Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF IRON COUNTY Honorable Judge Kelly
W. SHEFFIELD, J.
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.
and Procedural Background
in the light most favorable to the verdict, the evidence
adduced at trial demonstrated the following facts.
("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
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
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."
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.
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.
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.
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
was charged with two counts of the class B felony of child
molestation in the first degree in violation of §
566.067. This charge was later amended to reflect
Defendant's status as a persistent offender.
trial, the State presented its evidence through various live
witnesses and video interviews of Victim and
Sister. 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