STATE OF MISSOURI, Plaintiff-Respondent v. BLAINE URIAH DOWNUM ( 2020 )

STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
v. ) No. SD36081
)
BLAINE URIAH DOWNUM, ) Filed: April 7, 2020
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY
Honorable Dean G. Dankelson
AFFIRMED
A jury found Blaine Uriah Downum (“Defendant”) guilty of child molestation in the
first degree, statutory rape in the first degree, resisting arrest by fleeing, and unlawful
possession of a firearm. See sections 566.067, 566.032, 575.150, and 571.070.1 In this
appeal of his convictions, Defendant raises nine points of alleged trial-court error. Finding
no reversible error, we affirm.
The Relevant Evidence and Procedural Background
We recite the evidence and the reasonable inferences therefrom in the light most
favorable to the verdict. State v. Lammers, 479 S.W.3d 624, 630 (Mo. banc 2016). We
mention other information only to provide context for Defendant’s points.
1
Unless otherwise noted, all statutory citations are to RSMo 2016. All rule citations are to Missouri Court
Rules (2019).
1
Victim, eleven years old at the time of trial, is Defendant’s daughter. Just one year
earlier, she was visiting Defendant at his hotel room. Victim was playing on her phone
when Defendant woke up and asked her if she wanted to have sex. Victim said no.
Defendant asked again. When Victim again declined, Defendant took her by the wrists,
threw her on the bed, and removed her clothes. Defendant licked Victim’s vagina and then
inserted his penis. It felt to Victim as if she was being stabbed with a knife, and she kicked
until she got free of Defendant’s grip. Upon freeing herself, Victim called her mother to
come pick her up from the hotel. A week later, she told her mother what had happened.
Defendant, a persistent offender, had prior felony convictions in both Kansas and
Missouri. When law enforcement officers were unable to make contact with him by their
usual methods, they “attached an alert” for Defendant in their record management system.
That alert would notify them if Defendant “c[a]me in contact with any law enforcement[.]”
On April 16, 2018, Officer Bobby Brown (“Officer Brown”) was driving his patrol
car by Defendant’s last-known address when he saw Defendant exiting the home. Officer
Brown stopped, told Defendant that he was under arrest, and asked him to put his hands
behind his back. Defendant turned and ran. Officer Brown commanded Defendant “to stop
or [he] would send [his] dog and [Defendant] would be bit.”
Defendant, who was wearing a backpack, kept running. Officer Brown’s dog (the
“K-9”) chased Defendant and was able to grab ahold of his backpack. Defendant shed the
backpack and continued running. The K-9 eventually apprehended Defendant and took him
to the ground. Officer Brown took Defendant into custody, and when a detention officer at
the jail searched Defendant’s abandoned backpack, he found that it contained a loaded
handgun.
2
Defendant was charged with four felonies in an Amended Information. Counts 1 and
2 were based upon his sexual contact with Victim in Defendant’s hotel room. Count 1
charged that Defendant committed first-degree child molestation in that, between February
15 and April 16, 2018, Defendant “subjected [Victim,] who was then less than twelve years
old[,] to sexual contact,” and Victim was Defendant’s descendant by blood or adoption.
Count 2 alleged that during that same timeframe, Defendant committed first-degree statutory
rape in that he knowingly had sexual intercourse with Victim, a child less than twelve years
old.
Counts 3 and 4 were based upon the subsequent events that occurred during
Defendant’s apprehension and arrest. Count 3 charged Defendant with resisting arrest in
that, on April 16, 2018, Defendant resisted arrest by fleeing from law enforcement. Count 4
alleged that Defendant – a convicted felon – unlawfully possessed a firearm on that same
date.
On June 13th and September 27th, Defendant filed “pro se” motions for a speedy trial.
His trial was initially set to begin on August 15, 2018, but defense counsel requested a
continuance to have more time to prepare for trial, and the date was moved to February 5,
2019.
The day before the February 5th trial was to begin, the State learned and disclosed
that the Children’s Center possessed Victim’s “trauma narrative” relevant to the case.
Defendant filed a “Motion to Dismiss or in the Alternative Exclude [Victim] and Associated
[Children’s Center] Workers as Witnesses” (the “motion to dismiss”). The motion to
dismiss alleged that the State had committed a Brady2 violation in failing to turn over the
2
Brady v. Maryland, 373 U.S. 83 (1963).
3
trauma narrative at the same time it had provided other relevant documents to Defendant
during the course of discovery.
The trial court held a hearing on the motion to dismiss the next day -- the morning of
the first day of trial. Defendant argued that the late production of the trauma narrative put
him in the position of either: (1) asking for a continuance to allow his attorneys to prepare
for trial by investigating the trauma statement and witnesses thereto, thereby forfeiting his
right to a speedy trial; or (2) having a timely trial but forfeiting his right to effective
assistance of counsel since his lawyers would not be prepared to address the trauma
narrative at trial. The trial court denied Defendant’s motion to dismiss, but it granted (at
least in part) Defendant’s alternative request for relief by stating that testimony from certain
Children’s Center witnesses that related to the trauma narrative would be excluded.
After the motion to dismiss was denied, Defendant requested that they proceed to
trial on counts 3 and 4 as scheduled, with counts 1 and 2 to be severed off for trial at a later
date. When the trial court said that it would not grant Defendant’s request for severance,
Defendant requested a continuance on all counts, which the trial court granted. The case
was then reset for trial on March 5, 2019, just 28 days later.
Prior to the start of the March trial, Defendant filed “Defendant’s Fifth Motion in
Limine Motion [sic] to Limit Police Presence in the Courtroom” (“the no-presence motion”).
The no-presence motion asserted that “[p]revious Jasper County jury trial cases have had
overwhelming police presence in the courtroom” and the police come “wear[ing] the regalia
of being police[.]” The motion asked that all police officers be excluded from the courtroom
in order to maintain a sense of neutrality.
4
Also prior to trial, the State had filed its “Notice of Intent to Admit Propensity
Evidence[.]” It thereby gave notice to Defendant that the State intended to introduce
evidence -- pursuant to article I, section 18(c) of the Missouri Constitution (“section 18(c)”)
-- that Defendant had previously committed the offense of first-degree child molestation
against his other biological daughter, A.D., who was also under the age of twelve at the time
of that sexual contact.
At trial, the trial court denied the no-presence motion,3 noting that it could not tell
who was a police officer and who was not as all of the officers present were in plainclothes
and bore no visible signs of being connected to the police department.
A.D., then age thirteen, testified at trial as follows. When she was four years old,
Defendant had touched her “in [her] inappropriate place like down there” when she was in
his bedroom. Her entire testimony consumed seven of the 594 pages of trial transcript.
Just before the State rested its case, the prosecutor provided the following
information to the trial court and Defendant:
Your honor, during the break, my victim advocate, Betsy Gunlock [(“Ms.
Gunlock”)], let me know that during the last break that one jurors [sic] [Juror
Number 8], approached her, that she does know him outside of this case, and
gave her a hug. They did not discuss anything to do with the case, or
anything about the case itself, or the facts, or anything like that.
In discussing that revelation with counsel, the trial court noted that no one had asked
potential jurors during voir dire whether they knew any members of the prosecutor’s office
or Ms. Gunlock. With the agreement of the parties, the trial court postponed ruling on
defense counsel’s request to question Ms. Gunlock until everyone had a chance to research
3
The trial court first denied the no-presence motion before trial and then again when it was raised during the
instruction conference.
5
the applicable law, believing that no harm could come from leaving Juror Number 8 on the
jury to hear additional testimony while they did so.
Defendant then testified in his own defense, and he denied having committed any
acts of abuse. In an attempt to cast doubt upon Victim’s account, he testified that he has a
tattoo around his penis (and introduced what purported to be a photograph of it) – something
that Victim specifically said Defendant did not have. He also testified that he kept his pubic
area shaved at the time of the charged events. Victim had testified that Defendant’s pubic
area was hairy.
Analysis
Point 1 – Denial of Motion(s) for a Speedy Trial
Point 1 claims:
The trial court erred in denying [Defendant’s] motion to dismiss due
to the State’s late disclosure of [Victim]’s “trauma narrative” in violation of
[Defendant]’s constitutional rights to a speedy trial, to present a defense, and
due process of law . . . in that trial counsel had no choice once the motion to
dismiss was denied but to ask for a continuance in order to properly
investigate the late disclosed material.
We disagree.
To assess whether the constitutional right to a speedy trial has been
respected or denied, the Court must balance four factors: (1) the length of
delay; (2) the reason for the delay; (3) the defendant’s assertion of his right;
and (4) prejudice to the defendant. See State v. Edwards, 750 S.W.2d 438,
441 (Mo. banc 1988); Barker v. Wingo, 407 U.S. 514, 533, 92 S. Ct. 2182, 33
L. Ed. 2d 101 (1972).
State ex rel. McKee v. Riley, 240 S.W.3d 720, 729 (Mo. banc 2007).
On appeal, Defendant asserts only that he “was denied his constitutional right to [a]
speedy trial, caused directly by the State’s Brady violation.” His brief makes no attempt to
apply the four factors listed above to the facts of his case. “When an appellant fails to
6
support contentions with relevant law and analysis beyond conclusory statements, we deem
the point abandoned.” Wallace v. Frazier, 546 S.W.3d 624, 628 (Mo. App. W.D. 2018).
Point 1 fails.
Point 2 – Denial of Motion to Sever
In his second point on appeal, Defendant claims the trial court erred in
overruling [his] motion for severance of the resisting arrest and possession of
a firearm charges from the child molestation and statutory rape charges,
because this violated [Defendant]’s rights to due process, a fair trial, and to
be tried only for the crime charge [sic] . . . since the jury was likely to
consider the evidence of the resisting and weapon crimes in deciding the
other charges and that evidence was more prejudicial than probative.
Our review of joinder and severance challenges is normally a two-step process,
requiring us to first determine whether joinder was proper as a matter of law. State v.
Green, 505 S.W.3d 837, 839 (Mo. App. S.D. 2016). Here, because Defendant admits that
joinder was proper and challenges “only the ruling denying the motion to sever[,]” we
review the trial court’s refusal to sever charges for an abuse of discretion. See id.
Rule 24.07 and section 545.885, which govern the severance of offenses, require the
defendant to make “a particularized showing of substantial prejudice” in order to obtain a
severance. State v. McDonald, 321 S.W.3d 313, 319-20 (Mo. App. S.D. 2010) (quoting the
statute and the rule). Defendant claims that failing to sever the offenses prejudiced him
because “the jury’s learning that he was a convicted felon who ran from the police could not
be assuaged in any other way other than severing the charges.”
“In considering whether severance is required, the court considers ‘the number of
offenses joined, the complexity of the evidence, and the likelihood that the jury can
distinguish the evidence and apply it, without confusion, to each offense.’” State v.
McKinney, 314 S.W.3d 339, 342 (Mo. banc 2010) (quoting State v. Morrow, 968 S.W.2d
7
100, 109 (Mo. banc 1998)). McKinney held that charges need not be severed when “the
evidence relating to the attempted escape charge and the murder and armed criminal action
charges was ‘sufficiently simple and distinct to mitigate the risks of joinder.’” Id.
That situation is present here. Defendant’s count 1 and 2 charges provided the basis
for the State to also charge him with resisting arrest and possession of a firearm in counts 3
and 4. And the evidence related to each of the four charges was distinct and uncomplicated
such that jurors could distinguish it and apply it without confusion about which charge was
based upon that evidence. Id.
Point 2 is denied.
Points 3 and 4 – Refusal to Exclude Police Officers from the Courtroom
For ease of analysis, we address these related points together.
Point 3 claims the trial court abused its discretion in “overruling [his] objection to
the presence of a group of police officers sitting in the courtroom at the end of the trial . . . in
that the presence of the officers . . . conveyed the message that [Defendant] was presumed
guilty.” Point 4 claims the trial court “abused its discretion in overruling [Defendant]’s
request to make an offer of proof regarding the police presence in the courtroom at the end
of the trial[.]” Defendant asserts that without such a record, this court would be unable to
determine whether prejudice resulted from the trial court’s ruling. No such impediment is
present here because both claims are clearly refuted by the record.
“A trial court has wide discretion in determining whether to take action to avoid an
environment for trial in which there is not a ‘sense or appearance of neutrality.’” Johnson
v. State, 406 S.W.3d 892, 903 (Mo. banc 2013) (quoting State v. Baumruk, 85 S.W.3d 644,
650 (Mo. banc 2002)).
8
When Defendant objected to the officers’ presence at trial, the trial court overruled
the objection and made the following record.
In looking out [sic] the audience there are two sides on either side of the
aisle. There are people seated on both sides of the aisle. I don’t see a badge
or a gun amongst any of them. I wouldn’t know who was a police officer,
who was not a police officer, or what these folks are and I don’t think there’s
any show that they are from [the Joplin Police Department]. I happen to
know some of them so I know that they are. The jury is not going to have
that idea, won’t know if they are related to [Defendant] or to the State, and so
there is no indication whatsoever that any of them are Joplin Police
Department Officers. I don’t see anybody with a jacket on indicating they
are from the police department. I don’t see anybody with a badge or a gun
present and that’s from my vantage point and the jury will be on the other
side of the room, but will have the same vantage point. And I don’t think
anybody is going to know who they are. I don’t think there is any prejudice
to your client. It’s an open courtroom. Folks are welcome to be here and we
are going to proceed and the Court is not going to ask anybody to be
excluded, except those who cannot properly maintain their behavior.
Defendant’s argument that the trial court’s decision constituted an abuse of discretion
relies upon a federal case from the Ninth Circuit, Norris v. Risley, 918 F.2d 828 (9th Cir.
1990) (abrogated by Carey v. Musladin, 549 U.S.70, 127 S. Ct. 649, 166 L. Ed. 2d 482
(2006)), and a West Virginia case, State v. Franklin, 327 S.E.2d 449, 451 (W. Va. 1985).
Both cases -- in addition to lacking any controlling authority -- are distinguishable from the
circumstances here. The spectators in Defendant’s proffered cases wore visible displays of
slogans on buttons that carried a real potential to inflame the jury. In Norris, the defendant
was convicted of sexual intercourse without consent. 918 F.2d at 829. During his trial,
women in the gallery wore “Women Against Rape” buttons. Id. In Franklin – a fatality-
producing driving under the influence of alcohol case – “MADD”4 buttons were visible in
the audience. 327 S.E.2d at 474.
4
The case related that this was an acronym for “Mothers Against Drunk Drivers.”
9
Here, the record affirmatively demonstrates that nothing the jury saw would give it
any indication that any of the spectators in the gallery were police officers. The trial court is
the “intimate observer of events at trial[.]” State v. Hartman, 479 S.W.3d 692, 702 (Mo.
App. W.D. 2015). Its recorded observations constitute factual findings that we rightly defer
to on appeal. Id. In addition, the State noted for the record (without any contradiction by
defense counsel) that there were additional people in the courtroom, including witnesses
who had testified, attorneys, and a reporter from a local newspaper, all of whom were
dressed similarly to the plainclothes officers described by the trial court.
These recorded, first-hand observations reveal that the trial court did not abuse its
discretion in refusing to remove the police officers from the courtroom. As for Defendant’s
claim that the trial court erred in refusing to allow him to make an offer of proof, “[t]he
purpose of an offer of proof is to insure that the trial court and opposing counsel understand
what evidence is being offered and its relevance to the case.” State v. Townsend, 737
S.W.2d 191, 192 (Mo. banc 1987). Here, the point Defendant wished to convey through the
offer of proof was the presence of “a number of police [officers] in the courtroom” prior to
closing arguments, a claim that the trial court accepted as true. And defense counsel did not
identify any additional evidence he believed the trial court should have before making its
ruling.
Points 3 and 4 are denied.
Point 5 – Refusal to allow an Inquiry into Potential Juror Misconduct
Defendant’s fifth point claims the trial court abused its discretion in overruling his
request to “inquire of [Ms. Gunlock], Director of Prosecution Services, or [Juror Number 8],
10
about how they knew each other” when Juror Number 8 hugged and spoke to Ms. Gunlock
during a break in the trial.
The following information is relevant to this claim. During the instruction
conference, the trial court asked whether Defendant wished to make any further record in
regard to Juror Number 8. Defendant said that he “would like to make inquiry of Ms.
Gunlock[,]” to which the trial court responded, “I’m not going to permit that.” The trial
court again asked whether Defendant wished the court to take any “remedial action” on the
issue of the interaction between Juror Number 8 and Ms. Gunlock. The discussion that
followed, while lengthy, is highly relevant to our disposition of this point.
[Defendant’s Counsel]: Your honor, the remedial action that I would
like to take and actually know the extent that I
need to take would require inquiry of Ms.
Gunlock. I cannot recall from memory whether
[the prosecutor] asked if they knew anyone
from the prosecutor’s office at that point in
time. I am honestly uncertain as to whether
that question was asked. I think it might’ve
been, but I would like to know the nature of
their relationship there, if it was one where it’s
extremely close and [Juror Number 8] didn’t
disclose that. And, like I said, I have an
imperfect memory of whether that question was
asked. I know it normally is.
[Trial Court]: I don’t recall that question being asked. I know
specifically her name was not mentioned in
voir dire by either side.
[Defendant’s Counsel]: That is correct, but I think there might have
been a catch all question asked. And, in fact,
there was what I believe a question asked: is
there any other reason why I might not be able
to sit on this jury. I think that might have
encompassed that if it –
11
[Trial Court]: Well, I think that would be requiring more out
of this jury than I think we should expect out of
them for that type of question.
[Defendant’s Counsel]: Well, I’m just wanting to make a record of my
bases for wanting to conduct inquiry, Your
Honor.
[Trial Court]: Then that wouldn’t be something Ms. Gunlock
would testify to. That would be something that
you’re alleging juror misconduct because he
didn’t disclose something. And that’s not
something that she would provide an answer
for. That’s something he would provide an
answer for.
[Defendant’s Counsel]: I would request that the Court conduct an
inquiry into the nature of the relationship with
Ms. Gunlock or permit myself.
[Trial Court]: As I read the cases, I think – are you alleging
that anything improper happened between a
member of the prosecutor’s staff and Juror
Number 8?
[Defendant’s Counsel]: I don’t believe so, but I am uncertain Your
Honor. I didn’t witness it. I am not a witness
to that. Without the opportunity to conduct an
investigation, I wouldn’t be able to do so. I
don’t believe so. I believe that the prosecutor’s
office has a modicum [of] integrity to it in that
respect.
[Trial Court]: I guess the question I would have was there any
conversation between Juror Number 8 and a
member of the prosecutor’s office.
[Prosecutor?].
[Prosecutor]: In talking to Ms. Gunlock she said that nothing
was discussed about this case. It was just a hi,
[Ms. Gunlock], and a hug.
[Trial Court]: Any other conversation more than that?
[Prosecutor]: No, I don’t believe anything. [Ms. Gunlock]
was trying to get away because she realized she
12
should not have contact with [Juror Number 8].
And the way I described it is she zigged and he
zagged to come over and greet her.
[Trial Court]: With those being the facts, [defense counsel], is
there any relief that the Defense is requesting at
this point in time?
[Defendant’s Counsel]: Let me make inquiry of my client. . . .
[Trial Court]: You may speak with him.
[Defendant’s Counsel]: The Defendant has requested that we not seek
the relief that [Juror Number 8] be removed
from the jury panel.
[Trial Court]: So you are prepared to continue with Juror
Number [8] remaining.
[Defendant’s Counsel]: I am, but I would like the record to reflect that I
wish to make inquiry of both [Juror Number 8]
and of Ms. Gunlock to conduct an investigation
of the facts.
[Trial Court]: Well, I think the facts have been flushed out
here.
[Defendant’s Counsel]: Okay.
The conduct of a trial is within the discretion of the trial court, and its rulings will
not be overturned absent a showing of an abuse of that discretion. State v. Pendergrass, 726
S.W.2d 831, 832 (Mo. App. S.D. 1987). Defendant argues that “the trial court here denied
[Defendant] the ability to make a record about potential misconduct between a juror and a
member of the prosecutor’s staff.” Assuming that the trial court did err in refusing to allow
Defendant to inquire directly into potential juror misconduct by questioning Ms. Gunlock
and/or Juror Number 8, Defendant suffered no prejudice because he did not ask the trial
court to remove Juror Number 8 from the jury. To the contrary, Defendant affirmatively
13
stated that he wanted to “not seek the relief that [Juror Number 8] be removed from the juror
panel.”
“The rule requiring contemporaneous objections to the qualifications of jurors . . . .
serves to minimize the incentive to sandbag in the hope of acquittal and, if unsuccessful,
mount a post-conviction attack on the jury selection process.” State v. Wright, 30 S.W.3d
906, 914 (Mo. App. E.D. 2000) (quoting State v. Hadley, 815 S.W.2d 422, 423 (Mo. banc
1991)). Defendant waived his error-claim by not seeking to have Juror Number 8 removed
from the jury.
Point 5 is denied.
Points 6 through 8 – Plain-Error Review Requested
Defendant’s next three points are unpreserved, and he requests plain-error review
under Rule 30.20.
“Rule 30.20 is no panacea which a criminal defendant can use to
obtain appellate review of any alleged error that is unpreserved.” State v.
Campbell, 122 S.W.3d 736, 739 (Mo. App. S.D.2004). “[A]n appellate court
is not required to engage in plain error review; the decision whether to grant
or deny such a request is left to the court’s discretion.” Id. at 740. “The
court may simply decline to exercise its discretionary authority to review the
point for plain error.” Shifkowski v. State, 136 S.W.3d 588, 590 (Mo. App.
S.D. 2004).
If we exercise our discretion and engage in the requested plain error
review of unpreserved error, a “defendant must show not only that the trial
court committed evident, obvious, and clear error, but also the existence of
manifest injustice or a miscarriage of justice.” State v. Stuckley, 573 S.W.3d
766, 768 (Mo. App. S.D. 2019).
State v. Sinor, No. SD 35936, 2020 WL 581879, at *2–3 (Mo. App. S.D. Feb. 6, 2020)
(footnote omitted). With that strict standard in mind, we proceed to an evaluation of
Defendant’s unpreserved points.
14
Point 6 claims “[t]he trial court plainly erred in allowing the [S]tate to introduce
evidence of [Defendant]’s alleged molestation of A[.]D[.], [Victim]’s sister, because this
propensity evidence was substantially more prejudicial than probative[.]”
Section 18(c) provides:
Notwithstanding the provisions of sections 17 and 18(a) of this article
to the contrary, in prosecutions for crimes of a sexual nature involving a
victim under eighteen years of age, relevant evidence of prior criminal acts,
whether charged or uncharged, is admissible for the purpose of corroborating
the victim’s testimony or demonstrating the defendant’s propensity to commit
the crime with which he or she is presently charged. The court may exclude
relevant evidence of prior criminal acts if the probative value of the evidence
is substantially outweighed by the danger of unfair prejudice.
While he admits that it “is clear” that A.D.’s testimony established Defendant’s
propensity to commit the charged crimes because “it shows that [Defendant] molested
[Victim]’s sister in a similar manner[,]” Defendant argues that A.D.’s testimony should have
been excluded because the prejudicial effect substantially outweighed the probative value.
We begin by noting that Defendant’s argument omits an important word from the
constitutional provision at issue, which allows the exclusion of “relevant evidence of prior
criminal acts if the probative value of the evidence is substantially outweighed by the danger
of unfair prejudice.” Id. (emphasis added). Prior to the adoption of section 18(c), our case
law permitted the introduction of prior criminal behavior only in limited circumstances, and
it was never admitted to prove that the defendant had a propensity to commit the charged
crime(s). See State v. Williams, 548 S.W.3d 275, 281 (Mo. banc 2018) (noting that “it is
safe to say a general prohibition against the use of propensity evidence in criminal cases has
been firmly engrained in American jurisprudence throughout much of the nation’s history”)
(footnote omitted).
15
Further, the job of “weighing” the probity of evidence, most of which is typically
subject to credibility determinations, and then deciding what prejudicial evidence is
“unfairly” prejudicial, is best left to the discretion of the trial court. And those discretionary
calls are rarely overturned, even when they are properly preserved for review, let alone
when they are reviewed only for plain error. See State v. Carr, 50 S.W.3d 848, 856 (Mo.
App. W.D. 2001).
We decline to undertake such a fact-intensive inquiry upon a cold record and
exercise our discretion to deny plain-error review of Point 6.
Point 7 claims:
The trial court plainly erred in overruling [Defendant]’s objection to
forensic interviewer Ashlea Belcher’s [(“Ms. Belcher”)] testimony that
[Victim]’s provision of “sensory details” provided credibility to her story . . .
in that the testimony of Ms. Belcher invaded the province of the jury, was
more prejudicial than probative, and was improperly used to bolster
[Victim]’s credibility.
Ms. Belcher had interviewed Victim about her allegations of abuse. Prior to playing
Ms. Belcher’s video-recorded interview of Victim for the jury, the prosecutor asked the
following question and received the following answer:
[Prosecutor:] When you’ve gone to these trainings, are you taught to
look for something in particular to try to determine
credibility or whether or not you should be looking
further into an allegation?
[Ms. Belcher:] Yes.
At that point, Defendant objected that such testimony was going down the path of
improper bolstering. The prosecutor responded that she was “going to have [Ms. Belcher]
testify about what things she looks for so that the jury can also be looking for them when
they watch the interview.” The trial court overruled Defendant’s objection and allowed the
16
prosecutor to inquire into “what [Ms. Belcher] looks for without talking about what [Victim]
actually said.”
The prosecutor then resumed her questioning.
[Prosecutor:] Ms. Belcher are you taught to look for things in
particular that might indicate whether a child has been
coached or is telling something based on their own
experience. And to be clear, I do not want you to talk
about specifically what [Victim] told you. Just what
you’ve been taught to look for?
[Ms. Belcher:] So whenever I’m talking to a child, I am asking for a
lot of details. When they are giving details of events
with sensory, it tells me what they are feeling, they are
seeing, or you know their description of what’s going
on. Can you repeat the last part of your question?
[Prosecutor:] Is there anything besides those sensory details that you
look for?
[Ms. Belcher:] Just how things happen. You know I’m collecting
facts. I’m wanting to know every detail of what they
saw, felt, who was around, things like that. Also you
had mentioned something about coaching. I usually
ask kids, you know, have you told anyone about what’s
happened or has anyone talked to you about what’s
happened. I usually ask, you know, what kind of
things were you told about what’s happened. If the
alleged perpetrator – you know I usually ask did they
tell you anything to say or to do or tell you to keep a
secret, things like that.
[Prosecutor:] Do you look for a child’s ability to correct you if you
misstate something that she or he has said?
[Ms. Belcher:] Yes. And hopefully in every single interview I have
always said, you know, let me know if I’m getting
anything wrong today or – and then I also assure the
child if you don’t know something or don’t remember
something, it is okay to let me know that too.
....
17
[Prosecutor:] Is it normal for a child to continue that disclosure
process after that initial forensic interview with you?
[Ms. Belcher:] Yes.
[Prosecutor:] Do you also look for information that might be age
appropriate for a child?
....
[Ms. Belcher:] Yes, especially in their details and sensory details.
(Emphasis added.)
It is clear that the State sought, and Ms. Belcher provided, testimony that was general
in nature regarding child sexual-abuse victims and did not explicitly or implicitly comment
upon Victim’s credibility. See State v. Chaidez, 543 S.W.3d 664, 669 (Mo. App. S.D.
2018). The trial court did not err, plainly or otherwise, in overruling Defendant’s objections
to that testimony.
Point 7 is denied.
Point 8 claims the trial court plainly erred in failing to, sua sponte, declare a mistrial
when the State, during its closing argument, implied that Defendant’s hotel room was
“dimly lit[,]” a fact that was not in evidence.
“Our review for plain error of a trial court’s failure to sua sponte
declare a mistrial is extremely limited.” State v. Collins, 150 S.W.3d 340,
349 (Mo.App.2004). We are mindful that a mistrial is a drastic remedy that
should be used sparingly and granted only in extraordinary situations. State
v. Clover, 924 S.W.2d 853, 856 (Mo. banc 1996). Moreover, “‘sua sponte
action should be exercised only in exceptional circumstances.’” Collins, 150
S.W.3d at 349 (quoting State v. Drewel, 835 S.W.2d 494, 498
(Mo.App.1992)).
State v. Stites, 266 S.W.3d 261, 266 (Mo. App. S.D. 2008).
The following information is relevant to this point. Part of Defendant’s defense was
that Victim had incorrectly identified areas of his pubic region, thus the incidents Victim
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described at trial could not have really happened. Specifically, Victim testified that
Defendant did not have a tattoo near his penis, but Defendant showed the jury a picture
evidencing that he did. Defendant also testified that he kept his pubic area shaved at that
time, while Victim testified that Defendant had hair in his pubic area.
In an attempt to blunt that argument, the prosecutor argued at closing as follows.
[Defendant] brought up the tattoo that’s in the photograph. And his
investigator took that photograph of [Defendant] in a brightly lit room where
that is the focus. Do you think that that’s what [Victim] was trying to focus
on? She was in a dimly lit hotel being raped by her father.
The attorneys approached the bench, and the following colloquy ensued:
[Defendant’s Counsel]: The lighting in the room was not introduced
into evidence.
[Trial Court]: That is correct, so let’s move on. Is there any
other corrective relief you are seeking?
[Defendant’s Counsel]: I would ask that [the prosecutor] correct that
misstatement to the jury.
When the prosecutor returned to her argument, she stated only that “[t]hey were in a room
where [Defendant] had been sleeping.”
After voicing no objection to the prosecutor’s modified argument at trial (which left
out the “dimly lit” statement), Defendant now argues for the first time on appeal that the trial
court should have, sua sponte, granted a mistrial when the prosecutor “failed to correct her
misstatement[,]” in that the “statement that the room was too dimly lit for [Victim] to see
implied that she had outside knowledge of [Defendant]’s guilt that they had not heard.”
This complaint comes too late. Under these circumstances, the trial court did not err, plainly
or otherwise, in “failing” to, sua sponte, declare a mistrial.
Point 8 is denied.
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Point 9 – Insufficient Evidence on Counts 1 and 2
Defendant’s final point claims the evidence adduced at trial was insufficient to
support his convictions of first-degree child molestation and first-degree statutory rape in
that the State’s evidence failed to prove beyond a reasonable doubt that Defendant had
sexual contact with Victim.
In reviewing a claim that there was not sufficient evidence to sustain a
criminal conviction, this Court does not weigh the evidence but, rather,
“accept[s] as true all evidence tending to prove guilt together with all
reasonable inferences that support the verdict, and ignore[s] all contrary
evidence and inferences.” State v. Latall, 271 S.W.3d 561, 566 (Mo. banc
2008); State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006). This Court
“asks only whether there was sufficient evidence from which the trier of fact
reasonably could have found the defendant guilty.” Latall, 271 S.W.3d at
566.
State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc 2015).
Defendant’s argument in support of his point does the exact opposite of what is
required by our standard of review – it focuses entirely on testimony that was favorable to
him, not on the lack of probative value of evidence favorable to the verdicts. State v.
Harris, 549 S.W.3d 513, 516 (Mo. App. S.D. 2018). “His complete disregard for . . . our
standard of review so weakens his arguments analytically as to strip them of any persuasive
value.” Id.
Point 9 is also denied, and Defendant’s convictions are affirmed.
DON E. BURRELL, J. – OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS
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