Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Perry County 16PR-CR00227 Honorable
Craig D. Brewer
P. Page, Presiding Judge.
A. White ("White") appeals the trial court's
judgment entered following a bench trial convicting him of
one count of third-degree domestic assault pursuant to
Section 565.074 RSMo (2016). We affirm.
White ("Mother") and White had two children
together. On March 11, 2016 Mother and White were married,
but separated, when Mother dropped the children at
White's house for the evening so she could go to work.
She picked the children up around 10 p.m., after her first
shift, and brought the children to her parents' house so
she could work a second shift. Mother picked the children up
the next day around 7 or 8 a.m. When she bathed M.W. she
noticed bruises on M.W.'s bottom and a cut on M.W.'s
lower back. The injuries were not there when Mother dropped
the children off at White's residence the prior day.
Mother called White and asked him if anything happened while
M.W. was with him, and White said "absolutely nothing
had happened." Mother ultimately went to the authorities
because she became suspicious about how M.W. was injured.
M.W. was examined by a nurse practitioner. Following an
investigation, White was ultimately charged with domestic
assault in the third degree. The cause was tried to the
court. White was convicted of domestic assault in the third
degree and sentenced to ninety days, with the execution of
his sentence suspended. He was placed on probation. The
present appeal follows.
two points on appeal both assert allegations of plain error
related to the trial court's admission of evidence
because White did not object to the testimony at trial. In
point one he claims the court plainly erred in allowing
improper testimony concerning his character at trial. In
point two he contends the court plainly erred in allowing
evidence of specific instances of White's inappropriate
conduct as a parent because it constituted improper evidence
of prior bad acts.
trial, the State questioned Mother; Wendi McLeary,
White's sister; and Angela Faulkner, with whom White
lived at the time of the alleged incident. The State elicited
testimony from the witnesses about White's parenting, as
well as the fact White had anger issues due to post traumatic
stress disorder ("PTSD") from serving in the Army.
White did not object to the questioning; therefore, we review
only for plain error. See Missouri Supreme Court
Rule 30.20. Plain error should be used sparingly. State
v. Mayes, 63 S.W.3d 615, 633 (Mo. banc 2001) (internal
citations omitted). It does not justify review of every error
not properly preserved. Id. Instead, we review for
plain error to determine only whether manifest injustice or a
miscarriage of justice would result if the error is left
uncorrected. State v. Chism, 252 S.W.3d 178, 183
(Mo. App. W.D. 2008). "Plain error is that which is
evident, obvious, and affects substantial rights of the
challenging evidentiary rulings, under plain error review,
must demonstrate the trial court committed an error which was
(1) "evident, obvious and clear" and (2) that such
error resulted in prejudice to the party, i.e. the
"claimed error did in fact cause manifest injustice or a
miscarriage of justice." State v. Howery, 427
S.W.3d 236, 248 (Mo. App. E.D. 2014) (internal citation
I - Character Evidence
first point on appeal, White claims the court plainly erred
in allowing testimony concerning his skills as a parent, his
anger issues, and his PTSD because he did not place his
character at issue. White argues he was prejudiced by the
admission of such evidence because the trial court relied on
the evidence to convict him.
plain error review, even assuming, without deciding, the
evidence was improperly admitted, we do not believe a
manifest injustice or miscarriage of justice occurred from
its admission. To find a manifest injustice, we must conclude
the trial court's alleged error in admitting evidence was
outcome determinative. Howery, 427 S.W.3d at 248.
Outcome determinative prejudice occurs where the erroneously
admitted evidence so influenced the trier of fact that when
considered with and balanced against all properly admitted
evidence, there is a reasonable probability the fact finder
would have come to a different ...