Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY Honorable James
W. LYNCH, P.J.
Spencer Hood ("Defendant") appeals his convictions
for five counts of statutory rape in the first degree, one
count of statutory sodomy in the second degree and one count
of statutory rape in the second degree. See sections
566.032, 566.064, and 566.034.Defendant contends in four points that the
trial court erred in admitting (1) "the testimony of
Nancy Sutton regarding the truthfulness and credibility of
Victim . . . because Ms. Sutton was not identified as an
expert witness and was not qualified as an expert to give
opinions on the complaining witnesses truthfulness and
credibility[;]" (2) "propensity evidence of
[Defendant's] alleged prior sexual misconduct against his
sister, brother and mother, under Article I, Section 18(c) .
. . because Section 18(c) did not take effect until after
[Defendant] was charged[;]" (3) "propensity
evidence of [Defendant's] alleged prior sexual misconduct
against his sister, brother and mother, under Article I,
Section 18(c), . . . in that [Defendant's] juvenile
adjudications were not 'prior criminal acts' for
purposes of Section 18(c) and were not admissible for any
purpose[;]" and (4) "evidence that the
Children's Division had determined that 'there is a
preponderance of evidence that: [Defendant] sexually abused
his daughter. . .' . . . in that this determination by
the Children's Division invaded the province of the
factfinder[.]" Finding no merit in Defendant's first
three points and that he failed to preserve his fourth point
for appellate review, we affirm his convictions.
and Procedural Background
does not challenge the sufficiency of the evidence to support
his convictions. Viewing the evidence in the light most
favorable to the finding of guilt, State v. Taylor,
298 S.W.3d 482, 491 (Mo. banc 2009), Defendant repeatedly
sexually abused his then minor daughter ("Victim")
from 2005 to 2010 for which he was charged with five counts
of statutory rape in the first degree, one count of statutory
sodomy in the second degree, and one count of statutory rape
in the second degree. Defendant waived a jury trial on the
charges and, following a bench trial, the trial court found
Defendant guilty on each count, determined he was a predatory
sexual offender,  and sentenced him
to life imprisonment on each of the five counts of statutory
rape in the first degree and seven years' imprisonment
for both the statutory sodomy charge and the statutory rape
in the second degree charge. Defendant timely appeals.
four of Defendant's points challenge the admission of
evidence at trial. "The admission of evidence is
reviewed for abuse of discretion and disturbed only when the
decision is 'clearly against the logic of the
circumstances.'" State v. Taylor, 298
S.W.3d 482, 491 (Mo. banc 2009) (quoting State v.
Reed, 282 S.W.3d 835, 837 (Mo. banc 2009)).
"Reversal due to an evidentiary error requires a showing
of prejudice." Taylor, 298 S.W.3d at 492.
"Prejudice exists when 'there is a reasonable
probability that the trial court's error affected the
outcome of the trial.'" Id. (quoting
State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc
all of Defendant's points challenge the admission of
evidence in a bench trial, however, our review for prejudice
is somewhat different than in a jury-tried case.
In a jury-waived case a certain amount of latitude in the
admission of evidence is allowed, and even where an error is
made in the admission of some evidence, except where the
trial court relied on that evidence in arriving at its
findings of fact and conclusions of law, such error is
ordinarily held to be non-prejudicial. This is so because the
rules of exclusion in the law of evidence as applied in a
court of law are largely as a result of the jury system and
serve the purpose of keeping from the jury all irrelevant and
collateral matters which might tend to confuse them or
mislead them from a consideration of the real question in
issue; when an action is to the court sitting without a jury,
the rules of exclusion are less strictly enforced.
State v. Sladek, 835 S.W.2d 308, 313 (Mo. banc 1992)
(quoting State v. Leigh, 580 S.W.2d 536, 545
(Mo.App. 1979), rev'd on other grounds Leigh v.
State, 639 S.W.2d 406 (Mo.App. 1982)).
One-No Demonstrated Prejudice from Sutton's
first point relied on contends:
The trial court abused its discretion in admitting, over
[Defendant's] objection, the testimony of Nancy Sutton
regarding the truthfulness and credibility of [Victim]
because the admission of this testimony deprived [Defendant]
of his rights to due process and to a fair trial guaranteed
by the Sixth and Fourteenth Amendments of the Constitution of
the United States and Article I, Sections 10 and 18(a) of the
Missouri Constitution, because Ms. Sutton was not identified
as an expert witness and was not qualified as an expert to
give opinions on the complaining witnesses truthfulness and
credibility. The admission of this testimony resulted in
prejudice to [Defendant], since absent this evidence, there
is a reasonable probability that the outcome of his trial
would have been different.
Sutton, a forensic investigator who examined Victim,
testified that she did not observe any signs that Victim was
being untruthful or had been coached. The factual basis
asserted in Defendant's point challenging this testimony
is that Sutton was not identified as an expert and was not
qualified as an expert to so testify. In his supporting
argument, however, Defendant omits any discussion about or
citation to any record authority supporting that claimed
factual basis. Rather, the argument portion of
Defendant's brief pivots from the claimed factual basis
in his point to assert that any expert opinion
testimony regarding the credibility of witnesses is
inadmissible. In support of
this argument, Defendant relies on State v.
Williams, which held that it was plain error for a trial
court to allow a doctor to testify that "'very
rarely do children [sexually abused children] lie, ' that
the '[i]ncidents of lying among children is very low,
less than three percent, ' that if the child was not
asked leading questions, then the child's spontaneous
response 'declares who it was [who sexually abused her],
' and that the 'physical findings and the behavioral
indicators can only support what the child says[.]'"
858 S.W.2d 796, 801 (Mo.App. 1993).
defendant in Williams was tried by a jury;
therefore, Williams is unpersuasive here where
Defendant was tried by the court. Assuming without deciding
that Sutton's challenged testimony was inadmissible,
"'in a judge-tried case, we presume that the trial
judge was not prejudiced by inadmissible evidence and was not
influenced by it in reaching a judgment, unless it is clear
from the record that the trial judge considered and relied
upon the inadmissible evidence.'" State v.
Crites, 400 S.W.3d 828, 834 (Mo.App. 2013) (quoting
State v. Bewley, 68 S.W.3d 613, 619 (Mo.App. 2002)).
In his argument, Defendant omits any citations to the record
that purport to support or demonstrate that the trial court
considered or relied upon Sutton's challenged testimony
in determining Defendant's guilt on any charge. In the
absence of such citations, we have no basis upon which to
conclude that the record is clear that the trial court relied
on Sutton's challenged testimony in its guilt
determinations. Defendant's claim, therefore, has no
merit regardless of whether Sutton's testimony was
inadmissible. Defendant's first point is denied.
Two-Article I, Section 18(c) Applied to ...