State v. Myers

• Decision Date: 23 March 2021
• Docket Number: No. ED 108903,ED 108903
• Citation: 619 S.W.3d 578
• Parties: STATE of Missouri, Respondent, v. Zachary L. MYERS, Appellant.
• Court: Missouri Court of Appeals

619 S.W.3d 578

STATE of Missouri, Respondent,

v.Zachary L. MYERS, Appellant.

No. ED 108903

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: March 23, 2021

FOR APPELLANT: Frederick M. Hawk, 1912R Cherokee Street, St. Louis, Missouri 63118.

FOR RESPONDENT: Kristen S. Johnson, 221 West High Street, Jefferson City, Missouri 65101.

Kelly C. Broniec, Judge

I. Introduction

Zachary Myers ("Myers")¹ appeals the trial court's judgment finding him guilty on two class D felony counts of sodomy in the second degree and one class D felony count of domestic assault in the second degree. Myers raises four points on appeal. In Point I, Myers argues that the trial court erred by permitting the State to refer to the complaining witness as the "victim" throughout trial. In Point II, Myers argues that the trial court erred by admitting the sexual assault nurse examiner's report ("SANE Report") into evidence because it contains inadmissible hearsay. In Point III, Myers appears to argue that the prosecutor had a conflict of interest in this case. Finally, in Point IV, Myers seems to bring a claim of ineffective assistance of counsel.

We affirm.

II. Factual and Procedural Background

Myers was charged by information on February 5, 2019, with two counts of the class D felony of sodomy in the second degree, § 566.061,² and one count of the class D felony of domestic assault in the second degree, § 565.073. A jury found Myers guilty on all three counts and the judge sentenced him to three consecutive seven-year terms of incarceration, for a total of twenty-one years.

The evidence at trial established that Myers met M.L.³ in September 2018 at the factory where they both worked. They began a sexual relationship around September 10, 2018, where they engaged in consensual vaginal intercourse. Shortly thereafter, M.L. and Myers moved in together. Myers and M.L. maintained their sexual relationship from around September 15 until September 24, 2018.

On the morning of September 24, Myers told M.L. that he wanted to have anal intercourse with her, which she refused. Myers ignored M.L., rolled her over, and penetrated her anus while she physically resisted, telling Myers to stop and that he was hurting her. Myers did not stop. Between September 24 and September 28, Myers would again try to have anal intercourse with M.L., which she refused and resisted each time, thus angering Myers.

On September 28, Myers attempted to penetrate M.L.’s anus as she physically and verbally resisted. Myers became angered by this, eventually stopping before making a second attempt, to which M.L. resisted again. M.L. then went to buy lubricant from Walmart because she feared he would try again, thinking that the lubricant would make it less painful. M.L. testified that, upon her return from Walmart, Myers told her that "he didn't want to use the lube because he wanted to traumatize me and make it hurt, that way I wouldn't say no anymore." She also testified that she did not try to leave because she feared Myers.

Myers again tried to penetrate M.L.’s anus on September 29, to which she again resisted. Myers stopped and told her that if she would not "do [her] job," then he would find someone else to do it, and proceeded to leave the house. While Myers was away, M.L. packed her belongings and left the house. She later went to the hospital where Tamra Ray, a registered nurse and sexual assault nurse examiner, performed a SANE examination on her. Ray prepared the SANE Report and testified at trial that she observed injuries to M.L.’s rectum.

This appeal follows.

III. Discussion

Rules 30.06 and 84.04

Rule 84.04⁴ describes the mandatory requirements for appellate briefing in Missouri. Carmen v. Olsen , 611 S.W.3d 368, 370 (Mo. App. E.D. 2020). These requirements apply to both civil and criminal briefs. Rule 30.06. Myers's brief egregiously violates Rule 84.04 in that none of his arguments contain "a concise statement describing whether the error was preserved for appellate review; if so, how it was preserved; and the applicable standard of review." Rule 84.04(e).

The standard of review is essential to all appellate arguments, as it outlines this court's role in disposing of the matter before it. It is not this court's duty to supplement a deficient brief with its own research, to comb the record in search of facts to support an appellant's claim of error, or demonstrate it is properly preserved for appellate review.

Porter v. Santander Consumer USA, Inc. , 590 S.W.3d 356, 358 (Mo. App. E.D. 2019) (internal citations omitted), transfer denied (Dec. 24, 2019). Myers also ignores the Rule 84.04(c) requirements for his Points Relied On and he fails to develop his arguments or cite to the record, as required by Rule 84.04(e). We discuss these violations in more detail infra.

We prefer to review cases on the merits "where disposition is not hampered by rule violations and the argument is readily understandable." Bennett v. Taylor , 615 S.W.3d 96, 98 (Mo. App. E.D. 2020). "However, ‘[a]n appellant's failure to substantially comply with Rule 84.04 preserves nothing for our review and is grounds for dismissing the appeal.’ " Id. (alteration in original) (quoting Bruce v. City of Farmington , 551 S.W.3d 65, 66 (Mo. App. E.D. 2018) ). "[I]f the brief is so deficient that we cannot competently rule on the merits without first reconstructing the facts and supplementing the appellant's legal arguments, then nothing is preserved for review and we must dismiss the appeal." Carmen , 611 S.W.3d at 371 (quoting Unifund CCR Partners v. Myers , 563 S.W.3d 740, 743 (Mo. App. E.D. 2018) ).

This Court may dismiss some points on appeal for Rule 84.04 violations while reviewing other points within the same brief ex gratia. See , e.g. , Scott v. King , 510 S.W.3d 887 (Mo. App. E.D. 2017) (dismissing three points for Rule 84.04 violations while reviewing two points ex gratia ).

Point I

In his first point on appeal, Myers argues that the trial court erred in overruling his Third Motion in Limine, which sought to prohibit the State from referring to the complaining witness as a "victim." Myers argues that the State referring to M.L. as a "victim" would constitute improper vouching because its use "gave the jury leave to give undue weight to [M.L.’s] testimony before she even testified."

Myers's first point violates Rule 84.04(e) in that he fails to "include a concise statement describing whether the error was preserved for appellate review; if so, how it was preserved; and the applicable standard of review." This violation alone justifies dismissal of the point because "[t]he standard of review is essential to all appellate arguments, as it outlines this court's role in disposing of the matter before it." Porter , 590 S.W.3d at 358. Nevertheless, we prefer to rule on the merits whenever possible, see Bennett , 615 S.W.3d at 98, and this violation does not impede our review of Point I. Therefore, we exercise our discretion to review the merits of this point ex gratia. In doing so, however, we must carefully avoid supplementing either party's argument in order to maintain our role as a neutral adjudicator. Bennett , 615 S.W.3d at 98 ; Carmen , 611 S.W.3d at 371.

Standard of Review

The trial court maintains "a great deal of discretion in the conduct of a trial carried on before it." State v. Moore , 925 S.W.2d 466, 467 (Mo. App. E.D. 1996) (citing State v. Dunmore , 822 S.W.2d 509 (Mo. App. W.D. 1991) ). Specifically, the trial court "is generally vested with wide discretion in the conduct of voir dire ," State v. Oates , 12 S.W.3d 307, 310 (Mo. banc 2000), so "[r]ulings by the trial court are reviewed only for an abuse of discretion." Id. at 311. In addition, "[t]he scope of opening statements is within the discretion of the trial court, and we review an objection to opening statements for abuse of discretion." State v. Alexander , 505 S.W.3d 384, 391 (Mo. App. E.D. 2016) (citing State v. Thompson , 68 S.W.3d 393, 395 (Mo. banc 2002) ). On direct appeal, we review claims of trial court error "for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Baumruk , 280 S.W.3d 600, 607 (Mo. banc 2009) (internal quotation marks omitted); Thompson , 68 S.W.3d at 395 ; Oates , 12 S.W.3d at 311.

Analysis

Myers argues that referring to the complaining witness as a "victim" constitutes improper vouching of that witness, which undermines his presumption of innocence. "Vouching occurs when a prosecutor implies that he or she has facts establishing the veracity of a state's witness that are not before the jury for [its] consideration." Glover v. State , 225 S.W.3d 425, 430 (Mo. banc 2007) ; accord State v. McFadden , 369 S.W.3d 727, 747 (Mo. banc 2012). A prosecutor may not assert personal knowledge; however, "[s]tating that a witness is telling the truth does not constitute vouching as long as the prosecutor does not imply that the statement is based on evidence not before the jury." Glover , 225 S.W.3d at 430.

The Missouri Court of Appeals has only addressed the merits of whether a prosecutor may refer to a complaining witness as a "victim" once, in Cloud v. State , 507 S.W.2d 667 (Mo. App. 1974) ; see also City of Kansas City v. Hudson , 12 S.W.3d 747 (Mo. App. W.D. 2000) (dismissing an appeal in which this question arises for violations of mandatory briefing requirements). In Cloud , the appellant complained that the State's reference to the complaining witnesses as "victims" was impermissibly inflammatory and thus warranted reversal. Cloud , 507 S.W.2d at 668. Although the court in Cloud did not specifically use the term "vouching," it held that in the circumstances where the defense disputed the identity of the perpetrator but not that a crime occurred, "the use of the term by the prosecutor could not reasonably have been understood as a disparagement of the defendant, but rather as properly descriptive of the persons who had...