State v. Hood, SD 34258

• Decision Date: 08 June 2017
• Docket Number: No. SD 34258,SD 34258
• Citation: 521 S.W.3d 680
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Raymond Spencer HOOD, Defendant-Appellant.
• Court: Missouri Court of Appeals

521 S.W.3d 680

STATE of Missouri, Plaintiff-Respondent,

v.Raymond Spencer HOOD, Defendant-Appellant.

No. SD 34258

Missouri Court of Appeals, Southern District, Division Two.

Filed June 8, 2017

Attorney for Defendant-Appellant: Amy M. Bartholow, Assistant Public Defender, Columbia, Missouri.

Attorneys for Respondent: Joshua D. Hawley, Attorney General, and Daniel N. McPherson, Assistant Attorney General, Jefferson City, Missouri.

GARY W. LYNCH, P.J.

Raymond Spencer Hood ("Defendant") appeals his convictions for five counts of statutory rape in the first degree, one count of statutory sodomy in the second degree and one count of statutory rape in the second degree. See sections 566.032, 566.064, and 566.034.¹ Defendant contends in four points that the trial court erred in admitting (1) "the testimony of Nancy Sutton regarding the truthfulness and credibility of Victim ... because Ms. Sutton was not identified as an expert witness and was not qualified as an expert to give opinions on the complaining witnesses truthfulness and credibility[;]" (2) "propensity evidence of [Defendant's] alleged prior sexual misconduct against his sister, brother and mother, under Article I, Section 18(c) ... because Section 18(c) did not take effect until after [Defendant] was charged[;]" (3) "propensity evidence of [Defendant's] alleged prior sexual misconduct against his sister, brother and mother, under Article I, Section 18(c), ... in that [Defendant's] juvenile adjudications were not ‘prior criminal acts' for purposes of Section 18(c) and were not admissible for any purpose[;]" and (4) "evidence that the Children's Division had determined that ‘there is a preponderance of evidence that: [Defendant] sexually abused his daughter ...’ ... in that this determination by the Children's Division invaded the province of the factfinder[.]" Finding no merit in Defendant's first three points and that he failed to preserve his fourth point for appellate review, we affirm his convictions.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his convictions. Viewing the evidence in the light most favorable to the finding of guilt, State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009), Defendant repeatedly sexually abused his then minor daughter ("Victim") from 2005 to 2010 for which he was charged with five counts of statutory rape in the first degree, one count of statutory sodomy in the second degree, and one count of statutory rape in the second degree. Defendant waived a jury trial on the charges and, following a bench trial, the trial court found Defendant guilty on each count, determined he was a predatory sexual offender,² and sentenced him to life imprisonment on each of the five counts of statutory rape in the first degree and seven years' imprisonment for both the statutory sodomy charge and the statutory rape in the second degree charge. Defendant timely appeals.

Standard of Review

All four of Defendant's points challenge the admission of evidence at trial. "The admission of evidence is reviewed for abuse of discretion and disturbed only when the decision is ‘clearly against the logic of the circumstances.’ " State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009) (quoting State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009) ). "Reversal due to an evidentiary error requires a showing of prejudice." Taylor, 298 S.W.3d at 492. "Prejudice exists when ‘there is a reasonable probability that the trial court's error affected the outcome of the trial.’ " Id. (quoting State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006) ).

Because all of Defendant's points challenge the admission of evidence in a bench trial, however, our review for prejudice is somewhat different than in a jury-tried case.

In a jury-waived case a certain amount of latitude in the admission of evidence is allowed, and even where an error is made in the admission of some evidence, except where the trial court relied on that evidence in arriving at its findings of fact and conclusions of law, such error is ordinarily held to be non-prejudicial. This is so because the rules of exclusion in the law of evidence as applied in a court of law are largely as a result of the jury system and serve the purpose of keeping from the jury all irrelevant and collateral matters which might tend to confuse them or mislead them from a consideration of the real question in issue; when an action is to the court sitting without a jury, the rules of exclusion are less strictly enforced.

State v. Sladek, 835 S.W.2d 308, 313 (Mo. banc 1992) (quoting State v. Leigh, 580 S.W.2d 536, 545 (Mo. App. 1979), rev'd on other grounds Leigh v. State , 639 S.W.2d 406 (Mo. App. 1982) ).

Discussion

Point One—No Demonstrated Prejudice from Sutton's Testimony

Defendant's first point relied on contends:

The trial court abused its discretion in admitting, over [Defendant's] objection, the testimony of Nancy Sutton regarding the truthfulness and credibility of [Victim] because the admission of this testimony deprived [Defendant] of his rights to due process and to a fair trial guaranteed by the Sixth and Fourteenth Amendments of the Constitution of the United States and Article I, Sections 10 and 18(a) of the Missouri Constitution, because Ms. Sutton was not identified as an expert witness and was not qualified as an expert to give opinions on the complaining witnesses truthfulness and credibility. The admission of this testimony resulted in prejudice to [Defendant], since absent this evidence, there is a reasonable probability that the outcome of his trial would have been different.

Nancy Sutton, a forensic investigator who examined Victim, testified that she did not observe any signs that Victim was being untruthful or had been coached. The factual basis asserted in Defendant's point challenging this testimony is that Sutton was not identified as an expert and was not qualified as an expert to so testify. In his supporting argument, however, Defendant omits any discussion about or citation to any record authority supporting that claimed factual basis. Rather, the argument portion of Defendant's brief pivots from the claimed factual basis in his point to assert that any expert opinion testimony regarding the credibility of witnesses is inadmissible.³ In support of this argument, Defendant relies on State v. Williams, which held that it was plain error for a trial court to allow a doctor to testify 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[.]’ " 858 S.W.2d 796, 801 (Mo. App. 1993).

The defendant in Williams was tried by a jury; therefore, Williams is unpersuasive here where Defendant was tried by the court. Assuming without deciding that Sutton's challenged testimony was inadmissible, " ‘in a judge-tried case, we presume that the trial judge was not prejudiced by inadmissible evidence and was not influenced by it in reaching a judgment, unless it is clear from the record that the trial judge considered and relied upon the inadmissible evidence.’ " State v. Crites, 400 S.W.3d 828, 834 (Mo. App. 2013) (quoting State v. Bewley, 68 S.W.3d 613, 619 (Mo. App. 2002) ). In his argument, Defendant omits any citations to the record that purport to support or demonstrate that the trial court considered or relied upon Sutton's challenged testimony in determining Defendant's guilt on any charge. In the absence of such citations, we have no basis upon which to conclude that the record is clear that the trial court relied on Sutton's challenged testimony in its guilt determinations. Defendant's claim, therefore, has no merit regardless of whether Sutton's testimony was inadmissible. Defendant's first point is denied.

Point Two—Article I, Section 18(c) Applied to Defendant's Trial

Defendant's second point relied on contends:

The trial court erred in admitting propensity evidence of [Defendant's] alleged prior sexual misconduct against his sister, brother and mother, under Article I, Section 18(c), in violation of [Defendant's] rights to due process of law guaranteed by the 14th Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution because Section 18(c) did not take effect until after [Defendant] was charged and such retrospective application would violate the principle that substantive rights are presumed to operate prospectively in that Article I, Section 18(c) is a substantive amendment rather than a procedural amendment because it impairs [Defendant's] right to be tried only for the crime with which he is charged.^{[4 ]}

Defendant filed a reply brief responding to the State's contention that "The Missouri Supreme Court has recently rejected [Defendant's] argument. State ex rel. Tipler v. Gardner , 506 S.W.3d 922, 927 (Mo. banc 2017) (mandate issued Feb. 16, 2017)." In his reply brief, Defendant stated that he

agrees that the Missouri Supreme Court's opinion in State ex rel. Tipler v. Gardner , 506 S.W.3d 922 (Mo. banc 2017), resolved the question of whether the 2014 amendment to Article I, § 18(c) applied to [Defendant's] trial. Although [Defendant's] alleged crimes occurred before the amendment took effect on December 4, 2014, pursuant to Tipler, supra , since [Defendant's] trial occurred after that date, the new provision applied at his trial.

We are constitutionally bound to follow our supreme court's latest controlling opinion, State v. Brightman, 388 S.W.3d 192, 199 (Mo. App. 2012), Defendant's point is denied.

Point Three—No Demonstrated Error in Admission of Testimony of Sister, Brother and Mother as Propensity Evidence

Defendant's third point relied on states:

The trial court abused its discretion in

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