State v. D.W.N., WD 69142.

• Citation: 290 S.W.3d 814
• Decision Date: 11 August 2009
• Docket Number: No. WD 69142.,WD 69142.
• Parties: The STATE of Missouri, Respondent, v. D.W.N., Appellant.
• Court: Missouri Court of Appeals

290 S.W.3d 814

The STATE of Missouri, Respondent, v. D.W.N., Appellant.

No. WD 69142.

Missouri Court of Appeals, Western District.

August 11, 2009.

Jeremiah W. (Jay) Nixon, Attorney General, Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.

Craig A. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.

Before THOMAS H. NEWTON, Chief Judge, and HAROLD L. LOWENSTEIN, JAMES M. SMART, JR., JOSEPH M. ELLIS, VICTOR C. HOWARD, LISA WHITE HARDWICK, JAMES E. WELSH, Judge, ALOK AHUJA, and MARK D. PFEIFFER, Judges.

MARK D. PFEIFFER, Judge.

D.W.N. appeals the trial court's judgment of his conviction for the class B felony of child molestation in the first degree in violation of § 566.067, RSMo Cum. Supp.2006. On appeal, he presents two points in which he challenges: (1) the trial court's failure to sua sponte prohibit a witness from testifying that he believed the victim; and (2) the trial court's submission of Instruction No. 5, the State's verdict director. We affirm.

In 2001, when the victim was five years old, her mother married D.W.N. in Georgia. In 2003, D.W.N. and the victim moved to Chillicothe, Missouri, to stay with her mother's parents. Her mother planned on joining them after she was discharged from the military. At her grandparents' house, the victim slept on a pull-out bed while D.W.N. slept on a couch in the same room.

One night, in March 2003, the victim was unable to sleep, so D.W.N. told her to get into bed with him. She complied and lay on the couch with him. D.W.N. reached into her underwear and touched her breasts and genital area. At this point, someone turned on a light in the house, so D.W.N. told the victim to go back to her own bed. The victim did not report the incident.

In February 2005, the victim's mother and D.W.N. separated. A few weeks later, the victim told her mother that D.W.N. had abused her sexually. The victim told her that the abuse occurred elsewhere and did not occur in Missouri. During the subsequent investigation, the victim told her mother about the incident that occurred in Chillicothe. During this investigation, Tommy Capps, a criminal investigator with the State, also interviewed the victim.

The police arrested D.W.N., and the State charged him with one count of the class B felony of child molestation in the first degree in violation of § 566.067. At trial, the State called Tommy Capps, who testified that he interviewed the victim and believed that she was credible. D.W.N.'s counsel did not object to this testimony. At the close of the evidence, the trial court submitted Instruction No. 5, the State's verdict director, to the jury. The verdict director informed the jury that D.W.N. was guilty of child molestation if he touched either the victim's genitals or her breast. The jury returned a verdict in which it found D.W.N. guilty of the crime. The trial court entered judgment on the jury's verdict and sentenced D.W.N. to ten years in the Missouri Department of Corrections. This appeal follows.

In his first point on appeal, D.W.N. claims that the trial court plainly erred in failing to sua sponte strike the testimony of Tommy Capps wherein he testified that he found the victim credible. D.W.N.'s argument of plain error is that this testimony invaded the province of the jury. Specifically, D.W.N. claims that Capps' testimony invaded the province of the jury because the jury has the sole responsibility to make credibility determinations. D.W.N. concedes that he did not object to Capps' testimony and requests plain error review pursuant to Rule 30.20.¹

Rule 30.20 grants us authority to consider "plain errors affecting substantial rights ... when [we find] that manifest injustice or miscarriage of justice has resulted" from the error. Under plain error review, we first examine the record to determine whether or not the appellant's claim is one that, on its face, establishes grounds for believing that a manifest injustice has occurred. State v. Norman, 178 S.W.3d 556, 560 (Mo.App. W.D.2005). If our review of the record determines that plain error is facially established and such error establishes substantial grounds for believing that manifest injustice has occurred, only then do we review the record to determine whether or not a manifest injustice or a miscarriage of justice actually occurred. Id. Conversely, in the absence of such a determination, appellate courts should decline to exercise discretion to review for plain error under Rule 30.20. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). "The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review." State v. Houston, 139 S.W.3d 223, 227 (Mo.App. W.D.2004). "`Plain error is evident, obvious, and clear error.'" Norman, 178 S.W.3d at 560 (quoting State v. Bailey, 839 S.W.2d 657, 661 (Mo.App. W.D.1992)).

In child molestation cases, there are typically two types of expert testimony: generalized and particularized. State v. Churchill, 98 S.W.3d 536, 539 (Mo. banc 2003). An expert gives generalized testimony when he describes the general behaviors and characteristics commonly found in children who have been abused. Id. This type of evidence is admissible. Id. On the other hand, an expert gives particularized testimony when he gives testimony regarding the specific victim's credibility. Id. This type of evidence is inadmissible because it usurps the jury's province to determine the credibility of witnesses. Id.

In this case, the State called Tommy Capps, a criminal investigator for the State Technical Assistance Team, who testified that he interviewed the victim and found her credible:

Q. Now, you said you've done over 500 interviews. For more than nine years you've been working with children. Do you think you're a pretty good judge of when children are telling the truth and when they're lying?

A. Yes, I think I'm a pretty good judge of it, because not only do you have to pay attention to what they're telling you but you have to pay attention to body language.

Q. Okay. And what sort of body language do you look for when a child is lying?

A. It depends on the child, but most generally they have a hard time looking at you when they're lying, or they'll look down, generally to the — generally to the left if they're going to be lying to you. They'll put their hands up in front of their face. They'll look away. Sometimes they just get real white. There's — there's just about as many different signs for that as there is kids.

Q. You say you're pretty good at picking up those signs?

A. I'm pretty good at picking up those signs.

Q. Did you pick up any of those signs of lying with [the victim]?

A. No.

....

Q. ... [I]n this matter, do you think [the victim] was telling the truth?

A. Yes.²

Finally, during redirect examination, Capps again testified that he believed the victim:

Q. Okay. And you've had — you've experienced children who are lying?

A. Yes.

Q. And you've experienced children who are coached?

A. I have.

Q. Did you find [the victim] to be either one of those things?

A. No.

Capps' testimony that he believed that the victim was telling the truth about the perpetration of a crime was, if properly objected to, inadmissible because it invaded the jury's province to determine the victim's credibility. State v. Churchill, 98 S.W.3d at 539. If D.W.N.'s counsel would have objected to the testimony, the trial court would have been obligated to entertain curative relief proposed by D.W.N.'s counsel. D.W.N.'s counsel, however, did not object to the testimony. Thus, the issue is whether or not this was such an evident, obvious, and clear error that the trial court should have sua sponte interrupted Capps' testimony to prohibit him from testifying that he believed the victim. Historically, Missouri courts reject invitations to criticize trial courts for declining to sua sponte take action on behalf of a party during witness examinations. State v. Roper, 136 S.W.3d 891, 902 (Mo.App. W.D.2004) ("Uninvited interference by the trial judge in trial proceedings is generally discouraged, as it risks injecting the judge into the role of participant and invites trial error."); State v. Drewel, 835 S.W.2d 494, 498 (Mo.App. E.D.1992) ("We do not expect trial judges to assist counsel in the trial of a lawsuit.... They preside to judge a lawsuit. Sua sponte action should be exercised only in exceptional circumstances.").

In support of his argument that the trial court should have sua sponte interrupted Capps' testimony, D.W.N. points to State v. Williams, 858 S.W.2d 796 (Mo.App. E.D.1993). D.W.N. is correct that, in Williams, the appellate court did determine that the circuit court plainly erred in failing to sua sponte interrupt a medical doctor's testimony that he found the victim credible:

The [witness's] statements that `very rarely do children [sexually abused children] lie,' that the `[i]ncidents of lying among children is very low, less than three percent,' that if the child was not asked leading questions, then the child's spontaneous response `declares who it was [who sexually abused her],' and that the `physical findings and the behavioral indicators can only support what the child says,' went beyond admissible testimony concerning general, behavioral characteristics of sexually abused children. Vouching too much for the victim's credibility, these statements supplied improper verisimilitude on the issue of whether the appellant was guilty....

... The danger was too great that the jury accepted the doctor's testimony as conclusive of appellant's guilt without making an independent determination of the victim's credibility. The doctor's statements amounted to an impressively qualified stamp of truthfulness on the victim's story, and a miscarriage of justice will result from a refusal to reverse for plain error.

Williams, 858 S.W.2d at 801.

The Williams...