State v. Chism

• Decision Date: 19 February 2008
• Docket Number: No. WD 67800.,WD 67800.
• Citation: 252 S.W.3d 178
• Parties: STATE of Missouri, Respondent, v. Charles E. CHISM, Appellant.
• Court: Missouri Court of Appeals

252 S.W.3d 178

STATE of Missouri, Respondent, v. Charles E. CHISM, Appellant.

No. WD 67800.

Missouri Court of Appeals, Western District.

February 19, 2008.

Rosemary E. Percival, Kansas City, for Appellant.

Shaun J. Mackelprang, Jefferson City, for Respondent.

Before: HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS, and THOMAS H. NEWTON, JJ.

THOMAS H. NEWTON, Judge.

Mr. Charles E. Chism was convicted by a jury of forcible rape, section 566.030,¹ forcible sodomy, section 566.060, and second-degree domestic assault, section 565.073. Mr. Chism appeals and raises four points. We affirm.

Factual and Procedural Background

At Mr. Chism's apartment he and the victim, a former girlfriend, had some intimate contact and later she decided to leave. They began to struggle and he raped her. She fled from the apartment partially dressed, banged on a neighbor's door, and screamed for help. She continued to run, but Mr. Chism caught her, beat her on the stairwell, and dragged her by the hair from the stairwell into the apartment. He pulled out some of her hair, and she dropped her garment and a shoe while defending herself. Once inside the apartment he called her a "b* * *h," told her to "suck his d* *k," choked her when she refused, and forced his penis in her mouth.

A neighbor in the apartment called the police after she heard a woman screaming and saw a man beating a woman in the stairway. In the stairway area between the floors, the neighbor and the responding police officers noticed shoes, clumps of hair, and underwear on the stairwell. Upon approaching the apartment, the police officers heard an angry male voice say, "suck my d* *k, b* * *h." They knocked on the door, and the victim fled and told the officers to "get him." The officers observed cuts and scrapes on her face and neck. She told the officers that he injured, raped, and sodomized her. Additionally, she told them that she was the woman the neighbor saw being beaten and that Mr. Chism was the perpetrator. Mr. Chism was arrested and charged with forcible rape, forcible sodomy, first-degree domestic assault, and second-degree domestic assault.

At a jury trial, the State presented testimony from the treating physician, the neighbor, one of the police officers, and the victim. Mr. Chism testified that he was quarreling with the victim earlier in the evening and that they were engaging in consensual sex when the police arrived. He also claimed that he said, "You're a crazy b* * *h" around the time the police officers knocked on the apartment door.

The jury convicted him of all charges except for first-degree domestic assault. Instead, the jurors convicted him of the lesser-included charge of second-degree domestic assault. Mr. Chism filed a motion for new trial challenging the admissibility of Mr. Chism's prior uncharged misconduct. The motion was denied, and Mr. Chism was sentenced as a prior felony offender to two concurrent fifteen-year terms for the forcible rape and forcible sodomy to run consecutively with two concurrent seven-year terms for the two counts of second-degree domestic assault. Mr. Chism raises four points on appeal.

In his first point, Mr. Chism argues that the trial court plainly erred in allowing the State to present testimony from the examining doctor that "he believed [the former girlfriend]'s account that she [had been] raped, sodomized and assaulted." In his second point, he argues that the trial court abused its discretion in allowing the State to adduce detailed testimony from the victim, about a previous occasion when Mr. Chism allegedly choked her in anger. In his third and fourth points, Mr. Chism argues that the trial court plainly erred in failing to intervene sua sponte during the State's closing argument when the prosecutor defined an element for the jury; proposed to the jury that it had to believe all of the State's witnesses were liars to find in Mr. Chism's favor; and stated that the police officers would not lie for the State and jeopardize their jobs.

Standard of Review

The admission of evidence is within the trial court's discretion. State v. Tyro, 153 S.W.3d 341, 345 (Mo.App. S.D. 2005). We will reverse the decision if the trial court abuses its discretion and the defendant is thereby prejudiced. Id. A trial court abuses its discretion when the decision is against the logic of the circumstances and when "it is so arbitrary and unreasonable as to shock the sense of justice and indicate[s] a lack of careful consideration." Id.

Legal Analysis

In his first point, Mr. Chism argues that the trial court plainly erred in admitting the doctor's testimony that he believed the victim's account of what occurred in the apartment because it was improper vouching. Expert testimony shall not usurp the jury's province in determining the credibility of witnesses. State v. Churchill, 98 S.W.3d 536, 538-39 (Mo. banc 2003). Expert testimony that comments directly on a witness's credibility invades the jury's province and is inadmissible. Id. Expert testimony, however, that comments on how a victim's behavior relates to general behavior of someone who has been sexually abused is admissible. Id. at 539.

Although admission of evidence is reviewed for an abuse of discretion, we review this issue for plain error because it was not included in the motion for new trial. Rule 30.20; see Rule 29.11(d). Plain error review is a two-step analysis. State v. Beggs, 186 S.W.3d 306, 311 (Mo.App. W.D.2005). First, we determine whether the error is plain, and second, we determine whether manifest injustice or miscarriage of justice would result if the error is left uncorrected. Id. Plain error is that which is evident, obvious, and affects substantial rights of the defendant. Id.

At trial, the doctor testified that he found no injuries to the victim's genital area after performing a rape kit on the victim. He also testified, "I have seen reported sexual assaults and consensual sex that have both resulted in and not resulted in trauma." Defense counsel asked the doctor if he had any way of knowing whether the victim was raped. To which the doctor replied, "No. By the evaluation I had at the time and by the evidence that I had collected at the time, no." On redirect examination, the prosecutor asked the doctor if he had any reason to believe that in fact she had not been raped. Defense counsel objected, but the trial court overruled it. The doctor replied, "By my evaluation at the time, my indications were that, was to believe her history."

On recross-examination, the following colloquy occurred between Defense counsel and the doctor:

Q: And with regard to the rape, you had no measurable objective evidence of a rape, right?

A: That is correct.

Q: No scientific evidence of rape?

A. Not that I had available at the time that I evaluated her, no.

Q. Right, and so your evaluation that you just provided is based on belief?

A. It's — yes. Of what she stated and the evaluation that I observed at the time that I examined her.

Q. But you, basically that you believe her story. Is that what you're saying?

A. Yes.

Q. Now, as you may have discovered in your medical practice, that [patients may have lied] on occasion; is that correct?

....

A. Every' once in a while that does occur.

Q. But you still hold onto the belief that you can always tell when your patients are lying to you?

A. For me to do my job, I have to take them at their word. During the evaluation and the examination, I use my background and my experiences to try to get the truth or the real story of what exactly happened.

Q. But you never know for sure.

A. I never know for sure.

Q. And in this case, you don't know for sure?

A. In this case, no.

Q. And you're not a lie detector?

A. No.

Q. And there's no scientific verifiable evidence to back up your belief?

A. Of the —

Q. With regard to the rape claim?

A. With regard to the sexual assault, no.

Q. Thank you.

The above testimony does vouch for the victim's credibility because the doctor testified that he believed that she was sexually assaulted. As Mr. Chism correctly stresses, the doctor should have only testified to the physical injuries that were consistent with rape and not whether he believed the history that the victim provided him. Nevertheless, Mr. Chism did not suffer a manifest injustice.

Mr. Chism argues that the vouching caused him to suffer a manifest injustice because the case hinged on credibility since there was no evidence of forcible rape or sodomy or witnesses to the charged events; he relies on Churchill and State v. Williams, 858 S.W.2d 796, 800 (Mo.App. E.D.1993). The Churchill court found the particularized testimony prejudiced Mr. Churchill because the vouching bolstered the child-victim's inconsistent statements and her subsequent behavior, which were the only other State's evidence; there was no physical evidence indicating sexual abuse had occurred. 98 S.W.3d at 538-39. Likewise, the Williams court found a manifest injustice from the doctor's vouching for the victim because the State relied on the victim's testimony to prove its case and emphasized the doctor's testimony in its closing argument. 858 S.W.2d at 801.

Mr. Chism argues that the doctor's vouching "amounted to an impressively qualified stamp of truthfulness" of her story, quoting from Williams, 858 S.W.2d at 801, and resulted in a manifest injustice because, similar to Churchill and Williams, the case hinged on the victim's credibility since there were no witnesses to the incident and no physical evidence of forcible rape or sodomy. Similarly in this case, no physical evidence of the rape existed; but unlike in Churchill and Williams, the State adduced other evidence that corroborated the victim's story. The State's evidence included eyewitness testimony that a woman was being beaten on the stairwell; the police officer's observations of the panty, clump of hair, and a sneaker on the stairs; and the police officer hearing Mr. Chism's...