Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Charles County 1611-CR00696-01
Honorable Jon Alan Cunningham Judge.
Honorable Mary K. Hoff Judge.
Kim Ferguson II ("Defendant") appeals from the
Judgment upon his convictions following a jury trial for two
counts of first degree statutory sodomy in violation of
Section 566.062 RSMo 2000, and one count of first degree child
molestation in violation of Section 566.067. The trial court
sentenced Defendant to eighteen years of imprisonment on both
statutory sodomy counts and to fifteen years on the child
molestation count, with all sentences running concurrently.
We affirm in part, reverse in part, and remand.
and Procedural Background
2005, Defendant and A.R.'s ("Victim") mother
("Mother") began a relationship while Mother was
pregnant with Victim. In January of 2006, Victim was born,
and in September of 2007, Mother and Defendant married.
Throughout the marriage, Defendant, Mother, Victim, and
Victim's sibling moved into and out of several apartments
and family members' homes until Defendant and Mother
separated and later divorced in April of 2013.
February of 2016, while Victim was in fourth grade,
Victim's school arranged for a sexual abuse seminar to be
given to her class. During the presentation, Victim began
sobbing, approached Dr. Anita Hampton ("Dr.
Hampton"), a school counselor, and told her "it
happened to me," explaining that Defendant had
"touched me in my private area and.. .made me do bad
things," including "suckpng] his hotdog." Dr.
Hampton subsequently called Mother and made a hotline call to
the Missouri Department of Social Services Children's
Victim met with Michelle Stille ("Stille"), a
forensic interviewer with the Child Center in Wentzvilie,
Missouri. Victim identified four instances of abuse to
Stille. First, in "her old old [sic] apartment,"
Defendant "forced her to suck his thingy." Second,
while they were living in Defendant's mother's home,
Defendant made her "suck his thingy," which caused
her to vomit "because it tasted nasty." Third, at
the "new old apartment," she was preparing for a
bath when Defendant came in, picked her up, turned her upside
down, and "licked her thingy or private part."
Finally, while spending the night at a relative's house,
Defendant woke her up, brought her into his bed, and
"touched her private part on top of her pajamas."
was charged by third substitute information in lieu of
indictment with two counts of first degree statutory sodomy
and one count of first degree child molestation. Prior to
trial, the trial court granted Defendant's motion in
limine seeking to exclude any testimony relating to uncharged
acts of domestic violence alleged to have been committed by
Defendant. Thereafter, the trial commenced on August 15,
trial, Victim explained that she remembered Defendant having,
several times, "touched [her] in areas of [her] body
that [she] ha[d] learned shouldn't be touched."
Victim testified that when she was "around two or
three," "[Defendant] stayed on the couch"
while Mother was at work, and made her "mouth touch
his penis." Victim testified that she "bit it
[because she] thought it was a hotdog, and [Defendant] got
mad." Next, Victim testified that at the "old
apartment" when she "was younger, [she] was about
to take a bath, and [Defendant] sat on the toilet, put [her]
upside down, [and] started licking [her] privates."
Victim explained that in 201 i, while in Defendant's
mother's home, Defendant "had [Victim] go downstairs
in [the] basement and.. .made [her] touch him and do other
things" that she "didn't want to [do]"
including putting her mouth on "[h]is privates,"
causing her to vomit. Finally, Victim testified that on
another evening, while at Defendant's stepmother's
home, Defendant snuck into her room, put her into his bed,
and touched her vagina over her pajamas despite her attempts
to push his hand away. Victim testified that, initially, she
"didn't really know what [Defendant's actions]
actually meant," but began to understand "around..
.kindergarten." Victim testified that she
"didn't think [she] should tell" anyone about
Defendant's actions because she "was scared that
[Defendant] was going to do something." Victim
testified, however, that she eventually told a cousin and two
friends about Defendant's actions when she was in third
grade, but told them "not to tell."
State next called Dr. Hampton and asked her at length about
her education, occupation, and experience. Dr. Hampton
testified that she is a school counselor at Victim's
school. She testified that she received her master's
degree from Lindenwood University and that she has a
doctorate in counseling psychology, which she received from
Argosy University in Chicago, Illinois. Dr. Hampton testified
that she has been working as a school counselor for nineteen
years, but that she has no specific training in conducting
forensic interviews with children. Dr. Hampton testified that
she is a mandated reporter such that, "if someone
discloses...a sexual abuse... it is my job to call and report
that situation." Dr. Hampton explained that Victim
disclosed to her several instances in which Defendant
"had touched her in her private area." After
recounting Victim's allegations, Dr. Hampton, over
Defendant's objection, testified that she had "[n]o
doubt at all" about what Victim told her or whether
"this had actually happened to her."
testified that she is a forensic interviewer trained to speak
with children suspected of being victims of abuse. She
explained that she had 550 hours of training in the areas of
child abuse and neglect, and that one third of that training
was specific to interviewing. Stille noted that she has
personally conducted over 500 forensic interviews and
observed over a thousand more. Over Defendant's
objection, Stille testified that Victim's interview
"was pretty consistent," that Victim "shared
details that were specific to those events" including
sensory details, and that Victim "corrected me numerous
times throughout the interview." Stille testified that
these responses are "fairly typical of kids that tend to
not be suggestible." Thereafter, Stille explained that
Victim disclosed four instances of abuse by Defendant, namely
that Defendant "forced her to suck his thingy"
twice, causing her to vomit in one instance; that Defendant
"picked her up[j turned her upside down[J and.. .licked
her thingy or private part;" and that Defendant
"touched her private part on top of her pajamas"
while she spent the night at Defendant's stepmother's
testified for Defendant. During direct examination, she
explained that after she and Defendant separated, but prior
to their divorce, Mother only let Defendant see the children
"if [they] got along," noting that she sometimes
kept the children "because [she] was physically
abused." Defendant's counsel requested a mistrial,
citing his motion in limine, and the trial court instructed
Mother not to discuss allegations of domestic abuse further,
but denied a mistrial. Thereafter, Defendant's counsel
confirmed that Mother and Defendant eventually divorced, and
that Mother filed motions to modify the divorce decree
seeking supervision during Defendant's visitation of the
children. On cross-examination, Mother explained that she
sought supervision because Victim's sibling told her that
Defendant had him watch the film 50 Shades of Grey.
Defendant's counsel objected, claiming that this
testimony was "extremely prejudicial," and the
State responded that Defendant "opened that door"
by "mak[ing] a big issue of the [divorce] proceedings
[and] choos[ing] to say what she did" therein. The trial
court overruled Counsel's objection.
testified, and he denied all of Victim's allegations,
explaining that he never exposed his genitals to Victim or
engaged in any sexual conduct with her.
conclusion of all evidence the jury found Defendant guilty on
all counts, and on August 28, 2017, the trial court sentenced
him to 18 years of imprisonment on both statutory sodomy
counts and 15 years of imprisonment on the child molestation
count with all sentences running concurrently. Defendant
filed a motion for new trial alleging, inter alia,
that the trial court erroneously admitted testimony from Dr.
Hampton and Stille that improperly vouched for Victim's
credibility, and erroneously admitted Mother's
prejudicial testimony that Defendant physically abused her
and allowed Victim's sibling to watch 50 Shades of
Grey. On August 28, 2017, the trial court denied the
motion for new trial. Defendant's appeal
Points I and II, Defendant challenges the trial court's
determinations as to the admissibility of evidence. Trial
courts have broad discretion in determining the admissibility
of evidence, and we review their rulings for an abuse of that
discretion, which 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.
Rogers, 529 S.W.3d 906, 910 (Mo. App. E.D. 2017). On
appeal, we also review for prejudice and will reverse only if
the error was so prejudicial that it deprived the defendant
of a fair trial; an error is not prejudicial if there is no
reasonable probability that it affected the outcome of the
trial. State v. Cummings. 400 S.W.3d 495, 507 (Mo.
App. S.D. 2013).
Points III and IV, Defendant challenges the trial court's
denial of his request for a mistrial. A grant of a mistrial
is reserved only for the most extraordinary circumstances to
avoid a prejudicial effect and to maintain an impartial jury.
State v. Evans. 490 S.W.3d 377, 383 (Mo. App. W.D.
2016). A mistrial should be granted only where the prejudice
that a defendant suffers cannot be removed in any other way.
Id. Since the trial court is in the best position to
determine whether there was a prejudicial effect upon the
jury, the decision whether to grant a mistrial is left to the
court's discretion, and we also review this decision for
an abuse of discretion. Id- To constitute an abuse of
discretion, the trial court's decision to deny a request
for a mistrial must be clearly against the logic of the
circumstances and be so unreasonable as to indicate a lack of
careful consideration. Id.
Point I, Defendant argues that the trial court abused its
discretion in allowing Dr. Hampton to testify that she had no
doubts about Victim's allegations because such testimony
invaded the province of the jury by improperly vouching for
Victim's credibility. We agree.
trial, after the State questioned Dr. Hampton at length about
her educational background, her experience, and her
occupation, the following exchange occurred:
[The State:] And you've worked with a lot of kids over
the years. Having had an opportunity right then, and
[Victim]'s first time she told an adult about this, to
see what her demeanor was and the detail she was able to give
you, did you ...