State v. Celis-Garcia
| Decision Date | 25 February 2014 |
| Docket Number | No. WD 75582.,WD 75582. |
| Citation | 420 S.W.3d 723 |
| Parties | STATE of Missouri, Respondent, v. Maura CELIS–GARCIA, Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Gregory L. Barnes, Jefferson City, MO, for respondent.
Laura Grether Martin, Kansas City, MO, for appellant.
Before Division Two: GARY D. WITT, Presiding Judge, LISA WHITE HARDWICK, Judge and ALOK AHUJA, Judge.
Maura L. Celis–Garcia was convicted in the Circuit Court of Clay County of ten counts of statutory sodomy in the first degree under section 566.062, 1 six counts of child molestation in the first degree under section 566.067, and one count of statutory rape in the first degree under section 566.032 for actions against her two daughters. We affirm.
This appeal arises after the third trial of Appellant Maura L. Celis–Garcia (“CelisGarcia”) for statutory sodomy, sexual molestation, and statutory rape of her two daughters, K.J. and C.J., who were approximately ages eight and six at the time they were removed from the home. Celis–Garcia was alleged to have acted in concert with her boyfriend (later husband), Jose F. Flores (“Flores”), who was at one time a co-defendant but tried separately.
In September 2007, the jury in Celis–Garcia's first trial deadlocked and a mistrial was declared. Celis–Garcia was convicted by a jury in her second trial but that conviction was reversed due to instructional error. State v. Celis–Garcia, 344 S.W.3d 150, 152 (Mo. banc 2011). This appeal arises from Celis–Garcia's second conviction (after her third trial), which concluded in 2012. Because the facts giving rise to the conviction at bar are substantially the same as in Celis–Garcia's second trial and because the issue of sufficiency of the evidence is not raised on appeal, we refer the reader to that published opinion for its recitation of the general facts, which are supplemented here as necessary. Id.
In the case at bar, the court sentenced Celis–Garcia, consistent with the recommendations of the jury, to life imprisonment on each of the ten counts of statutory sodomy in the first degree under section 566.062, to fifteen years' imprisonment on each of six counts of child molestation in the first degree under section 566.067, and to life imprisonment on the one count of statutory rape in the first degree under section 566.062. The first two life sentences for statutory sodomy, the life sentence for statutory rape, and the two child molestation sentences were ordered to run consecutively to the others, which were to run concurrently, for a total of three consecutive life sentences plus thirty years.
Celis–Garcia brings three points on appeal. In her first point, she argues that the trial court abused its discretion by failing to grant her second pre-trial motion for an amended bill of particulars. In her second point, she asserts plain error in the admission of K.J.'s and C.J.'s videotaped deposition testimony. In her third point, she asserts plain error and abuse of discretion in the admission of the testimony of several witnesses and the videotaped forensic interview of K.J.
We first address Celis–Garcia's assertion of error regarding the trial court's failure to grant her second pre-trial motion for an amended bill of particulars in violation of Rule 23.04,2 her rights to due process, to be informed of charges against her, to present a defense, and to a fair trial. Celis–Garcia contends that “the Superceding Indictment and Bill of Particulars failed to sufficiently inform her of a more specific time and date of the charges which would have enabled her fully and completely to investigate charges to prepare a defense.”
Celis–Garcia filed two motions requesting a bill of particulars, the first of which resulted in bill of particulars from the State that included an eighteen-month time frame within which the seventeen charges were alleged to have occurred. It also provided the particular room in the home and the particular area of each child's body that was violated during each charged event. In Celis–Garcia's second motion for a bill of particulars, she sought additional specificity, inter alia, about “the date and time of the offenses.” The second motion was never noticed up for a hearing and therefore never ruled upon by the trial court; Celis–Garcia did not press the motion, and the State did not respond. Celis–Garcia alleges error on appeal only with regard to the lack of a more specific time frame of when each event in the charged activity occurred, and we confine our analysis to that argument pursuant to Rule 84.04.
The State correctly contends that Celis–Garcia failed to preserve this issue by not pressing for a ruling from the trial court. Motions before a trial court are not self-executing and it is the obligation of the party who files the motion to notice it up for a hearing or otherwise bring it to the trial court's attention. “In order for a reviewing court to rule on an alleged defect ..., the objecting party must bring the defect to the court's attention so that the court has the opportunity to take remedial action.” State v. Smith, 11 S.W.3d 733, 738 (Mo.App.E.D.1999) (citation omitted). “A trial court cannot be faulted for not taking action it was never asked to take.” Id. This applies to a motion for a bill of particulars pursuant to Rule 24.04(b)(4), which requires that pre-trial motions be heard before trial on application of the State or the defendant unless trial court orders otherwise. State v. Raines, 748 S.W.2d 865, 869 (Mo.App.S.D.1988) ().
In this matter, Celis–Garcia thus abandoned the motion by failing to properly bring it before the court for a ruling and it is therefore not preserved. “Non-preserved issues are reviewed for plain error, if the error resulted in manifest injustice or a miscarriage of justice.” State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009) (citation omitted).
Plain error review is used sparingly and is limited to those cases where there is a clear demonstration of manifest injustice or miscarriage of justice. Claims of plain error are reviewed under a two-prong standard. In the first prong, we determine whether there is, indeed, plain error, which is error that is evident, obvious, and clear. If so, then we look to the second prong of the analysis, which considers whether a manifest injustice or miscarriage of justice has, indeed, occurred as a result of the error. A criminal defendant seeking plain error review bears the burden of showing that plain error occurred and that it resulted in a manifest injustice or miscarriage of justice. The outcome of plain error review depends heavily on the specific facts and circumstances of each case.
State v. Ray, 407 S.W.3d 162, 170 (Mo.App.E.D.2013) (internal citations and quotations omitted).
Rule 23.01(b)(3) requires a charging instrument to “[s]tate the date and place of the offense charged as definitely as can be done.” A defendant may challenge a charging instrument through a motion for a bill of particulars under Rule 23.04, which states:
When an indictment or information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare a defense, the court may direct or permit the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.
The purpose of a bill of particulars is to clarify the charging document. State v. Larson, 941 S.W.2d 847, 851 (Mo.App.W.D.1997). “It prevents surprise and restricts the state to what is set forth in the bill.” Id. (citation omitted). “The bill of particulars is not intended to make the state reveal for the defendant the details of the evidence on which it seeks to establish its case.”
In response to Celis–Garcia's first motion for a bill of particulars, the State filed a three-page bill of particulars, stating in pertinent part:
1. All charged events occurred between January 1, 2005 and April 4, 2006. During the charged time period, victim K.J. was between the ages of 6 and 8 years of age; victim C.J. was between 4 and 6 years of age.
2. Defendants 3 have been made aware of the identities of C.J. and K.J.
3. All charged events occurred at 325 North Benton Avenue in the City of Marshall, Saline County, Missouri, or in the shed located on the property west of, and adjoining 325 North Benton Avenue in the City of Marshall.
4. Defendants are charged with acting in concert in the commission of all offenses. The State expects the evidence to be that the victims are unable to determine which defendant touched the victim on which occasion.
5. As set forth in the Superseding Indictment, the charged events occurred as follows:
a) Count I, Statutory Sodomy in the First Degree, occurred when one or both defendants placed his hand and/or her hand on the genitals of C.J., in the bedroom of Maura L. Celis–Garcia.
b) Count II, Statutory Sodomy in the First Degree, occurred when one or both defendants placed his and/or her hand on the genitals of K.J., in the bedroom of Maura L. Celis–Garcia. c) Count III, Statutory Sodomy in the First Degree, occurred when one or both defendants placed his and/or her hand on the genitals of C.J., in the “cold” room.4
d) Count IV, Statutory Sodomy in the First Degree, occurred when one or both defendants placed his and/or her hand on the genitals of K.J., in the “cold” room.
e) Count V, Statutory Sodomy in the First Degree, occurred when one or both defendants placed his and/or her hand on the genitals of C.J., in the bedroom of Maura L. Celis–Garcia, while C.J. was in...
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