Under Section 491.074, prior inconsistent statements are admissible as substantive evidence and the party offering the inconsistent statement may offer the truth thereof. See State v. Neely, 979 S.W.2d 552, 559-60 (Mo.App.S.D. 1998). Defendant argues that the videotaped statement was not relevant to the issue of Mr. Hoover's credibility.
RELEVANT FACTS The underlying facts of this case can be found in Movant's direct appeal to this court in State v. Neely, 979 S.W.2d 552 (Mo.App. 1998). We need not repeat all of those facts here; suffice it to say, the evidence was sufficient to convict Movant of first-degree murder for the shooting death of Terri Bell ("Victim") on January 14, 1995.
In such instances, witness testimony given at the preliminary examination is competent at trial and satisfies the requirements of the confrontation clause of the Sixth Amendment. State v. Neely, 979 S.W.2d 552, 556 (Mo.App. 1998). The record reveals that Mr. Cook participated in a preliminary hearing and provided testimony which placed Defendant, his "next-door neighbor," as the driver of the van that pulled into his driveway the night Ms. Cory was killed.
Missouri courts have held that mere noncompliance with the requirements of Rule 9.03 does not by itself constitute constitutional error. State v. Neely, 979 S.W.2d 552, 558 (Mo.App. S.D.1998). As the court observed in Stott v. State, such a per se rule would be inappropriate, since attorneys licensed in other States are presumably qualified to practice law. 771 S.W.2d 841, 843 (Mo.App. E.D.1989).
" Id. The "jury resolves questions of credibility and inconsistencies in the evidence." State v. Neely, 979 S.W.2d 552, 561 (Mo.App. 1998). Viewed in the light most favorable to the verdict, the adduced evidence shows that Stacy graduated from Central High School in 1989.
Id. The jury resolves questions of credibility and inconsistencies in the evidence. State v. Neely, 979 S.W.2d 552, 561 (Mo.App. 1998). A jury may accept part of a witness's testimony while disbelieving other portions.
Accordingly, the videotaped interview was not cumulative to Wright’s testimony on cross-examination, nor required any additional foundation. See State v. Neely, 979 S.W.2d 552, 560 (Mo. App. S.D. 1998) (finding that, even though the witness admitted that he made prior inconsistent statements, the trial court did not err in playing his prior recorded statements because "the jury should have [the evidence] in the best form for judging its credibility."); State v. Dale, 874 S.W.2d 446, 452 (Mo. App. W.D. 1994) (explaining that additional foundation is not necessary for the State to offer rebuttal evidence contradictory of statements made by the defendant in his or her testimony).
By viewing the videotape, the jury was better able to resolve T.D.'s contention that the accusations in the interview had been prompted by threats from B.K. See State v. Irby, 254 S.W.3d 181, 190 (Mo.App. 2008); State v. Neely, 979 S.W.2d 552, 560 (Mo.App. 1998). Defendant's third argument has no merit, and Point I is denied.
'"There must be a clear showing of an abuse of discretion for an appellate court to interfere with a trial court's ruling on the admissibility of evidence.'" Bowens, 964 S.W.2d at 237 (quoting State v. Neely, 979 S.W.2d 552, 561 (Mo.App. 1998)). Here, Appellant sought to introduce evidence relating to his previous interactions with other judges.
Likewise, in Appellant's third point relied on he assigns trial court error for its denial of Appellant's offered instructions "A" and "B" wherein he postulates his "affirmative defense" relating to the "ultimate user" or "household prescription" defense. As we have previously established, the "ultimate user" or "household prescription" defense is not a viable defense given the circumstances of this case, and Appellant is not entitled to a jury instruction that fails to properly state the law.SeeState v. Neely, 979 S.W.2d 552, 557 (Mo.App. 1998) ("In the absence of a pattern instruction, the trial court must instruct the jury consistent with the substantive law.") Point denied. Appellant's proposed Instruction No. A provides, in pertinent part, that: "One of the issues is whether the controlled substance found on [Appellant] was a prescribed medication for a member of his household.