State v. Geer, WD
| Decision Date | 22 September 1981 |
| Docket Number | No. WD,WD |
| Citation | 624 S.W.2d 143 |
| Parties | STATE of Missouri, Respondent, v. Lloyd GEER, Jr., Appellant. 32093. |
| Court | Missouri Court of Appeals |
James W. Fletcher and Gary L. Gardner, Kansas City, for appellant.
John Ashcroft and Kristie Green, Jefferson City, for respondent.
Before TURNAGE, P. J., and CLARK and LOWENSTEIN, JJ.
Lloyd Geer, Jr., appeals his conviction for abuse of a child, § 568.060.1(a), RSMo 1978. In accordance with the jury verdict, he was sentenced to two years imprisonment. See § 558.011.1(4), RSMo 1978. The judgment is affirmed.
Appellant alleges that the trial court erred: (1) in overruling appellant's objection to certain comments made by the prosecutor in closing argument which he claims constituted an improper attempt to define reasonable doubt to the jury; and (2) in failing to exercise its discretion to consider probation in lieu of the two-year sentence.
Appellant does not challenge the sufficiency of the evidence, and therefore the pertinent facts will be stated briefly. Appellant was indicted for infliction of cruel and inhuman punishment upon a child of less than seventeen years old, by biting her and causing her injury. At the time of the offense, appellant was living with the victim, who was his one year old daughter, and the victim's mother. Appellant stated to the police that no adults, except for him and the mother, were around the child for several days before she was taken to a babysitter.
The babysitter noticed "spots" on the child's stomach and later noticed more marks about the child's back and face. The babysitter alerted a neighbor to help her determine the source of these marks. The babysitter and the neighbor were the only adults around the victim when she was at the babysitter's that day.
The police photographed the victim's injuries. Dental casts were made of the upper and lower teeth of appellant, the mother and the babysitter, all under the direction and control of a dentist. The dentist, an expert in forensic odontology, testified to several expert opinions he could make based on his comparison of the dental casts with the photographs, to wit: (1) the injuries to the child included three human adult bite marks on her stomach; (2) neither the babysitter nor the mother had dental casts consistent with the marks, and that neither of those individuals made the marks; (3) appellant's dental cast was consistent with the marks; (4) it was "highly improbable" that someone other than appellant made the marks; and (5) it was "highly unlikely (that) anyone else in town had teeth that looked like (those of the appellant)".
Appellant's first contention concerns the following remarks made by the prosecutor in her closing argument, wherein the prosecutor stated:
You look at these teeth and you look at these teeth, and look at the differences. It's not reasonable, folks, that the dentist would come in here and try to make a case against this defendant. He didn't even know this man. He didn't know any of these people. He took three sets of teeth and he compared them to a photograph of a bite mark and he said this, he said these teeth are consistent with those bite marks and he also said it is highly improbable that anyone else could have made those bite marks. As I recall his testimony, he said it was highly improbable that anyone else in Kansas City had teeth like this man. And I urge you to look at those teeth and see for yourself how unusual they are. You combine the probability of someone else having teeth like that with the probability of that person being in (the babysitter's) apartment that day without her knowing about it, combine those two things, put those two things together, those two probabilities, and I'll tell you what you have, you have beyond a reasonable doubt.
(THE PROCEEDINGS RETURNED TO OPEN COURT.) (Emphasis added.)
Appellant claims that this argument was error as it attempted to define for the jury proof beyond a reasonable doubt, a task incumbent only upon the court through its instruction.
State v. Jones, 615 S.W.2d 416 (Mo.1981) relied upon by appellant is the most recent case following a long line of decisions on attempts to define reasonable doubt. The Jones appeal asserted only the single point of improper attempt to define reasonable doubt. The prosecutor had stated: "(Y)ou're not permitted to say, 'I don't believe they proved it,' because if you believe he did it and if that belief is reasonable, he is guilty beyond a reasonable doubt."
The court reversed the conviction in Jones because of the improper attempt to define reasonable doubt. In reversing, the supreme court noted that MAI-CR 2.20, effective January 1, 1974, has only an abbreviated reference to the term reasonable doubt and prohibits any elaboration or further definition of the term (MAI-CR2d 2.20, Notes on Use, No. 3). 1 The court cited to State v. Van, 543 S.W.2d 827, 830(1, 2) (Mo.App.1976) where the court stated that: 543 S.W.2d at 830.
The cases cited in Jones fall under two separate lines of reasoning, evidenced by the decisions in State v. Belleville, 530 S.W.2d 392, 395 (Mo.App.1975) and State v. Wilbon, 561 S.W.2d 133, 134 (Mo.App.1978).
In Belleville, the court concentrated on certain facets of the comments in light of the entire case. In that decision the court set out three factors it considered in holding the prosecutor's comments nonprejudicial error: (1) the definition was only one sentence long and not unduly dwelt upon; (2) the prosecutor then properly discussed reasonable doubt in relation to the evidence; and (3) there was strong evidence of defendant's guilt. 2
In Wilbon, the court focused on the difference between an impermissible definition and a permissible discussion. The court stated that a discussion was when the prosecutor is merely "arguing the facts as they pertain to the court's instructions ...," and that such argument is not even error. 561 S.W.2d at 134. When the prosecutor merely relates the evidence to the instruction on burden of proof, as he may do with any instruction, there is no further analysis necessary because there has been no definition in violation of MAI. 3
The Jones decision was based on three factors not totally the same as those in pre-Jones cases:
Three things stand out about the argument in this case: First, the prosecutor told the jury that a "reasonable belief" satisfied the requirement of proof beyond a reasonable doubt. In so doing, he strayed into the language of civil proceedings where the burden of proof is submitted in terms of whether or not the jury believes the propositions in issue. MAI 3.01. The term "reasonably" (sic) is not employed in that connection, but it is inferred and certainly adds nothing to the requirement of belief. Thus, the prosecutor in this case undertook to define reasonable doubt in wholly erroneous terms. Second: The prosecutor's statement was promptly objected to and the objections were overruled, giving the argument the imprimatur of the trial court. Third: The prosecutor was not content with a passing reference to the subject, but upon the overruling of defense objection, proceeded to repeat his erroneous definition of reasonable doubt.
Neither Belleville nor Burnfin, invoked by the state, can justify disregard of the error in this case. The evidence of guilt was strong, but the rule announced in State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972) may not be applied to excuse as harmless the error in this case. 615 S.W.2d at 420 ().
In this case, the prosecutor essentially said that if the jury combined the two probabilities of (1) someone else in town with teeth similar to those of appellant and (2) of someone else being with the victim at the apartment of the babysitter, it would have proof beyond a reasonable doubt. Appellant claims this argument is comparable to Jones and should be cause for reversal. Appellant claims the argument was promptly objected to and the objection was overruled, thereby giving the argument the imprimatur of the trial court. Appellant next contends that the use of the word "probability" is akin to the word "preponderance" and therein strays into the burden in civil proceedings.
The transcript does not support appellant's contentions. First, neither the objection nor its being overruled was made within the hearing of the jury and therefore could not have given the prosecutor's argument, even if improper, the imprimatur of the court. Second, the argument in Jones equated a reasonable belief of guilt with proof beyond a reasonable doubt. In the present case, the prosecutor's words "highly unlikely" or "highly improbable" related only to testimonial evidence to satisfy the reasonable doubt standard. This was not a definition of reasonable doubt at all, but a discussion of the evidence in light of that standard. The prosecutor was merely "arguing the facts as they pertain to the court's instructions ..." State v. Wilbon, supra. The third point of Jones, the repetition of the erroneous definition, is not addressed by appellant. 4
Having failed to satisfy any of the three points of Jones, appellant's first point must be rejected.
Appellant's second point charges that the trial court...
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