COLUMBIA, Mo. — A jury found a patrolman guilty Saturday of killing a gay college student who had talked about revealing their sexual affair to the police chief.

Steven Rios, a married junior officer in this university town's police force, was convicted of the first-degree murder of his lover, Jesse Valencia, 23.

The finding by the nine-woman, three-man panel carries an automatic sentence of life in prison without parole for Rios, 28.

Jurors also recommended an additional, largely symbolic sentence of 10 years for the charge of armed criminal action related to Rios' use of a knife in the crime.

The prosecutor had asked for a second life sentence to send a message to other law enforcement officers that "that there will be a ton of bricks dropped" if they break the laws they are sworn to uphold.

Valencia, a University of Missouri junior who was open about his homosexuality, was found dead on a lawn near campus with his throat slit June 5, 2004. The wound was so deep, the medical examiner said, there were knife marks on the spine.

As Boone County Circuit Court Judge Ellen Roper announced the verdict, reached after nine hours of deliberation over two days, Rios looked down at the defense table and shook his head ruefully. Later, as a defense lawyer tried to persuade the jury against imposing a second life sentence, Rios began crying and stared longingly toward his wife, who was weeping in the spectator's gallery.

Libby Rios, who took the witness stand and steadfastly maintained her husband's innocence, cried out "I love you" as marshals escorted her husband from the courtroom.

"I love you," he whispered back.

The verdict was an endorsement of the prosecution theory that Rios killed Valencia because the student had threatened to expose their relationship. The two began an affair seven weeks before the murder, when Rios arrested Valencia for mouthing off to police breaking up a wild off-campus party. Their relationship included trysts at Valencia's apartment when Rios was in uniform and supposed to be patrolling the neighborhood.

The history and political science major told classmates he suspected his new lover was married and planned to confront him. He also wanted Rios to fix the ticket from the party and suggested to his best friend he would tell the chief of his "little secret" if the ticket didn't go away.

"He had given this boy the power to ruin his police career, his political aspirations and his marriage," special prosecutor Morley Swingle told jurors in his closing argument Friday.

Swingle, who was brought in from Cape Girardeau County because of Rios ties to the prosecutor's office in Columbia, charged that Rios "used his badge for sex and then used his knife to forever close the mouth of his secret lover."

Rios' DNA was found under the victim's fingernails and three of his hairs on the young man's chest.

The officer acknowledged the affair but, when testifying in his own defense, insisted to jurors that he was miles away at a party on the police station roof when the killing occurred.

Jurors rejected arguments by Rios' defense lawyer that the forensic evidence could be explained by the intimate relationship between the men and Valencia's inattention to hygiene and housekeeping. During four days of testimony, the lawyer, Valerie Leftwich, painted Valencia as promiscuous and loud-mouthed and said his many lovers and volatile personality made for a deep pool of better suspects.

More than 20 of Valencia's classmates, friends and relatives were in court for the verdict and greeted it with gasps of relief. His mother, Linda Valencia, fell forward in her seat and broke down in tears, as did a former boyfriend and several female friends.

In addition to his wife, Rios' brother, father and in-laws were on hand for the verdict. Afterward, they gathered around Libby Rios, who was holding a blond toddler. The couple has a 16-month old son, Grayson. An attorney for Rios' family, Geoffrey Preckshot, said his relatives had no comment, but wanted the public to know they still firmly supported him.

"Today's jury verdict has not changed that core belief in his innocence," he said.

Outside the courthouse, Swingle called Rios "an arrogant, conceited sociopath" and revealed several pieces of evidence against him ruled inadmissible at trial. He said Rios had lied to Valencia about his name throughout their relationship. He said the victim told his friends he was dating an officer named Ted Anderson and even called the Columbia Police Department in search of officer Anderson. Swingle noted that the breast-pocket nametag of the real officer Ted Anderson had been stolen.

Swingle also said several women had come forward to police after the murder and said Rios had hit them up for sex after arresting them.

"We had three women sitting in the witness waiting room [Friday] and each of them had been propositioned by him for sexual-type acts," Swingle said. If Rios or any other defense witnesses had referred to his good character, the prosecutor said, he was prepared to put the women on the stand to rebut the testimony.

He also said Rios was fired from a job at the Boone County jail for renting a storage space under another officer's name.

"Basically forgery," Swingle said.

Case Number: WD65708

Handdown Date: 27/04/2007

Appeal From: Circuit Court of Boone County, Hon. Ellen S. Roper

Opinion Summary:

Opinion Author: Patricia Breckenridge, Judge

Opinion Vote: REVERSED AND REMANDED. Howard, P.J., and Hardwick, J., concur.

Opinion:

Steven Rios appeals his conviction for first degree murder, under section 565.020, RSMo 2000,(FN1) and armed criminal action, under section 571.015. The trial court sentenced Mr. Rios, according to the jury's recommendation, to life imprisonment without the possibility of parole for the first degree murder count and ten years imprisonment for the armed criminal action count. Mr. Rios raises four points on appeal.

In his first point, Mr. Rios asserts that the trial court abused its discretion in overruling his objection to the admission of two hearsay statements of the victim. In particular, the first hearsay statement challenged by Mr. Rios concerns a statement made by the victim that he was going to end his relationship with Mr. Rios if he found out that Mr. Rios was married. The second challenged hearsay statement made by the victim was that if Mr. Rios did not take care of a municipal ticket Mr. Rios issued to the victim, that he had a secret that might be of interest to the Columbia Police Department, Mr. Rios's employer.

In his second point on appeal, Mr. Rios claims that the trial court abused its discretion in admitting forty-seven gruesome photographs of the victim's body taken at the scene of the crime and during the autopsy. Mr. Rios contends that the photographs were irrelevant, duplicative, designed to inflame the passions of the jury, and the probative value of the photographs was outweighed by their prejudicial effect.

In his third point on appeal, Mr. Rios contends that the trial court abused its discretion in allowing the State to introduce a Spyderco clip knife purchased by the Columbia Police Department for demonstrative purposes. Mr. Rios claims that the admission of the knife was highly prejudicial because the knife had no connection to the crime or to him, it was irrelevant to any issue in the case, and the admission of the knife carried an undue risk of confusing the jury.

In his fourth point on appeal, Mr. Rios asserts that the trial court abused its discretion in allowing the State to introduce two photographs of the victim taken at a party on the morning he was murdered. Mr. Rios claims that the photographs were irrelevant, were used to arouse the passions and sympathy of the jury, and any probative value the photographs may have had was overwhelmed by their prejudicial effect.

Because the trial court erred in admitting two statements made by the victim, and the admission of the statements prejudiced Mr. Rios, the trial court's judgment is reversed and the case is remanded for a new trial.

During the early morning hours of April 18, 2004, Columbia police officers were dispatched to an apartment on three separate occasions for noise disturbances. Mr. Rios, a police officer with the Columbia Police Department, and Officers Brad Anderson and Kim Jensen responded to the third call. Officer Jensen handcuffed the three occupants of the apartment until the party began to settle down and wrote each a ticket. Meanwhile, Jesse Valencia(FN2) and another man were on the porch of the apartment. Mr. Rios told both men that they needed to leave. When they refused to leave, Mr. Rios arrested them. Mr. Rios took Mr. Valencia to his patrol car and Officer Anderson took the other man to his patrol car. Both men were issued a court summons for obstructing a police operation and were released. After he was released, Mr. Valencia walked home to his apartment on 1414 Wilson Avenue.

At trial, the State asked Ms. Sheridan about the last conversation she had with Mr. Valencia prior to his death. Ms. Sheridan began to relate Mr. Valencia's statement, made on June 2, when Mr. Rios objected based on his previously filed hearsay objection. The trial court overruled the objection on the assumption "that the testimony [was] going to be about something that occurred in the future as opposed to the past." Ms. Sheridan then stated:

The "state of mind exception only permits admission of [ ] statements 'in limited situations when they are relevant and the relevancy outweighs their prejudicial effect.'" Nastasio, 957 S.W.2d at 458 (quoting State v. Bell, 950 S.W.2d 482, 483 (Mo. banc 1997)). In particular, the state of mind exception "'is generally limited to cases where hearsay declarations of mental condition are especially relevant-particularly where the defendant has put the decedent's mental state at issue by claiming accident, self-defense or suicide.'" Id. (quoting Bell, 950 S.W.2d at 483). See also Ford, 639 S.W.2d at 575 (deceased's statements regarding state of mind admissible because "relevant to the issue of which participant in the shooting was the aggressor"); State v. Pagano, 882 S.W.2d 326, 331 (Mo. App. S.D. 1994) (deceased's statement regarding state of mind admissible because relevant to theory of self-defense); Kennedy, 842 S.W.2d at 944 (deceased's statement regarding state of mind admissible because relevant to rebut defendant's evidence that her husband died by suicide or accident); State v. Singh, 586 S.W.2d 410, 419 (Mo. App. S.D. 1979) (deceased's statements regarding state of mind admissible because relevant to rebut defense of accidental death and self-defense).

Similarly, this court's decision in Lewis also illustrates the requirement that to be admissible the statement must be of an intention to do an act in the immediate future.(FN4) In that case, Russell Lewis was killed in an automobile accident between 3:30 and 4:00 a.m. on October 2, 1949. Lewis, 247 S.W.2d at 801. The Industrial Commission of Missouri, Division of Workmen's Compensation, ruled in favor of Mr. Lewis's widow and against Mr. Lewis's employer and found that he was "'on a trip for his employer' and that the accident arose out of and in the course of his employment." Id. On appeal, the question was whether a statement made by Mr. Lewis to his wife on the evening before he left on his trip regarding the purpose of the trip was admissible. Id. at 803. Specifically, on the evening before Mr. Lewis left on his trip, he told his wife that "he would have to leave early the next morning; that it was necessary because they had some unfinished work down at Potosi that needed to be finished; [and] that they were meeting early to have a hunt at that same time[.]" Id. Before retiring that evening, Mr. Lewis set his alarm clock for 3:00 a.m. and was ready to leave at 3:30 a.m. Id. He was in the fatal accident sometime between 3:30 and 4:00 a.m. Id. The Court held that Mr. Lewis's statements to his wife, indicating Mr. Lewis's intention to "'do a particular act in the immediate furture [sic],'" were admissible. Id. at 804 (citation omitted). Moreover, the Court specifically found that Mr. Lewis's statements "were not so remote from the contemplated trip that we may say as a matter of law they had no probative value." Id. at 806.

Moreover, Mr. Valencia's statement, "I'm really going to ask him this time if he's married or not," suggests that Mr. Valencia had contemplated asking Mr. Rios this question on a prior occasion but had failed to do so. (Emphasis added.) Statements of intention to perform a future act in the immediate future are "'relevant to show that the act was probably done as planned.'" Lewis, 247 S.W.2d at 804 (citation omitted). Because Mr. Valencia's statement suggested that he contemplated taking such an act on a previous occasion but did not actually follow through with his intention further demonstrates the danger of admitting hearsay statements that are too remote in time. The more remote in time a stated action is intended to be taken, the longer the time period that exists for the person to change their mind and not actually follow through with their stated intention. See Douglas D. McFarland, Dead Men Tell Tales: Thirty Times Three Years of the Judicial Process After Hillmon, 30 Vill. L. Rev. 1, 16, 22, 32, 57 (1985) (discussing dangers of Hillmon doctrine and noting the "ever-present possibility" that a person's intention to do a future act is easily hindered or frustrated). Thus, statements that do not indicate an intention to act immediately inherently lack trustworthiness to show that that declarant actually followed through with their stated intention. Consequently, the trial court erred in admitting the statement Mr. Valencia allegedly made that he was going to ask Mr. Rios if he was married because it did not indicate an intent to do so in the immediate future and, therefore, does not fall within any recognized hearsay exception.(FN5)

Similarly, Mr. Valencia's second statement about confronting Mr. Rios about making his ticket go away or else he was going to go to the Columbia Police Department to inform them about a "secret" also lacks a present intention to perform a stated act in the immediate future. Mr. Valencia was arraigned on the charges on May 20th. Ms. Sheridan testified that Mr. Valencia made this statement sometime around May 20th, which was over two weeks prior to Mr. Valencia's murder. Moreover, Mr. Valencia's statement, "If he doesn't get this ticket taken away . . . he had a little secret that he thought the Columbia Police Department might like to know," does not expressly indicate that Mr. Valencia intended to actually confront Mr. Rios about the ticket. Rather, the only "act" Mr. Valencia's statement indicates that he intended to take was to inform the Columbia Police Department about a "secret." In addition, Mr. Valencia's statement on June 2, after the statement regarding the ticket was made, suggested that Mr. Rios was planning on seeing Mr. Valencia that evening and Mr. Valencia no longer appeared concerned about the ticket. Thus, because Mr. Valencia's statement regarding the ticket did not indicate intent on Mr. Valencia's part to perform an immediate act in the future, it did not fall within the future acts exception and, therefore, it was inadmissible hearsay and the trial court clearly abused its discretion in admitting the statement.

Because the State utilized the erroneous admission of the statements to establish a motive for Mr. Valencia's murder, Mr. Rios was sufficiently prejudiced by the trial court's err in admitting the hearsay statements that he was deprived of a fair trial. Forrest, 183 S.W.3d at 223-24. Without the hearsay statements, there exists a reasonable possibility that the outcome of the trial would have been different. Id. at 224. Mr. Rios's first point is granted.

"The trial court is vested with broad discretion in the admission of photographs." State v. Rousan, 961 S.W.2d 831, 844 (Mo. banc 1998). A relevant photograph "should not be excluded from evidence unless its prejudicial effect is greater than its probative value." Id. Mr. Rios first argues that all of the photographs were irrelevant because there was no dispute that the cause of death was an incised wound to the neck and none of the photographs assisted the jury in deciding the only contested issue, that being whether Mr. Rios murdered Mr. Valencia. Contrary to Mr. Rios's argument, however, even if the cause of death is known, "[p]hotographs are relevant if they show the scene of the crime, the identity of the victim, the nature and extent of the wounds, the cause of death, the condition and location of the body, or otherwise constitute proof of an element of the crime or assist the jury in understanding the testimony." Id.

In his third point on appeal, Mr. Rios asserts that the trial court abused its discretion in allowing the State to introduce, over objection, a Spyderco clip knife purchased by the Columbia Police Department for demonstrative purposes at trial. Mr. Rios claims that the admission of the knife was highly prejudicial because the knife had no connection to the crime or to him, it was irrelevant to any issue in the case, and the admission of the knife carried an undue risk of confusing the jury. Because the State is likely to attempt to offer the knife on retrial, the merits of this point will be addressed.

"'The courts of this state, with notable consistency have recognized that weapons unconnected with either the accused or the offense for which he is standing trial lack any probative value and their admission into evidence is inherently prejudicial and constitutes reversible error.'" State v. Grant, 810 S.W.2d 591, 592 (Mo. App. S.D. 1991) (citation omitted). Nevertheless, the Missouri Supreme Court has held that "[t]here is no absolute rule that demonstrative evidence of a weapon unconnected with the defendant or offense charged is inadmissible." State v. Silvey, 894 S.W.2d 662, 667 (Mo. banc 1995). Rather, demonstrative evidence, including a weapon, is admissible if it is relevant, is a fair representation of what it is offered to show, and there is no likelihood that the exhibit could deceive or mislead the jury. Id. at 667-68. Demonstrative evidence is relevant if it is "probative of a material issue in the case." Id. at 668. Moreover, "[t]he trial judge occupies a superior vantage point for balancing probative value and prejudicial effect of demonstrative evidence." Id. at 669. "Thus, the trial judge is necessarily vested with broad discretion in admitting or rejecting such evidence." Id.

In this case, the actual murder weapon was never located. Nevertheless, the State established, through the testimony of the medical examiner, that a knife had probably caused the fatal wound and, based on the particular pattern of the wound, there was "some degree of serration" in the knife. The State further established that Mr. Rios carried a "clip knife" with a serrated blade. Specifically, Officer Roger Schlude testified that before beginning his shift one day in January 2004, while sharpening his own knife in the briefing room, Mr. Rios asked Officer Schlude to borrow his sharpening stone to sharpen his knife. Officer Schlude noticed that Mr. Rios's knife was a clip knife with a black handle and a serrated blade. Officer Schlude told Mr. Rios that his sharpening stone would not work on Mr. Rios's knife because the stone was not designed for a serrated blade. Based on the description of Mr. Rios's knife provided by Officer Schlude, investigators created a sketch of Mr. Rios's clip knife. The investigators purchased the Spyderco clip knife introduced into evidence based on the description of Mr. Rios's knife provided by Officer Schlude.

In addition, the State established through the testimony of several other witnesses that Mr. Rios carried a clip knife. For example, Officer Sean Moore, who worked with Mr. Rios, testified that he saw Mr. Rios carrying a clip knife both while in and out of uniform. Officer Moore testified that the Spyderco knife was consistent with the type of knife that he has seen Mr. Rios carry. Officers Harlon Hatton, Jason Baillargeon, and Justin LaForest also testified that they had seen Mr. Rios carrying a clip knife consistent with the Spyderco knife exhibit. Moreover, the medical examiner testified that the Spyderco knife was consistent with the instrument that had been used to cut Mr. Valencia's throat.

Finally, when the trial court overruled Mr. Rios's objection to admission of the Spyderco knife, the court instructed that the exhibit was "admitted for the sole purpose of a demonstrative exhibit" and that it was "in no way to be considered by this jury as anything to do with the murder weapon that might have been used in this case." Moreover, during closing argument, the State did not argue that the Spyderco knife was in any way connected to either Mr. Rios or the murder. Rather, the State argued that the actual knife used to kill Mr. Valencia was missing. Specifically, the State argued, "the murder weapon was successfully hidden by Steven Rios. It's somewhere in the river; somewhere in a storm sewer. We don't know where it is, because he got rid of it." Finally, defense counsel argued during closing statements that the State did not have a murder weapon but, rather, the State went and bought a "knife and put it into evidence" and the knife that they bought "[d]oesn't have any connection to this case." Moreover, defense counsel continued:

It's a knife, a Spyderco knife, because that's the information they got. But it could just as well be some other kind of knife that you buy at Wal-Mart, that has serrated edges. Anybody could buy a knife like that. The state just went out and bought it and put it in evidence. That knife has -- doesn't have anything to do with anything in this case.

Thus, given the trial court's instruction and the statements made by both the State and defense counsel during closing argument, the jury could not have been deceived or misled into believing that the specific Spyderco knife admitted in evidence had any connection to either Mr. Rios or the murder of Mr. Valencia.

In sum, the State presented evidence that Mr. Valencia's throat was slit with a knife that had a serrated edge. The serrated Spyderco clip knife purchased by the State in this case was proved to be consistent with a knife seen in Mr. Rios's possession by a number of different police officers. Because the murder weapon was never found, however, the Spyderco clip knife, which was representative of the type of knife that several witnesses testified they saw in Mr. Rios's possession, was relevant to establishing that Mr. Rios had access to a type of weapon that could have caused the fatal wound to Mr. Valencia. See Silvey, 894 S.W.2d at 669. In addition, given the trial court's instruction and argument made by both the State and defense counsel, the jury could not have been misled into believing that the Spyderco clip knife admitted into evidence at trial was actually connected to either Mr. Rios or Mr. Valencia's murder. Thus, given the trial court's "superior vantage point for balancing probative value and prejudicial effect of demonstrative evidence," this court cannot say that the trial court abused its discretion in admitting the Spyderco clip knife. Id. Whether the knife is admissible on retrial will depend on whether the State meets the proper foundational requirements for admission of demonstrative evidence as set forth above.

In his fourth point on appeal, Mr. Rios asserts that the trial court abused its discretion in allowing the State to introduce two photographs of the victim taken at a party on the morning he was murdered. On appeal, Mr. Rios claims that the photographs were irrelevant, were used to arouse the passions and sympathy of the jury, and any probative value the photographs may have had was overwhelmed by their prejudicial effect. In particular, Mr. Rios argues that the prosecutor used the photographs so that, in closing argument, the State could continually refer to Mr. Valencia as "this boy" because in the pictures, Mr. Valencia appeared younger than his actual age of twenty-three.

At trial, the State attempted to introduce three photographs (Exhibits 1, 2, and 3) taken by Ms. Witherspoon of Mr. Valencia at the party Mr. Valencia attended on the morning he was murdered. Exhibit 1 was a photograph of Mr. Valencia playing the drums and looking into the camera. Exhibit 2 was a photograph of Mr. Valencia looking at the camera with a plastic glass in his hand.(FN6) Mr. Rios objected to the admission of all three photographs as being cumulative. In his motion for new trial, however, Mr. Rios argued that the admission of Exhibits 1 and 2 "were irrelevant to the facts of this case, cumulative, and prejudicial." On appeal, he argues that the photographs were "irrelevant to any issue to be decided in this case, were used to around [sic] the passions and sympathy of the jury, and any probative value the photographs may have had was overwhelmed by their prejudicial effect."

"[T]o preserve a point for appellate review, the point raised on appeal must be based upon the theory of the objection as made at the trial and as preserved in the motion for new trial." State v. Cummings, 134 S.W.3d 94, 108 n.7 (Mo. App. S.D. 2004). "Nothing is preserved for appellate review when the assignments of error in a motion for new trial and on appeal are enlargements of a general objection made at the time of trial." Id. Thus, review of Mr. Rios's claim is for plain error only. State v. Phillips, 939 S.W.2d 502, 505 (Mo. App. W.D. 1997). Because this court reverses on other grounds, review of Mr. Rios's fourth point for plain error need not be considered since the issue is unlikely to arise in the same context on retrial.

The trial court's judgment is reversed and the cause is remanded for a new trial.

All concur.

*****

Footnotes:

FN1. All statutory references are to the Revised Statutes of Missouri 2000.

FN2. Mr. Valencia was a twenty-three year old college student at the time.

FN3. Mr. Rios presented evidence that the officer's written report indicated that only one hair was collected as evidence and failed to note that as many as six to ten hairs were actually collected from Mr. Valencia's body, placed in an evidence box, and sealed by the officer. In addition, Criminalist William Randle, who tested the trace evidence submitted by the Columbia Police Department in the box the officer had sealed, testified that after he slit the tape on both sides of the box with a razor blade, he noticed that one of the flaps on the side of the box was pushed all the way to the bottom indicating that the box had been opened.

FN4. See also Buckner, 810 S.W.2d at 357-59 (finding admissible, under the future acts exception, statement made by murder victim forty-five minutes prior to murder to demonstrate why victim returned home to meet the defendant for drug deal).

FN5. Moreover, while Mr. Valencia's statement did indicate that Mr. Valencia was going to ask Mr. Rios if he was married, the thrust of his statement went to Mr. Valencia's state of mind, i.e., "if he's married, I don't want to be involved in a relationship with a married man." (Emphasis added.) As discussed above, statements regarding a victim's state of mind are admissible only when the defendant has put the decedent's mental state at issue by claiming accident, self-defense, or suicide, which is not the case here. Nastasio, 957 S.W.2d at 458. Consequently, that portion of Mr. Valencia's statement regarding his desire not to be involved in a relationship with a married man is inadmissible hearsay that does not fall within any hearsay exception. And, by excluding the portion of Mr. Valencia's statement regarding his desire not to have a relationship with a married man, that portion of his statement indicating an intent to perform a future act, i.e., "I'm really going to ask him this time if he's married or not," has no context and is irrelevant.

FN6. The trial court sustained the objection to Exhibit 3, but overruled the objection regarding Exhibits 1 and 2 and, therefore, the two photographs were admitted into evidence.