Court of Appeals of Missouri, Eastern District, Division Two
from the Circ4uit Court of the City of St. Louis Cause No.
1422-CR00548-01 Honorable Margaret Mary Neill
Colleen Dolan, Judge.
a jury trial, Tajeaon Rucker ("Defendant") was
convicted of first-degree child molestation and third-degree
assault. After Defendant waived jury sentencing,
the trial court sentenced him to eight years in prison for
child molestation and fifteen days in county jail for his
third-degree assault conviction. We affirm.
Factual and Procedural Background
Convictions on Appeal
December 31, 2013 until January 2, 2014, A.G.
("Victim") and her sister K.G. ("Sister")
were staying at their grandmother's house with several
other family members. At that time, Victim was ten years old
and Sister was seven years old. At some point during their
stay, Victim and Sister were watching a movie in their
grandmother's basement, and Defendant joined them. Victim
alleged Defendant forced her to kiss him on the mouth, and he
also rubbed her vagina with his hand. Victim testified that
she informed her sisters, mother, uncle, grandmother, police,
a social worker from Cardinal Glennon Hospital, and a
forensic interviewer about Defendant's conduct. Sister
was an eyewitness to the incident, and she testified that
Victim's retelling of the events was accurate.
Prior Sexual Contact with Victim
previous occasion in 2011, Defendant also allegedly engaged
in sexual conduct with Victim. Sister testified that she
witnessed this occurrence too. As a result of the 2011
incident, both girls went to counseling and Defendant was
told not to contact Victim. During Victim's testimony on
direct, she stated that she told her mom she was
uncomfortable around Defendant because of "what he did
to [her]" in 2011, and she was afraid Defendant would
subject her to inappropriate sexual conduct again.
Victim's mother also testified about the 2011 incident.
She testified that she told Defendant she did not want him
coming into contact with Victim after she found out he was
"rubbing on her" and "touching her" on
one occasion in 2011. Defense counsel did not object to the
prosecution's questioning of Victim, her sister, or her
mother about the 2011 incident, nor did counsel object to any
of their testimony.
the start of closing arguments, the prosecution asked the
trial court if it could use evidence of the 2011 incident (1)
to suggest his prior conduct made it more likely that the
allegations that Defendant's charges were based on
actually occurred (i.e., character propensity evidence);
and/or (2) to establish Defendant's "motive"
for assaulting and molesting Victim and "intent" to
do so for the purpose of sexual gratification. Defense
counsel objected to the prosecution's use for any purpose
at that point. However, the trial court informed the
prosecution that discussing Defendant's prior sexual
contact with Victim was permissible for the purpose of
establishing motive and intent, appearing to impliedly
prohibit a character propensity argument. During closing
arguments, the prosecution only referred to the 2011 incident
Let me be clear. You do get to consider the prior allegations
involving [Defendant]. That gets to weigh on your verdict
today, ladies and gentlemen. Yes, that goes to the elements
of this case. It's not something that you have to set
aside. That is something that gets to factor in your decision
in finding the defendant guilty. That is what the law says.
on the prosecution's use of Defendant's prior
conduct, Defendant appeals the trial court's judgment and
asks us to reverse and remand the case for a new trial.
Standard of Review
concedes that his trial counsel failed to object to evidence
of the alleged prior sexual offense, and his counsel only
objected to the use of such evidence just before the
prosecution's closing argument. Accordingly, the defense
counsel's objection to the evidence was "untimely,
" as she did not raise the objection
"contemporaneously" with the evidence elicited.
"A contemporaneous objection at the time of the
statement [is] required in order to preserve the issue on
appeal." State v. Thompson, 401 S.W.3d 581, 590 (Mo.
App. E.D. 2013). Accordingly, Defendant failed to preserve
the issue on appeal, and "the question raised on appeal
is whether the trial court plainly erred" and caused
"a manifest injustice or miscarriage of justice."
Id.; Rule 30.20.
review plain error under Rule 30.20 using a two
prong-standard: (1) we determine whether the trial court
erred in an "evident, obvious, and clear" manner;
(2) we determine if the error resulted in a manifest
injustice or miscarriage of justice. State v. Ray,
407 S.W.3d 162, 170 (Mo. App. E.D. 2013). We use plain error
review "sparingly" and the defendant bears the
burden of satisfying the two-prong test. Id.;
State v. Tokar, 918 S.W.2d 753, 769-70 (Mo. banc
III.History of Using Character Propensity Evidence for