State v. Baney, ED 104363
| Decision Date | 18 April 2017 |
| Docket Number | No. ED 104363,ED 104363 |
| Parties | STATE of Missouri, Respondent, v. Cary L. BANEY, Appellant. |
| Court | Missouri Court of Appeals |
FOR APPELLANT : Matthew Alan Radefeld, Michael Bernard Murphy, 7710 Carondelet Avenue, Suite 350, Clayton, Missouri 63105.
FOR RESPONDENT : Joshua Hawley, Daniel Neal McPherson, 221 West High Street, P.O. Box 899, Jefferson City, Missouri 65102.
Cary L. Baney, a chiropractor, was found guilty by a jury in the circuit court of Montgomery County of one count of deviate sexual assault arising out of the unwelcome touching by Baney of a female patient's genitals with his hand during an office visit in August 2013. Baney was sentenced to five years' imprisonment. Baney appeals, asserting three points of error: (1) that the trial court erred in denying his amended motion for a new trial based on Baney's post-trial discovery that C.P. ("Victim") was pursuing a civil claim for damages against him because that new evidence would likely result in Baney's acquittal; (2) that the trial court erred in denying his motion for a new trial because a comment made by prospective juror number thirty-eight ("Prospective Juror 38") during voir dire tainted the panel and the State used the prejudicial comment in closing argument to improperly prejudice the jury against Baney; and (3) that the trial court erred in denying his motions for judgment of acquittal because the State failed to adduce sufficient, credible evidence to make a submissible case. We affirm.
In August 2013, Victim began seeing Baney for back pain. On August 23, 2013, Victim had her third appointment with Baney. Initially that appointment proceeded like her other appointments until Baney lifted her pants and underwear with his right hand and touched her genitals with his left hand. This startled Victim and Victim's reaction caused Baney to remove his hands. Victim sat up, grabbed her things to leave, and as she did, she saw Baney move his left hand up to his nose and smell his fingers. On August 29, 2013, Victim went to see her nurse practitioner for a routine well-woman exam and during that appointment Victim told her nurse practitioner what happened at Baney's office. Victim's nurse practitioner encouraged Victim to report what transpired to the police and a few days later Victim reported it to a police officer that she knew.
Baney was charged with one count of deviate sexual assault, and on February 16, 2016, the case was tried before a jury. During voir dire , the State asked the venire panel if anyone knew Baney and Prospective Juror 38 responded affirmatively. The State then asked if Prospective Juror 38 knew Baney on a personal or professional level and she stated that she had been to Baney's office one time. The State then asked Prospective Juror 38 whether anything about that office visit would affect her decision in this case and she replied, "Probably so." The State asked Prospective Juror 38 whether she would be able to set that aside and make her decision solely upon the evidence presented and she said no. Prospective Juror 38 was stricken for cause on the State's motion without any objection by Baney.
At trial, Victim, Victim's nurse practitioner, and the police officer who investigated the case testified on behalf of the State. Neither the State on direct nor defense counsel on cross-examination elicited any testimony from Victim about any motive she may have had in making the criminal allegations against Baney. At the conclusion of the State's case, Baney filed a motion for judgment of acquittal based on the State's failure to make a submissible case. The court denied Baney's motion.
Baney, Baney's mother, who worked part-time in an administrative capacity for Baney, and another one of Baney's patients who was in the waiting room when Victim left on the day of the incident all testified on behalf of the defense.
During the rebuttal portion of its closing argument, the State argued at length that Victim had nothing to gain from this case. The State also argued that while there was evidence that Baney had thousands of clients, he wondered how many of those clients had only one appointment with Baney, allowing the inference that perhaps Victim was not Baney's only victim and that others had not spoken out about Baney. No objection was made by Baney to any of these assertions by the State. On February 16, 2016, the jury found Baney guilty of one count of deviate sexual assault.
On March 10, 2016, Baney filed a motion for judgment of acquittal and a motion for new trial. The next day, a civil attorney representing Victim sent Baney a letter of representation indicating that Victim was making a civil claim against Baney with Baney's insurance carrier. On March 14, 2016, Baney filed amended motions for judgment of acquittal and for new trial, alleging that there was new evidence that was not available at trial. Specifically, Baney referenced the letter sent to him from Victim's civil attorney, but Baney did not file any other evidence with his amended motions.
On May 4, 2016, the parties arrived for Baney's sentencing and the court heard argument on the aforementioned amended motions. The State denied having any knowledge at trial that Victim intended to pursue a civil claim for damages against Baney. The court denied the motion finding that the issue of Victim's intent to pursue a civil claim against Baney in the context of her motive for alleging these criminal charges against Baney could have been raised at trial but had not been. Thereafter, Victim gave a victim impact statement to the court but again Victim was not questioned regarding Baney's claim of newly-discovered evidence and no evidence was presented in support of Baney's amended motions, only his counsel's argument. This appeal follows.
On direct appeal, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Morrow , 968 S.W.2d 100, 106 (Mo.banc 1998). We review the facts in the light most favorable to the verdict. Id. Issues that are not properly preserved for appeal may be considered only if the court finds that manifest injustice or a miscarriage of justice has resulted therefrom. Id.
In his first point on appeal, Baney contends that the trial court erred in denying his amended motion for a new trial because the post-trial revelation that Victim was bringing a civil claim for damages against Baney would likely have resulted in Baney's acquittal had it been revealed during trial because it would have shown Victim's motive and would have cratered her credibility. We find that the trial court's rejection of the motion based on its finding that Baney could have explored the issue of Victim's motive at trial but failed to do so was not an abuse of discretion.
Our review is guided by Rule 29.11,1 which allows the trial court to grant a new trial upon good cause shown. Rule 29.11(f) states when any after-trial motion, including a motion for new trial, is based on facts not appearing of record, affidavits may be filed, and depositions and oral testimony may be presented. New trials based on newly-discovered evidence are disfavored, and the trial court has substantial discretion in deciding whether a new trial should be granted. State v. Stewart , 313 S.W.3d 661, 665 (Mo.banc 2010). The trial court's decision will be affirmed unless the trial court abuses its discretion. Id. An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id.
To obtain a new trial based on newly-discovered evidence, Baney was required to show: (1) the facts constituting the newly-discovered evidence came to his knowledge after the trial; (2) his lack of prior knowledge was not owing to want of due diligence on his part; (3) the newly-discovered evidence is so material that it is likely to produce a different result at a new trial; and (4) the evidence is not merely cumulative evidence or evidence impeaching a witness's credibility. Id. (citing State v. Terry , 304 S.W.3d 105, 109 (Mo.banc 2010) ). The exercise of due diligence in this regard requires " ‘that degree of assiduity, industry or careful attention called for under the circumstances of the case and does not require impeccable, flawless investigation in all situations.’ " Young v. St. Louis Pub. Serv. Co. , 326 S.W.2d 107, 112 (Mo. 1959) (quoting Foerstel v. St. Louis Pub. Serv. Co. , 241 S.W.2d 792, 795 (Mo.App. 1951) ). An attempt to discover the interest, bias, or motive of a witness is generally proper cross-examination. State v. Patrick , 757 S.W.2d 654, 655 (Mo.App.E.D. 1988) ; State v. Hunter , 544 S.W.2d 58, 60 (Mo.App. 1976) ().
Here, we find that Baney's claim fails because the lack of prior knowledge about Victim's motive was due in large part to Baney's failure to ask Victim about her motive. In fact, there is nothing in the record showing that Baney asked Victim about her motive at trial or at Victim's pre-trial deposition.
We further find that Baney's assertion here is based on a speculative assumption that Victim, in fact, was motivated to allege this criminal charge in order to set up a civil claim to benefit herself financially. The record is silent on Victim's pre-verdict motive. Moreover, the record does not justify drawing an inference from the post-conviction receipt of a letter from a lawyer announcing that Victim was pursuing a civil claim that Victim had that motive at...
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Baney v. State, ED 107103
...to five years in the Missouri Department of Corrections. This Court affirmed Movant’s conviction on direct appeal. See State v. Baney, 516 S.W.3d 410 (Mo. App. E.D. 2017).We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose......