Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County Hon. Gloria Reno
Van Amburg, Judge
Rogers appeals the trial court's judgment after a jury
convicted him of statutory sodomy and child molestation. We
reverse and remand for a new trial.
January 2015, twelve year-old X.S. (Child) told her school
guidance counselor (Counselor) that her grandfather (Rogers)
had touched her inappropriately. Counselor contacted
Children's Division, and Child was taken to the Child
Advocacy Center for a forensic interview, conducted by
Anthony Harper. Based on Child's revelations during the
interview, the State charged Rogers with six counts of child
sexual abuse. One was dismissed before trial, and Rogers was
acquitted on three others. This appeal concerns the remaining
two counts, alleging that Rogers undressed Child and touched
her breasts and genitals during a family barbeque in 2013.
trial, pursuant to §491.075, the State filed notice of
its intention to offer the hearsay testimony of five
witnesses to whom Child conveyed allegations of abuse:
Counselor, Detective William Belcher, Child's mother,
Child's friend, and Harper.
testified that Child, then in seventh grade, became upset
upon entering Counselor's office and told her that Rogers
had touched her inappropriately, over the clothes on an area
covered by a swimsuit. Detective Belcher testified that he
interviewed Child ten months later, when Child revealed new
allegations that Rogers showed her pornography on his
computer and molested her in a storage locker. Mother testified
that she thought she overheard Child telling a cousin that
she "touched" or "sucked"
"pawpaw." Friend testified that Child said that
Rogers "used to touch her when she was younger."
Rogers objected to the witnesses' testimony on the basis
that Child's statements to them lacked sufficient indicia
of reliability to be admitted under the hearsay exception of
§491.075. The court overruled the objections and allowed
the witnesses to testify at trial.
described a progressive process of disclosure commonly
observed in child victims of sexual abuse: denial, tentative
disclosure, active disclosure, recantation, and
reaffirmation. He explained that, during the tentative stage,
children might minimize or distance themselves from the
events in question. He also testified that Child provided
sensory details and specific locations where events occurred.
Rogers filed a motion in limine to exclude
Harper's testimony about the stages of disclosure insofar
as it invaded the province of the jury to determine when and
whether Child was telling the truth or lying. The court
denied the motion. Rogers renewed his objection at trial. The
State argued that Harper possessed expertise about the
process of disclosure, how children communicate differently
than adults, and specifically how child sex abuse victims
have certain characteristics that he could describe in his
capacity as an expert. The State further assured the court
that the testimony would be limited to generalized testimony.
Rogers recorded a continuing objection, and proceedings
continued. Harper described at length typical challenges in
interviewing children, the stages of disclosure, the
technique of source monitoring (distinguishing reality from
fiction), the difference between scripted and episodic memory
(recurring patterns versus discrete events), and the
significance of sensory detail unrelated to the allegations.
The jury then viewed a video of Harper's interview with
Child. In that interview, as relevant to this
appeal, Child told Harper that Rogers had touched her
"chest" and "private area." Harper asked
Child to clarify those terms on an anatomical drawing, and
Child circled the genital area and breasts. Child
demonstrated the motion of Rogers's fingers on her upper
thigh. And she said that Rogers "kept touching me
everywhere" but she didn't remember anything more
because she was "really tired" at the time.
the video, Harper explained in itemized detail, excerpted
infra, how Child's specific actions and
statements in the video aligned with the aforementioned
interview themes and were therefore reliable and consistent
with sexual abuse. Rogers didn't object during
questioning but reasserted his standing objection at the
conclusion of testimony on the basis that Harper's
opinion as to Child's reliability invaded the province of
the jury. The State argued that Harper could opine whether
Child's statements were consistent with sexual abuse as
long as he didn't opine whether the child was actually
abused. The trial court overruled the objection. In closing
argument, the State reminded the jury that Harper was an
expert on the process of disclosure and, in his expertise,
Child showed indicators of reliability.
jury found Rogers guilty of one count of statutory sodomy and
one count of child molestation. The trial court sentenced him
to consecutive prison terms of fifteen years and five years,
respectively. Rogers appeals and asserts that the trial court
erred by (1) allowing Harper to opine about Child's
credibility, (2) allowing Harper to reconcile Child's
statements with the stages of disclosure, (3) submitting the
case to the jury without sufficient evidence, (4) allowing
the other witnesses' hearsay testimony about Child's
statements, and (5) denying a mistrial after the jury heard
evidence of uncharged conduct.
Testimony (Points I and II)
first point, Rogers asserts that the trial court abused its
discretion by allowing Harper to testify that Child's
statements were reliable and consistent with sexual abuse. As
a preliminary matter, the State asserts that the point
wasn't properly preserved because Rogers's motion
in limine, continuing objection, and post-trial
motion challenged only Harper's general testimony about
the stages of disclosure and not other communication
characteristics he mentioned. Rogers's second point more
directly targets Harper's testimony on the stages of
disclosure. The State argues that this point is also
unpreserved in that Rogers expanded the issue in his motion
for a new trial.
of error must be sufficiently definite to direct the trial
court's attention to the particular acts or rulings
asserted to be erroneous so that the trial court has an
opportunity to correct them." State v. Howery,
427 S.W.3d 236, 248 (Mo. App. E.D. 2014). We find the issues
sufficiently preserved. Rogers referred to the "stages
of disclosure" because the State presented Harper's
491 testimony in that framework. Though the State added other
labels at trial, the record establishes that the disclosure
stages and other characteristics are not separate inquiries;
they are related. For example, Harper specifically confirmed
that minimizing, distancing, and progressive revelations are
characteristics of tentative disclosure. Regardless of
nomenclature, Rogers's motions and objections
consistently articulated a singular hazard: that Harper's
testimony would invade the province of the jury as to
Child's credibility. Rogers sufficiently directed the
trial court's attention to this concern. Accordingly, we
review points I and II together under the abuse of discretion
courts have broad discretion in determining the admissibility
of evidence, and we review their rulings for an abuse of that
discretion. An abuse of discretion occurs when a ruling is
clearly against the logic of the circumstances and is so
arbitrary and unreasonable as to shock one's sense of
justice and indicate a lack of careful consideration.
State v. Johnson, 207 S.W.3d 24, 40 (Mo. 2006).
Where reasonable persons can differ about the propriety of
the action taken by the trial court, no abuse of discretion
will be found. Id. Further, 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. Churchill, 98 S.W.3d 536, 539 (Mo. 2003).
general purpose of expert testimony is to assist the jury in
areas that are outside of everyday experience or lay
experience. State v. Pickens, 332 S.W.3d 303, 321
(Mo. App. E.D. 2011). However, "the expert may not
express an opinion as to the guilt or innocence of the
defendant. To do so would usurp the decision-making function
of the jury." Id. at 322. Thus, when
determining the admissibility of opinion testimony, expert
witnesses should not be allowed to give their opinion as to
the veracity of another witness's statement, because, in
so doing, they invade the province of the jury. Id.
cases involving the sexual abuse of a child, there are
typically two types of expert testimony that give rise to a
challenge: general and particularized. Churchill, 98
S.W.3d at 539. General testimony describes behaviors and
characteristics commonly found in victims. Id.
Particularized testimony concerns a specific victim's
credibility as to the abuse. Id. The trial court has
broad discretion in admitting general testimony, but
particularized testimony must be rejected because it usurps
the fact-finding role of the jury and thus is inadmissible.
Id. "Expert testimony that comments directly on
a particular witness's credibility" or "that
expresses an opinion with respect to the credibility or
truthfulness of witnesses of the same type under
consideration invests 'scientific cachet' on the
central issue of credibility and should not be
admitted." State v. Williams, 858 S.W.2d 796,
800 (Mo. App. E.D. 1993). Relevant case law illuminates the
demarcation line for permissible inquiry.
safe side of the continuum, in State v. Baker, 422
S.W.3d 508 (Mo. App. E.D. 2014), a therapist named, without
describing, the phases of disclosure and confirmed that they
result in inconsistent statements, explaining, "you can
see a child go through all of the phases... based upon any
varying consequence..." Then in closing argument, the
prosecutor elaborated on each phase and used them to justify
discrepancies in the victim's testimony. Baker argued
that, by doing so, the State transformed the expert's
general testimony into particularized testimony. This court
rejected that theory, reasoning that the expert never
expressed an opinion on the victim's credibility, and the
State was entitled to argue reasonable inferences from the
evidence. Id. at 514-515.
in State v. Thomas, 290 S.W.3d 129 (Mo. App. S.D.
2009), a therapist described in more detail the process of
disclosure, common problems or roadblocks, source monitoring,
script memory, and tactile detail. Then in closing, like
Baker, the prosecutor connected the victim's
behavior and statements to the common characteristics
described by the expert. Thomas argued that the expert's
testimony was "tailored to the facts" of the case
and thus particular. The court again rejected that theory,
reasoning that the expert's testimony "did not speak
to the Victims' credibility at all." Id. at
contrast, in Williams (cited supra), a
doctor testified that: children rarely lie about sexual abuse
and "essentially don't lie" about who abused
them; that if the child was not asked leading questions then
her spontaneous response "declares who it was;" and
that behavioral indicators can only support what the child
says." The court deemed this evidence inadmissible,
reasoning, "Vouching too much for the victim's
credibility, these statements supplied improper
verisimilitude on the issue of whether the appellant was
guilty." Williams, 858 S.W.2d at 801. Even
reviewing only for plain error, the court judged the
testimony "demonstrably prejudicial" and
"fundamental error, " because it "amounted to
an impressively qualified stamp of truthfulness on the
victim's story." Id.
in State v. Foster, 244 S.W.3d 800 (Mo. App. S.D.
2008), a doctor testified that he "has a sense whether a
child is telling me a lie or not" and 95% of his
interviewees were abused though no physical evidence was
present; he then specifically opined that the subject child
had been abused. The court deemed this testimony inadmissible
because it lent scientific cachet to the child's
credibility. The court further noted that, while error may be
harmless when the evidence of guilt is overwhelming,
"this was a 'he-said, she-said' credibility
case" with no other evidence. Id. at 803.
Churchill (cited supra), a doctor testified
that: the child exhibited several behavioral changes
indicative of abuse, the changes meant that a significant
event had occurred, and the child's change in demeanor
when discussing the incident revealed that it "was
real." The State conceded that this testimony was
improper, and the Supreme Court of Missouri deemed it
prejudicial insofar as the only other evidence consisted of
the child's behavior and conflicting statements, which
the doctor bolstered in the State's favor. The Court
qualified, however, that, although testimony such as this is
always inappropriate, it may not necessitate a new trial in
such a situation was presented in State v. Collins,
163 S.W.3d 614 (Mo. App. S.D. 2005). In that case, the
physical evidence of severe and prolonged abuse was
undeniable; Collins signed a written confession, and other
witnesses corroborated the victim's allegations. Though
two experts' testimony invited numerous objections, none
was asserted, so the appellate court examined only whether
the trial court plainly erred in not excluding the testimony
sua sponte. Specifically, one expert testified that
the victim provided "credible idiosyncratic detail"
about yellow rope and also exhibited a "hallmark of
credibility" by correcting a misstatement by the expert.
Despite these direct affirmations of credibility, the
appellate court declined to fault the trial court for
allowing this evidence, reasoning that Collins' failure
to object was strategic, consistent with a defense theory
implicating other assailants. The court further noted that
any error was harmless in that the evidence of guilt was
overwhelming. The experts also testified that the
victim's behavior was "very common" and
"extremely typical" among abuse victims. The court
deemed this evidence "general profile" testimony in
that it didn't "directly or implicitly" vouch
for the victim's credibility, relying on State v.
Silvey, upholding testimony that a child "displayed
behavioral indicators consistent with child sexual
abuse." 894 S.W.2d 662, 671 (Mo. 1995) (abrogated on
other grounds by State v. Porter, 439 S.W.3d 208
(Mo. 2014)). But while Silvey and its progeny permit
an opinion that a child's behavior is "consistent
with" sexual abuse, we remain wary that an expert's
extensive personalization of general
characteristics, factually dissected and aggregated on an
otherwise equivocal record, inevitably bolsters a
victim's credibility. That is precisely what occurred
generalized testimony, Harper explained typical challenges in
interviewing children, the stages of disclosure, source
monitoring, scripted versus episodic memory, and the presence
of sensory detail. The State elicited the following general
testimony to foreshadow and frame Child's interview.
Q: So you're trying to figure out if the kid really had
this happen or if they were just told about it or heard about
it, is that fair to say?
Q: Are there different indicators of reliability to show that
this really happened to a child?
A: Yes, there are.
Q: Tell me about some of those indicators of reliability.
A: If a child makes a spontaneous gesture during the
A child making a statement against their self-interest...
Q: You also mentioned - we're talking about indicators of
reliability - and then what about emotion?
A: Yeah, if a child displays emotion during the interview,
that could also be an indicator.
Q: What if the child corrects you or asks for clarification?
A: Yes. ... If the child corrects the interviewer, that shows
that they're less likely to be suggestible or leading...
Q: What about details? Can details be an indicator of
Q: Tell me more about that.
A: If a child is providing some type of a detail that's
really not related to the -if they're talking about an
abusive experience but they're also relating other things
that were going on at the time, again those would be
indicators that it's most likely something that they
Q: What about tactile details, things that they saw, felt,
heard, that type of thing?
A: Yes, if a child is talking about how something on their
body felt, those types of things ...