State v. Parker

• Decision Date: 12 December 2006
• Docket Number: No. 27451.,27451.
• Citation: 208 S.W.3d 331
• Parties: STATE of Missouri, Respondent, v. Clinton P. PARKER, Appellant.
• Court: Missouri Court of Appeals

Page 331

208 S.W.3d 331

STATE of Missouri, Respondent, v. Clinton P. PARKER, Appellant.

No. 27451.

Missouri Court of Appeals, Southern District, Division Two.

December 12, 2006.

COPYRIGHT MATERIAL OMITTED

Ellen H. Flottman, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen. and Dora A. Fichter, Jefferson City, for respondent.

ROBERT S. BARNEY, Judge.

Clinton P. Parker ("Appellant") appeals his convictions for statutory rape in the first degree, a violation of section 566.032, and statutory sodomy in the first degree, a violation of section 566.062.¹ Following a jury trial, Appellant was sentenced by the trial court as a prior offender, pursuant to section 558.016, to two concurrent terms of seventeen years in the Missouri Department of Corrections. On appeal, Appellant alleges two points of trial court error. In his first point on appeal, Appellant maintains the trial court erred in denying his amended motion for new trial based on newly discovered evidence. Appellant's second point on appeal asserts the trial court erred in allowing the jury to view a videotaped interview with the victim during its deliberations. We affirm the judgment of the trial court.

Appellant does not challenge the sufficiency of the evidence to support his convictions. "Viewing the evidence in the light most favorable to the jury's verdict," State v. Smith, 185 S.W.3d 747, 751 (Mo. App. 2006), the record reveals that in May of 2004 C.B., who was six years old, was living with K.P. ("Mother"); D.D. ("Sister"); and Appellant.² One afternoon in early June of 2004, Sister was at home with C.B. when C.B. emerged from the bathroom and told her "that her pee-pee was bothering her." C.B. then told Sister that Appellant "had touched her private area" and that Appellant had "kissed [her] and went up her shirt and touched her." C.B. told Sister that Appellant had used "[h]is hand and his fingers and his tongue and his private area" to touch her and that it had happened on several occasions. Sister informed Mother and Mother asked C.B. about the incident. C.B. indicated to Mother that Appellant had touched her vaginal area with his hands. Mother then took C.B. to her family doctor, Dr. Vo, and the doctor contacted Family Services.

A forensic interview was performed by Dina Vitoux ("Ms. Vitoux") on C.B. at the Child Advocacy Center ("CAC") in July of 2004. The videotape of this interview was played for the jury during the trial.

C.B. testified at trial that Appellant touched her vaginal area on several occasions while they were alone together in Mother's bedroom. She testified that Appellant touched her with "his pee-pee" and his finger.

Appellant did not testify on his own behalf and presented no evidence at trial. At the close of all the evidence, as detailed above, Appellant was convicted of statutory rape in the first degree and statutory sodomy in the first degree, and was sentenced to two, concurrent seventeen-year sentences. This appeal followed.

In his first point relied on, Appellant asserts the trial court plainly erred and abused its discretion in overruling his amended motion for new trial "because the ruling violated [Appellant's] due process right to present a defense...." He maintains such a ruling was in error in that he presented evidence "at the motion for new trial hearing ... that called into doubt [Appellant's] guilt of the charged offenses, in the form of [newly discovered] instant message records about coaching the child victim," and that such records were exculpatory in nature.

Appellant's first point on appeal is not preserved for our review in that his claim regarding newly discovered evidence was not presented to the trial court in a timely motion for new trial. Rather, his claim was first presented to the trial court in an amended motion for new trial filed on December 28, 2005, which was sixty-eight days after the entry of the verdict on October 21, 2005.³

Missouri statutes and rules do not provide a specific means for a criminal defendant to present claims of newly discovered evidence after the time to file a motion for new trial under Rule 29.11 has expired.⁴ Garner, 976 S.W.2d at 60. Accordingly, as it was not timely filed, Appellant's amended motion for new trial preserves nothing for review, and, procedurally, is a nullity. State v. Young, 943 S.W.2d 794, 799 (Mo.App. 1997). With that being said, courts of this State have "recognized that, in `extraordinary' cases, [an appellate court may] remand the case as plain error pursuant to Rule 30.20 or [under] this [C]ourt's inherent powers so that the defendant can present his new evidence." Garner, 976 S.W.2d at 60; see State v. Ramsey, 874 S.W.2d 414, 417 (Mo. App. 1994). The only extraordinary circumstance recognized in this State for such an action to be taken is "where the newly discovered evidence would have completely exonerated the defendant." Garner, 976 S.W.2d at 60; see State v. Hill, 884 S.W.2d 69, 76 (Mo.App. 1994). Thus, our review, if any, of Appellant's claim in this point would be limited to plain error review under Rule 30.20.

Plain error review is used sparingly and is limited to those cases where there is a clear demonstration of manifest injustice or miscarriage of justice. State v. Ballard, 6 S.W.3d 210, 214 (Mo.App. 1999). Claims of plain error are reviewed "under a two-prong standard." State v. Roper, 136 S.W.3d 891, 900 (Mo.App. 2004). "In the first prong, we determine whether there is, indeed, plain error, which is error that is `evident, obvious, and clear.'" Id. (quoting State v. Scurlock, 998 S.W.2d 578, 586 (Mo.App. 1999)). "If so, then we look to the second prong of the analysis, which considers whether a manifest injustice or miscarriage of justice has, indeed, occurred as a result of the error." Roper, 136 S.W.3d at 900. "A criminal defendant seeking plain error review bears the burden of showing that plain error occurred and that it resulted in a manifest injustice or miscarriage of justice." Id. "The outcome of plain error review depends heavily on the specific facts and circumstances of each case." Id.

The question of whether to grant a motion for new trial is left to the sound discretion of the trial court. State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc 2001). The trial court abuses its discretion when its ruling is clearly against the logic of the existing circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Christeson, 50 S.W.3d 251, 261 (Mo. banc 2001).

Thus, in the context of plain error review, we will reverse the trial court's denial of a defendant's motion for new trial only if we determine that its ruling was an obvious and clear abuse of discretion, which affected a substantial right of the defendant and resulted in a manifest injustice or miscarriage of justice.

State v. Smith, 181 S.W.3d 634, 638 (Mo. App. 2006). "It is completely in this [C]ourt's discretion to determine if a defendant with an untimely filed motion for a new trial based on newly discovered evidence should be allowed a new trial." State v. Clark, 112 S.W.3d 95, 99 (Mo.App. 2003). New trials based on newly discovered evidence are disfavored.⁵ Gray, 24 S.W.3d at 209.

To warrant a new trial based on newly discovered evidence, the defendant must show that: (1) the evidence has come to the knowledge of the defendant since the trial; (2) it was not owing to want of due diligence that the evidence was not discovered sooner; (3) the evidence is so material that it would probably produce a different result on a new trial; and (4) the evidence is not cumulative only or merely impeaching the credibility of a witness.

Smith, 181 S.W.3d at 638.

In the present matter, Appellant asserted in his amended motion for new trial that "newly discovered evidence" had been obtained relating to his convictions for statutory sodomy and statutory rape. Specifically, Appellant maintained he had obtained "a copy of an electronic internet discussion believed to be between Mother and one of [Appellant's] sisters."⁶ His motion stated that "[w]hile most of the dialog addresses simple opinion of the two ladies concerning [Appellant], there is a simple statement regarding possible evidence that [C.B.'s] older sister, [D.D.], rehearsed [C.B.] prior to her presentation of facts declared in her video taped [CAC] meeting."

At a December 28, 2005, hearing relating to the amended motion for new trial, defense counsel raised his concerns to the trial court about "allegations" within this instant messaging discussion that D.D. had coached C.B. prior to her CAC interview. Defense counsel stated that in the discussion between Mother and "c_parker_63080" the allegation of coaching was made by "c_parker_63080" and "[M]other doesn't even refute that but simply moves on to a different topic." Defense counsel requested that even if the trial court would not grant a new trial, it should allow C.B. and D.D. to be subpoenaed for a hearing to determine if D.D. had, in fact, coached C.B. prior to her CAC interview.

The following are the applicable verbatim passages from the instant messaging transcript which was attached to Appellant's amended motion for new trial:

c_parker_63080: so why you try to help [Appellant], think he didn't do it,, since your kid had to be drilled about what happened the night before you and [S.P.] took her to make the video?

c_parker_63080: [S.P.] is the reason this all happened

Mother: no its not

* * *

c_parker_63080: [D.D.] is the reason not [S.P.],, is what you think,,, [D.D.] did it to get [Appellant] out of your and [S.P.'s] way

Mother: she is the 1 that brought all this up . . . .

c_parker_63080: and you and [S.P.] not only let her but encouraged it

Mother: no we didn't

Mother: u can think whatever ur going to anyway

* * *

Mother: [C.B.] says its true

* * *

c_parker_63080: after you letting [D.D.] threaten her with her going into a home she would...