State v. Ferguson

• Decision Date: 26 February 2019
• Docket Number: No. ED 105903,ED 105903
• Citation: 568 S.W.3d 533
• Parties: STATE of Missouri, Respondent, v. Orlando Kim FERGUSON II, Appellant/Defendant.
• Court: Missouri Court of Appeals

568 S.W.3d 533

STATE of Missouri, Respondent,
v.
Orlando Kim FERGUSON II, Appellant/Defendant.

No. ED 105903

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: February 26, 2019
Corrected March 5, 2019

ATTORNEY FOR APPELLANT: Mark Allan Hammer, 100 Chesterfield Bus Pkwy, Suite 200, Chesterfield, MO 63005, Amy Marie Bartholow, Co-Counsel, 1000 West Nifong, Bldg 7, Suite 100, Columbia, MO 65203, Public Defender.

ATTORNEY FOR RESPONDENT: Eric Schmitt, Attorney General, Garrick F. D. Aplin, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102.

OPINION

Honorable Mary K. Hoff

Orlando Kim Ferguson II ("Defendant") appeals from the Judgment upon his convictions following a jury trial for two counts of first degree statutory sodomy in violation of Section 566.062 RSMo 2000¹ , and one count of first degree child molestation in violation of Section 566.067. The trial court sentenced Defendant to eighteen years of imprisonment on both statutory sodomy counts and to fifteen years on the child molestation count, with all sentences running concurrently. We reverse and remand for a new trial.

Factual and Procedural Background

In 2005, Defendant and A.R.’s ("Victim") mother ("Mother") began a relationship while Mother was pregnant with Victim. In January of 2006, Victim was born, and in September of 2007, Mother and Defendant married. Throughout the marriage, Defendant, Mother, Victim, and Victim’s sibling moved into and out of several apartments and family members' homes until Defendant

568 S.W.3d 537

and Mother separated and later divorced in April of 2013.

In February of 2016, while Victim was in fourth grade, Victim’s school arranged for a sexual abuse seminar to be given to her class. During the presentation, Victim began sobbing, approached Dr. Anita Hampton ("Dr. Hampton"), a school counselor, and told her "it happened to me," explaining that Defendant had "touched me in my private area and ... made me do bad things," including "suck[ing] his hotdog." Dr. Hampton subsequently called Mother and made a hotline call to the Missouri Department of Social Services Children’s Division.

Thereafter, Victim met with Michelle Stille ("Stille"), a forensic interviewer with the Child Center in Wentzville, Missouri. Victim identified four instances of abuse to Stille. First, in "her old old [sic] apartment," Defendant "forced her to suck his thingy." Second, while they were living in Defendant’s mother’s home, Defendant made her "suck his thingy," which caused her to vomit "because it tasted nasty." Third, at the "new old apartment," she was preparing for a bath when Defendant came in, picked her up, turned her upside down, and "licked her thingy or private part." Finally, while spending the night at a relative’s house, Defendant woke her up, brought her into his bed, and "touched her private part on top of her pajamas."

Defendant was charged by third substitute information in lieu of indictment with two counts of first degree statutory sodomy and one count of first degree child molestation. Prior to trial, the trial court granted Defendant’s motion in limine seeking to exclude any testimony relating to uncharged acts of domestic violence alleged to have been committed by Defendant, Thereafter, the trial commenced on August 15, 2017.

At trial, Victim explained that she remembered Defendant having, several times, "touched [her] in areas of [her] body that [she] ha[d] learned shouldn't be touched." Victim testified that when she was "around two or three," "[Defendant] stayed on the couch" while Mother was at work, and made her "mouth touch[ ] his penis." Victim testified that she "bit it [because she] thought it was a hotdog, and [Defendant] got mad." Next, Victim testified that at the "old apartment" when she "was younger, [she] was about to take a bath, and [Defendant] sat on the toilet, put [her] upside down, [and] started licking [her] privates." Victim explained that in 2011, while in Defendant's mother's home, Defendant "had [Victim] go downstairs in [the] basement and ... made [her] touch him and do other things" that she "didn't want to [do]" including putting her mouth on "[h]is privates," causing her to vomit. Finally, Victim testified that on another evening, while at Defendant’s stepmother’s home, Defendant snuck into her room, put her into his bed, and touched her vagina over her pajamas despite her attempts to push his hand away. Victim testified that, initially, she "didn't really know what [Defendant’s actions] actually meant," but began to understand "around ... kindergarten." Victim testified that she "didn't think [she] should tell" anyone about Defendant’s actions because she "was scared that [Defendant] was going to do something." Victim testified, however, that she eventually told a cousin and two friends about Defendant’s actions when she was in third grade, but told them "not to tell."

The State next called Dr. Hampton and asked her at length about her education, occupation, and experience. Dr. Hampton testified that she is a school counselor at Victim’s school. She testified that she received her master’s degree from Lindenwood University and that she has a doctorate in counseling psychology, which she

568 S.W.3d 538

received from Argosy University in Chicago, Illinois. Dr. Hampton testified that she has been working as a school counselor for nineteen years, but that she has no specific training in conducting forensic interviews with children. Dr. Hampton testified that she is a mandated reporter such that, "if someone discloses ... a sexual abuse ... it is my job to call and report that situation." Dr. Hampton explained that Victim disclosed to her several instances in which Defendant "had touched her in her private area." After recounting Victim’s allegations, Dr. Hampton, over Defendant’s objection, testified that she had "[n]o doubt at all" about what Victim told her or whether "this had actually happened to her."

Stille testified that she is a forensic interviewer trained to speak with children suspected of being victims of abuse. She explained that she had 550 hours of training in the areas of child abuse and neglect, and that one third of that training was specific to interviewing. Stille noted that she has personally conducted over 500 forensic interviews and observed over a thousand more. Over Defendant’s objection, Stille testified that Victim’s interview "was pretty consistent," that Victim "shared details that were specific to those events" including sensory details, and that Victim "corrected me numerous times throughout the interview." Stille testified that these responses are "fairly typical of kids that tend to not be suggestible." Thereafter, Stille explained that Victim disclosed four instances of abuse by Defendant, namely that Defendant "forced her to suck his thingy" twice, causing her to vomit in one instance; that Defendant "picked her up[,] turned her upside down[,] and ... licked her thingy or private part;" and that Defendant "touched her private part on top of her pajamas" while she spent the night at Defendant’s stepmother’s home.

Mother testified for Defendant. During direct examination, she explained that after she and Defendant separated, but prior to their divorce, Mother only let Defendant see the children "if [they] got along," noting that she sometimes kept the children "because [she] was physically abused." Defendant’s counsel requested a mistrial, citing his motion in limine, and the trial court instructed Mother not to discuss allegations of domestic abuse further, but denied a mistrial. Thereafter, Defendant's counsel confirmed that Mother and Defendant eventually divorced, and that Mother filed motions to modify the divorce decree seeking supervision during Defendant’s visitation of the children. On cross-examination, Mother explained that she sought supervision because Victim’s sibling told her that Defendant had him watch the film 50 Shades of Grey. Defendant’s counsel objected, claiming that this testimony was "extremely prejudicial," and the State responded that Defendant "opened that door" by "mak[ing] a big issue of the [divorce] proceedings [and] choos[ing] to say what she did" therein. The trial court overruled Counsel’s objection.

Defendant testified, and he denied all of Victim’s allegations, explaining that he never exposed his genitals to Victim or engaged in any sexual conduct with her.

At the conclusion of all evidence the jury found Defendant guilty on all counts, and on August 28, 2017, the trial court sentenced him to 18 years of imprisonment on both statutory sodomy counts and 15 years of imprisonment on the child molestation count with all sentences running concurrently. Defendant filed a motion for new trial alleging, inter alia , that the trial court erroneously admitted testimony from Dr. Hampton and Stille that improperly vouched for Victim’s credibility, and erroneously admitted Mother’s prejudicial testimony

568 S.W.3d 539

that Defendant physically abused her and allowed Victim’s sibling to watch 50 Shades of Grey , On August 28, 2017, the trial court denied the motion for new trial. Defendant’s appeal follows.²

Standard of Review

In Points I and II, Defendant challenges the trial court’s determinations as to the admissibility of...