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State v. Pennington

Court of Appeals of Missouri, Western District, First Division

June 30, 2015

STATE OF MISSOURI, Respondent,
v.
DOUGLAS E. PENNINGTON, Appellant

Page 293

Appeal from the Circuit Court of Platte County, Missouri. The Honorable Owens Lee Hull, Jr., Judge.

For Appellant: Susan Hogan, Kansas City, MO.

For Respondent: Robert Bartholomew, Jr., Jefferson City, MO.

Before Division One: James Edward Welsh, P.J., Thomas H. Newton, and Karen King Mitchell, JJ. All concur.

OPINION

Page 294

James Edward Welsh, Presiding Judge

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

Page 295

which are evident, obvious, and clear." Id. (citations and 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 ...


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