Opinion
No. 27757
November 7, 2007
Appeal from the Circuit Court of New Madrid County, Honorable Fred W. Copeland, Circuit Judge.
Craig A. Johnston, Attorney for Appellant.
Jeremiah W. (Jay) Nixon, Joshua N. Corman, Attorney for Respondent.
Edwin Minner ("Appellant") appeals his conviction after a jury trial in the Circuit Court of New Madrid County, Missouri, of delivery of a controlled substance within one thousand feet of public housing or other governmental assisted housing pursuant to section 195.218, RSMo Cum. Supp. 2003. Appellant brings six points on appeal, addressing the sufficiency of the evidence as well as constitutional violations; however, this Court finds that the evidence presented in this case is sufficient to support a conviction and that Appellant's constitutional rights were not violated. The jury's verdict is affirmed and the appeal is denied; however, we remand for correction of a clerical error in the written sentence and judgment.
All references to statutes are to RSMo 2000, unless otherwise specified.
Appellant has contested the sufficiency of the evidence and in reviewing the sufficiency of the evidence to support a criminal conviction, we view the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the State and disregard all evidence and inferences to the contrary. State v. Grim , 854 S.W.2d 403, 405 (Mo. banc 1993). Following this standard of review, the evidence presented at trial indicates that Officer Hensley, an investigator with the New Madrid County Sheriff's Department assigned to work with the Southeast Missouri Drug Task Force, arranged for a confidential informant to make a controlled buy of drugs. The confidential informant, Julie Albright, was an informant who had performed controlled buys of drugs for Officer Hensley on multiple occasions and she had also worked with Officer Rataj from the Sikeston police department.
Around 2:25 p.m., on August 16, 2004, Officers Hensley and Rataj met Albright at an undisclosed location where they prepared Albright and her car for the drug purchase. Albright was searched to ensure the integrity of the investigation. Albright's pockets, shoes, and socks were searched as well as her vehicle, including the console, ashtray, glove box, sunglasses case, seats, visors, steering wheel, floor mats, purse, cigarette package, and anything else in the car. Nothing was found. Officer Hensley testified at trial that because the informant was female he did not look under her clothing or check her undergarments. Officer Hensley also equipped Albright's car with two video cameras that were hidden in covert items, one in the front passenger seat and another in the driver's side rear window. The cameras were positioned to record anything out of the driver's side windows. Albright was then given $20 and told to drive up and down the Russell Street area in an attempt to get someone to sell her drugs. Officer Hensley then followed Albright to the area, drove down a parallel street so he could not be seen, and parked in a parking lot about three blocks away so he could watch the transaction. Officer Hensley's testimony indicates he was somewhere between four hundred to one thousand feet away.
When Albright turned onto Riley Street, she stopped her car and was approached by Appellant. Appellant then went into a residence at 315 Riley while Albright waited in the car. The residence at Riley Street was found to be where Appellant, his mother, and his cousin lived. Appellant returned to the car with crack cocaine. Albright then drove away and followed Officer Hensley back to their pre-determined location. When they returned to the location, Albright turned over the crack cocaine she had just purchased from Appellant, and her vehicle and person were again searched. The video equipment, which had been recording the entire time, was turned off and taken back by Officer Hensley to be reviewed.
Officer Hensley reviewed the videos and testified that they were a fair and accurate portrayal of what he saw that day. One of the videos, State's Exhibit 2, was a view taken from the front passenger seat looking out of the front driver's side window. The other video, State's Exhibit 3, was a recording taken from the driver's side rear window. No changes, additions, or edits had been made to either video; they were unedited from what was recorded from the car. The videos were admitted into evidence and played for the jury. Officer Hensley testified at trial that it appeared to him that it was Appellant in the videos, although when he first watched the tapes he was not one hundred percent sure that it was Appellant.
The corner of Riley and Russell Streets, where the transaction took place, was located 427.5 feet from 720 Hunter Street, a governmental assisted housing apartment operated by the New Madrid Housing Authority. Officer Hensley was able to identify the governmental assisted housing because he had a list of every house in New Madrid County that is a governmental housing unit. Scott Workman, a forensic chemist with the Missouri State Highway Patrol, tested the substance Appellant sold to Albright which tested positive for .10 grams of cocaine base.
Officer Hensley testified that the crack rock weighed .25 grams but he weighed it in the plastic packaging whereas Officer Workman removed the crack from the plastic before it was weighed.
Prior to Appellant's arrest, Officer Hensley had spoken to Appellant about helping with the Southeast Missouri Drug Task Force. Appellant was given Officer Hensley's phone number, where he was supposed to contact Officer Hensley about working as an informant but Appellant never called. Officer Hensley went to the jail a day or two after Appellant was arrested to speak to Appellant about why he had not contacted Officer Hensley regarding the drug task force. Appellant began to talk about this case and denied his involvement. Officer Hensley told him not to worry about it; he just wanted to find out where Appellant had been and why he had not contacted Officer Hensley. After Appellant repeatedly denied his involvement in this case, Officer Hensley told Appellant that he had him on tape selling drugs but that Appellant did not need to worry about it. Appellant then stated that he usually does not sell drugs but that sometimes, when his cousin was not out on the street, he would run into the house and retrieve the dope from his cousin and bring it back outside to sell on the street for his cousin.
As a result of the foregoing evidence, the jury found Appellant guilty of the charged offense and on May 9, 2006, the court sentenced Appellant as a prior offender to eighteen years. This appeal followed.
Appellant was charged as a prior and persistent offender but one of the charges listed on the amended information for which Appellant had pleaded guilty actually occurred after the date of the charged offense; therefore, it could not be counted towards Appellant's persistent offender status. Section 558.016.6, RSMo. Cum. Supp. 2006.
I.
In his first point on appeal, Appellant contends that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and in sentencing him because his due process rights were violated when the State did not prove beyond a reasonable doubt that Appellant knew he was delivering crack cocaine within one thousand feet of public housing or other governmental assisted housing, as required under section 195.218, RSMo Cum. Supp. 2003. Appellant has alleged that the State did not present a submissible case to the jury because the State failed to offer any evidence that Appellant knew he was within one thousand feet of public housing or governmental assisted housing. The State does not argue that there is any evidence in the record that Appellant knew the sale was taking place within one thousand feet of public housing or governmental assisted housing. After reviewing the record, we find none either. The question presented to this Court is whether or not the State had the burden of proving that Appellant knew he was within one thousand feet of public housing or governmental assisted housing. Relying on the precedent set by the Missouri Supreme Court in State v. Hatton , 918 S.W.2d 790, 794 (Mo. banc 1996), we find that the State did not have to prove that Appellant knew he was within one thousand feet of public housing or governmental assisted housing.
Under section 195.218, "[a] person commits the offense of distribution of a controlled substance near public housing or other governmental assisted housing if he violates section 195.211" and does so within one thousand feet of public or other governmental assisted housing. Section 195.218.1, RSMo Cum. Supp. 2003. Section 195.211 indicates that it is unlawful to "distribute, deliver, manufacture or produce a controlled substance or to posses with intent to distribute, deliver, manufacture, or produce a controlled substance." Section 195.211.1.
Before reaching an analysis of this issue, we note that this alleged error was not properly preserved for appeal. Appellant contends that the issue is properly preserved for appeal because he moved for a judgment of acquittal at the close of all of the evidence and then filed a timely motion for new trial, which stated that the trial court erred in overruling his motion for judgment of acquittal. It is well established, however, that a motion for judgment of acquittal, or a directed verdict, must include the specific grounds for the motion or it is otherwise insufficient to preserve the issue for appellate review. Fust v. Francois , 913 S.W.2d 38, 45 (Mo.App.E.D. 1995) ( citing Dierker Associates, D.C., P.C. v. Gillis , 859 S.W.2d 737, 743 (Mo.App.E.D. 1993); Kincaid Enterprises , Inc. v. Porter , 812 S.W.2d 892, 895 (Mo.App.W.D. 1991)). The motion for new trial, although timely, likewise did not present the specific issue raised on appeal but simply refers back to the generic allegations made in the judgment of acquittal; therefore, nothing is reserved for appellate review. This Court may review the unpreserved issue for plain error affecting substantial rights under Rule 30.20, but we will only interfere with the judgment of the trial court if, under a plain error review, we find that manifest injustice or a miscarriage of justice has resulted. Rule 30.20. If the State did have to prove that Appellant knew that he was within one thousand feet of public housing or governmental assisted housing and if there was no evidence that he knew that fact, then it would be a manifest injustice and miscarriage of justice resulting in plain error.
All rule references are to Missouri Court Rules (2007), unless otherwise specified.
In State v. Hatton , 918 S.W.2d 790 (Mo. banc 1996), the Missouri Supreme Court concluded, in a challenge to RSMo section 195.218:
Hatton also reviewed section 195.218 for constitutionality on the grounds that it was void for vagueness due to its failure to define the terms "public housing" and "governmental assisted housing." Hatton , 918 S.W.2d at 792-93. In Hatton , however, the language of the indictment charged each appellant with distribution of a controlled substance near "public housing" only. Id. at 792. The court, therefore, limited itself to a discussion of the constitutionality of the phrase "public housing." Id. Hatton expressed no opinion as to whether the phrase "governmental assisted housing" has a broader meaning than "public housing." Id. The indictment in this case used both terms to describe the charges. Appellant does not raise a due process violation on the grounds that "governmental assisted housing" is overly broad.
Appellants' real complaint is that they did not know they were within one thousand feet of public housing when they carried out their plan to sell crack cocaine. This ignorance is not a product of appellants' inability to understand the statute. It is the result of their failure to determine the existence of and their distance from public housing. The burden of ascertaining those facts lies with appellants under the statute. The due process clause simply does not require that the state prove appellant's knowledge of his proximity to public housing, nor does it require the state prove appellant's knowledge that the property is classified as public housing, before it will allow the state to enhance the punishment for a crime appellant intentionally committed.
Id . at 794.
Thus, the court in Hatton has clearly held that section 195.218 is a punishment-enhancement provision only. Id . It is not a separate element of the crime and it is not a separate crime in and of itself. Id . The question regarding defendant's knowledge was most recently addressed in the Court of Appeals for the Western District in State v. White, 28 S.W.3d 391 (Mo.App.W.D. 2000), mandate recalled on other grounds by State v. White , 70 S.W.3d 644 (Mo.App.W.D. 2002), a case upon which Appellant relies. In White , the court addressed section 195.214, which is a sentence-enhancing statute for drug transactions that occur near schools. Id . at 396-98. The White court found section 562.021.3 provides that the mental state of purposely or knowingly applies to each of the elements under sections 195.211 and 195.214 because neither statute specifically mentions a requisite mental state. Id . at 396. White found that the knowingly requirement applies to the drug dealer's knowledge that he was completing a transaction within two thousand feet of a school. Id . at 397. White acknowledged Hatton , however, reached a different conclusion.
It should be noted that the jury instruction in White was MAI-CR 3d 325.30, which is a revised version of the jury instruction used in Hatton. White , 28 S.W.3d at 396. The White jury instruction states that the jury must find that the defendant acted knowingly with regards to all of the facts and circumstances. Id. Prior to the 1998 revision, the instruction only required the defendant to know that the substance was a controlled substance, and did not require the defendant to know he was within two thousand feet of a school. Id. at n. 2. It is unclear how this change affected the analysis of this issue by the White court. It is well established, however, that jury instructions cannot be used to change the substantive law. State v. Carson , 941 S.W.2d 518, 520 (Mo. banc 1997).
White , while initially citing to and relying on Hatton , departs from the significant holding therein when the White court pointed out that the State, using computer generated maps, failed to show that there was any way that the defendant would have known a school was in close proximity. White , 28 S.W.3d at 397. This Court notes that White properly interprets Hatton to require the State prove each element of a crime beyond a reasonable doubt, which includes the distance from the school (or in this case the public or governmental assisted housing) to the location of the drug transaction. White appears to depart from Hatton only where the court suggested the State was also required to put on evidence that the defendant "could have known" where the school was located. White found the evidence that the defendant could have known the school was two thousand feet from the drug transaction insufficient.
Regardless of the apparent conflict between the holdings in White and Hatton , this Court is constitutionally bound to follow the controlling decisions of the Missouri Supreme Court. State v. Tuter , 920 S.W.2d 111, 112 (Mo.App.S.D. 1996). Therefore, we adopt Hatton and hold that the State does not have to prove that a defendant knew he was within one thousand feet of public housing or governmental assisted housing. As such, this Court will decline to exercise its discretion to review for plain error under Rule 30.20 as there is no substantial ground for believing that manifest injustice or miscarriage of justice has occurred. It cannot be plain error if the State did not have to prove that Appellant knew that the drug transaction was within one thousand feet of public housing or governmental assisted housing. Point one is denied.
II.
In his second point, Appellant again challenges the sufficiency of the evidence to prove that (1) because the officers did not do a full body search of the informant and it is possible the informant could have already possessed the cocaine and (2) Appellant was the one that sold the crack cocaine to the confidential informant because the videos did not clearly show the transfer of the crack cocaine to the informant. In reviewing the sufficiency of the evidence to support a criminal conviction, this Court must view the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the verdict and disregard all evidence and inferences to the contrary. State v. Grim , 854 S.W.2d 403, 405 (Mo. banc 1993). "[R]eview is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Dulany , 781 S.W.2d 52, 55 (Mo. banc 1989). This Court does not re-weigh the evidence or determine the credibility of witnesses, instead we consider the record as a whole. State v. O'Brien , 857 S.W.2d 212, 215-16 (Mo. banc 1993). Applying this standard to the record presented on appeal we find that there was sufficient evidence for a reasonable jury to identify Appellant as the person who sold the crack cocaine to the confidential informant.
Here, Appellant claims that the evidence is insufficient to prove that he delivered the crack cocaine because the informant could have hidden the cocaine and money on her person without being detected by Officer Hensley. Reviewing this allegation, however, would require the appellate court to "weigh" the evidence on the videos and the evidence regarding the possibility that the informant could have hidden the drugs on her person and compromised the sale. Weighing the evidence is not an activity within our appropriate standard of review; therefore, this argument cannot be specifically addressed. See generally State v. Gregory , 96 S.W.2d 47, 51-52 (Mo. 1936); State v. Pierce , 906 S.W.2d 729, 730 (Mo.App.W.D. 1995).
The evidence showed that before the informant made the drug buy, she met with Officers Hensley and Rataj at an undisclosed location where she was searched to ensure the integrity of the investigation. Both the informant and her car were searched, including every container in the car, and nothing was found. The informant was given $20 and told to drive down the Russell Street area to get flagged down to buy drugs. After the transaction, the informant returned to the location where she turned over the crack cocaine that she had just purchased from Appellant. The informant and her car were re-searched and nothing was found, including the $20; the videotapes showed an exchange of money for something. Viewing this evidence in the light most favorable to the verdict, a reasonable juror could find sufficient evidence to prove that the confidential informant did not hide drugs on her person to compromise the controlled buy.
As to Appellant's claim that there was insufficient evidence that he was the person who sold the drugs to the informant, we find that the evidence presented was sufficient. Informant's car was equipped with two video cameras that were hidden, one in the front passenger seat and the other in the driver's side rear window. Both cameras were positioned to record whatever occurred on the driver's side of the car. The camera in the front seat also monitored the informant's actions. The jury watched the tapes. The evidence showed that when the informant stopped her car on Riley Street, a person approached the driver's side window of the informant's car. A person then went into a residence at 315 Riley while the informant waited in her car. Shortly thereafter, the same person returned to the car and leaned into the driver's side window, spoke to the informant, and delivered the crack cocaine. Appellant was identified from the videos. Additionally, Officer Hensley identified Appellant in the videos. The jury watched the videos during their deliberations. It was clearly within the province of the jury to determine whether the man in the videos was also the man that sat before them as a defendant. Viewing the evidence in a light most favorable to the verdict, there was sufficient evidence so that a reasonable juror could determine that Appellant was the person who delivered the crack cocaine to the informant. Point two is denied.
III.
Appellant's third point on appeal contends that the trial court erred in overruling the defense objection to and in admitting Appellant's statements, which Appellant made to Officer Hensley while in jail, because the statements were elicited in violation of his fifth and fourteenth amendment privileges. Appellant filed a pre-trial motion to suppress these statements and the judge decided to take the motion to suppress with the case. "[A] ruling on a motion to suppress is interlocutory and subject to change during the course of the trial." State v. Cardona-Rivera , 975 S.W.2d 200, 203 (Mo.App.S.D. 1998). A specific objection is required when the evidence is offered at trial to preserve the issue for appellate review. Id . Failure to object at the very earliest opportunity to the admission of evidence constitutes a waiver of the claim. State v. Stewart , 17 S.W.3d 162, 166 (Mo.App.E.D. 2000). The only objection to these statements made at trial was untimely and there was no motion to strike; therefore, nothing has been preserved for appeal.
Issues not properly preserved can be reviewed, if at all, as plain error under Rule 30.20. State v. Brisco , 934 S.W.2d 335, 337 (Mo.App. W.D. 1996). This Court will decline to exercise its discretion to review for plain error under Rule 30.20 unless a claim of plain error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has occurred. Id . ( citing State v. Brown , 902 S.W.2d 278, 284 (Mo. banc 1995)). Manifest injustice depends on the facts and circumstances of the particular case, and Appellant bears the burden of establishing manifest injustice amounting to plain error. State v. Zindel , 918 S.W.2d 239, 241 (Mo. banc 1996).
The statements in question occurred a day or two after Appellant was arrested when Officer Hensley went to the jail to speak to Appellant about why Appellant had not contacted him regarding the drug task force. Appellant began to talk about this case and denied his involvement. Officer Hensley told him not to worry about it; he just wanted to find out where Appellant had been and why he had not contacted Officer Hensley. After Appellant repeatedly denied his involvement in this case, Officer Hensley told Appellant that he had him on tape selling drugs, but that Appellant did not need to worry about it. Appellant then volunteered that he usually does not sell drugs but that sometimes, when his cousin was not out on the street, he would run into the house and retrieve the dope from his cousin and bring it back outside to sell on the street for his cousin. Each of these statements was admitted at trial through Officer Hensley's testimony. The defense objected when Officer Hensley testified that he went to speak to Appellant about the drug task force. The objection was overruled, and Officer Hensley was then able to testify to the entirety of the statement, as described above, without objection from the defense.
Appellant argues that he was prejudiced by the admission of his statements, over defense counsels renewal of his requests to have the statements excluded, because the informant did not testify and the officer was too far away to observe the transaction. Although not clearly presented in Appellant's brief, it appears Appellant is arguing that his statements are the only evidence against him. This Court, however, finds no manifest injustice or even prejudice to Appellant because these statements were not the only evidence against him. In fact, the amount of evidence on the record is substantial. Without reviewing all of the evidence against Appellant that has already been set forth, we note that Appellant was tried in front of a jury, which had two opportunities to view the videotapes. The tapes clearly showed the face of the man that sold the confidential informant the drugs. It is well within the province of the jury to make the determination that the man in the videos and the man in the court room are one in the same. It is clear that the jury would have still convicted Appellant even absent these statements. No manifest injustice or miscarriage of justice has occurred here. Point three is denied.
IV.
In Appellant's fourth point on appeal, he claims that the trial court erred by admitting the State's Exhibits 2 and 3, the videotapes of the drug sale transaction, because the State failed to lay the proper foundation. Whether or not a sufficient foundation has been laid for an exhibit is a decision within the broad discretion of the trial court. State v. Copeland , 928 S.W.2d 828, 846 (Mo. banc 1996). Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court, and is so arbitrary and unreasonable as to shock the sense of justice, indicating a lack of careful consideration. State v. Jackson , 969 S.W.2d 773, 775 (Mo.App. W.D. 1998).
"The party offering a videotape in evidence must show that it is an accurate and faithful representation of what it purports to show." Phiropoulos v. Bi-State Development Agency , 908 S.W.2d 712, 714 (Mo.App.E.D. 1995); see also State v. Powers , 148 S.W.3d 830, 832 (Mo.App. E.D. 2004) ("The same principles that govern the foundation for admissibility of photographs apply to the admission of videotapes."). The foundation may be established through the testimony of any witness who is familiar with the subject matter of the tape and competent to testify from personal observation. Powers , 148 S.W.3d at 832.
The State used Officer Hensley to lay the foundation for the videotapes at trial. Officer Hensley testified that he was the person who set up the video cameras in the car and he testified as to where and how he placed each camera. Officer Hensley also testified about his search of the car and the confidential informant to maintain the integrity of the controlled buy. After searching the informant's pockets, socks, and shoes he searched the car and each of the containers in the car and did not find any contraband. Officer Hensley followed the confidential informant near the location of the sale and watched from a distance of four hundred to one thousand feet. After the sale had been accomplished, Officer Hensley testified that he then re-searched the informant and her car. He collected the contraband and his cameras and sealed them in evidence envelopes. Officer Hensley testified that the tapes were transferred from 8 mm tapes to VHS tapes but that no changes were made to them. At trial, Officer Hensley testified that he watched the videos after the sale was completed and it was a fair and accurate representation of what he witnessed.
Appellant argues that because the videos showed two men walking up to the car and Officer Hensley can only remember one man walking up to the car, he could not properly lay a foundation that the videos were an accurate representation. The rules for laying a proper foundation are not that strict. Foundation requirements indicate that some person, who is familiar with the subject matter of the tape and can testify to the subject matter from personal knowledge, must lay the foundation. Phiropoulos , 908 S.W.2d at 714. Officer Hensley fits this description. The foundation guidelines are not so strict as to require only a person who was in the videos, or even taking the videos, to be the person who lays the foundation. Id . On these facts, it cannot be said that the trial court abused its discretion by finding that Officer Hensley laid a proper foundation for the videotapes and admitting the tapes into evidence. Point four is denied.
V.
In his fifth point on appeal, Appellant contends that the trial court plainly erred by allowing Officer Hensley to identify Appellant as the man on the surveillance tapes because it invaded the province of the jury in that Officer Hensley was not more likely to correctly identify Appellant than the jury. We disagree.
Appellant concedes in his brief that this point of error was not properly preserved because he did not object to this evidence during trial and, as a result, he requests this Court review for plain error. As the standard for plain error review has been clearly stated infra, we will only reiterate that "'[i]n determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether there facially appears substantial grounds for believing that the trial court committed error that is evident, obvious and clear, which resulted in manifest injustice or a miscarriage of justice.'" Gill Const. Inc. v. 18th Vine Authority , 157 S.W.3d 699, 723 (Mo.App.W.D. 2004) ( quoting Wilson v. Simmons , 103 S.W.3d 211, 220 (Mo.App.W.D. 2003)).
A trial court has wide discretion in admitting the testimony of a lay witness into evidence and an appellate court reviews such rulings for abuse of discretion. State v. Saucy , 164 S.W.3d 523, 529-530 (Mo.App. S.D. 2005). Generally, a lay witness may not testify as to an opinion on a matter in dispute. State v. Winston , 959 S.W.2d 874, 877 (Mo.App. E.D. 1997). The rationale underlying this "opinion rule" is that since the lay witness does not possess specialized knowledge on the matter, the trier of fact is as capable as the witness to draw conclusions from the facts provided. Id .; State v. Gardner , 955 S.W.2d 819, 823 (Mo.App. E.D. 1997). Here, we are presented with an officer who knew Appellant from a previous interaction where he asked Appellant to contact him about being on the drug task force. Officer Hensley saw the actual transaction take place, he saw the videos after the transaction, and from his previous experience with Appellant he thought it was Appellant on the tapes. Officer Hensley had further interaction with Appellant when he saw Appellant in jail after his arrest.
We are reviewing for manifest injustice and, as such, it cannot be said that Appellant was prejudiced. The jury had two opportunities to review the videotapes. This included one opportunity in the court room and another during deliberation. Had the jury not been able to view the videotapes, Officer Hensley's identification on the videotapes may have prejudiced Appellant. There is no indication the jury could not make its own determination during the two viewings of the video evidence. No manifest injustice has occurred and plain error review is denied. Point five is denied.
VI.
Appellant's final point on appeal is that the trial court plainly erred in denying Appellant's motion for new trial and in sentencing Appellant because he was denied a fair and impartial jury composed of twelve qualified jurors. The record indicates that defense counsel did not bring this to the court's attention until after the trial was completed, Appellant had filed a motion for new trial, and the time to amend the motion for new trial had elapsed. Appellant's counsel attempted to orally amend his motion for new trial by informing the trial court that she had been informed that two jurors knew Appellant and his family. Although Appellant's counsel had not done any investigation, Appellant's counsel stated that it had come to her attention that Juror Maxwell was married to Appellant's "son's uncle and she does not like [Appellant] because she often has to take care of his son," and that Juror Hughes went to school with "all [of Appellant's family] and [Appellant] had a physical altercation with Hughes' brother and cousin and thus she might has [sic] a motive and bias against [Appellant], resulting in manifest injustice." Appellant admits that "not all of this information was brought to the trial court's attention, and none of it was included in the motion for new trial."
Rule 29.11(b) requires a motion for new trial to be filed within fifteen days after the return of the verdict, unless the deadline is extended to twenty-five days. Rule 29.11(b). This deadline has been interpreted as being "absolute" such that once the deadline has passed, "a motion may not be filed or amended even to allege, as a basis for a new trial, newly discovered evidence which was not discoverable until after the filing deadline had passed." State v. Stephens , 88 S.W.3d 876, 880 (Mo.App.W.D. 2002). An untimely motion for a new trial containing allegations of newly discovered evidence is a nullity. State v. Young , 943 S.W.2d 794, 799 (Mo.App.W.D. 1997). Furthermore, allegations which are asserted in an appellate brief and are unsupported by the record cannot form the basis of error on appeal. State v. Wolford , 754 S.W.2d 875, 880 (Mo.App.W.D. 1988).
Appellant cites this Court's opinion in State v. Parker , 208 S.W.3d 331 (Mo.App.S.D. 2006), for the proposition that Missouri courts have recognized that in "extraordinary cases," the court may remand the case as plain error under Rule 30.20 or pursuant to the court's inherent power to prevent a miscarriage of justice. Id . at 334. This Court, however, further added that, "[t]he only extraordinary circumstance recognized in this State for such an action to be taken is 'where the newly discovered evidence would have completely exonerated the defendant.'" Id . ( quoting State v. Garner, 976 S.W.2d 57, 60 (Mo.App.W.D. 1998)); see also State v. McQuary , 173 S.W.3d 663, 665-66 (Mo.App.W.D. 2005) (rejecting new evidence of juror misconduct). Such reasoning does not apply here.
There is no record that these jurors in fact knew Appellant, as alleged, nor that they were biased against Appellant. The "new" allegations would not completely exonerate Appellant. Counsel only alleged hypothetical bias of the jurors. On the basis that there is no record of the alleged error and that this Court cannot say this situation presents an "extraordinary case," we decline to review for plain error as requested by Appellant. Point six is denied.
The judgment is affirmed; however, we note that the record contains a Sentence and Judgment which requires the trial court judge to check a box to indicate the status of Appellant as a "Dangerous Offender," "Prior Offender," "Persistent Offender," etc. In this section, the box marked "Not Applicable" was checked on Appellant's Sentence and Judgment. The record, however, clearly indicates that Appellant was found by the court to be a prior offender pursuant to section 558.016. Therefore, the judgment is affirmed and the cause is remanded for the trial court to correct the clerical error so it reflects the status of Appellant as determined by the trial court.
Lynch, C.J., Crawford, Sr.J., concur.