State v. Johnson

• Decision Date: 15 December 2015
• Docket Number: WD 77379
• Citation: 477 S.W.3d 218
• Parties: State of Missouri, Respondent, v. Bryan M. Johnson, Appellant.
• Court: Missouri Court of Appeals

477 S.W.3d 218

State of Missouri, Respondent,

v.Bryan M. Johnson, Appellant.

WD 77379

Missouri Court of Appeals, Western District.

OPINION FILED: December 15, 2015

Chris Koster, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Jeannette L. Wolpink, Assistant Appellate Defender, Kansas City, MO, Attorney for Appellant.

Before Division Three: Joseph M. Ellis, Presiding Judge, and Karen King Mitchell and Gary D. Witt, Judges

Karen King Mitchell, Judge

Bryan Johnson appeals his convictions, following a jury trial, for one count of first- degree statutory rape, § 566.032,¹ and one count of first-degree statutory sodomy, § 566.062, for which he was sentenced to consecutive terms of 12 years' imprisonment. In four points, Johnson argues that the trial court erred in both the admission of evidence and the denial of his motion for new trial based upon alleged juror misconduct. Finding no prejudicial error, we affirm.

Background²

In 2003, Johnson met Tami (Victim's mother) through the Pop Warner program in which Victim was a cheerleader. Johnson and Tami married in June 2004, when Victim was ten years old. At the time, Johnson had a twelve-year-old son, and Tami had another child—an eight-year-old son. Victim was very opposed to the marriage, and, the night before the wedding, she cried and asked Tami not to go through with it.

Though Johnson and Tami did not live together before the marriage, Johnson would occasionally spend the night at Tami's house while the children were also there. On nights when he was at the house, Johnson would go into Victim's room at bedtime and scratch her back. It began over the shirt but progressed to bare skin. As time went on, Johnson began touching Victim's bottom and private areas as well. This touching also progressed from over the clothing to underneath it, including insertion of his fingers into her vagina. Eventually, Johnson began putting his mouth on Victim's vagina, licking and sucking on it. Though the touching made Victim feel very awkward and uncomfortable, she did not tell anyone about it at the time because she was scared and did not understand what was happening.

After the marriage, when Johnson moved into the family home, the contact progressively worsened. Johnson began licking and sucking on Victim's breasts, placing his penis in between them and squeezing them together, and placing his penis inside of Victim's vagina and anus. Johnson also placed his penis near Victim's face and tried to put it in her mouth. The contact occurred approximately three times per week. In 2006 (when Victim was near the end of sixth grade), the contact stopped.

During middle school and high school, Victim began to understand what had happened to her. In November 2011, the fall of Victim's senior year of high school, Victim went to Chicago with Johnson and two women to participate in a Pop Warner event. Tami was supposed to attend as well, but she got sick and was unable to go. The hotel room Victim shared with Johnson had two beds, but, during the night, Johnson attempted—on several occasions—to get into bed with Victim. Victim avoided contact by getting out of bed every time Johnson tried to get in with her. She did not tell the other women about Johnson's actions that night because they were his friends.

On January 30, 2012, after reconnecting with her biological father, Victim finally decided to reveal what Johnson had done to her between fourth and sixth grades. Victim texted her best friend and her best friend's mother, Dale Ann Durham, asking to come over to talk. When Victim got to Durham's house, Durham answered the door, and Victim fell into her arms sobbing. Victim sat on the couch for a long time, just crying, unable to articulate why. Victim finally asked for a piece of paper and a pen to write it down. When given the items, Victim wrote the word, "rape." Durham then contacted Victim's biological father and advised him as to what Victim had revealed.

Victim was given a Sexual Abuse Forensic Evaluation (SAFE) exam by a pediatrician at Children's Mercy Hospital. The exam revealed no scarring or tearing

to Victim's genital or rectal areas, but this was not surprising, given both the amount of time that had passed and the fact that Victim had gone through puberty since the last contact.

Johnson was charged with one count of statutory rape and one count of statutory sodomy. At trial, Johnson testified in his own defense and denied all allegations. Johnson also presented several witnesses in his defense who testified to his good character and Victim's poor reputation for truthfulness. The jury found Johnson guilty as charged. Following a sentencing hearing, the jury recommended that Johnson be sentenced to twelve years' imprisonment on each count.

While the jury was deliberating on Johnson's sentence, Johnson's stepdaughter, Tiffany Vogel, advised that she had seen a juror ("Juror") wink at Victim. Johnson's counsel indicated his concern that Juror perhaps knew Victim because both had graduated from the same high school and were close in age. The court allowed the parties to agree upon some questions to ask Juror, and after the jury had returned its sentencing verdict, the court put Juror on the stand for further voir dire:

[The court]: There was a question as to whether or not you may have had some recognition or familiarity with one of the witnesses, and, so, [defense counsel] is just going to ask you a couple of questions you can just answer, okay?

Juror: Okay.

....

[Defense counsel]: Ms. [Juror], you had stated in voir dire, I think, that you didn't know [Victim] from high school, is that right?

Juror: Uh-huh, correct.

[Defense counsel]: After seeing her in court, did you recognize her as someone you knew?

Juror: Uh, no, sir.

In his motion for new trial, Johnson argued that newly discovered evidence supported a finding that Juror engaged in misconduct by failing to reveal that she knew or recognized Victim. Specifically, Johnson argued that both Juror and Victim attended the same high school, were both involved in dance and cheer, appeared on the same page of the 2009 Kearney High School yearbook, and that Juror had to know Tami, who worked as the school's secretary at the time. The court held a hearing on Johnson's motion, wherein it received testimony from Juror, Juror's mother, and a defense investigator. Juror again denied knowing or recognizing anyone involved in the case. She also denied ever telling her mother anything different. Juror's mother testified that Juror told her, after the trial, that she recognized "the girl" from high school, but did not know her. Juror's mother did not know what Juror meant by "the girl" or if "the girl" was Victim. The defense investigator testified that, when he attempted to serve a subpoena on Juror, he spoke with Juror's mother, who revealed that Juror said she recognized the parties involved after the case had begun.

After hearing argument, the court denied the motion for new trial and sentenced Johnson in accordance with the jury's recommendation, ordering the sentences to run consecutively. Johnson appeals.³

Analysis

Johnson raises four points on appeal: (1) the trial court plainly erred and abused its discretion in overruling Johnson's request for a mistrial after the State's expert testified that Victim had been sexually abused; (2) the trial court abused its discretion in overruling Johnson's hearsay objection to a prosecution witness's testimony that Victim said she had been raped by her stepfather; (3) the trial court plainly erred in failing to either declare a mistrial or strike testimony elicited on cross-examination from two defense character witnesses, because their testimony was the result of improper cross-examination by the State; and (4) the trial court abused its discretion in overruling Johnson's motion for new trial on the basis of juror misconduct.

A. The trial court committed no error regarding admission of Dr. Frazier's testimony.

In his first point on appeal, Johnson argues that the trial court plainly erred and abused its discretion by overruling his request for a mistrial after Dr. Terra Frazier testified, on cross-examination, as follows:

Q [Defense counsel]: To a reasonable degree of scientific or medical certainty, can you state that [Victim] has had sexual intercourse?

A. To a reasonable degree of medical certainty, my diagnosis would be child sexual abuse.

Following this testimony, defense counsel stated, "That wasn't my question." Dr. Frazier asked counsel to repeat the question, at which point, defense counsel requested a sidebar. At the sidebar, defense counsel objected to the testimony regarding child sexual abuse and asked the court to "either strike that, that testimony, or grant a mistrial at this point." The court denied the request for a mistrial but granted counsel's request to strike on the basis that it was non-responsive. The court then advised the jury: "The jury should disregard the very last comment of the witness." Counsel did not include his current claim of error in the motion for new trial.

"In jury-tried cases, allegations of error to be preserved for appellate review must be included in a motion for new trial...." Rule 29.11(d).⁴ "Claims that are not preserved may be reviewed in the discretion of th[e c]ourt for plain error." State v. Taylor, 466 S.W.3d 521, 533 (Mo. banc 2015). "Plain error is found when the alleged error facially establish[es] substantial grounds for believing a manifest injustice or miscarriage of justice occurred." Id. (internal quotations omitted). "Such errors must be ‘evident, obvious, and clear.’ " Id. (quoting State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014) ).

Here, we find no evident, obvious, or clear error in the court's ruling. First, contrary to Johnson's argument, Dr. Frazier's diagnosis of child sexual abuse did not amount to an improper expert witness comment on Victim's veracity as a witness insofar as Dr. Frazier...