State v. Gibson
| Decision Date | 29 September 2015 |
| Docket Number | No. SD 33425,SD 33425 |
| Citation | 473 S.W.3d 195 |
| Parties | State of Missouri, Respondent, v. Max Gibson, Appellant. |
| Court | Missouri Court of Appeals |
473 S.W.3d 195
State of Missouri, Respondent,
v.
Max Gibson, Appellant.
No. SD 33425
Missouri Court of Appeals, Southern District, Division Two .
Filed: September 29, 2015
Motion for Rehearing and/or Transfer to Supreme Court Denied October 21, 2015.
Application for Transfer Denied December 22, 2015
Appellant's Attorney: Amy M. Bartholow, of Columbia, Missouri
Respondent's Attorney: Chris Koster, Attorney General and Dora A. Fichter, Assistant Attorney General, of Jefferson City, Missouri
WILLIAM W. FRANCIS, JR., J.
Max Gibson ("Gibson") appeals his conviction for two counts of the class C felony of abuse of a child, pursuant to section 568.060.1 Gibson presents three points on appeal. Finding no merit to Gibson's points, we affirm the trial court's judgment and sentence.
Factual and Procedural Background
On appeal, we view the evidence and all reasonable inferences derived therefrom in the light most favorable to the verdict; all contrary evidence and inferences are disregarded. State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010). Viewed from this perspective, the following evidence was adduced at trial.
In August 2012, A.G., a fifteen-year-old girl, lived in Pleasant Hope, Missouri, with her fourteen-year-old sister, E.G., her younger brother, and Gibson, her father. On the evening of August 2, 2012, Gibson was angry and yelled at A.G. and E.G. A.G. yelled back and called Gibson a "[s]tupid son of a bitch." Gibson, even angrier after A.G.'s insult, started walking toward A.G.
A.G. ran to the bathroom and locked the door because she was fearful of Gibson after prior physical confrontations with him. Gibson shouted at A.G. from the other side of the door, and punched underneath the knob until the door began cracking.
Unable to break the door down, Gibson resorted to prying the door open with a spoon.
Having gained entry to the bathroom, Gibson, holding a bottle of liquid dishwashing soap, declared that A.G. would not be "cuss[ing] anymore." Physically forcing and pinning A.G. to the floor, Gibson tried to squeeze the dishwashing soap into A.G.'s mouth—however, he discovered that the soap bottle was empty, and tossed it aside in favor of a bar of soap from the shower. Gibson forced open A.G.'s mouth with his fingers, and shoved the bar of soap deep into A.G.'s mouth, injuring A.G.'s mouth and lips. Gibson held the soap in A.G.'s mouth until A.G. bit the bar of soap in half, at which time Gibson returned to the living room and sat on the couch. A.G. sat up coughing, spitting out blood and chunks of soap. Minutes later, A.G. still had chunks of soap in her mouth and teeth.
A caseworker made monthly visits to the Gibson household. During the caseworker's August 2012 visit, Gibson gave a false account of an incident that had occurred several days before the caseworker's visit. E.G. gave a countervailing account of the incident. On August 15, 2012, Gibson, having learned of E.G.'s account, chastised and yelled at E.G. calling her ungrateful, a "bitch" and a "whore," and accused her of ruining the Gibson family.
Later the same day, E.G. was using the family laptop computer in her bedroom. Gibson entered the room, demanded the computer, and yelled at E.G. that she did not deserve anything she had. Gibson then picked up E.G.'s hair straightener, which E.G. took from him. E.G., having gained possession of the hair straightener, lay on her bed and held the straightener under her bed with one hand so Gibson could not reach it. Gibson attempted to lie on top of E.G. and reach the straightener, but was unsuccessful. Instead, he grabbed the straightener's cord, which was trailing from under E.G.'s bed. With the cord of the straightener wrapped around E.G.'s neck, Gibson pulled up on the cord, choking E.G., causing her to let go of the straightener. Gibson then retrieved the straightener and broke it in half.
E.G. began to walk out of her bedroom when Gibson picked her up by the throat and choked her with his hands for fifteen-to-twenty seconds while E.G. struggled to escape. Only after E.G. successfully kicked Gibson did he release her. E.G. sustained visible red marks around her neck from being choked. Gibson also pushed E.G.'s head into the "bare [ ] sheetrock" and "wood" surrounding a window, which caused visible red marks on E.G.'s temple. E.G. then ran to the home of a neighbor who called the police.
Gibson was charged by a first amended felony information with the class C felony of abuse of a child as to A.G. (Count I), pursuant to section 568.060, by "knowingly inflict[ing] cruel and inhuman punishment upon Juvenile AG, a child less than seventeen years old, by making her eat soap causing her to choke[ ]"; and the class C Felony of abuse of a child as to E.G. (Count II), pursuant to section 568.060, by "knowingly inflict[ing] cruel and inhuman punishment upon EG, a child less than seventeen years old, by choking her with his hands."
On March 26, 2014, Gibson filed a "Motion to Compel Discovery" requesting, in part, copies of the Child Advocacy Center (CAC) video interviews of A.G. and E.G. On March 28, 2014, Gibson also filed a "Motion in Limine" to prevent the State from commenting on, or introducing evidence relating to any prior uncharged bad acts of Gibson; any alleged prior incidents of domestic violence; or any prior incidents
of child abuse other than those specifically charged.
On April 7, 2014, a hearing was held on Gibson's motion to compel. Gibson's defense counsel argued that the CAC interview video was not included in the State's responses to discovery, and that he was entitled to a copy of the video to prepare for trial.
The State responded it had an open-file policy whereby defense counsel could come into the prosecutor's office and look at the video at any time. The State expressed concern that defense counsel could provide the video to Gibson, who could then release the video to the public, exposing juvenile victims' identities. The prosecutor admitted that while his office had in the past released copies of CAC videos to some defense attorneys, it only did so when defense counsel agreed the videos would not be released to clients. The trial court overruled Gibson's motion as to the CAC video, advising defense counsel that, "You're entitled to [the video]; it's available at the prosecutor's office, for you to view."
At the same hearing, Gibson filed an amended motion in limine, which was also heard. Defense counsel argued that the trial court should exclude uncharged bad acts of Gibson. The State argued that the evidence sought to be excluded related to "systematic and continual abuse" of the children by Gibson, and that the information was relevant to a jury to show there was a common scheme as to Gibson's actions with regard to the children. The motion in limine was overruled.
A jury trial was held on April 14, 2014. On the morning before trial, defense counsel objected to moving forward with trial because the trial court overruled Gibson's amended motion in limine. Defense counsel also renewed a previous motion for continuance stating that while he was able to view the CAC video in the prosecutor's office, he was unable to make a transcription of the video or redactions to it for viewing by the jury and for impeachment purposes. The trial court denied Gibson's request for a continuance.
Following jury selection, the trial court revisited Gibson's amended motion in limine and sustained the motion as to references to abuse or mistreatment of A.G. and E.G., by two individuals other than Gibson, in the State's case-in-chief.
Gibson did not testify and did not present any evidence. At trial, A.G. testified as to "physical confrontations" between herself and Gibson occurring in late July or early August 2012. Defense counsel objected to this testimony as being uncharged misconduct, which the trial court overruled.
E.G. testified that a caseworker would come to their house monthly and she and Gibson got into a dispute because E.G. thought Gibson had lied to the caseworker. Defense counsel objected to this evidence of uncharged prior incidents of abuse, and this objection was overruled.
During defense counsel's cross-examination of A.G., defense counsel renewed his argument "from our motion to continue" because he was not provided a copy of the CAC video interviews under the motion to compel discovery, and had no way to impeach A.G. thus impinging Gibson's rights. Defense counsel renewed his motion for continuance, and requested a mistrial and new trial setting so that he could obtain the CAC video and make redactions and transcriptions in...
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