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State v. Rucker

Court of Appeals of Missouri, Eastern District, Division Two

February 28, 2017


         Appeal from the Circ4uit Court of the City of St. Louis Cause No. 1422-CR00548-01 Honorable Margaret Mary Neill


          Colleen Dolan, Judge.

         Following a jury trial, Tajeaon Rucker ("Defendant") was convicted of first-degree child molestation and third-degree assault.[1] 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.

         I. Factual and Procedural Background

         a. Convictions on Appeal

         From 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.

         b. Prior Sexual Contact with Victim

         On a 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.

         Before 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.[2] During closing arguments, the prosecution only referred to the 2011 incident by stating:

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.

         Based 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.

         II. Standard of Review

         Defendant 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.[3]

         We 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 1996).

         III.History of Using Character Propensity Evidence for ...

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