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Collins v. Hertenstein9/3/2002
25 S.W.3d 664, 667 (Mo. App. 2000).
"'That is the duty of the parties, not the function of an appellate court.'" Id. (citations omitted).
Rule 84.04(i) specifically requires that " ll statements of fact and argument shall have specific page references to the legal file or the transcript." "Where Appellant's argument lacks references to the transcript pages containing the [circuit] court's ruling, the point is not preserved for appellate review." Henderson, 68 S.W.3d at 479-80. Indeed, as Rule 84.13(a) instructs, " llegations of error not briefed or not properly briefed shall not be considered in any civil appeal and allegations of error not presented to or expressly decided by the trial court shall not be considered in any civil appeal from a jury tried case." The only exception to this would be if the error rose to the level of plain error. Rule 84.13(c). Rule 84.13(c) grants us authority to consider " lain errors affecting substantial rights . . . when [we find] that manifest injustice or miscarriage of justice has resulted" from the plain error. The rule presents a bit of a conundrum by granting us authority to review plain error only if we find manifest injustice or a miscarriage of justice. Making a finding of manifest injustice or a miscarriage of justice seems tantamount to a review. The Supreme Court suggested in State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031 (1995), that it intended for this seemingly enigmatic rule to mean that we should first examine plain error "facially," and review the matter only if we discern a substantial ground for believing that manifest injustice or miscarriage of justice has resulted from plain error. If we find that the claim of plain error does not facially establish substantial grounds for believing that manifest injustice or miscarriage of justice has occurred, we should decline to exercise our discretion to review a claim of error under Rule 84.13(c). "The rule makes it clear that not all prejudicial error--that is, reversible error--can be deemed plain error." State v. Dowell, 25 S.W.3d 594, 606 (Mo. App. 2000). Plain error is evident, obvious and clear error. In re Moore, 885 S.W.2d 722, 727 (Mo. App. 1994); Ryder Farms, Inc. v. Hullinger Trucking, Inc., 837 S.W.2d 575, 576 (Mo. App. 1992). We do not discern plain error in the circuit court's not allowing the officers to introduce evidence of the drugs and drug paraphernalia.
Admissibility of evidence is a matter for the circuit court's discretion, and we will not disturb the circuit court's ruling unless we discern that it has abused its discretion. Nelson v. Waxman, 9 S.W.3d 601, 603 (Mo. banc 2000). "'The [circuit] court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the [circuit] court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.'" Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991) (citation omitted).
"The focus is not on whether the evidence was admissible, but on whether the [circuit] court abused its discretion in excluding the evidence." Still v. Ahnemann, 984 S.W.2d 568, 572 (Mo. App. 1999). We do not discern from the record facially that the circuit court abused its discretion. The test for relevancy is whether the evidence offered tends to prove or disprove a fact in issue or corroborates other relevant evidence. Kansas City v. Keene Corporation, 855 S.W.2d 360, 367 (Mo. banc 1993). When the officers shot Wilson, they did not know whether or not he had narcotics; thus, Wilson's possession of drugs and drug paraphernalia seems, on its face, to be completely irrelevant to the issue put to th
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