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State v. Loper

Court of Appeals of Missouri, Eastern District, Fourth Division

November 12, 2019

STATE OF MISSOURI, Respondent,
v.
RASHIDI DON LOPER, Appellant.

          Appeal from the Circuit Court of of the City of St. Louis 1722-CR00525. Honorable Thomas C. Clark, II

          OPINION

          JAMES M. DOWD PRESIDING JUDGE.

         Rashidi D. Loper appeals the judgment of the Circuit Court of the City of St. Louis entered after a jury found him guilty of first-degree attempted rape, first-degree domestic assault, second-degree domestic assault, tampering with a victim, and two counts of armed criminal action. He raises five points here, each challenging separate evidentiary rulings of the trial court. We find the trial court erred with respect to one of those rulings-the admission of certain opinion testimony- requiring us to reverse his conviction for first-degree domestic assault and his associated convictions for armed criminal action and victim tampering for which he was sentenced to 15 years in prison. We leave standing the remaining convictions, for which he was sentenced to a total of 12 years. Accordingly, we affirm in part and reverse and remand in part.

         This prosecution arose from the violent morning of April 3, 2015, at Victim's apartment. Loper, with whom Victim had previously resided at another apartment during their prior romantic relationship, went to Victim's apartment that morning. The State sought to prove that while there Loper attempted to rape Victim while strangling her with his hands, that he then strangled her again with a telephone cord, and that he cut her wrist with a knife. For her part, Victim testified she had no memory of Loper strangling her with the telephone cord or of him cutting her wrist, because according to her testimony, she lost consciousness when Loper strangled her with his hands while attempting to rape her. Victim testified that when she regained consciousness, Loper had left the apartment, and she was lying in the bathtub with one of her kitchen knives laying between her legs and with a deep cut to her wrist.

         At trial, Loper's main defense-apart from arguing that the State failed to meet its burden of proof on the charges-was that Victim's wrist injury, in particular, was self-inflicted. He testified that Victim had attempted suicide before and he elicited on cross-examination of Victim that when she regained consciousness, she considered the possibility that she had cut herself.

         In light of the lack of physical evidence such as DNA or fingerprints linking Loper to the knife cut, the gaps in Victim's memory of the events, and the dispute between Victim's and Loper's accounts, the State adduced opinion testimony to prove that these crimes, including the knife attack, were in the nature of domestic violence. Detective Kara Lindhorst, one of the investigating police officers, testified to the facts of her investigation and also gave her opinions regarding the characteristics of domestic violence crimes and how those characteristics were manifested in the context of these crimes. She testified based on her "training and experience" in attending domestic-violence training courses and handling "thousands" of such cases, that "domestic violence" is "all about power and control." Then she opined that she "absolutely" witnessed "evidence of power and control in this case"-including, specifically, "the strangulation" and "the cut on [Victim's] wrist" which formed the basis for the two counts of domestic assault and associated armed criminal action here.

         We find the trial court abused its discretion by allowing the State to adduce Det. Lindhorst's opinion testimony that Loper exercised "power and control" over Victim here as charged. This testimony invaded the province of the jury because it impermissibly vouched for the credibility of the State's case and for Victim's testimony, and supplied improper verisimilitude on the critical issue of Loper's guilt of the charged acts of domestic violence. See State v. Taylor, 663 S.W.2d 235, 239-42 (Mo.banc 1984) (holding such opinion testimony to be inadmissible); State v. Rogers, 529 S.W.3d 906, 910-16 (Mo.App.E.D. 2017) (same); State v. Williams, 858 S.W.2d 796, 798-802 (Mo.App.E.D. 1993) (same).

         Accordingly, we reverse the judgment of conviction and remand for a new trial on the charges of first-degree domestic assault and armed criminal action for cutting Victim's wrist, and on the charge of victim tampering, predicated on Loper's guilt of that domestic assault charge. However, because we find the evidence was overwhelming that Loper committed second-degree domestic assault and armed criminal action by strangling Victim with a telephone cord, and that he committed first-degree attempted rape, we affirm the judgment as to those convictions.

         Given our disposition of Loper's challenge to the admission of Det. Lindhorst's testimony, we have concluded it is necessary and appropriate for us to address only one of Loper's four remaining evidentiary challenges on appeal.[1] Due to the nature of Loper's remaining allegations of error and the likelihood that particular evidentiary issues may be avoided on remand, in our view only Loper's challenge to the admission of Michelle Schiller-Baker's testimony regarding the general behaviors of victims of domestic violence presents an issue that is "so likely to arise [on remand] that it is appropriate to address [it on appeal prior to the proceedings' return to the trial court]." State v. Hart, 404 S.W.3d 232, 241 (Mo.banc 2013).

         Background

         Beginning in 2009, Victim and Loper were intermittently romantically involved and cohabitated. On April 3, 2015, Victim and Loper had not seen one another for approximately five months. That morning, Victim allowed Loper to enter her apartment and follow her up to her bedroom, but their accounts of what happened after that diverge. Loper testified that he and Victim began a consensual intimate encounter but that he stopped before they engaged in sexual relations because another of his girlfriends came to his mind. He testified that he then attempted to leave Victim's apartment, but that Victim attacked him, and to get free from her, he had to push her away with his hands around her throat.

         Victim's account was much different: She testified that during Loper's visit, as she lay in bed, he pulled the covers off of her and pulled her toward him by her legs. She said that after she told Loper she did not want to have sexual relations with him because she had not seen him for six months, he pulled his pants down and then tried to pull hers down. She stated that she tried to fight Loper by kicking at him and pulling at her own pants, and that he responded by grabbing her around the throat with both of his hands and choking her to the point where she could not breathe and she lost consciousness.

         Victim testified that when she regained consciousness, she was lying on her back in her bathtub which was filling with water from the shower head. She had no clothes on, her wrist had been severely cut, and one of her kitchen knives was between her legs. There was blood on the floor and on the walls of the bathroom. She immediately climbed out of the bathtub, wrapped her wrist in a sweatshirt, crawled to her telephone, and called 911. Initially, Victim told 911 and first responders that she might have cut her own wrist though she could not recall doing so. But after an emergency medical technician provided her with oxygen for a few minutes, she testified, she remembered Loper had been at her apartment, and thereafter she told everyone who asked her about the cause of her wrist injury, that Loper had cut her wrist.

         The State charged Loper with first-degree attempted rape for trying to force Victim by strangling her with his hands to have sexual relations with him; first-degree domestic assault and armed criminal action for strangling Victim with a telephone cord; first-degree domestic assault and armed criminal action in connection with cutting Victim's wrist; and victim tampering in light of evidence relating to Loper's attempts to influence Victim's testimony.

         At trial, in addition to Victim's account, the State presented the testimony of Officer Wesley Pierce, a police officer who responded to Victim's apartment; Christine Dooley, a paramedic; Detective Kara Lindhorst, an investigator who became involved once the case was referred to the police department's Domestic Abuse Response Team (DART); Michelle Schiller-Baker, an expert on the behavior of domestic violence victims; Dr. Erin Quattromani, the emergency room physician who treated Victim's wrist injury; and Kathy Howard, a sexual-assault nurse who examined Victim.

         Officer Pierce testified that when he arrived at Victim's apartment building, he found her sitting inside the building, at the bottom of the stairwell outside her unit, unclothed and disoriented, with red, swollen eyes and a towel or shirt wrapped around her wrist, and near some spatters and a pool of blood. He stated that "she didn't know exactly what happened to her. She didn't know if she tried killing herself. She stated that she didn't have any reason to do that. She didn't know why she had a cut on her left wrist." Officer Pierce testified that at first he suspected Victim may have attempted suicide.

         When he searched the apartment, Officer Pierce found the water running in the bathroom; a knife in the bathtub and blood on the walls and floor just outside it; and "trails of blood" leading into different rooms of the apartment. He then went to the hospital to check on Victim's condition and while there he spoke with "[t]he doctor" to determine "which way to take [the] investigation." When the doctor stated she did not believe Victim's wrist injury could have been self-inflicted, Officer Pierce handed the case over to DART.

         Paramedic Dooley testified that Victim's wrist had a "large laceration" and she "noticed ligature marks around [Victim's] neck" indicating she had been strangled by "something thin." Dooley related that in the ambulance on the way to the hospital, "[a]t first [Victim] told me she didn't know what happened. She woke up in the bathtub confused. Thought maybe she had harmed herself." But after Victim "[came] around more, [woke] up more," Dooley testified, Victim told her that "she remembered her ex-boyfriend pushing his way through the door [and] taking her onto the bed, strangling her," and then "waking up in the shower."

         The State next called Detective Lindhorst who stated that at the scene, she found "sprays" of blood in the bathroom, the knife in the bathtub, and "spatters," "pools," and "trails" of blood throughout the apartment, including on Victim's bedroom mattress and on the tangled spiral cord of her land-line telephone. She seized the knife and the phone cord as evidence in light of Victim's wrist injury and the "ligature mark on [Victim's] throat that was [in the form of] hatch marks." And she testified that she later interviewed Loper, whom she identified as "the offender" here.

         The State's next witness, Michelle Schiller-Baker, testified as an expert on the general behaviors and characteristics of domestic violence victims. Then, Dr. Erin Quattromani, the emergency room physician who treated Victim's wrist injury, testified that Victim's wrist had an "obvious large laceration" that was "wide across the wrist," and that some of her tendons were cut. She testified that while it was possible such an injury could be self-inflicted, due to the depth and length of the injury, and based in part on Victim's representations to her, she concluded it was likely not self-inflicted. And sexual-assault nurse examiner Kathy Howard, who examined Victim's injuries in the emergency room, testified in accord with Dr. Quattromani that Victim had numerous injuries indicating that she had been strangled, including hemorrhaging in her eyes, burst blood vessels on her face, facial and neck lacerations, lip swelling, and chin and tongue bruising. Nurse Howard also testified that Victim had a "pattern injury" on her neck that was consistent with being strangled with a ligature, or cord.

         In addition, the State introduced extensive photographic and other documentary evidence of Victim's injuries and of the scene at the apartment. The State did not present any DNA or fingerprint evidence attributable to Loper.

         The jury found Loper guilty of the lesser included offense of second-degree domestic assault for strangling Victim with the telephone cord and found him guilty as charged on all other counts. Loper was sentenced to 15 years in prison for first-degree domestic assault and three years for the associated armed criminal action; seven years for first-degree attempted rape; five years each for second-degree domestic assault and the associated armed criminal action; and three years for victim tampering. Loper's sentences were ordered to run concurrently except for the seven-year sentence for first-degree attempted rape, which was ordered to run consecutively to the other sentences, for a total of 22 years in prison.

         This appeal follows.

         Discussion

         1. Loper adequately preserved his claim of error with respect to Det. ...


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