STATE OF MISSOURI, Respondent v. ERIC SCOTT NANNEY, Appellant

STATE OF MISSOURI,

Respondent, v. ERIC SCOTT NANNEY, Appellant.

No. SD38776

APPEAL FROM THE CIRCUIT COURT OF BOLLINGER COUNTY Honorable Scott A. Lipke, Judge AFFIRMED A jury found Eric Nanney ("Defendant") guilty of first-degree murder (Count 1), armed criminal action (Count 2), unlawful use of a weapon (Count 3), tampering with physical evidence (Count 4), and abandonment of a corpse (Count 5). In two points on appeal, Defendant argues the trial court erred by (1) allowing evidence at trial of a post- offense tattoo encircling Defendant's neck, and (2) denying his request to wear a military uniform at trial. Finding no merit in either point, we affirm. Factual and Procedural History In October of 2021, B.R. ("Victim") was living with her mother, S.M. ("Mother"),

In Division

2 in Illinois. On October 13, 2021, Victim told Mother she planned to go to Missouri with K.M., a childhood friend. Mother observed Victim leave with K.W. Later, Victim texted Mother, "Mom, I'm here with [Defendant] and [K.M.]. We're having a good time." During the evening's activities, a conflict arose and Victim called 911. Law enforcement arrived and interviewed the parties for about an hour, leaving when the conflict appeared to be resolved. Victim later sent Mother a text stating she wanted to go home. The next morning, Victim had not returned home and did not answer Mother's calls. When Mother contacted K.M. to ask where Victim was, K.M. stated she had dropped off Victim at a lake to meet some friends. After searching for Victim, Mother contacted the Bollinger County Sheriff's office and spoke with Chief Deputy Stanley Petton, Jr. ("Deputy Petton"). She reported Victim missing and advised that Victim had been with Defendant and K.M. That same morning, Defendant told his friend J.R. that he had been involved in a "conflict" the previous night and had shot Victim. J.R. then voluntarily contacted Deputy Petton and gave a recorded statement. The Sheriff's Department contacted K.M. and asked her to come to the station to discuss Victim's disappearance. She first had a conversation with Defendant, then went to the Sheriff's office. After a few hours passed, Defendant assumed K.M. was being interrogated and voluntarily went to the Sheriff's office. Trooper David Patton ("Trooper Patton"), an investigator with the Missouri State Highway Patrol assigned to assist with the investigation, arrived and interviewed

3 Defendant. Defendant initially denied involvement in the murder, but ultimately admitted he killed Victim and described in detail how he attempted to dispose of her body. Defendant also told Trooper Patton that K.M. told him to kill Victim because she was angry about the officers coming to the house after Victim made the 911 call. Later in the evening, Deputy Petton went to Defendant's house and located Victim's body in a wooded area near a small shed. Police found Victim's arms and legs in a yellow Rubbermaid tote inside the shed. The limbs had been severed and burned after her death. Victim had sustained two gunshot wounds to her head, two to her torso, and several stab wounds to the front and back of her torso. She also had a wound on her neck consistent with someone using a knife to cut her throat. Defendant was arrested and charged with murder in the first degree, armed criminal action, unlawful use of a weapon, tampering with physical evidence, and abandonment of a corpse. During pre-trial motions, trial counsel informed the court that Defendant's mother had delivered Defendant's military uniform to the jail and it was Defendant's desire to wear his military uniform during the trial. Trial counsel noted for the record that Defendant was currently dressed in slacks, a button-down shirt, and a tie, but objected to Defendant "appearing in attire that is not what he wanted to appear in." The prosecutor responded that defendants do not have the unqualified right to wear whatever they want, just that a defendant cannot be forced to wear something showing that they are incarcerated. The trial court denied the request, noting an additional security concern

4 because some of the pins on Defendant's uniform could be removed and used as weapons. The matter proceeded to trial. Defendant elected to testify. He explained he lived with K.M. and their 8-month-old child. On that evening the three adults were drinking cocktails. K.M. became upset. An argument ensued outside, which was recorded on the home's surveillance system. Defendant testified Victim called 911 because she saw Defendant push K.M. to the ground after K.M. grabbed him. Defendant left on his motorcycle. When he got back his father was there. The police arrived shortly thereafter and left after questioning each of the individuals. Defendant testified he left again on his motorcycle, leaving Victim and K.M. arguing. When he returned approximately 20 minutes later, K.M. told him she had shot Victim. Defendant testified he used saws to remove Victim's arms and legs and burned them. He then dragged the body to the back of the house and went to sleep. He admitted confessing to Trooper Patton, but said his confession was a lie to protect K.M. and his daughter. He testified that K.M. killed Victim. On cross-examination, Defendant testified he did not have any tattoos on his neck the night Victim was killed. Over Defendant's objection, the court admitted into evidence a photograph of Defendant's neck showing a tattoo with a dotted line encircling it accompanied by the words "cut here." 1 Defense counsel moved for a mistrial, which was

1 During Trooper Patton's testimony, counsel for the State advised she had been made aware of the possibility of a tattoo on Defendant's neck that might be relevant and moved for a physical inspection of the body. After argument, the motion was sustained and the tattoo was photographed.

5 denied. On re-direct, defense counsel asked Defendant to show the jury the rest of the tattoo. The back of his neck bore the word "Infidel" and the dotted line wrapped around to meet the word. Defendant testified the tattoo was related to his military service. At the close of evidence, the jury found Defendant guilty of first-degree murder (Count 1), armed criminal action (Count 2), unlawful use of a weapon (Count 3), tampering with physical evidence (Count 4), and abandonment of a corpse (Count 5). The court sentenced Defendant to life imprisonment without the possibility of parole on Count 1, 15 years' imprisonment on Count 2, life imprisonment on Count 3, and four years each on Counts 4 and 5. The trial court ordered all counts to run consecutively for a total of life plus 23 years' imprisonment. Discussion Defendant argues in his first point that the trial court abused its discretion when it admitted a photograph of the tattoo around his neck, asserting that any probative value of the tattoo was outweighed by its prejudicial impact on the jury. "The trial court has broad discretion in the admission of photographs. Its decision will not be overturned absent an abuse of discretion." State v. Strong, 142 S.W.3d 702, 715 (Mo. banc 2004). An abuse of discretion occurs only when the circuit court's ruling "is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." State v. Loper, 609 S.W.3d 725, 731 (Mo. banc 2020). Reversal is warranted only if "there is a reasonable probability that the error affected the outcome of the trial or deprived the defendant of a fair trial." Id.

6 Evidence is logically relevant "if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence," and legally relevant if the "probative value of the evidence outweighs its costs – unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." State v. Emery, 701 S.W.3d 585, 601 (Mo. banc 2024). Defendant contends the evidence of the tattoo lacked logical relevance because he "had a reasonable explanation for the tattoo that had nothing to do with the charged offense." But "[d]etermining whether evidence is logically relevant 'is a very low-level test that is easily met.'" State v. Prince, 534 S.W.3d 813, 819 (Mo. banc 2017). Here, Defendant admitted he was, at minimum, involved in a murder where the Victim's throat was cut. After the murder, Defendant acquired a tattoo of a dotted line around his neck accompanied by the words "cut here." The trial court could reasonably conclude that a tattoo depicting a dotted line and the phrase "cut here" across Defendant's neck had some circumstantial relevance given that Victim's throat was cut. The evidence, therefore, satisfied the low threshold for logical relevance. Defendant next argues the evidence of the tattoo was legally irrelevant because any probative value was outweighed by unfair prejudice. His sole assertion of prejudice in his brief is "the prosecutor attempted to portray the tattoo as a horrifying example of Defendant's callous attitude toward Victim and her death." The record does not support this claim. The State's questioning about the tattoo was brief. Defendant acknowledged the tattoo depicts a dotted line similar to the cut

7 around Victim's neck, and that he did not have the tattoo at the time of the murder. The State made no further reference to the tattoo before or after Defendant's testimony. In contrast, Defendant's own testimony described in graphic detail how he applied a ratchet strap around Victim, tied it to the back of his pickup truck, dragged her body around his house then dismembered her over "several hours," attached a carabiner to a stab wound, dragged her body again with a UTV and attempted to burn her limbs with gasoline. The jury also viewed the recorded interview of Defendant, in which he described these events. Against this gruesome backdrop, the evidence of the tattoo was comparatively minor. "If the prejudice of the evidence outweighs its probative value, it should be excluded." Prince, 534 S.W.3d at 821. However, "it is not mere prejudice that must outweigh the probative value of the evidence but unfair prejudice." Emery, 701 S.W.3d at 601. The State offered the tattoo as "an admission of guilt." Defendant was permitted to offer an alternative explanation -- i.e., the tattoo was an extension of his "infidel" tattoo and meant as a "middle finger" to terrorists who behead people – which the jury was free to accept or reject. Given the overwhelming evidence of guilt aside from the tattoo, it is highly unlikely that the admission of the photograph affected the outcome of the trial or deprived Defendant of a fair trial. Loper, 609 S.W.3d at 731. The trial court did not abuse its discretion in admitting the photograph of the tattoo. Point 1 is denied. Defendant argues in his second point that the trial court abused its discretion by denying his request to wear his National Guard uniform at trial. Defendant was a member

8 of the reserves at that time and his counsel moved to allow him to wear his uniform. The trial court entertained argument and after argument stated, Well, I'll just add that it was brought to my attention there were some [pins] or some things that were concerning as far as security that could have been taken off and possibly used as a weapon of some sort. So your objection is noted and overruled.

Defendant acknowledges the case law on courtroom attire normally focuses on preventing prejudice to a defendant who is compelled to appear before the jury in prison clothing or restraints. However, in this instance, Defendant asserts that his "uniform was appropriate courtroom attire, just as those of police officers or priests, and Defendant had the right to present himself in his best posture." Defendant provides no Missouri case law supporting this contention. Instead, Defendant relies on an opinion from the Court of Appeals of Virginia, Johnson v. Commonwealth, 499 S.W. 2d 819 (Va.App. 1994), holding it was inappropriate for a trial court to deny a defendant who was on active duty the right to present himself in this best posture by not allowing him to wear his naval uniform to trial. Yet, Defendant fails to supply the final decision of that court, which determined that although the trial court erred, the error was harmless and the judgment of the trial court was affirmed. Id. at 820; see also, Harp v. State, 820 S.E. 2d 449, 452-53 (Ga.App. 2018) (considering a trial court's refusal to allow a defendant to wear his National Guard uniform and finding no abuse of discretion). Most importantly, Defendant makes no attempt to apply the standard of review that we are bound to apply. "A trial court has wide discretion in the conduct of a trial. [Defendant] was entitled to a fair trial, not a perfect one." State v. Crump, 589 S.W.2d

9 328, 330 (Mo.App. 1979). Decisions regarding a defendant's courtroom attire fall within that discretion and are reviewed for abuse of discretion. Id. In light of our standard of review, we cannot say the court abused its discretion in overruling Defendant's request to wear his military uniform. Point 2 is denied. Conclusion For the reasons set forth above, the judgment of the trial court is affirmed. BECKY J. WEST, J. – OPINION AUTHOR JEFFREY W. BATES, J. – CONCURS JACK A. L. GOODMAN, J. – CONCURS