This post examines an opinion from the Missouri Court of Appeals – Eastern District: State v.
Ralph, 2017 WL 2450414 (2017). The court begins the opinion by explaining
that
Matthew Ralph (Ralph) appeals from a
sentence and judgment of conviction for possession of a controlled substance.
He challenges the trial court's admission of hearsay evidence and asserts error
in the trial court's imposition of an enhanced sentence under the prior and
persistent offender statutes.
State v. Ralph, supra.
The court goes on to explain that the
State of Missouri (State) charged Ralph
as a prior and persistent offender with the class C felony of possession of a
controlled substance, Hydrocodone. The evidence at the 2016 jury trial showed
the following, viewed in a light most favorable to the verdict.
The police responded to an anonymous 911
call reporting open air drug sales in the 6000 block of Lucille in the City of
St. Louis. Officer Andrew Brown (Officer Brown) testified that when he and his
partner, Officer Timothy Nolan (Officer Nolan), approached the area in their
marked patrol vehicle, he witnessed an individual later identified as Ralph
standing at the front passenger window of an occupied vehicle in a manner
associated with, in Officer Brown's experience, the sale of narcotics. Officer
Brown made eye contact with Ralph, who then took something from his pocket and
threw it under the vehicle, which caused Officer Brown to suspect, again from
his experience and the surrounding circumstances, that Ralph had discarded
narcotics. Officer Brown approached Ralph on foot and detained him.
Officer Brown picked up a blue plastic
knotted baggie from underneath the edge of the vehicle where Ralph had been
standing and confirmed that the baggie contained pills. He seized the baggie of
pills, which contained Hydrocodone. Officer Brown clarified, however, that he
did not witness an exchange of narcotics or money. Finally, Officer Nolan
testified over a hearsay objection that during booking, which Officer Brown
conducted, Officer Nolan `learned’ that Ralph lived in an area about a
ten-minute drive from the 6000 block of Lucille.
To prove Ralph's
prior-and-persistent-offender status, the State relied upon Ralph's 2014 guilty
plea in Cause No. 1322-CR1218 for the felony of resisting arrest and his 2008
guilty plea in Cause No. 0822-CR03740 for the felonies of second-degree assault
of a law enforcement officer and tampering in the first degree. Ralph did not
stipulate to the prior convictions, and the State called the court clerk, who
testified without objection that the Missouri Justice Information System
(JIS)—which is a computerized statewide automated record-keeping system
established by the supreme court—records reflected Ralph had at least two prior
felony convictions in Cause Nos. 1322-CR01218 and 0822-CR03740. The State
did not introduce physical copies of these court records, but asked the trial
court to take judicial notice of its own files. On this evidence, the trial
court found beyond a reasonable doubt Ralph was a prior and persistent
offender.
State v. Ralph, supra.
The opinion then notes that the
jury found Ralph guilty of constructive possession of a controlled substance, and the trial court sentenced him as a prior and persistent offender to eight years in the Missouri Department of Corrections. This appeal follows.
State v. Ralph, supra.
Ralph made two arguments in his appeal, the first of which
was that
the trial court erred in overruling his
objection to Officer Nolan's testimony that he had learned Ralph did not live
in the neighborhood where the crime occurred because such testimony was
inadmissible hearsay that prejudiced Ralph by presenting him as an outsider
causing trouble in the neighborhood.
State v. Ralph, supra.
The opinion then explains that
[h]earsay is any out-of-court statement
that is used to prove the truth of the matter asserted and is generally
inadmissible unless it is a recognized exception to the hearsay rule. State v. Tisius, 362 S.W.3d 398, 405-06
(Mo. banc 2012). We review a trial court's decision to admit or exclude hearsay
evidence for an abuse of discretion. State
v. Justus, 205 S.W.3d 872, 878 (Mo. banc 2006). An abuse of discretion
occurs when the trial court's ruling is dearly against the logic of the
circumstances or is so arbitrary and unreasonable so as to shock the sense of
justice and indicate a lack of careful consideration. State v. Hughes, 497 S.W.3d 400, 403 (Mo. App. E.D. 2016). We
reverse for an error in the admission of evidence only if the erroneously
admitted evidence was so prejudicial that it affected the outcome of the trial,
meaning that but for its admission there is a reasonable probability the jury
would have acquitted. State v. Adams,
350 S.W.3d 864, 866 (Mo. App. E.D. 2011). Even if the evidence admitted was
improper hearsay, we will only reverse the conviction if a defendant can prove
both error and prejudice. State v.
Jackson, 426 S.W.3d 717, 719 (Mo. App. E.D. 2014).
State v. Ralph, supra.
The Court of Appeals goes on to explain that
[h]ere, Ralph asserts on appeal that
prejudicial error resulted when Officer Nolan testified that he `learned’
during booking that Ralph lived about a ten-minute drive from where he was
arrested in the 6000 block of Lucille, because Officer Brown was the declarant
of the challenged statement, which was admitted for its truth. We note that
Ralph bears the burden on appeal to prove both that the trial court erroneously
admitted hearsay evidence and that evidence prejudiced him, which he has not
done. See Jackson, 426 S.W.3d at 719. Although
Ralph asserts Officer Brown was the declarant of the challenged statement, the
record does not support this assertion. Officer Nolan testified that Officer
Brown booked Ralph, but Officer Nolan did not reveal from whom he learned where
Ralph lived. From the record before us, it is just as likely Officer Nolan
learned this information from Ralph himself as from Officer Brown, and the
admission of relevant, material out-of-court statements by the party opponent
is a recognized exception to the hearsay rule. State v. Stokes, 492 S.W.3d 622, 625 (Mo. App, E.D. 2016). The
record itself does not show the trial court admitted hearsay evidence, and we
will not supply a deficiency in the record through speculation or conjecture.
State v. Ralph, supra.
The court went on to find that
Ralph has not met his burden to show the
erroneous admission of hearsay evidence, and, even if he had, he has not shown
prejudice therefrom. `The reason hearsay is generally inadmissible is because
the person who made the offered statement is not under oath or subject to
cross-examination.’ Jackson, 426
S.W.3d at 719. Thus, where the declarant is a witness at trial, testified on
the same matter, and was subject to cross-examination, prejudice does not
result. Id. Even assuming Officer Brown was the
declarant, he testified at trial, and after his testimony was complete, counsel
for Ralph requested that Officer Brown remain through Officer Nolan's testimony
`in case there [was] any need for impeachment.’ Because Officer Brown was
available for cross- examination, no prejudice resulted. See id. The trial
court did not abuse its discretion in admitting the challenged statement.
Point denied.
State v. Ralph, supra.
The Court of Appeals then took up Ralph’s second argument in
his appeal, i.e., that
the trial court plainly erred in
finding him to be a prior and persistent offender because the State failed to
present sufficient evidence of his prior convictions by not entering any `physical
court files nor any hard copies of any documents’ into the record but only
having the clerk testify to computer records. Thus, Ralph argues his eight-year
sentence is beyond the seven-year maximum sentence for an unenhanced class C
felony, and he requests remand for resentencing. We disagree.
In order to preserve an evidentiary
issue for appeal, a party must object upon the introduction of the
evidence. State v. Walter, 479
S.W.3d 118, 122-23 (Mo. banc 2016). Here, Ralph did not object to the State
presenting the court clerk's testimony from the JIS records of Ralph's prior
convictions in lieu of the `physical court files [ ]or any hard copies of
any documents.’ Accordingly, Ralph did not preserve the issue for appellate
review, and we may review it, if at all, only for plain error.
When a party fails to properly preserve
an argument at trial, the Court may, in its discretion, review the argument for
plain error when the claim of error facially establishes substantial grounds
for believing a manifest injustice or miscarriage of justice resulted. Id. We review for plain
error using a two-step analysis. First, we determine whether the record
facially establishes substantial grounds to believe plain error occurred, which
is error that is evident, obvious, and clear. If so, we then consider whether
the error resulted in manifest injustice or a miscarriage of justice. Id. Plain-error review requires
that the alleged error have a decisive effect on the jury's determination. See State v. White, 247 S.W.3d 557, 563 (Mo.
App. E.D. 2007).
We find no error in the trial court's
prior-and-persistent-offender finding. Section 558.016 provides for an enhanced
sentence for persistent offenders, which is defined as a person who has been
found guilty of two or more felonies. Section 558.016.1(1),.3. To enhance
a sentence on the basis of prior convictions, the State `must prove the fact of
the prior convictions and do so in conformity with applicable statutory
requirements for such proof.' State v. Martinez, 407 S.W.3d 669, 673 (Mo.
App. S.D. 2013) (citation omitted). Here, Section 558.021 provides that
the trial court shall find a defendant to be a prior and persistent offender
where, as relevant to this appeal, the State introduces evidence `establish[ing]
sufficient facts to warrant a finding beyond a reasonable doubt that the
defendant is a prior offender [and] persistent offender.’ Section 558.021.1(2).
State v. Ralph, supra.
The opinion goes on to explain that
[s]ection 558.021 requires merely that
the evidence be sufficient to warrant a finding, and it does not specify the
evidence be physical rather than testimonial. Accordingly, Missouri courts have
found sufficient evidence to comply with the requirements of Section558.021.1(2) through testimony by a court clerk or prosecutor narrating prior
court records. See, e.g., State v. Taylor, 373 S.W.3d
513, 526 (Mo, App. E.D. 2012) (prosecutor read into record defendant's
prior convictions from case files without admitting physical copies, which was
sufficient evidence to prove defendant's status as prior and persistent drug
offender); State v. Johnson, 150
S.W.3d 132, 137 (Mo. App. E.D. 2004) (affirming trial court's
prior-offender finding when court clerk testified to defendant's prior
conviction by reading from official court file present in courtroom); State v. Quinn, 717 S.W.2d 262, 265-66
(Mo. App. S.D. 1986) (finding sufficient evidence to support
prior-and-persistent-offender status where court clerk testified to content of
records physically present in court, although records themselves were not
admitted).
State v. Ralph, supra.
The court then explains that,
[h]ere, the State presented the court
clerk's testimony, who read from JIS records on a computer screen rather than from a physical document, that
Ralph had pleaded guilty in
2014 to a felony in Cause No. 1322-CR01218 and had pleaded guilty in 2008 to a felony in
Cause No. 1522-CR01416. Ralph relies on this Court's 2004 decision in Johnson, 150 S.W.3d 132, to argue that
the State cannot establish a prior conviction solely through a court clerk's
testimony narrating court files from a computer screen unless the official court file or a certified
physical copy is present in the courtroom and capable of being examined. Id. at
137. The State relies on Section 490.130 to argue that because electronic
records contained in a statewide court automated record-keeping system, like
JIS, are admissible without certification, testimony describing those
electronic records are sufficient without physical printouts. In this case
of first impression, we agree with the State.
State v. Ralph, supra.
The court then goes on to explain that
[s]ection 490,130 provides that `[r]ecords
of proceedings of any court of this state contained within any statewide court
automated record-keeping system established by the supreme court shall be
received as evidence of the acts or proceedings in any court of this state
without further certification of the clerk, provided that the location from
which such records are obtained is disclosed to the opposing party.’ JIS
records are electronic and can be `received as evidence’ by a trial court only
via a printout or oral description of the digital image.
Here, the court clerk's testimonial
evidence reading the 2014 and 2008 convictions from JIS was sufficient to
establish Ralph's prior convictions, allowing the trial court to find beyond a
reasonable doubt that he was a prior offender and persistent offender. See Section 558.021.1(2). There
is no allegation before us that the JIS records were inaccurate, that the court
clerk was not qualified to testily to the JIS records, or that the State had
not convicted Ralph of these two prior felonies.
Although Ralph relies on this Court's
2004 decision in Johnson,
we note Johnson predated the 22nd Judicial
Circuit Court's 2006 adoption of JIS. Thus, in Johnson, when the court clerk read from the “circuit court's
computer system,” she was not reading from a statewide court automated
record-keeping system established by the supreme court. Because the trial court
in Johnson did not receive
evidence from JIS, this Court on appeal had no reason to—and did not—discuss
Section 490.130, which sets forth the procedure for admitting records stored in
JIS. Because the trial court here received sufficient evidence under Section
490.130 via the court clerk's oral testimony reading Ralph's prior convictions
from JIS on the clerk's computer screen, the trial court did not err in finding
him to be a prior and persistent offender. Point denied.
Conclusion
The judgment and sentence of the trial
court is affirmed.
State v. Ralph, supra.
At two places in the portions of the opinion quoted above,
the Court of Appeals appended lengthy footnotes to statements quoted above. The
first footnote explained that
[i]n Johnson, the State offered the testimony of a court clerk to prove
the defendant's prior-and-persistent-offender status. 150 S.W.3d 132, 134
(Mo. App. E.D. 2004). The clerk testified to Johnson's 1998 conviction, using
the official court file in her possession in the courtroom. She also testified
to Johnson's 1992 conviction by reading from the minutes that she accessed via
the “circuit court's computer system”; she acknowledged the official court file
was in storage and she did not have a hard copy with her in the
courtroom. Id. at 134-35.
This Court held the trial court
properly took judicial notice of Johnson's 1998 conviction because the court
file was physically before the court and capable of being
examined. Id. at 137. Conversely, this Court then held the trial
court erred in taking judicial notice of the 1992 conviction where `neither a
certified copy of the judgment nor the court file was physically before the
trial court,” noting that “a fact judicially noticed must have independent reliability
and trustworthiness.’ Id.
State v. Ralph, supra.
The second footnote explained that the court record of the
proceedings in this case
demonstrates only that the court clerk
was testifying from JIS. We do not know if she was reading from the digital
image of the sentence and judgment or from a summary elsewhere in JIS. If she
was reading from the digital image of the document, then for the 2014
conviction she was reading from the official court record. Missouri Rule
of Civil Procedure 103.03(a), which was adopted in 2011, states that the
digital entry of a document is now the official court record. Thus, the court
clerk's testimony from the digital image is admissible under the theory set
forth in Taylor, Johnson,
and Quinn, that testimony from
the official court record present in the courtroom is sufficient evidence to
comply with the requirements of Section 558.021.1(2). See State v. Taylor,
373 S.W.3d 513, 526 (Mo. App. E.D. 2012): State v. Johnson, 150 S.W.3d 132, 137 (Mo. App. E.D. 2004): State v. Quinn, 717 S.W.2d 262, 265-66
(Mo. App. S.D. 1986). As for Ralph's 2008 conviction, unless the clerk's office
had scanned the 2008 judgment and sentence into JIS as permitted by Rule
103.03(b) in 2011, JIS would not show a digital image of the official
court record. See Rule
103.03(b) (`If a court digitizes, records, scans, or otherwise reproduces
a document that is filed in paper into an electronic record, ... the electronic
record ... is the official court record.’). Nevertheless, the clerk's testimony
from JIS here was sufficient evidence to establish Ralph's prior convictions
under Section 558.021.1(2).
State v. Ralph, supra.
And in one final footnote, the court explained that
[w]hile there is no clear error here,
it is by far the better practice for the State to also introduce a physical
printout of the JIS record testified to before the trial court, for the
purposes of creating an exact record for appellate review of what the clerk
testified to. Section 490.130 does not require certification of this document.
We cannot delineate all the problems associated with relying solely on oral
testimony narrating JIS records, but suffice it to say a clerk may not even
have access to JIS if it is temporarily unavailable.
State v. Ralph, supra.
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