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State v. Baney

Court of Appeals of Missouri, Eastern District, Fourth Division

April 18, 2017

STATE OF MISSOURI, Respondent,
v.
CARY L. BANEY, Appellant.

         Appeal from the Circuit Court of Montgomery County 14AA-CR00114-01 Honorable Wesley C. Dalton, III

          OPINION

          James M. Dowd Judge.

         Cary L. Baney, a chiropractor, was found guilty by a jury in the circuit court of Montgomery County of one count of deviate sexual assault arising out of the unwelcome touching by Baney of a female patient's genitals with his hand during an office visit in August 2013. Baney was sentenced to five years' imprisonment. Baney appeals, asserting three points of error: (1) that the trial court erred in denying his amended motion for a new trial based on Baney's post-trial discovery that C.P. ("Victim") was pursuing a civil claim for damages against him because that new evidence would likely result in Baney's acquittal; (2) that the trial court erred in denying his motion for a new trial because a comment made by prospective juror number thirty-eight ("Prospective Juror 38") during voir dire tainted the panel and the State used the prejudicial comment in closing argument to improperly prejudice the jury against Baney; and (3) that the trial court erred in denying his motions for judgment of acquittal because the State failed to adduce sufficient, credible evidence to make a submissible case. We affirm.

         Factual and Procedural Background

         In August 2013, Victim began seeing Baney for back pain. On August 23, 2013, Victim had her third appointment with Baney. Initially that appointment proceeded like her other appointments until Baney lifted her pants and underwear with his right hand and touched her genitals with his left hand. This startled Victim and Victim's reaction caused Baney to remove his hands. Victim sat up, grabbed her things to leave, and as she did, she saw Baney move his left hand up to his nose and smell his fingers. On August 29, 2013, Victim went to see her nurse practitioner for a routine well-woman exam and during that appointment Victim told her nurse practitioner what happened at Baney's office. Victim's nurse practitioner encouraged Victim to report what transpired to the police and a few days later Victim reported it to a police officer that she knew.

         Baney was charged with one count of deviate sexual assault, and on February 16, 2016, the case was tried before a jury. During voir dire, the State asked the venire panel if anyone knew Baney and Prospective Juror 38 responded affirmatively. The State then asked if Prospective Juror 38 knew Baney on a personal or professional level and she stated that she had been to Baney's office one time. The State then asked Prospective Juror 38 whether anything about that office visit would affect her decision in this case and she replied, "Probably so." The State asked Prospective Juror 38 whether she would be able to set that aside and make her decision solely upon the evidence presented and she said no. Prospective Juror 38 was stricken for cause on the State's motion without any objection by Baney.

         At trial, Victim, Victim's nurse practitioner, and the police officer who investigated the case testified on behalf of the State. Neither the State on direct nor defense counsel on cross-examination elicited any testimony from Victim about any motive she may have had in making the criminal allegations against Baney. At the conclusion of the State's case, Baney filed a motion for judgment of acquittal based on the State's failure to make a submissible case. The court denied Baney's motion.

         Baney, Baney's mother, who worked part-time in an administrative capacity for Baney, and another one of Baney's patients who was in the waiting room when Victim left on the day of the incident all testified on behalf of the defense.

         During the rebuttal portion of its closing argument, the State argued at length that Victim had nothing to gain from this case. The State also argued that while there was evidence that Baney had thousands of clients, he wondered how many of those clients had only one appointment with Baney, allowing the inference that perhaps Victim was not Baney's only victim and that others had not spoken out about Baney. No objection was made by Baney to any of these assertions by the State. On February 16, 2016, the jury found Baney guilty of one count of deviate sexual assault.

         On March 10, 2016, Baney filed a motion for judgment of acquittal and a motion for new trial. The next day, a civil attorney representing Victim sent Baney a letter of representation indicating that Victim was making a civil claim against Baney with Baney's insurance carrier. On March 14, 2016, Baney filed amended motions for judgment of acquittal and for new trial, alleging that there was new evidence that was not available at trial. Specifically, Baney referenced the letter sent to him from Victim's civil attorney, but Baney did not file any other evidence with his amended motions.

         On May 4, 2016, the parties arrived for Baney's sentencing and the court heard argument on the aforementioned amended motions. The State denied having any knowledge at trial that Victim intended to pursue a civil claim for damages against Baney. The court denied the motion finding that the issue of Victim's intent to pursue a civil claim against Baney in the context of her motive for alleging these criminal charges against Baney could have been raised at trial but had not been. Thereafter, Victim gave a victim impact statement to the court but again Victim was not questioned regarding Baney's claim of newly-discovered evidence and no evidence was presented in support of Baney's amended motions, only his counsel's argument. This appeal follows.

         Standard of Review

         On direct appeal, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Marrow, 968 S.W.2d 100, 106 (Mo.banc 1998). We review the facts in the light most favorable to the verdict. Id. Issues that are not properly preserved for appeal may be considered only if the court finds that manifest injustice or a miscarriage of justice has resulted therefrom. Id.

         I. The trial court did not abuse its discretion in denying Baney's amended motion for new trial ...


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