State v. Marshall
| Decision Date | 25 February 2020 |
| Docket Number | WD 81911 |
| Citation | 596 S.W.3d 156 |
| Parties | STATE of Missouri, Respondent, v. Lewis C. MARSHALL, Appellant. |
| Court | Missouri Court of Appeals |
Katharine P. Curry, Columbia for appellant.
Richard A. Starnes, Jefferson city for respondent.
Before Division Three: Alok Ahuja, P.J., and Gary D. Witt and Anthony Rex Gabbert, JJ.
Following a jury trial in the Circuit Court of Buchanan County, Lewis Marshall was convicted of the unclassified felony of sodomy, in violation of § 566.060, RSMo, and the class D felony of sexual abuse in the first degree, in violation of § 566.100, RSMo. Marshall appeals. He argues that the circuit court abused its discretion in admitting expert testimony concerning delayed disclosure of sexual abuse by child victims. Marshall argues that the testimony was inadmissible because it was not based on the application of reliable principles and methods, as required by § 490.065.2(1)(c) and (d), RSMo. We affirm.
Marshall’s victim is a male who was born in 1985. Marshall married Victim’s mother in 1986. Although Marshall was not Victim’s biological father, Victim grew up believing that he was. Marshall and Victim’s mother divorced after approximately sixteen years of marriage.
Around Thanksgiving 2016, Victim was gathered with other relatives at his mother’s house. The group was discussing spending the night at Victim’s mother’s house. Victim’s niece stated she could not stay because, if she did, she would miss "special tickle time with Grandpa [ (meaning Marshall) ]." Marshall had legal guardianship over the niece at the time.
Victim was concerned about his niece’s statement, because of Marshall’s actions toward Victim when Victim was growing up. Victim decided to disclose those events to his family and then to authorities.
Victim’s disclosures led to Marshall being charged with one count of sodomy and one count of sexual abuse. The Third Amended Felony Information on which Marshall was tried alleged that he had committed the offense of sodomy between October 1, 1993 and November 1, 1993, by putting his genitals in Victim’s mouth at a time when Victim was less than fourteen years old. The information alleged that Marshall had committed the offense of first-degree sexual abuse by touching Victim’s anus with his hand between October 1, 1990 and January 2, 1991, at a time when Victim was less than twelve years old.
The case proceeded to a jury trial in April 2018. Victim was 32 years old at the time of trial. He testified that Marshall was frequently physically abusive to his mother, his siblings, and to Victim when they lived as a family. Victim testified about an incident of sexual abuse which occurred in Buchanan County on New Year’s Eve of 1990, when Victim was five years old. During that incident Marshall put his finger inside Victim’s anus, and simultaneously masturbated. Victim testified that on another occasion on Victim’s eighth birthday, Marshall forced Victim to perform oral sex on him at a used car lot where Marshall worked in Buchanan County. Victim testified about two additional incidents of sexual abuse that occurred in Hamilton and in Kansas, where Marshall put his penis and a drum stick in Victim’s anus. After each incident, Marshall told Victim that he would die if he told anyone what had happened.
Victim testified that the last incident of abuse he could remember occurred when he was approximately sixteen or seventeen years old (i.e. , in approximately 2001 or 2002). Victim was home with his girlfriend. Marshall saw Victim’s girlfriend kissing him. Marshall threw Victim into a bathroom, locked the door, and undid his pants. Marshall told Victim to "get him hard," and then said that he would show Victim’s girlfriend "what a real man was." Victim fought back and left the house with his girlfriend.
Marshall admitted he engaged in some physical abuse of his children but denied all allegations of sexual abuse.
During trial the State presented several witnesses who testified to uncharged acts of sexual abuse which Marshall had committed against them. This evidence was admitted under Article I, § 18(c) to the Missouri Constitution, to prove Marshall’s propensity to engage in the conduct for which he was on trial. The uncharged acts testimony concerned sexual abuse which had occurred years or even decades earlier, in most instances when the witnesses were minors.
At trial, the State also presented expert testimony from Joyce Estes. Estes is a licensed clinical social worker. She worked as a counselor and program director at Northwest Missouri Children’s Advocacy Center in St. Joseph from 1993 to 2004, when she became the Center’s Director. Estes retired as Director of the Children’s Advocacy Center in November 2017. Estes has a master’s degree in counseling. She testified that her specialty was counseling children who had been sexually, physically, or emotionally abused, or adults who had experienced such abuse as children; her "primary focus" was sexual abuse. Estes had counseled over 1,000 children and testified as an expert witness 40 times in child abuse cases. She testified that she had extensive education in the areas of childhood trauma, childhood sexual abuse, and techniques for interviewing children about abuse. A significant part of her training concerned the process by which children disclose sexual abuse.
Estes had not met or counseled Victim or any of the other witnesses who testified to sexual abuse by Marshall. She instead testified to the behavior of child sexual abuse victims generally. Estes testified that children disclose abuse within one year of it occurring in only approximately 25% of cases; these early disclosures typically occur where the abuser is a stranger and non-family member. Another 25% of victims do not disclose sexual abuse until very late in life. Estes referred to a study in which 43% of the children who displayed medical evidence of sexual abuse, such as a sexually transmitted disease, did not disclose any abuse. A familial or close personal relationship between the abuser and the victim made it less likely that the victim would disclose the abuse promptly. Victims do not disclose the abuse, or delay their disclosures, due to fear, shame, guilt, and a lack of self-confidence. Estes testified that, if a child makes an initial disclosure and receives a hostile, unsympathetic or ineffective response, they may delay any further disclosure for an extended period. Estes also testified that a child may continue to have affectionate feelings for an abuser with whom the child has a close personal relationship, and may hesitate to disclose abuse by that person from fear of endangering the relationship. In those instances, she testified that the child may attempt to mentally segregate the abuse from other, positive aspects of their relationship with the perpetrator.
The jury found Marshall guilty on both counts. The court sentenced him to life imprisonment for the sodomy count, and a concurrent term of four years’ imprisonment on the sexual abuse count. Marshall appeals.
The trial court has broad discretion to admit or exclude evidence at trial. We review the trial court’s ruling on the admission of evidence for an abuse of that discretion. That discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.
State v. Suttles , 581 S.W.3d 137, 145 (Mo. App. E.D. 2019) (citations and internal quotation marks omitted).
Marshall argues that Joyce Estes should not have been permitted to testify as an expert that child sex-abuse victims frequently delay their disclosure of the abuse. Marshall argues that Estes’ testimony was inadmissible because the State failed to demonstrate that her testimony was "the product of reliable principles and methods," and that Estes had "reliably applied the principles and methods," within the meaning of § 490.065.2(1)(c) and (d), RSMo. We disagree.
"Prior to 2017, Section 490.065 applied a standard for the admissibility of expert testimony similar to that found in Frye v. United States , 293 F. 1013, 1014 (D.C. Cir. 1923)." Suttles , 581 S.W.3d at 146 (citations omitted). Section 490.065 was amended effective August 28, 2017. Id. As relevant to this proceeding, § 490.065.2(1) now provides:
"The language of Sections 490.065.2(1)–(2) are now identical in their language to [Federal Rules of Evidence] 702 – 703." Suttles , 581 S.W.3d at 146. "This Court since has held that because the language of Section 490.065 now mirrors FRE 702 and 703, and because FRE 702 and 703 are interpreted under Daubert and its progeny, the cases interpreting those federal rules remain relevant and useful in guiding our interpretation of Section 490.065." Id. (referencing Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 593–94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ).
Federal Rule of Evidence 702, on which § 490.065.2 is patterned, " ‘affirms the trial court’s role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony.’ " State ex rel. Gardner v. Wright , 562 S.W.3d 311, 318 (Mo. App. E.D. 2018) .
Several federal circuits boil the gatekeeping function of trial courts under Federal Rule of Evidence 702 down to its essence in a useful...
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