Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF DOUGLAS COUNTY Honorable R. Craig
Carter, Circuit Judge
JEFFREY W. BATES, J.
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. 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.
and Procedural Background
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.
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.
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.
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.
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.
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[.]"
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.
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
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
Q. Now, to be fair to the jury, not - were all those always
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.
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
Q. - by the CAC - Child Advocacy Center in West Plains?
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.
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[.]"
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
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. Defendant relies upon the
following three cases to support that argument.
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.
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.
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.
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.
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.
[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.
THE COURT: Overruled. Overruled.
Q. You may answer.
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 ...