beyond what is necessary to explain subsequent police conduct” or “directly implicate[ ] the defendant in the charged offense.” Hollowell, 643 S.W.3d at 340 (citing Loper, 609 S.W.3d at 738; and State v. Hoover, 220 S.W.3d 395, 407 (Mo. App. E.D. 2007)). Hollowell provides an example of testimony which went too far. There, in providing testimony as to his subsequent conduct in proceeding to Hollowell's home, a detective testified that Hollowell's wife told him there were firearms located at the home which were owned by Hollowell. Id. at 335-36. In reversing Hollowell's conviction for unlawful possession of firearms, our Supreme Court stated the disputed testimony was “the only direct evidence presented regarding the ultimate factual issue—possession and control of the firearms” and thus directly implicated Hollowell in the charge of unlawful possession of a firearm. Id. at 339-40.

Cole contends his case is squarely aligned with Hollowell. This case, however, presents a very different factual scenario as Lieutenant's statement is not relevant to the ultimate factual issue in this case. As Cole himself explains, the only disputed factual issue is who was driving the Truck. Cole does not challenge the lawfulness of the attempted stop and even admits the driver of the Truck committed the crime of resisting a lawful stop. The fact that dispatch advised the Truck's license plate was reported stolen does nothing to establish the identity of the driver. Thus, Lieutenant's challenged testimony does not bear on the ultimate factual issue in this case or otherwise assist the State in connecting Cole to the crime.

Further, Lieutenant's challenged testimony was not the sole evidence that dispatch advised the license plate had been reported stolen. Sergeant testified to the fact, as well. During his testimony, Sergeant stated, “I was finishing up the end of a pursuit․ while waiting, Lieutenant ․ was sitting out off [the highway]. And a truck was creeping by, and he ran the tag on it, the tag came back as stolen out of Kansas.” Cole did not object to this exchange. Later in Sergeant's direct testimony, the State asked, “Approximately how much time had elapsed from when Lieutenant ․ was told that the – the plate was stolen by dispatch and you made contact with [the Truck]?” Sergeant responded, “15 minutes, maybe.” Again, Cole did not object. Thus, the challenged testimony here is distinguishable from that in Hollowell because (1) it does not bear on an ultimate factual issue in the case and (2) it was not the only evidence offered on the issue in question. See State v. Bromwell, 713 S.W.3d 577, 584 (Mo. App. E.D. 2025) (finding Hollowell distinguishable for the same reasons). Lieutenant's testimony does not go beyond what is necessary to provide an explanation to the jury for his pursuit of the Truck and is admissible to explain subsequent police conduct.³

Still, Cole seeks to utilize Hollowell to argue that Lieutenant's testimony goes beyond the permissible bounds of the subsequent police conduct rationale because it was the sole evidence used to establish an element of the charged offense. Specifically, he argues that the basis of the attempted stop is an element of the offense of resisting a lawful stop. He derives this argument from paragraph Fourth of his verdict director which stated “that the basis of the stop was possession of stolen license plates.”⁴

We have previously rejected this argument in State v. Nelson, 505 S.W.3d 437 (Mo. App. W.D. 2016). “Although MAI-CR [4th 429.61] requires that the basis for a stop be included in the verdict director, that does [not] convert the basis for the stop into an element of the offense[.]”⁵ Id. at 445.

A charge for resisting a lawful stop under section 575.150.1(1) has three elements: (1) defendant knew or reasonably should have known that a law enforcement officer was making a lawful stop; (2) defendant resisted that stop by fleeing from the officer, or by threatening to use violence or physical force; and (3) defendant did so for the purpose of preventing the officer from completing the stop. Section 575.150.1(1); see State v. Jones, 479 S.W.3d 100, 109 (Mo. banc 2016). The specific reason for the stop is neither an element of the offense, nor a method of committing this offense.

․

Rather, the basis for the stop is included in the required verdict director because “the court determines the question of law as to whether the facts being submitted in paragraph Fourth constitute a lawful basis for the stop or detention. The question of whether those facts exist is for the jury.” MAI-CR 3rd 329.61, Notes on Use ¶ 2.[6]

Nelson, 505 S.W.3d at 445.

Said differently, the purported reason for the stop is a factual predicate necessary for the trial court to determine the legal question of whether such reason is a lawful basis for a stop. The purported reason for the stop is included in the verdict director so the jury may decide whether the factual predicate is true. Here, the fact question presented to the jury was whether dispatch made the report to Lieutenant that the Truck's license plates were stolen, not if the plates were actually stolen or reported stolen. If the jury determines that fact to be true, the court may then determine the question of law—whether such fact created a basis for a lawful stop.⁷ Thus, the basis for the stop is not an element of the offense of resisting a lawful stop. For this reason, as well, Cole's argument must fail.

The Lieutenant's testimony that the license plate on the Truck was reported stolen was admissible as non-hearsay to explain subsequent police conduct. The trial court did not abuse it discretion in admitting same.⁸ Point II is denied.

Point III

In Point III, Cole argues the trial court erred in admitting his utterance, “tell [Sergeant], once I hit the gravel, I had him[.]” Specifically, Cole claims this was obtained in violation of his constitutional rights because he “was in custody and [Deputy's] follow-up question—‘What did you say?’—constituted the functional equivalent of interrogation reasonably likely to elicit an incriminating response when [Cole] had not been Mirandized.” We disagree.

Prior to trial, Cole filed a motion to suppress (the “Motion”), seeking to suppress “all statements and any audio or video of said statements made by [Cole] to [law enforcement officers] on January 25, 2022 in the early morning hours.” At a hearing on same, Cole's counsel stated, “My objection is – is that [Cole] was [sic] in custody, and he was asked questions, and he was not advised of his Miranda rights.”⁹ After the trial court's review of the video depicting Cole's statement during trial, Cole's counsel argued,

[Cole] was in custody at this time. He makes the statement, and the officer inquires to make him repeat it. He had not been advised of his Miranda rights or the fact that any of his statements could be used against him. And so we believe that this is a violation of his rights against illegal search and seizure[.]

The State then directed the trial court to caselaw to support its position. In closing, the State explained,

The statement made by [Cole] originally was voluntary. The statement made by [Cole] again, to clarify after the officer said, quote, what did you say, was voluntary. Furthermore, in the State of Missouri, custodial interrogations require two things: custody and interrogation. He's being booked. There's no doubt he's in custody. But interrogation – a [sic] interrogation is defined in Missouri as questioning initiated by law enforcement officers after a suspect has been taken into custody. Okay, he's in custody. No – no doubt. That questioning those statements made by [Cole] were not initiated by Deputy[.]

Finally, the State argued, “the statements by [Cole] were not in response or initiated or coerced or done anything – any government action.” The trial court overruled the Motion. When the video was offered into evidence, Cole's counsel renewed Cole's objection. The trial court overruled the renewed objection.

Standard of Review

“This Court will reverse a trial court's ruling on a motion to suppress only if it is clearly erroneous.” State v. Holman, 502 S.W.3d 621, 624 (Mo. banc 2016) (quoting State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007)). “A ruling is clearly erroneous if the [reviewing court] is ‘left with a definite and firm belief a mistake has been made.’ ” State v. Rice, 573 S.W.3d 53, 66 (Mo. banc 2019) (quoting Holman, 502 S.W.3d at 624). “When, however, the issue to be decided involves the constitutional protection against forced self-incrimination, we defer to the trial court's determinations of witness credibility and findings of fact, but consider the court's conclusions of law de novo.” State v. Williams, 163 S.W.3d 522, 525 (Mo. App. E.D. 2005) (citing State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000)).

Analysis

“A criminal suspect is entitled to Miranda warnings, consistent with the Fifth Amendment right against self-incrimination, once the suspect is subjected to a custodial interrogation.” State v. Wright, 585 S.W.3d 360, 367 (Mo. App. W.D. 2019) (quoting State v. Maples, 551 S.W.3d 634, 644 (Mo. App. W.D. 2018)). “Statements obtained by police during a custodial interrogation not preceded by Miranda warnings are inadmissible in court.” Id. (quoting Maples, 551 S.W.3d at 644). Here, it is uncontested that Cole was not Mirandized. It is also uncontested that Cole was in custody. The issue is whether Cole was interrogated.

“Interrogation includes ‘express questioning or its functional equivalent ․ [i.e.] any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” State v. Vandervort, 663 S.W.3d 520, 526 (Mo. App. W.D. 2023) (alterations in original) (quoting State v. Craig, 550 S.W.3d 481, 484 (Mo. App. W.D. 2018)). However, “[v]oluntary statements are not the product of interrogation and thus not barred by the Fifth Amendment or Miranda.” Craig, 550 S.W.3d at 484 (quoting Baumruk v. State, 364 S.W.3d 518, 532 (Mo. banc 2012)). “ ‘Interrogation’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” State v. Reuter, 637 S.W.3d 478, 484 (Mo. App. E.D. 2021) (quoting Rhode Island v. Innis, 446 U.S. 291, 300 (1980)).

In the present case, after law enforcement officers located Cole he was transported to the Benton County Detention Center (“the Center”). Upon entering the Center, Deputy delivered a cup of water to Cole, who did not appear to be handcuffed, at the booking desk. After handing Cole the cup, Deputy turned from Cole and began walking away. Cole then made a statement which was indiscernible. Deputy turned toward Cole and asked, “What did you say?” Cole replied, “I said to tell [Sergeant], once I hit the gravel, I had him.”

Cole's reply was voluntary as it was not prompted by any law enforcement officer interrogation. Cole concedes that Deputy's clarifying question, asked in response to his initial statement, was “facially innocuous.” However, Cole contends that it still carried an investigative purpose because it was “designed to elicit a restatement of an inculpatory statement[.]”

“Determining whether particular statements or practices amount to interrogation depends on the circumstances of each case, particularly whether the statements are objectively and reasonably likely to result in incriminating responses by the suspect, as well as the nature of the police statements and the context in which they are given.” Vandervort, 663 S.W.3d at 526 (citation modified) (quoting Craig, 550 S.W.3d at 485). “The primary focus of this analysis is upon the perceptions of the suspect, not the intent of police; but at the same time, we do not hold police accountable for the unforeseeable results of their words or actions.” State v. Bell, 488 S.W.3d 228, 242 (Mo. App. E.D. 2016) (citing Innis, 446 U.S. at 301-02).

First, the context of Deputy's question supports admission of Cole's reply. Deputy's question simply sought to understand what Cole had just voluntarily uttered while Deputy was walking away from Cole. When he spoke, Cole was standing in the lobby of the Center, with at least three law enforcement officers roaming around the same lobby and talking amongst themselves. He was not restrained nor being asked repeated questions. Further, Cole's arrest and the facts of the case were not being discussed at all. Deputy had just retrieved a cup of water for Cole and turned to walk away when Cole muttered his initial statement. Thus, Cole was not compelled to speak to Deputy or the other law enforcement officers—Deputy simply asked Cole what Cole had intended that he hear in the first place.

With the context of Deputy's question in mind, we next consider whether Deputy's question was objectively likely to result in an incriminating response by Cole. It was not. Given the context of Deputy and Cole's exchange, Cole could have been discussing or asking about any number of innocuous things. The nature of Deputy's inquiry was merely to clarify what Cole had just stated voluntarily, nothing more. Deputy's inquiry does not “reflect a measure of compulsion above and beyond that inherent in custody itself.” See Reuter, 637 S.W.3d at 484. As such, Deputy's question did not represent the functional equivalent of an interrogation and the trial court did not err in admitting Cole's statement. Accordingly, Point III is denied.

Point IV

In Point IV, Cole argues the trial court erred in overruling Cole's objection during the State's opening statement when the prosecutor told the jury that Sergeant will testify he got a clear view of the driver of the Truck. Cole asserts this statement was prejudicial because it was unsupported by any pretrial discovery.

Standard of Review

“The primary purpose of an opening statement is to inform the judge and jury of the general nature of the case, so they may appreciate the significance of the evidence as it is presented.” State v. McFadden, 369 S.W.3d 727, 747 (Mo. banc. 2012) (quoting State v. Rutter, 93 S.W.3d 714, 727 (Mo. banc 2002)). “The scope of opening statements is within the discretion of the trial court, and we review an objection to opening statements for abuse of discretion.” State v. Alexander, 505 S.W.3d 384, 391 (Mo. App. E.D. 2016) (citing State v. Thompson, 68 S.W.3d 393, 395 (Mo. banc 2002)). “Error alone does not warrant reversal; reversal requires prejudicial error.” State v. Pennington, 493 S.W.3d 926, 930 (Mo. App. W.D. 2016) (citation modified) (quoting State v. Gilbert, 103 S.W.3d 743, 751 (Mo. banc 2003)).

Analysis

At issue is the State's reference in its opening statement that “[Sergeant] will also tell you that when he deployed those stop sticks, he gets a clear view of the driver of [the Truck]. It was that man seated right there, the Defendant[.]” Defense counsel objected stating, “That is not evidence that he [has identified Cole] in any of these reports. At no point did any of these officers make an [identification] of [Cole] while he was driving.” The trial court overruled the objection.

In general, “[o]pening statements are limited to factual statements that can be proved.” Thompson, 68 S.W.3d at 394 (citation omitted). “The prosecutor is allowed to make conclusory statements that the evidence will prove that the defendant committed the charged crime.” State v. Powell, 286 S.W.3d 843, 850 (Mo. App. W.D. 2009) (citing State v. Smallwood, 230 S.W.3d 662, 664 (Mo. App. E.D. 2007)). “References during opening statement to arguably admissible evidence made in good faith with a reasonable expectation that the evidence will be produced are not grounds for reversal.” Nelson v. Waxman, 9 S.W.3d 601, 608 (Mo. banc 2000) (quoting White v. State, 939 S.W.2d 887, 902 (Mo. banc 1997)).

Here, Sergeant did in fact testify that when he was deploying the stop sticks, he saw Cole driving the vehicle. Defense counsel did not object when Sergeant made this statement. On appeal, Cole likewise does not claim Sergeant's testimony was inadmissible nor does he allege the State acted in bad faith. Instead, Cole alleges the State's foreshadowing of Sergeant's testimony was false based on what was “reasonably expected or documented prior to trial.” (emphasis added). However, the relevant analysis when considering alleged errors in opening statements focuses on what a party reasonably expects to produce at trial, not what was previously produced in discovery.¹⁰ Waxman, 9 S.W.3d at 608. Given the State's explanation of Sergeant's testimony exactly matched Sergeant's actual trial testimony, we can infer the State anticipated Sergeant's testimony and reasonably expected it to be admissible. We also find no evidence in the record that the State acted in bad faith.

Cole further argues that courts have not hesitated to reverse if “untrue, unsupported, or highly prejudicial” assertions are contained within an opening statement, and directs us to State v. Fenton in support. 499 S.W.2d 813 (Mo. App. 1973). Fenton presents a different factual scenario that is not helpful to Cole. In Fenton, the State's opening statement referenced that co-defendants had pled guilty. Id. at 814. The court stated the general rule that opening statements should not include inadmissible facts and then explained it is ordinarily error to admit into evidence that a co-defendant has been convicted or plead guilty. Id. at 815-16. Fenton reversed the defendant's conviction due to the prejudice behind the State's reference to wholly inadmissible evidence. Id. at 816-17. Here, Cole does not claim that Sergeant's testimony was inadmissible evidence in general, thus it is not analogous to Fenton. And, in fact, this portion of the opening statement was subsequently supported by admissible testimony.

Cole's remaining arguments on this point focus on his attempts to impeach Sergeant and the reliability of Sergeant's identification in an effort to demonstrate that the State's opening statement was not supported by reliable evidence. These are arguments regarding witness credibility that are left to the jury and not relevant to the question at hand as to what the State reasonably expected, in good faith, to produce at trial.

Finally, we note that the jury was instructed it was their duty to “determine the facts and to determine them only from the evidence and the reasonable inferences to be drawn from the evidence,” and that “[t]he opening statements of attorneys are not evidence.”¹¹ “It is presumed the jury will properly follow the instructions as given.” State v. McDaniel, 236 S.W.3d 127, 133 (Mo. App. S.D. 2007) (quoting State v. Payton, 895 S.W.2d 283, 285 (Mo. App. S.D. 1995)).

The trial court did not abuse its discretion in overruling Cole's objection to the State's opening statement. This is “especially true” here as statements Cole takes issue with were “supported by evidence at trial; ‘the trial court instructed the jury at the outset of trial that opening statements were not to be considered evidence; and in light of the fact that the impact of an opening statement diminishes after introduction of evidence, instructions, and closing argument.’ ” Smallwood, 230 S.W.3d at 665 (quoting State v. Hutchison, 957 S.W.2d 757, 765 (Mo. banc 1997)). Point IV is denied.

Point V

In Point V, Cole argues the trial court erred in allowing Sergeant to testify, for the first time at trial, that he could identify Cole as the driver because the State had not disclosed this information prior to trial. Cole argues the State's offer of a surprise identification caused manifest injustice, violated Rule 25.03(b)(2),¹² and violated his right to due process and a fair trial.

Standard of Review

“In reviewing an alleged discovery violation, [this Court] must answer two questions: first, whether the State's failure to disclose the evidence violated Rule 25.03, and second, if the State violated Rule 25.03, then what is the appropriate sanction the trial court should have imposed.” State v. Wright, 688 S.W.3d 94, 97 (Mo. App. E.D. 2024) (alteration in original) (quoting State v. Henderson, 410 S.W.3d 760, 764 (Mo. App. E.D. 2013)). “We review a trial court's decision whether to impose sanctions for an abuse of discretion and will reverse for an abuse of that discretion only where the trial court's ruling resulted in fundamental unfairness.” State v. Nixon, 674 S.W.3d 37, 43 (Mo. App. E.D. 2023). “Fundamental unfairness occurs when the State's failure to disclose evidence resulted in ‘genuine surprise’ and there is a reasonable likelihood that the timely disclosure of evidence would have affected the result of the trial.” State v. Denson, 670 S.W.3d 232, 237 (Mo. App. E.D. 2023).

Cole acknowledges the issue is not preserved because he did not object to Sergeant's testimony nor was the issue raised in his motion for new trial. Thus, Cole requests plain error review under Rule 30.20.

Because the [trial] court cannot be convicted of error for something it was never asked to do, appellate courts do not generally review unpreserved claims of error. State v. Jones, 725 S.W.3d 577, 582 (Mo. banc 2025). Rule 30.20 alters this guiding principle, providing “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.” Rule 30.20 (emphasis added). Because plain error review is discretionary, alleged errors caused by or contributed to an appellant's actions or inactions may justify this Court declining to exercise its authority under Rule 30.20. Jones, 725 S.W.3d at 584.

State v. Burkett, 725 S.W.3d 565, 571 (Mo. banc 2025). “Nonetheless, [appellate courts] retain[ ] discretion to review for plain error even when an appellant's actions or inactions may have caused or contributed to the error.” Id. (citation omitted).

[A]n appellate court confronted with a request to grant relief applying plain error review may resolve the claim 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 [trial] 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 [trial] 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 [trial] 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 [trial] 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.

Jones, 725 S.W.3d at 585. As the appellant, Cole carries the burden to establish he is entitled to plain error review. See id. at 583.

Analysis

Soon after the January 2022 incident, Sergeant wrote a police report detailing the events of the early morning high speed chase. The report was disclosed to defense counsel and admitted into evidence at trial. When questioned by defense counsel at trial, Sergeant acknowledged that nowhere in his report does he state that he was able to identify the driver of the Truck. Yet, Sergeant testified that when he was deploying the stop sticks, he was able to see who was driving the Truck and identified Cole as the driver. Sergeant stated he merely overlooked including that fact in his report. Cole claims he was “blindsided” by this surprise identification due to the State's failure to disclose it and thus was unprepared to rebut Sergeant's testimony. He argues the State's failure to disclose that Sergeant would identify Cole as the driver of the Truck violated Rule 25.03(b)(2) which Cole claims was a clear, evident, or obvious error.

Rule 25.03 provides in pertinent part:

(b) Disclosure after indictment or filing of information. Except as otherwise provided in these Rules, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel the following material and information within its possession or control designated in the request:

․

(2) The names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements[.]

Rule 25.03(b) (emphasis added). “This Rule and Rule 25.12, which allows the defense to depose potential witnesses, are designed to prevent surprises at trial.” State v. Williams, 956 S.W.2d 942, 946 (Mo. App. W.D. 1997) (quoting State v. Enke, 891 S.W.2d 134, 137 (Mo. App. S.D. 1994)). The plain language of Rule 25.03 only requires disclosure of “written or recorded statements” and “existing memoranda” summarizing oral statements. “This rule does not, however, require the state to disclose statements that are not written down or recorded.” State v. Armentrout, 8 S.W.3d 99, 111 (Mo. banc. 1999). The State's “duty is to furnish those items if they exist, not summarize what each witness’ testimony will be at trial.” State v. Tate, 543 S.W.2d 514, 518 (Mo. App. 1976). Missouri courts have repeatedly recognized this principle.¹³

For example, in State v. Hanway, the defendant, who was convicted of driving while intoxicated, alleged the trial court erred in admitting testimony of an emergency room technician who drew his blood. 973 S.W.2d at 894. The trial court determined proper procedures were not followed and that the witness thus could not testify as to the results of the blood test. Id. However, the state still called the technician as a witness and had her testify regarding her observations of the defendant while in the emergency room. Id. The defendant objected,¹⁴ arguing the state did not inform him the technician would testify to such matters. Id. On appeal, the court held because the state “had no existing memoranda or recorded statement of her testimony,” which was not disclosed to the defendant, the trial court did not plainly err in allowing the technician to testify. Id. at 895.

Likewise, Cole does not allege that the State had possession of any document containing a statement that Sergeant could identify Cole as the driver of the Truck. And, the State was under no obligation to provide Cole with a summary of Sergeant's testimony. The State fully complied with Rule 25.03.¹⁵ As such, the record does not establish there was clear, obvious, or evident error. Thus, we decline plain error review because Cole failed to facially establish substantial grounds that the trial court committed plain error. See Jones, 725 S.W.3d at 585 (“[A]n appellate court confronted with a request to grant relief applying plain error review may resolve the claim 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 [trial] court committed plain error, i.e., evident, obvious, and clear error”).

Point V is denied.

Conclusion

The judgment of the trial court is affirmed.

FOOTNOTES

1.   All statutory references are to RSMo (2016), as supplemented through the date of the offense unless otherwise noted.

2.   Under section 575.150.5, the offense of resisting or interfering with arrest can also become a class E felony if the underlying arrest at issue involved a felony. Cole was not alleged to have resisted arrest for a felony, thus that portion of the section is not applicable here.

3.   With this cumulative evidence in mind, we note that even if the trial court had erred in admitting Lieutenant's challenged testimony—which it did not—we still would not reverse because Cole has failed to establish prejudice. In order to reverse the trial court's decision, prejudice resulting from the improper admission of evidence must be outcome-determinative. State v. Cole, 483 S.W.3d 470, 474 (Mo. App. E.D. 2016). The exclusion of Lieutenant's challenged testimony would have had little impact on the outcome of Cole's trial because, as explained above, the jury learned of the same fact in a different manner—through Sergeant's testimony. See, e.g., State v. Dallas, 713 S.W.3d 301, 306 (Mo. App. E.D. 2025) (holding the defendant did not establish prejudice from the admission of challenged testimony as subsequent police conduct when the challenged testimony was “cumulative to other admitted evidence regarding the same disputed factual issue”).

4.   The verdict director was patterned after MAI-CR 4th 429.61.

5.   In the quoted portion of Nelson, it is clear that the underlined word “not” was unintentionally omitted from the original Nelson opinion by clerical oversight. This is evidenced by comparing the above quotation, with the addition of the word “not,” to the remainder of the Nelson analysis. In two other places, the Nelson court explicitly stated that the reason for the stop was not an element of the offense: (1) “Nelson has not explained how the information's failure to identify the reason for his stop, when not an element of the offense, was material” and (2) “We have already explained that the basis for Nelson's stop was not an essential element of the crime of resisting a lawful stop.” Id. at 445-46 (emphasis added). Thus, the underlined word “not” as inserted here should be read into the Nelson opinion forevermore.

6.   MAI CR-3d 329.51, Notes on Use ¶ 2 is identical to MAI-CR 4th 429.61, Notes on Use ¶ 2, the version currently in effect.

7.   We again note that Cole has not challenged the basis of the attempted stop.

8.   Because Lieutenant's testimony was offered to explain subsequent police conduct rather than to prove the truth of the matter asserted, Cole's rights under the Confrontation Clause were not violated. See State v. Taylor, 373 S.W.3d 513, 520-21 (Mo. App. E.D. 2012) (“If a statement is not offered to prove the truth of the matter asserted, then the defendant's right to confront the witnesses against him is not implicated.” (quoting State v. Allison, 326 S.W.3d 81, 90 (Mo. App. W.D. 2010))).

9.   Miranda v. Arizona, 384 U.S. 436 (1966).

10.   Cole seems to acknowledge this fact in his appellate brief by stating, “Either the [S]tate knew about the identification before trial, and it's a discovery violation, or it did not, and it's an opening statement violation.” Cole further states, “It seems nearly certain that [Sergeant] told the prosecutor about the identification pre-trial.” We understand this discussion to serve as an acknowledgement that as long as the State anticipated Sergeant's testimony, no opening statement violation occurred.

11.   This instruction was patterned off of and thus identical to MAI-CR 4th 402.01, 402.02.

12.   All Rule references are to the Missouri Supreme Court Rules (2024), unless otherwise indicated.

13.   See State v. Hanway, 973 S.W.2d 892, 895 (Mo. App. W.D. 1998); State v. Cravens, 968 S.W.2d 707, 710 (Mo. App. S.D. 1998); Williams, 956 S.W.2d at 945-46; Enke, 891 S.W.2d at 137-38; State v. Wolfe, 793 S.W.2d 580, 587 (Mo. App. E.D. 1990); State v. Miller, 778 S.W.2d 292, 294 (Mo. App. W.D. 1989); State v. Motley, 740 S.W.2d 313, 319 (Mo. App. E.D. 1987); State v. Kerfoot, 675 S.W.2d 658, 661 (Mo. App. E.D. 1984); State v. Feast, 588 S.W.2d 158, 161 (Mo. App. E.D. 1979).While the numbering of Rule 25.03 has changed over the years, the substance has not. See Rule 25.03(a)(1) (2017); Rule 25.32(a)(1) (1979).

14.   Although he objected during trial, Hanway did not raise this issue in his motion for new trial. Id. Therefore, it was reviewed only for plain error. Id.

15.   Moreover, there is no claim Sergeant's testimony was contrary to that disclosed in his report. Cole does not claim that Sergeant's report stated he could not identify the driver of the Truck. With regard to exactly what Sergeant's report stated, we note that we do not have the benefit of reviewing Sergeant's report ourselves as it is not contained within our record on appeal. We consider this omission favorable to the trial court's ruling. See State v. Parrish, 706 S.W.3d 817, 819 n.3 (Mo. App. W.D. 2025) (“Where ․ exhibits are not made a part of the record on appeal, such evidentiary omissions will be taken as favorable to the trial court's ruling and unfavorable to the appeal.” (alteration in original) (quoting City of Kan. City v. Cosic, 540 S.W.3d 461, 464 (Mo. App. W.D. 2018))).

W. DOUGLAS THOMSON, JUDGE

All concur.