STATE OF MISSOURI, Respondent v. STEVEN SAM VIGNOLO, Appellant

STATE OF MISSOURI, Respondent, v. STEVEN SAM VIGNOLO, Appellant.

No. SD38533

APPEAL FROM THE CIRCUIT COURT OF DADE COUNTY Honorable Julie A. Highley-Keutzer, Judge AFFIRMED AND REMANDED WITH INSTRUCTIONS A jury found Steven Vignolo guilty of one count of first-degree murder, one count of armed criminal action, and one count of possession of a controlled substance. The trial court sentenced Vignolo to life imprisonment without parole for murder; fifteen years imprisonment for armed criminal action, to run consecutively to the murder sentence; and seven years imprisonment for possession of a controlled substance, to run concurrently with the other counts. Vignolo raises two points on appeal. First, he claims that the trial court erred in excluding the testimony of the victim's daughter ("Daughter"), who is also Vignolo's

In Division

2 granddaughter. Second, he asserts that the trial court erred in excluding the testimony of Daughter's therapist. He argues that their testimony was necessary to his justification defense. We affirm on both points, but remand the case for entry of a judgment nunc pro tunc to conform with the oral pronouncement of sentence. Factual Background 1

Vignolo murdered his granddaughter's father ("Victim"). In or about 2012, Daughter was born to Victim and Vignolo's daughter ("Mother"). For some time, Victim and Mother shared custody, with Daughter residing primarily with Mother and Victim having parenting time alternating weekends and every Wednesday night. By 2020, Victim became engaged to a different woman ("Fiancée"). Victim and Fiancée lived together with Fiancée's two children and, when Victim had custody, Daughter. On March 17, 2021, Mother filed a motion to modify the custody arrangements for Daughter, alleging that Victim had abused Daughter. Victim denied these allegations and filed a counter-motion alleging that Mother coached Daughter to make false allegations against him. Daughter was subjected to a forensic interview, during which she did not disclose

1 We view the facts through the perspective the law requires. We accept as true all evidence and reasonable inferences favorable to the verdict, disregarding contrary inferences unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. We do not weigh the evidence or decide the credibility of witnesses, but defer to the trial court. The trier of fact may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances, and other testimony in the case. State v. Robinson, 711 S.W.3d 921, 926 (Mo.App. E.D. 2025) (citation modified).

3 any abuse. After this interview and in the absence of any physical injuries to Daughter, the Children's Division deemed the abuse allegations against Victim unsubstantiated. About two weeks later, Mother sought an ex parte order of protection to deny Victim visitation with Daughter. Victim responded by stating that Children's Division had received three calls alleging abuse by Victim and found them all unsubstantiated. On May 8, 2021, the guardian ad litem appointed for Daughter moved to place Daughter in Children's Division's custody. Just three days later, the day the guardian ad litem's motion was set for hearing, Mother and Victim agreed to alternate custody on a weekly basis. Children's Division again found these latest allegations were unsubstantiated. In the late summer and early autumn of 2021, Mother withheld Daughter from Victim for several weeks. Victim sought relief in family court. Mother filed yet another motion seeking an ex parte order to deprive Victim of his time with Daughter. On September 8, 2021, while Victim was attending a custody hearing, Vignolo left a death threat on the windshield of Victim's truck, which was parked outside the courthouse. Vignolo began hunting Victim sometime between May and July of 2021. Vignolo was aware that Mother had made repeated allegations against Victim. Vignolo likewise knew that Mother had applied make-up to create the appearance of visible bruises on Daughter to further Mother's allegations. Vignolo had decided to kill Victim, but was waiting for an opportunity when no children were present.

4 On September 21, 2021, Mother informed Vignolo she was taking Daughter to meet Victim at a gas station in Nevada the following day. The next day, Vignolo told an acquaintance that he was going to the gas station to kill Victim. Fiancée waited to pick Daughter up from the school bus for Victim's parenting time on September 22, as Victim and Mother had agreed. Victim and Fiancée planned to be married two days later, and Daughter was expected to attend their wedding. Daughter did not get off the bus when it stopped at the designated location. Mother sent a text message indicating that she did not send Daughter to school that day. Mother and Victim subsequently agreed that Mother would deliver Daughter to Victim at seven o'clock that evening at the gas station. Vignolo arrived at the gas station at approximately six-thirty that evening with a .45-caliber handgun. Wearing sunglasses, Vignolo went inside, purchased a hat, put the hat on, and waited roughly half an hour for Victim to arrive. Victim arrived at the gas station alone, parked, and was talking with Fiancée on his cell phone in his truck. At about seven p.m., as the couple chatted, Vignolo, approached Victim's driver's side window from the rear, pulled the handgun from his waistband, and shot through the window five times, piercing Victim's heart with four bullets. Vignolo then strolled away. As he walked, he flung his new hat away on a construction site, stashed the handgun in a bush, then passed through a nearby restaurant where he ultimately was taken into custody by law enforcement officers. Bystanders and emergency medical personnel rendered aid to Victim, but they were unable to save him.

5 Prior to trial, the State filed two motions in limine. In part II of its second motion in limine, the State sought to exclude references to Victim's alleged abuse of Daughter. The State argued that this evidence would be used to attack Victim's reputation, causing prejudice to the State's case. The State further argued that any such evidence was inadmissible because it was hearsay, unreliable, and highly prejudicial to the State's case. At the hearing on the motions in limine, the State asserted that Vignolo was not entitled to assert a justification defense because he was the initial aggressor. Moreover, the State argued that such an attack on the Victim's character would lead to a "mini-trial" regarding the allegations against Victim, which would confuse the jury. The State further argued such evidence was not relevant to any justification defense (here, defense of another) because Daughter was not at the scene of the shooting. In response, Vignolo argued that he intended to raise a justification defense, defense of another, based on Vignolo's knowledge of the alleged abuse of Daughter, which motivated his use of force against Victim because he held a "reasonable belief" that force was necessary to protect Daughter. The trial court expressed concern that the jury would be confused by the evidence of Victim's alleged abuse of Daughter, stating: I don't want to get stuck in the weeds on this because then the jury is not even considering the guilt or innocence of this ... gentleman, they're considering the -- the allegation and the veracity of the witness with regard to those allegations, which is so far afield of where we are. The trial court issued a written ruling denying part II of the State's second motion in limine. The trial court indicated that whether Vignolo had a reasonable belief that

6 Daughter was in danger was a question of fact for the jury. Thus, the trial court allowed Vignolo to present the defense-of-another justification defense to the jury. The trial court's written order reported "grave concerns" that the use of this evidence would "turn into a trial of the Victim," mislead the jury, and send them "on a wild goose chase for a crime that has not been charged." Accordingly, the trial court limited the evidence "to only those facts that are indisputable." With agreement from counsel, the trial court determined fourteen facts that "could be presented to the fact finder[s] via testimony and/or stipulation." The following stipulation was read to the jury at the close of the State's case: [1.] On March 14th, 2014, the court entered an order awarding [Mother] and [Victim] joint legal and joint physical custody of [Daughter] with [Mother] having residential custody. Visitation consisted of alternating weekends with [Victim]. [2.] On March 17th, 2021, [Mother] filed a Motion to Modify the judgment alleging in part that [Victim] caused physical touching of [Daughter] and making [Daughter] feel uncomfortable, manipulated [Daughter], and that [Daughter] was afraid to go to [Victim's] house. [3.] On March 25th, 2021, [Victim] denied the allegations and filed a counter Motion to Modify alleging, in part that [Mother] coached [Daughter] to make numerous allegations against [Victim]. [4.] On April 2nd of 2021, the Children's Division did not open a case and concluded the allegations against [Victim] against [Daughter] for physical and sexual abuse were unsubstantiated. The Department noted that [Daughter] did not disclose abuse during a videotaped interview with a trained professional conducting the interview and there were no observed physical injuries. [5.] On April 16th, 2021, a note written by [Daughter] was discovered wherein she made allegations of touching by [Victim]. [6.] On April 19th, 2021, [Mother] filed a motion for ex parte order suspending visitation with [Victim]. [Mother] alleged in part that

7 [Daughter] experienced suicidal ideations as a result of [Daughter's] anxiety and past experiences at [Victim's] house. [7.] On April 19th, 2021, [Victim] responded to the motion for ex parte order. In his response, [Victim] alleged that Children's Division received three hotline calls regarding [Mother's] allegations, but Children's Division did not substantiate the allegations. [8.] On May 8th, 2021, the Guardian ad litem filed a motion requesting the juvenile officer to file a petition and asked the Court to place [Daughter] in the care, custody, and control of the Missouri Children's Division. [9.] On May 11th, the day the Guardian ad litem's motion was to be heard, [Mother] and [Victim] filed a joint stipulation regarding temporary visitation. The visitation agreed to by [Mother] and [Victim] was a week on, week off scheduled with exchanges to occur on Friday evenings . That allowed [Daughter] to spend one full week at a time at each residence. At the time of the stipulated visitation schedule, [Daughter] was under the care of a licensed therapist. [10.] On May 12th, 2021, Children's Division did not open a case and concluded that the allegations reported on April 18th of 2021 against [Victim] against [Daughter] for abuse were unsubstantiated. [11.] ... On September 3rd, 2021, [Mother] filed another motion for ex parte order suspending visitation. [12.] On September 22nd, 2021, [Victim] died. [13.] On September 24, 2021, [Mother] stipulated to the dismissal of her motion to modify following the death of [Victim]. [14.] Prior to his death, [Victim] was never charged with any sort of physical or sexual abuse of [Daughter]. 2

2 We recite the stipulation exactly as it was read at trial, except to correct the numbering of paragraphs and consistently refer to individuals with designations previously specified in this opinion. We do not correct or otherwise address errors in grammar or content.

8 Principles of Review Trial courts have broad discretion in admitting or excluding evidence during criminal trials. State v. Wood, 580 S.W.3d 566, 574 (Mo. banc 2019). We will overturn an evidentiary ruling only when this discretion is clearly abused, which occurs when the 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." Id. (quoting State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016)). Not all error is reversible error, however. State v. Hollowell, 643 S.W.3d 329, 336 (Mo. banc 2022). Reversal is required only when an appellant demonstrates he or she was prejudiced by the error. Id. In other words, to be reversible, the error must have deprived Vignolo of a fair trial. Id. "To be admissible, evidence must be both logically and legally relevant." State v. Pierce, 678 S.W.3d 115, 121 (Mo.App. S.D. 2023). Logically relevant evidence "tends to make the existence of a material fact more or less probable." State v. Prince, 534 S.W.3d 813, 817 (Mo. banc 2017) (quoting State v. Collings, 450 S.W.3d 741, 756 (Mo. banc 2014)). The assessment of legal relevance rests soundly within the trial court's discretion. State v. Burge, 596 S.W.3d 657, 661 (Mo.App. S.D. 2020); State v. Tisius, 92 S.W.3d 751, 760 (Mo. banc 2002). In assessing legal relevance, a trial court "weighs the probative value of the evidence against its costs—unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." Prince, 534 S.W.3d at 818 (quoting State v. Anderson, 306 S.W.3d 529, 538 (Mo. banc 2010)). Even

9 logically relevant evidence is admissible only if it also is legally relevant, i.e., its probative value outweighs its unfairly prejudicial effect. Id. at 818, 821. Justification Defense Missouri law recognizes the criminal defense of justification, as follows: A person may ... use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless: (1) The actor was the initial aggressor .... Section 563.031.1(1). 3

A person shall not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless: (1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony[.] Section 563.031.2(1). "Defense of another is available if, under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force in defense of himself." State v. Jones, 686 S.W.3d 293, 303- 04 (Mo.App. E.D. 2024) (quoting State v. Endicott, 600 S.W.3d 818, 823 (Mo.App. E.D. 2020)). "'Self-defense' and 'defense-of-another' are 'closely related justification defenses, governed by the same statute,' and thus 'many cases discussing aspects of one are applicable to the other, and are sometimes used interchangeably herein.'" Id. at 303

3 Unless otherwise specified, all statutory citations are to RSMo. (2016).

10 (quoting Endicott, 600 S.W.3d at 823). Defense-of-another is a special negative defense. State v. Isbell, 524 S.W.3d 90, 93 (Mo.App. E.D. 2017). Thus, Vignolo bore the burden of injecting the issue of defense-of-another into the evidence, whereupon the State would continue bearing its burden to prove beyond a reasonable doubt that Vignolo did not act in defense of another. Id. "[A] defendant's use of physical force may be justified when he reasonably believes such force is necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by another." Jones, 686 S.W.3d at 303 (citing State v. Smith, 456 S.W.3d 849, 852 (Mo. banc 2015)). "[Defense-of-another] ... requires a real, specific, actual[,] and immediate threat of bodily violence to which the defendant's actions are an appropriate and proportional response." State v. Harris, 870 S.W.2d 798, 809–10 (Mo. banc 1994), as modified on denial of reh'g (Mar. 22, 1994). Whether Vignolo presented sufficient evidence at trial to inject the issue of defense-of-another is a question of law, which we must review de novo. State v. Epenesa, 691 S.W.3d 353, 357 (Mo.App. S.D. 2024). Exclusion of Testimony We find no abuse of discretion in the trial court's exclusion of the testimony of Daughter and Daughter's therapist, as that testimony was neither logically nor legally relevant. The excluded testimony was not logically relevant. Vignolo did not, and under the facts of the case could not, inject defense-of-another as an issue in the case. The justification defense was unavailable to him by law. The uncontroverted facts at trial

11 demonstrated that Vignolo was the aggressor, approaching and shooting Victim without provocation. Vignolo admitted the murder was premeditated. Victim did not brandish a weapon or make any threats to Vignolo or anyone else before Vignolo shot him. As such, there was no indication in the record that Vignolo perceived an imminent threat from Victim. Additionally, Daughter was not even present when the shooting occurred. To inject the issue of defense-of-another, Vignolo would have to show that he reasonably believed Daughter was, at that moment, in imminent danger of serious physical harm from Victim. Daughter's absence from the scene negates any such imminent threat. There simply was not a "real, specific, actual[,] and immediate threat of bodily violence to which the defendant's actions are an appropriate and proportional response." Harris, 870 S.W.2d at 809–10. Accordingly, the excluded evidence had no bearing on any element of the crimes charged nor on any available defense nor on any fact material to the case. The excluded testimony also was not legally relevant. As defense-of-another was not injected into the case, the probative value of the excluded testimony was nil and wholly outweighed by its high risk of "unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." Prince, 534 S.W.3d at 818. Finally, the excluded testimony was cumulative to other evidence presented at trial. The stipulated facts read to the jury at the close of the State's evidence set forth the history of abuse allegations and their dispositions. "A complaining party is not entitled to assert prejudice if the challenged evidence is cumulative to other related admitted

12 evidence." State v. Brandolese, 601 S.W.3d 519, 536 (Mo. banc 2020) (quoting Saint Louis Univ. v. Geary, 321 S.W.3d 282, 292 (Mo. banc 2009)). The trial court did not abuse its discretion in excluding the testimony of Daughter or her therapist. Points I and II are denied. Pronouncement of Sentence The trial court orally pronounced Vignolo's sentence as follows: The Court is going to, at this point, on Count One, sentence the defendant to life in prison without the possibility of parole. As to Count Two, the Court will sentence the defendant to 15 years in the Missouri Department of Corrections. That sentence is to run consecutive to Count One. As to Count Three, the Court will sentence the defendant to seven years in the Missouri Department of Corrections, and I'll run that sentence concurrent with Count One as well as Count Two. The written judgment indicates the life sentence for count one (murder in the first degree) is to run concurrently with the sentences for both counts two and three; the sentence for count two (armed criminal action) is to run consecutively to both counts one and three; but it also indicates the sentence for count three (possession of a controlled substance) was to run concurrently with the sentence for count two. This directly contradicts the trial court's oral pronouncement of sentence, which ordered that the sentences for counts one and two would run consecutively, and the sentence for count three would run concurrently with the sentences for both counts one and two. When a court's oral pronouncement of sentence materially differs from its written judgment, the oral pronouncement controls. Pierce, 678 S.W.3d at 125. Errors of this nature are clerical and may be corrected nunc pro tunc. State v. Fewins, 638 S.W.3d 36, 39 (Mo.App. S.D. 2021). Accordingly, we remand the case to the circuit court for entry

13 of a written judgment correcting the clerical error and conforming to the oral pronouncement of sentence. In all other respects, the judgment is affirmed. JACK A. L. GOODMAN, J. – OPINION AUTHOR JENNIFER R. GROWCOCK, C.J. – CONCURS MATTHEW P. HAMNER, J. – CONCURS