State of Missouri v. Douglas E. Pennington , 2015 Mo. App. LEXIS 704 ( 2015 )

In the
Missouri Court of Appeals
Western District

STATE OF MISSOURI, 
 WD77087
Respondent,  OPINION FILED:
v. 
 June 30, 2015
DOUGLAS E. PENNINGTON, 

Appellant. 


Appeal from the Circuit Court of Platte County, Missouri
The Honorable Owens Lee Hull, Jr., Judge
Before Division One:
James Edward Welsh, P.J., Thomas H. Newton, and Karen King Mitchell, JJ.
Douglas Pennington appeals the circuit court’s judgment convicting him of statutory
sodomy in the first degree and attempted statutory sodomy following a jury trial. In his sole
point on appeal, Pennington contends that the circuit court plainly erred when it overruled his
motion to exclude testimony as to the credibility of other witnesses and in refusing to order the
State to redact the video recording of Pennington’s interrogation to remove a detective’s
comments about the credibility and intelligence of the complaining witness. We affirm.
Pennington does not contest the sufficiency of the evidence. The evidence established
that on March 4, 2011, in Platte County, Missouri, Pennington knowingly placed his finger into
S.M.’s vagina and that Pennington tried to move S.M.’s hand so that she would touch his penis
through his clothing. S.M. was three years and ten months at the time of the incident. At the
conclusion of the jury trial, the jury found Pennington guilty of statutory sodomy in the first
degree and attempted statutory sodomy. Pennington appeals.
Pennington contends that the circuit court erred in overruling his motion to exclude
testimony as to the credibility of other witnesses. “‘[T]o attack the validity of the admission of
evidence to which a motion to suppress evidence was directed, the question to which the motion
was directed must be kept alive by asserting a timely objection to its admission at trial and by
raising the matter in a motion for a new trial.’” State v. Brown, 438 S.W.3d 500, 509-10 (Mo.
App. 2014) (citation omitted). Pennington concedes that he did not preserve this claim of error
in his motion for a new trial and, therefore, requests plain error review.
Rule 30.20 authorizes this Court to review, in its discretion, “plain errors affecting
substantial rights . . . when the court finds that manifest injustice or miscarriage of justice has
resulted therefrom.” Our Supreme Court has established a threshold review to determine if a
court should exercise its discretion to entertain a Rule 30.20 review of a claimed plain error.
First, we determine whether or not the claimed error “facially establishes substantial grounds for
believing that ‘manifest injustice or miscarriage of justice has resulted[.]’” State v. Brown, 902
S.W.2d 278, 284 (Mo. banc1995) (quoting Rule 30.20). If not, we should not exercise our
discretion to conduct a Rule 30.20 plain error review. If, however, we conclude that we have
passed this threshold, we may proceed to review the claim under a two-step analysis pursuant to
Rule 30.20. In the first step, we decide whether plain error has, in fact occurred. State v.
Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). “All prejudicial error, however, is not plain
error, and plain errors are those which are evident, obvious, and clear.” Id. (citations and
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internal quotation marks omitted). In the absence of evident, obvious, and clear error, we should
not proceed further with our plain error review. If, however, we find plain error, we must
continue to the second step to consider whether or not a miscarriage of justice or manifest
injustice will occur if the error is left uncorrected. Id. at 607-08.
Pennington’s claim does not facially establish substantial grounds for believing that he
has been a victim of manifest injustice. “The Missouri Supreme Court has observed that, on
direct appeal, a manifest injustice or miscarriage of justice exists so as to entitle a defendant to
relief for plain error only when the error is outcome determinative.” State v. Presberry, 128
S.W.3d 80, 85 (Mo. App. 2003). Plain error can serve as the basis for granting a new trial on
direct appeal only if the error was outcome determinative. Deck v. State, 68 S.W.3d 418, 427
(Mo. banc 2002).
In this case, the videotaped interview of Pennington’s interrogation was played for the
jury. In the interrogation, Detective Billy Aaron made comments to Pennington regarding S.M.,
saying that “for her age she’s a pretty sharp little girl,” “she speaks pretty well,” and “I was
rather impressed with how well she did speak.” These statements did not express any opinion on
S.M.’s credibility. The only possible objectionable comment relating to S.M.’s credibility was
made when Detective Aaron asked Pennington whether he grabbed S.M.’s hand and moved it
towards his erect penis in his lap. Detective Aaron told Pennington, “I really believe you made it
to your lap because she remembers that, very quick little girl, she remembers you putting her
hand.” Detective Aaron further stated, “I know this, ‘cause I talked to her, more importantly a
forensic specialist talked to her so we know she’s truthful.”
As a general rule, witnesses “should not be asked to opine upon the truth or veracity of
another [witness’s] testimony.” State v. Roper, 136 S.W.3d 891, 900 (Mo. App. 2004). A court,
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however, does not abuse its discretion in admitting statements made by a detective during a
police interrogation when the comments provide a context for the interrogation and the statement
is offered for the defendant’s statement and not the statements made by the detective. State v.
Taylor, 298 S.W.3d 482, 505 (Mo. banc 2009) (detective’s statement did not vouch for witness’s
credibility when detective stated a witness was “right”). In this case, the circuit court
specifically instructed the jury that the evidence of what Detective Aaron said while interviewing
Pennington could be considered only for the purpose of giving context to the interrogation.
The instruction given to the jury said:
The evidence of what Billy Aaron said on [the videotaped interrogation]
regarding what [S.M.] said may be considered by you only for the purpose of
giving context and meaning to the defendant’s responses and shall not be
considered by you for any other purpose.
The evidence of what Billy Aaron said on [the videotaped interrogation]
regarding his opinion of [S.M.] and whether she was truthful may be considered
by you only for the purpose of giving context and meaning to defendant’s
responses and shall not be considered by you for any other purpose.
“A jury is presumed to know and follow the instructions given by the trial court.” State v. Jones,
296 S.W.3d 506, 513 (Mo. App. 2009). “The trial judge may expect that his limiting instructions
will be followed.” State v. Isa, 850 S.W.2d 876, 886 (Mo. banc 1993). The instruction given to
the jury told the jury that Detective Aaron’s comments could be used solely “for the purpose of
giving context and meaning to [Pennington’s] responses” and not “for any other purpose.” Thus,
the jury was aware that Detective Aaron’s comments could not be considered to bolster S.M.’s
credibility.
Moreover, Detective Aaron testified at trial and did not offer any opinion testimony about
the accuracy of S.M.’s statements. Indeed, the circuit court instructed Detective Aaron not to
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answer the State’s question about the statements made during the interview because the jury had
watched the videotaped interview and it was admitted into evidence.
Given that the jury was instructed to use Detective Aaron’s comments regarding the
credibility of S.M. solely “for the purpose of giving context and meaning to [Pennington’s]
responses” and given that Detective Aaron did not offer any opinion testimony about the
accuracy of S.M.’s statements at trial, the admission of Detective Aaron’s statements did not
have an outcome determinative effect on the verdict and was not plain error.
Further, “error, which in a close case might call for reversal, may be disregarded as not
prejudicial when evidence of guilt is strong.” State v. Spears, 821 S.W.2d 537, 542 (Mo. App.
1991). The jury heard evidence that, on March 4, 2011, S.M. told her mother that Pennington
had touched her “down there” pointing to her vagina. Additionally, the forensic specialist who
interviewed S.M. testified that S.M. told her that Pennington touched her on her private part with
his finger while her pants were off. Pennington also wrote an apology note to S.M.’s mother for
touching S.M. in her private parts. Moreover, Pennington confessed to committing the crime
during the interview with Detective Aaron. Because evidence of Pennington’s guilt most
certainly was strong, any comments by Detective Aaron that could have been construed by the
jury as vouching for S.M.’s credibility can be disregarded as not prejudicial.
We affirm the circuit court’s judgment.
/s/ JAMES EDWARD WELSH
James Edward Welsh, Presiding Judge
All concur.
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