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State v. Riggs

Court of Appeals of Missouri, Southern District, First Division

September 14, 2016

STATE OF MISSOURI, Plaintiff-Respondent,
v.
JAMES A. RIGGS, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY Honorable R. Craig Carter, Circuit Judge

          JEFFREY W. BATES, J.

         After a jury trial, James Riggs (Defendant) was found guilty of committing statutory sodomy in the first degree by having deviate sexual intercourse with A.A., who was less than 14 years of age. See § 566.062.[1] Defendant has presented 10 points on appeal. These points involve alleged errors in the admission and exclusion of evidence, the improper use of a teddy bear during A.A.'s testimony and in the State's closing argument. Because we find no merit in any of Defendant's points, the trial court's judgment is affirmed.

         Factual and Procedural Background

         Defendant was charged by information with committing the unclassified felony of statutory sodomy in the first degree. See § 566.062. The information alleged that Defendant had deviate sexual intercourse with A.A., a child less than 14 years of age, by placing his penis in the child's mouth. In July 2014, a jury found Defendant guilty of statutory sodomy. The court imposed a 15-year sentence.

         Defendant does not challenge the sufficiency of the evidence to sustain his conviction. We consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict. State v. Garrison, 292 S.W.3d 555, 556 (Mo. App. 2009). All contrary evidence and inferences are disregarded. Id. Viewed from that perspective, the following evidence was adduced at trial.

         A.A.'s family met Defendant's family through the families' involvement in Girl Scouts, and the two families became friends. The families would get together for social events approximately once a month, usually at Defendant's home. Sometimes A.A. and her siblings would spend the night at Defendant's home. On one occasion when A.A. was at Defendant's home watching a movie with her sisters, Defendant took A.A. into a basement garage, covered her eyes with a hat, put frosting on his penis, and then put his penis in her mouth. A.A. was eight at the time.

         A.A. did not reveal what happened to anyone until over a year later when Defendant showed up at her home on his motorcycle. A.A. got scared and hid under the trampoline in her yard, prompting her to explain to her older sister, K.A., what had happened. K.A. then reported what happened to her oldest sister, who in turn told their stepmother, C.A. (Stepmother). Stepmother called A.A.'s father, M.A. (Father). Because A.A. was already scheduled to see her therapist, Dr. Sara Wilson (Dr. Wilson), Stepmother took A.A. to Dr. Wilson's office. Father met Stepmother and A.A. there. Dr. Wilson briefly interviewed A.A. so as not to disrupt any future police investigations. She also made a hotline call to the Division of Family Services and told Father and Stepmother to report the incident to police. Father and Stepmother then took A.A. to the county sheriff's office to report the abuse. Father and Stepmother were not aware of anyone else who had ever molested A.A.

         Robin Buchanan (Buchanan), who worked at that time for Children's Division as an abuse investigator, was assigned A.A.'s case. When Buchanan inquired whether Defendant had asked A.A. to lick icing off his penis, A.A. nodded her head affirmatively. Based on A.A.'s affirmations and her subsequent forensic interview, Buchanan concluded that "most likely something happened" and found abuse by a preponderance of the evidence.

         Sheriff Chris Degase then interviewed Defendant, who initially denied ever being alone with A.A. Thereafter, Trooper Donald Jones interviewed Defendant at police headquarters. At the end of that interview, Trooper Jones handed his business card to Defendant and told him to call if he wanted to talk further. According to Trooper Jones, Defendant responded that "he live[d] his life a certain way for so many years and threw it away for one mistake." When Trooper Jones said "now's the time to get it off your chest[, ]" Defendant explained that A.A. "had asked [him] to show her his penis, because her uncle used to show her his" and that Defendant did so. Defendant then wrote out a letter of apology which stated: "I'm sorry for what happened between [sic] the incident with [A.A.] I mad [sic] a big mistake by showing her my penis win [sic] she asked me to so if you can please forgive me[.]"

         Discussion and Decision

         As noted above, Defendant has presented 10 points of alleged trial court error. For ease of analysis, we will consider some of Defendant's points in combination and out of order due to the intertwined nature of the issues presented. Additional facts necessary to the disposition of the case are included below as we address Defendant's points.

         Point 4

         Defendant's fourth point involves testimony adduced from child abuse investigator Buchanan during two parts of her direct examination. In the first relevant portion, she gave the following testimony:

Q. All right. So, this, I take it, was not your first investigation of a sexual act, abuse on a child?
A. No, sir.
Q. Do you know - can you tell the jury about how many you did or was it too numerous to lose [sic] track of?
A. It was too numerous to - to lose [sic] track of. In nine years, I would average, oh, several cases - alleged cases a year.
Q. Now, to be fair to the jury, not - were all those always substantiated?
A. No, sir. Uh-uh.
Q. And how about this one?
A. This - this one was found preponderance of the evidence.
Q. All right. Now, you understand that's not the same burden necessarily that we're looking at here today?
A. No, sir. Our - our criteria is [sic] much different than law enforcement and court.

         Buchanan was unable to determine from her initial interview with A.A. whether something criminal had happened, so a forensic interview at the Child Advocacy Center (CAC) was conducted. In the second relevant portion of Buchanan's testimony, she recounted her conversation with police after the forensic interview had been conducted:

Q. All right. So, eventually, did you - were you made aware of the fact that the interview was completed and there was a transcript -
A. Yes.
Q. - by the CAC - Child Advocacy Center in West Plains?
A. Yes.
Q. And did you receive a call from Sheriff Chris Degase?
A. Yes, I did.
Q. And what was the purpose of that call, if you recall?
A. The purpose of the call the first time was to find out if the interview had been conducted, which it did. He wanted to know what had happened, and I told him just briefly. And I told him that, in my opinion, there was enough in this child's statement to say that - that most likely something had happened. He requested a copy of my report, and he asked that the CAC send the information, which they automatically do, but he asked anyway, to get the CAC DVD.

         All of the foregoing testimony from Buchanan was admitted without objection. Defendant contends the trial court plainly erred by allowing "the State to elicit evidence from Robin Buchanan that she had found A.A.'s allegations by a 'preponderance of the evidence, ' and that 'in [her] opinion, there was enough in this child's statement to say that … most likely something had happened, ' because … Buchanan's 'findings' invaded the province of the jury[.]"

         Rule 30.20 provides, in pertinent part, that "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Id. "A claim of plain error places a much greater burden on a defendant than an assertion of prejudicial error." State v. Wright, 216 S.W.3d 196, 199 (Mo. App. 2007). Plain error and prejudicial error are not synonymous terms, and mere allegations of error and prejudice will not suffice. Id. "Plain error must be evident, obvious, and clear." State v. Walter, 479 S.W.3d 118, 131 (Mo. banc 2016). "Plain error can serve as the basis for granting relief on direct appeal only if the error was outcome determinative." State v. Placke, 290 S.W.3d 145, 153 (Mo. App. 2009). "A finding of outcome-determinative prejudice expresses a judicial conclusion that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all of the evidence properly admitted, there is a reasonable probability that the jury would have reached a different conclusion but for the erroneously admitted evidence." State v. Barriner, 34 S.W.3d 139, 150 (Mo. banc 2000) (internal quotation marks and citation omitted).

         Defendant argues that the trial court committed plain error in allowing Buchanan, an expert sexual assault investigator, to testify about whether a sexual assault occurred based solely on her view of A.A.'s believability.[2] Defendant relies upon the following three cases to support that argument.

         In State v. Churchill, 98 S.W.3d 536 (Mo. banc 2003), our Supreme Court held that the defendant was deprived of a fair trial when the victim's doctor testified that the victim's abuse "was real" based solely on the victim's change in demeanor when recounting the abuse. Id. at 538-39. The victim had no physical signs of abuse. Id. at 539 n.8.

         In State v. Foster, 244 S.W.3d 800 (Mo. App. 2008), the doctor who conducted the victim's examination testified that he believed the victim was sexually abused based solely on her statements. Again, there was no physical evidence of abuse. Id. at 802. The doctor compounded the impropriety of his testimony by stating that his years of experience allowed him to determine a child's truthfulness in alleging abuse. Id. This Court held that the admission of the doctor's testimony was prejudicial error. Id. at 804.

         In State v. Clements, 789 S.W.2d 101 (Mo. App. 1990), a doctor testified that the defendant had deliberated prior to killing the victim. Id. at 107. This Court concluded that the issue of deliberation was for the jury to determine, and the admission of expert testimony on that issue deprived the accused of a fair trial. Id. at 110-11. Clements was distinguished in State v. Mackey, 822 S.W.2d 933 (Mo. App. 1991), because the witness' testimony in Mackey did not point to the defendant being the perpetrator of a child's sexual abuse. Id. at 937-38.

         This case is factually distinguishable from Churchill, Foster and Clements. First, Defendant's oral and written admissions to the police directly implicate him as the perpetrator of the offense against A.A. Second, the relevant portions of Buchanan's testimony were brief and were not highlighted during closing argument. See State v. Wadlow, 370 S.W.3d 315, 322 (Mo. App. 2012); Clements, 789 S.W.2d at 110. Third, Buchanan acknowledged that the preponderance-of-the-evidence threshold she used during her investigation was much different than the one to be used by the jury. See State v. Smith, 422 S.W.3d 411, 418 (Mo. App. 2013). Buchanan's testimony that "most likely something had happened" considered in context, merely explained her role in the investigative process. See State v. White, 466 S.W.3d 682, 687-89 (Mo. App. 2015). Neither portion of Buchanan's testimony stated that Defendant had abused A.A. The import of Buchanan's testimony was that someone had abused A.A. See Mackey, 822 S.W.2d at 937-38; see also Wadlow, 370 S.W.3d at 322. Given these differences, Defendant has failed to meet his burden of showing an evident, open and obvious error by the trial court in not intervening sua sponte to prevent the testimony from Buchanan that is being challenged on appeal. Point 4 is denied.

         Point 5

         Defendant's fifth point involves the following testimony given by Father during his direct examination at trial:

Q. Now, I want to ask you one final question, [Father]. To your knowledge, has anyone ever molested [A.A.] besides Mr. Riggs?
A. No.
[DEFENSE COUNSEL]: Objection, Your Honor. That's what's on trial here.
[PROSECUTOR]: Well, I'm asking besides Mr. Riggs.
[DEFENSE COUNSEL]: Yeah. But you're alleging that that has happened, and that's what's on trial now.
[PROSECUTOR]: Allegedly.
THE COURT: Overruled. Overruled.
BY [PROSECUTOR]:
Q. You may answer.
A. No.

         Defendant argues that the "trial court abused its discretion in overruling defense counsel's objection to the prosecutor's question, posed to [Father], as to whether anyone else had ever molested A.A. besides [Defendant], because … the prosecutor's question invaded the province of the jury and ...


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