STATE v. GARRETT (2026)

Following a September 2023 jury trial, Tomorren Garrett was convicted of two counts of first-degree robbery, pursuant to § 570.023,¹ and two counts of armed criminal action, pursuant to § 571.015. Garrett raises one point on appeal: that the prosecutor misstated the law during closing argument and the circuit court plainly erred in not intervening sua sponte. Finding no error, we affirm.

Background

Sometime in March 2020, Garrett arranged to have his car, a 2006 Dodge Magnum, towed to an auto sales and repair shop in Kansas City, Missouri (Shop), where he requested certain repairs, provided some car parts, and paid $350 toward the anticipated cost of $700 in repairs. On April 1, 2020, when Garrett visited the Shop to check on the progress of repairs, he was told by a Shop employee (Employee ² ) that the car had unanticipated engine problems needing repair. Garrett testified that he suspected the Shop of replacing the engine in his car with the engine from a different Dodge Magnum, which upset him. Employees of the Shop denied having removed or replaced the engine in Garrett's car.

Employee testified that Garrett became upset and yelled at her when she told him about the engine problems. She testified that he left the Shop briefly and returned with a gun, pointed it at her, and demanded, “[G]ive me all the money that you have in your pocket, if not I'm going to kill you.” Employee and Mechanic both testified that, after Employee gave Garrett some money, Garrett pointed the gun at Mechanic, demanding money, and Mechanic complied, after which Garrett then struck Mechanic with his fist, causing Mechanic to fall and lose consciousness. Contractor testified that, after seeing Garrett hit Mechanic, he grabbed a piece of pipe and approached Garrett from behind, whereupon Garrett turned, pointed his gun at Contractor, and then struck Contractor with the gun, breaking Contractor's nose.³

Garrett produced three witnesses: a friend who drove with Garrett to the Shop (Friend), the Shop owner (Owner), and Garrett himself. Friend testified that she stayed in the car while Garrett was inside the Shop but that she did not see Garrett with a gun at any point. Owner testified that Employee and Mechanic appeared to give Garrett money voluntarily but that Garrett then “pushed” Mechanic and caused him to fall. Owner also testified that Garrett returned to the Shop with a gun and struck Contractor with it, causing Contractor to fall. Garrett testified that, although he was angry and did strike both Mechanic and Contractor, he did not do so with a gun or have a gun with him at any point while he was at the Shop on April 1, 2020.

In the initial closing argument, the prosecutor told the jury several times that the State had the burden of proving Garrett's guilt but emphasized that the State's witnesses were “telling the truth.” In defense counsel's closing, he disparaged the credibility of Employee and Mechanic, arguing that they had “the most to gain” by lying because they had replaced the functioning engine in Garrett's car with a faulty engine. In the State's rebuttal argument, the prosecutor told the jury, “[T]his case all comes down to whether you believe the State's witnesses or the Defense. That's what it comes down to․ You all don't have to determine if that engine [in Garrett's car] was the same engine ․ That is not what this case is about.” Defense counsel did not object to those statements.

Following closing arguments, the court gave the jury its instructions. Instruction No. 1, in pertinent part, explained the jury's role in determining credibility of witnesses:

In determining the believability of a witness and the weight to be given to testimony of the witness, you may take into consideration the witness's manner while testifying; the ability and opportunity of the witness to observe and remember any matter about which testimony is given; any interest, bias, prejudice, incentive, or motive the witness may have; the reasonableness of the witness's testimony considered in the light of all of the evidence in the case; any benefit that the witness was promised, received or expected; and any other matter that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness.

Instruction No. 3 cautioned the jury that “[t]he law applicable to this case is stated in these instructions.” Instruction No. 4 explained the State's burden of proof: “The Defendant is presumed to be innocent, unless and until, during your deliberations upon your verdict, you find him guilty. This presumption of innocence places upon the State the burden of proving beyond a reasonable doubt that the Defendant is guilty.” The final instruction, No. 29, included the following language regarding the jury's duty to weigh the evidence:

The attorneys will now have the opportunity of arguing the case to you. Their arguments are intended to help you in understanding the evidence and applying the law, but they are not evidence. You will bear in mind that it is your duty to be governed in your deliberations by the evidence as you remember it, the reasonable inferences which you believe should be drawn therefrom, and the law as given in these instructions. It is your duty, and yours alone, to render such verdict under the law and the evidence as in your reason and conscience is true and just.

The jury returned a verdict of guilty on all four counts, and Garrett was sentenced to a total of ten years’ imprisonment. This appeal followed.

Analysis

Garrett raises one point on appeal: that the prosecutor misstated the law during closing argument and the circuit court plainly erred in not intervening sua sponte. Finding no error, we affirm.

When a claim on appeal is unpreserved, “Rule 30.20[⁴ ] is the exclusive means by which an appellant can seek review.” State v. Brandolese, 601 S.W.3d 519, 530 (Mo. banc 2020). Under Rule 30.20, the appellate court has the discretion to consider “plain errors affecting substantial rights ․ when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.”

The court's review of a point alleging plain error “is a two-step process.” State v. Emery, 701 S.W.3d 585, 609 (Mo. banc 2024). “First, the Court must determine whether there was plain error, i.e., error that was ‘evident, obvious, and clear.’ ” Id. (quoting State v. Minor, 648 S.W.3d 721, 731 (Mo. banc 2022)). “Second, if plain error is found, the Court must determine ‘whether the claimed error resulted in manifest injustice or a miscarriage of justice.’ ” Id. (quoting Minor, 648 S.W.3d at 731). “[T]hese two tests are so difficult to meet ․” Id. Appellate courts “ ‘rarely find[ ] plain error in closing argument, and reversal is warranted only if the defendant shows the improper argument had a decisive effect on the jury's determination.’ ” Id. (quoting State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019)).

“Trial judges are not expected to assist counsel in trying cases, and trial judges should act sua sponte only in exceptional circumstances.” State v. Thompson, 390 S.W.3d 171, 176 (Mo. App. E.D. 2012). “Plain error review is rarely conducted of an alleged error committed during closing argument because withholding an objection to an improper argument is often a strategic decision made by counsel.” State v. Burkett, 725 S.W.3d 565, 576 (Mo. banc 2025). We explained the problems with such sua sponte action in State v. Paine, 631 S.W.3d 691, 694 (Mo. App. W.D. 2021):

Uninvited interference by the trial court in trial proceedings is generally discouraged because it risks injecting the court into the role of a participant and invites error. The trial court should take independent action only in the most unusual or exceptional circumstances. Thus, an appellate court will rarely find plain error where a trial court has failed to act sua sponte with regard to the proceedings.

Id. (internal citations omitted).

Garrett argues that the prosecutor committed evident, obvious, and clear error that resulted in him suffering manifest injustice or a miscarriage of justice when, in the State's rebuttal argument, the prosecutor stated, “Ladies and gentlemen, this case all comes down to whether you believe the State's witnesses or the Defense. That's what it comes down to.” Garrett claims that this rebuttal argument misstated the law in that it implied the State bore a lesser burden of proof than imposed by law. Garrett argues that even if the jury disbelieved all of the defense witnesses, that did not create affirmative evidence for the State. And, even if the jury found the State's witnesses to be more credible, it still could have found the State failed to prove each element of the charged offenses beyond a reasonable doubt. Therefore, Garrett claims that by focusing on the credibility of the witnesses in its rebuttal argument, the State “confuse[d] relative credibility arguments with the burden of proof.” We disagree.

We fail to see any misstatement of the law in the State's closing argument, much less one that is “evident, obvious, and clear” or resulted in the “manifest injustice” required for plain error review. The State has “considerable leeway to make retaliatory [closing] arguments.” State v. Burst, 712 S.W.3d 429, 440 (Mo. App. E.D. 2025). Thus, when a defendant's counsel attacks the credibility of the State's witnesses in his closing argument, the State is allowed to respond in its rebuttal. State v. Minner, 311 S.W.3d 313, 327 (Mo. App. W.D. 2010).

We recognize that “there is a threshold at which intentional misstatements made by a prosecutor during argument will amount to plain error.” State v. Jackson, 155 S.W.3d 849, 854 (Mo. App. W.D. 2005). But that threshold is high. And no such misstatement happened in this case.

The transcript shows that the State's witnesses’ version of the events of April 1, 2020, differed from Garrett's in many respects but on one particularly crucial fact: whether Garrett had brought a gun into the Shop on April 1, 2020. Both sides argued that their witnesses were more credible. And, after Garrett's counsel argued that Employee and Mechanic lied because “they had switched out [Garrett's] engine,” the prosecutor argued that, whether or not the engine had been switched, Garrett had no right to threaten people with a gun.

There is no misstatement of the law involved in the prosecution's rebuttal argument that the jury's decision hinged on witness credibility. It stands to reason that, if the jury believed Employee and Mechanic, the jury did not accept Garrett's attempt to discredit them by accusing them of impropriety regarding the car's engine. But Garrett argues that, even if the jury found the State's witnesses credible and did not believe any of Garrett's witnesses, the jury somehow still “could have found the State failed to prove every element beyond a reasonable doubt.” In the abstract, we agree; it is possible the State could fail to prove an essential element of a crime beyond a reasonable doubt even if the jury believed every word of the State's witnesses—but only if the evidence overall was insufficient to support at least one essential element. Otherwise, Garrett's argument defies logic, and he does not identify which element of the offenses here ⁵ would fail in his hypothetical, given the State's evidence at trial, nor does he produce any cases to support it.

It was not inappropriate for the prosecutor to focus the jury on the conflict between the testimony of state and defense witnesses, to tell the jury that the case turned on who they found to be credible, and to argue that the State's witnesses were more credible. Nor did the State's argument encourage the jury to apply a lesser burden of proof to the State. Not only is that not a reasonable inference from the State's rebuttal argument, it also ignores that in its initial closing argument the prosecutor told the jury several times that the State had the burden of proving Garrett's guilt. There is no discernible error here and certainly none that is “evident, obvious, and clear” as required for plain error review. Emery, 701 S.W.3d at 609 (quoting Minor, 648 S.W.3d at 731).

Also, although we need not reach the second step of the two-step process required for plain error review (manifest injustice or a miscarriage of justice), we note that the court properly instructed the jury, including as to the presumption of Garrett's innocence, the State's burden of proof beyond a reasonable doubt, and the jury's duties in assessing the evidence, such that, even were we to conclude there was a misstatement of the law in closing argument, no manifest injustice resulted.

Garrett's point is denied.

Conclusion

Finding no plain error by the circuit court, we affirm the judgment.

FOOTNOTES

1.   All statutory references are to the Missouri Revised Statutes (2020).

2.   Garrett interacted with two different Shop employees and another individual who would do occasional work for the Shop; we refer to them respectively as Employee, Mechanic, and Contractor.

3.   The State's other witnesses, employees of the Kansas City Police Department, were not eyewitnesses to the crimes.

4.   Rule references are to the Missouri Supreme Court Rules (2026).

5.   The verdict directors for first-degree robbery (Instructions No. 6 and 18, for Employee and Mechanic, respectively) provided the following elements: (1) Garrett “obtained money, which was property in the possession of [named victim]”; (2) Garrett “did so for the purpose of withholding it from the owner permanently”; (3) Garrett “in doing so threatened the immediate use of physical force on or against [Employee] for the purpose of preventing resistance to the taking of the property”; and (4) “in the course of obtaining the property, [Garrett] displayed or threatened the use of what appeared to be a deadly weapon.” The verdict directors for armed criminal action (Instructions No. 14 and 24, for Employee and Mechanic, respectively) provided the following elements: (1) Garrett “committed the offense of [r]obbery in the [f]irst [d]egree”; and (2) Garrett committed that offense “by or with or through, the knowing use or assistance or aid of a deadly weapon.”

Karen King Mitchell, Presiding Judge

Lisa White Hardwick, Judge, and Janet Sutton, Judge, concur.