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State v. Fisher

Court of Appeals of Missouri, Southern District, Second Division

June 10, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
v.
BRANDON EUGENE FISHER, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY Honorable Judge Kelly W. Parker.

          MARY W. SHEFFIELD, J.

         Brandon Eugene Fisher ("Defendant") appeals his criminal convictions, after a jury trial, of two counts of child molestation in the first degree. Defendant contends that the trial court plainly erred when it failed to declare a mistrial, sua sponte, after the prosecutor made a statement in his closing argument that speculated about the possibility Defendant might commit similar unlawful acts in the future. Finding no merit to Defendant's contention, we affirm his convictions and sentences.

         Factual and Procedural Background

         Viewed in the light most favorable to the verdict, the evidence adduced at trial demonstrated the following facts.

         C.B. ("Victim") and her two sisters A.B. ("Sister") and M.B. were removed from their home and placed in a foster home with foster parents in March 2014. Victim was 5 years old and Sister was 7. Approximately 10 days after placement, Victim informed her foster mother that Defendant, a family friend of Victim's parents, would set Victim and Sister on his lap and "would play with them in a bad way" and touched Victim and Sister in their private areas. Sister told her foster mother that she had seen Defendant "do things" to Victim. Foster mother testified that Victim told her Defendant would "hump" Victim.

         Foster mother called Jennifer Hart ("Hart"), the children's caseworker with the Department of Social Services, Children's Division ("Children's Division"). Hart came to the house, talked to the children, and hotlined the abuse. Sister told Hart that Defendant would touch Sister and Victim in their vaginal areas, using the word "coochie" to describe that area. Victim nodded in agreement to Sister's statements to Hart.

         Based on the hotline report of abuse, an investigator with Children's Division, Joe Tiffany ("Tiffany"), came to the home. Tiffany asked Victim if she knew why he was at the house and Victim told him "Yes because my mom and dad and [Defendant] were in bed humping, sometimes with me in the bed and sometimes with my sisters."

         Diane Silman ("Silman"), a forensic interviewer, interviewed Victim and Sister in April 2014, and Victim again in June 2014. In those interviews, Victim described being "humped" by Defendant on several occasions. Victim also stated Defendant's clothes were off and Defendant touched her on her breasts and belly. Sister told Silman that Defendant had touched her vagina.

         Morgan Galloway, a forensic interviewer, interviewed Sister in June 2014. Sister reported that Defendant had touched her vagina, and Defendant had touched Victim in the same manner.

         Melissa Meloy ("Meloy"), a licensed counselor, testified that Victim was her client. Victim told Meloy that her father and Defendant "would hump her and her sister in the living room[.]" Victim stated "it happened a lot." Victim told Meloy that Defendant and her father were naked, but that the girls had their underwear on.

         Jennifer Naeger ("Naeger"), a licensed clinical social worker, counselled Victim and Sister beginning in 2015. Victim described to Naeger sexual abuse incidents occurring on three different dates in 2015 and 2016, including being touched in a sexually inappropriately way by Defendant. Sister also reported that Defendant had touched Sister inappropriately.

         Defendant was charged with two counts of the class B felony of child molestation in the first degree in violation of § 566.067.[1] This charge was later amended to reflect Defendant's status as a persistent offender.

         At trial, the State presented its evidence through various live witnesses and video interviews of Victim and Sister.[2] Both Victim and Sister also testified at trial. Although Victim testified she did not now remember Defendant, Sister testified that she knew who Defendant was ...


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