State v. McGuire, Nos. 61945

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKAROHL; While still at the hospital; The trial court did not abuse its discretion in prohibiting testimony concerning the alleged hygiene of members of J.K.'s household. In the absence of supporting medical testimony, the questions posed by defense c
Citation892 S.W.2d 381
PartiesSTATE of Missouri, Respondent, v. Michael McGUIRE, Appellant. Michael McGUIRE, Movant-Appellant, v. STATE of Missouri, Respondent.
Decision Date14 February 1995
Docket Number66090,Nos. 61945

Page 381

892 S.W.2d 381
STATE of Missouri, Respondent,
v.
Michael McGUIRE, Appellant.
Michael McGUIRE, Movant-Appellant,
v.
STATE of Missouri, Respondent.
Nos. 61945, 66090.
Missouri Court of Appeals,
Eastern District,
Division Four.
Feb. 14, 1995.

Page 383

Robert E. Steele, Jr., Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

A jury convicted Michael McGuire of attempted rape, a violation of § 566.030 RSMo 1986. Defendant appeals the conviction and denial of his Rule 29.15 motion without an evidentiary hearing. We affirm.

The evidence, which supports the verdict, is as follows. On December 22, 1990, defendant and his wife picked up their five-year-old niece, J.K., from her mother's home to spend two nights at their home. In the evening J.K. fell asleep in defendant's bed, positioned between defendant and his wife. While his wife was sleeping, defendant committed acts that constitute the offense charged.

The McGuires returned J.K. to her home in the morning of December 24, 1990. On January 2, 1991, J.K. told her mother that something was wrong. Her mother took J.K. to the emergency room where a doctor examined J.K. Two days later, the hospital called and told the mother to bring J.K. back to the emergency room. Hospital personnel told the mother that J.K. had been sexually molested and tested positive for gonorrhea.

While still at the hospital, J.K. and her mother spoke with Jeff Viehmeyer, a social service worker. Viehmeyer told J.K. that she would not be allowed to go home and would have to stay in the hospital if she did not tell him who had assaulted her. J.K. told Viehmeyer that her Uncle Mike had done it. She thus identified defendant.

Between January 21 and 28, 1991, Tish LaRock Mullen, a nurse with the Sexual Abuse Management Team and clinic at Cardinal Glennon, interviewed J.K. three times. J.K. explained what had happened. She said her Uncle Mike was the one involved.

Viehmeyer contacted Officer Gary Guinn of the sex crimes/child abuse section of the St. Louis City Police Department. Once Officer Guinn learned that J.K. had tested positive for gonorrhea, he told Viehmeyer to make arrangements for every adult who had been around the child to be tested for gonorrhea. Officer Guinn later learned that Viehmeyer had only arranged for males to be tested and that only defendant tested positive for the disease. On January 28, 1991, Officer Guinn interviewed J.K. at her home. J.K.'s statements about the incident on December 22, 1990, were consistent with the statements she gave to Mullen.

Dr. James Monteleone, Professor of Pediatrics and Director of Child Protection and Director of the Sexual Abuse Management Clinic at Cardinal Glennon, testified for the state. He had reviewed J.K.'s medical records, which reported she had been examined and had tested positive for gonorrhea. He testified that a gonorrhea infection "must be transmitted by direct mucosa to mucosa contact" and that the disease is only sexually transmitted. He explained that the gonorrhea bacteria is very sensitive and dies quickly. He also testified that if the bacteria was contracted in December, 1990, it would not be unusual to see symptoms in January, 1991. He stated that a gonorrhea infection seen in a child of five or six years of age indicates sexual abuse. He opined that J.K., who was five when the incident occurred and seven at the time of trial, was sexually abused.

On cross examination, Dr. Monteleone acknowledged certain medical authorities have left open the possibility of non-sexual transmission of the disease; however, he expressed his belief that non-sexual transmission of the disease was not possible in children.

After a guilty verdict and sentence, defendant timely filed a Rule 29.15 motion and a first-amended motion. The motion court denied defendant's 29.15 motion without an evidentiary hearing. Defendant presents five points on appeal.

Defendant's first point on direct appeal is a Batson claim involving equal protection as it

Page 384

relates to the government's exercise of peremptory challenges. Defendant contends the state purposely excluded two black venirepersons from the jury solely because of their race. Defendant argues the explanations given by the state were clearly pretextual in that the proffered explanations had no bearing or logical relevance to defendant's trial, and similarly situated white venirepersons were not struck.

Once a party has established a prima facie case under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the opposing party must give race-neutral reasons for the challenged peremptory strikes. State v. Parker, 836 S.W.2d 930, 934 (Mo. banc 1992), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). To be sufficient the explanation need only be race-neutral, reasonably specific and clear, and related to the particular case to be tried. Id. If the state offers sufficient race-neutral explanations for the strikes, defendant must then show that the state's proffered reasons were merely pretextual and that the strikes were racially motivated. Id., 836 S.W.2d at 939.

Trial courts are vested with considerable discretion in determining whether the defendant established purposeful discrimination. Parker, 836 S.W.2d at 934. Much of their determination turns upon evaluation of intangibles such as credibility and demeanor. Id. A trial court's determination regarding purposeful discrimination is a finding of fact that will not be overturned on appeal unless clearly erroneous. Id. at 939.

Defendant argues the state struck venirepersons Gilliard and Davie solely because of their race. Regarding venireperson Gilliard, the prosecutor explained she struck Gilliard, who works for the federal government in a military record department, because of his familiarity with records and record keeping. The prosecutor planned on calling two custodians of records and anticipated some difficulties with...

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9 practice notes
  • State v. Huchting, Nos. 65861
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1996
    ...court's decision for abuse of discretion. This court does, however, have the discretion to review for plain error. State v. McGuire, 892 S.W.2d 381, 385 (Mo.App. E.D.1995). To show that the trial court committed plain error, "[a] defendant must not only show that prejudicial error resu......
  • State v. Johnson, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • September 17, 1996
    ...in striking juvenile court employee because they are "accustomed to lenient dispositions in juvenile cases"); State v. McGuire, 892 S.W.2d 381, 384 (Mo.App.1995) (finding no clear error in striking housing inspector because of his exposure to family living 15 See e.g., U.S. v. Car......
  • State v. Bass, No. WD 59447.
    • United States
    • Court of Appeal of Missouri (US)
    • May 21, 2002
    ...the admissibility of statements and testimony to actual victims of offenses." Id. at 170 (emphasis added) (citing State v. McGuire, 892 S.W.2d 381, 385 (Mo.App.1995)). The State contends that this language from Merrill was merely dicta, which should not be followed because it is contra......
  • State v. Brown, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • September 23, 1997
    ...S.W.2d 695, 697 (Mo.1991). 7 See State v. Redman, 916 S.W.2d 787 (Mo.1996); State v. Wright, 751 S.W.2d 48 (Mo.1988); State v. McGuire, 892 S.W.2d 381 (Mo.App.1995); State v. White, 873 S.W.2d 874 (Mo.App.1994); State v. Phelps, 816 S.W.2d 227 (Mo.App.1991); State v. Zamora, 809 S.W.2d 83 (......
  • Request a trial to view additional results
9 cases
  • State v. Huchting, Nos. 65861
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1996
    ...court's decision for abuse of discretion. This court does, however, have the discretion to review for plain error. State v. McGuire, 892 S.W.2d 381, 385 (Mo.App. E.D.1995). To show that the trial court committed plain error, "[a] defendant must not only show that prejudicial error resu......
  • State v. Johnson, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • September 17, 1996
    ...in striking juvenile court employee because they are "accustomed to lenient dispositions in juvenile cases"); State v. McGuire, 892 S.W.2d 381, 384 (Mo.App.1995) (finding no clear error in striking housing inspector because of his exposure to family living 15 See e.g., U.S. v. Car......
  • State v. Bass, No. WD 59447.
    • United States
    • Court of Appeal of Missouri (US)
    • May 21, 2002
    ...the admissibility of statements and testimony to actual victims of offenses." Id. at 170 (emphasis added) (citing State v. McGuire, 892 S.W.2d 381, 385 (Mo.App.1995)). The State contends that this language from Merrill was merely dicta, which should not be followed because it is contra......
  • State v. Brown, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • September 23, 1997
    ...S.W.2d 695, 697 (Mo.1991). 7 See State v. Redman, 916 S.W.2d 787 (Mo.1996); State v. Wright, 751 S.W.2d 48 (Mo.1988); State v. McGuire, 892 S.W.2d 381 (Mo.App.1995); State v. White, 873 S.W.2d 874 (Mo.App.1994); State v. Phelps, 816 S.W.2d 227 (Mo.App.1991); State v. Zamora, 809 S.W.2d 83 (......
  • Request a trial to view additional results

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