STATE OF MISSOURI, Plaintiff-Respondent v. ROBERT MUTTER, Respondent-Appellant

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STATE OF MISSOURI, Plaintiff-Respondent, v. ROBERT MUTTER, Respondent-Appellant.

No. SD38757

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Kaiti Greenwade, Judge AFFIRMED Defendant Robert Mutter ("Defendant") appeals his convictions for first-degree domestic assault, third-degree domestic assault, and first-degree rape. In his sole point on appeal, Defendant requests plain error review of his claim that the trial court erred in failing to intervene sua sponte to exclude the testimony of Victim's neighbor stating Defendant had previously fired shots through Victim's apartment wall. Finding the record does not disclose substantial grounds for believing a manifest injustice or a miscarriage of justice occurred, we decline plain error review and affirm.

In Division

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Facts and Procedural History Defendant does not challenge the sufficiency of the evidence to support any of his convictions. On February 4, 2022, Defendant and Victim, who were in a relationship, were together in Victim's home. The couple got into a verbal altercation that escalated during the evening. Defendant obtained a firearm and "pistol-whipped" Victim while sitting on top of her. Defendant struck her face multiple times and then pushed her face into the kitchen floor. Victim was also forced to have sex with Defendant with a pistol to her head. Victim then walked with Defendant to a Dollar General store close to her residence to call 911. Defendant told Victim not to tell anyone it was him and to tell people her ex-boyfriend caused her injuries. Defendant further said if Victim did not listen, he or his sister would hurt her. Victim went along with Defendant's story because she feared for her life. Victim testified Defendant did not allow her to go anywhere or do anything when he was around. Victim and Defendant went to the hospital and told police and medical staff that Victim's ex-boyfriend caused her injuries. Victim went back to the Dollar General four days after the incident and told an employee that Defendant was actually the one who hurt her, not her ex-boyfriend. Victim spoke with police later that day and reported Defendant caused her injuries. Victim also said Defendant threatened he would hurt her again and "there wasn't going to be any more of [Victim]" if she told the truth.

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Defendant was charged with one count of the class A felony of first-degree domestic assault involving serious physical injury (§565.072), 1 one count of the class E felony of third-degree domestic assault (§565.074), one count of the unclassified felony of first-degree rape (§566.030), and one count of the unclassified felony of armed criminal action (§571.015). During the jury trial, the State called Walter Molkenbur ("Molkenbur"), one of Victim's neighbors, as a witness. During cross-examination, defense counsel and Molkenbur had the following exchange: DEFENSE COUNSEL: Okay. You're saying that, when [Victim] said it was [ex- boyfriend], that [Defendant] is sitting there with two guns? MOLKENBUR: Sure did. Q. So -- A. I saw him shoot the guns. Q. So -- and then later on a different day, [Defendant] comes back with two guns? A. [Defendant] always had two guns when he came to my house. He held them like this (indicated). And then I went to [Victim's] house because I was worried about her, and he was shooting through the wall because the people next door was too -- making too much noise. I called the police four times, I believe -- Q. So that's a "yes"?

1 Unless otherwise indicated, all statutory references are to RSMo 2016, as amended through August 5, 2024.

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A. That would be "triple yes." Later on, defense counsel asked Molkenbur whether Defendant or Victim was a better friend to him. In Molkenbur's response, he added "I went in her apartment, and he shot a gun through the wall two or three times because they were making too much noise." Molkenbur also brought up Defendant shooting through Victim's wall after defense counsel asked him whether he called law enforcement to report Defendant's behavior towards Victim. The jury found Defendant guilty of first-degree domestic assault, third-degree domestic assault, and first-degree rape. Defendant was acquitted of armed criminal action. Based upon Defendant's status as a prior and persistent offender, the trial court sentenced Defendant to 22 years on Count I, four years on Count III, and 22 years on Count IV. All sentences were run concurrently. This appeal followed. Standard of Review As the single claimed error in this case is unpreserved, Defendant requests plain error review under Rule 30.20. 2 "Rule 30.20 is the exclusive means by which an appellant can seek review of any unpreserved claim of error, and said claim - no matter if it is statutory, constitutional, structural, or of some other origin - is evaluated by this Court's plain error framework without exception." State v. Bodine, 702 S.W.3d 514, 516 (Mo. App. S.D. 2024) (quoting State v. Brandolese, 601 S.W.3d 519, 530 (Mo. banc 2020)). The decision as to whether to grant plain error review is within this Court's

2 Unless otherwise noted, all rule references are to Missouri Court Rules (2024).

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discretion. Id. (citing State v. Perkins, 640 S.W.3d 498, 501 (Mo. App. S.D. 2022)). Plain error review involves a two-step analysis: The first step requires a determination of whether the claim of error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear. If plain error is found, the court then must proceed to the second step and determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.

Id. (quoting State v. Minor, 648 S.W.3d 721, 731 (Mo. banc 2022)). Defendant also must establish the error was outcome-determinative. Id. at 517 (citing State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019)). Analysis Defendant's sole point on appeal claims the trial court plainly erred in failing to sua sponte exclude Molkenbur's testimony about Defendant firing his gun through Victim's apartment wall multiple times. Molkenbur made these statements in response to questions from Defendant's counsel, who raised no objection to this testimony at trial. Having reviewed the record, we do not find that the evidence establishes substantial grounds for believing that manifest injustice or miscarriage of justice occurred. Defense counsel asked if Molkenbur saw Defendant with two guns, to which Molkenbur replied that "[Defendant] always carried two guns" and that Defendant was "shooting through the wall because the people next door was too -- making too much noise." Molkenbur then brought up Defendant shooting through Victim's wall two other times under questioning by defense counsel without being asked about it.

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"[A] trial court should take independent action in only the most exceptional circumstances, and an appellate court will rarely find plain error when a trial court has failed to act sua sponte." State v. Gonzalez, 671 S.W.3d 846, 851 (Mo. App. E.D. 2023) (citing State v. Paine, 631 S.W.3d 691, 694 (Mo. App. W.D. 2021)). Additionally, appellate courts should not "use plain error to impose a sua sponte duty on the trial court to correct [a] [d]efendant's invited errors." State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017). Generally, evidence of prior bad acts is inadmissible to show a defendant's propensity to commit a crime. State v. Salsman, 686 S.W.3d 376, 392 (Mo. App. S.D. 2024). However, defense counsel opened the door to discussing conduct regarding Defendant's possession and use of firearms when he asked whether Molkenbur had seen Defendant with two guns on other occasions. See Gonzalez, 671 S.W.3d at 851. (trial court did not plainly err in admitting victims' testimony of uncharged acts and prior bad acts because defense counsel opened the door to these statements by alluding to a "tumultuous relationship" during opening argument). Additionally, the State did not emphasize Molkenbur's testimony on this specific subject, neither inquiring about it during examination of the witness nor mentioning it during closing arguments. See State v. Love, 700 S.W.3d 288, 295 (Mo. App. W.D. 2024) (no finding of plain error because the trial court did not intervene sua sponte when victim testified about defendant's previous physical abuse of her brother and the prosecution did not emphasize the testimony). Further, the record in this case does not suggest that the inclusion of testimony about Defendant utilizing firearms on other occasions would have been

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"outcome-determinative," primarily because the jury acquitted Defendant of armed criminal action, the specific charge to which such allegedly improper testimony would have been most relevant. Considering this testimony arose out of defense counsel's questions, that the State did not emphasize the testimony and there is no showing of potential outcome- determinative error, the Defendant has failed to facially establish substantial grounds for believing that a manifest injustice or miscarriage of justice occurred. We thus decline to exercise plain error review with respect to Defendant's claim. Conclusion The Judgment of the trial court is affirmed.

MATTHEW P. HAMNER, J. – OPINION AUTHOR JENNIFER R. GROWCOCK, C. J. – CONCURS BRYAN E. NICKELL, J. – CONCURS