State v. Potter, 15189

Decision Date11 February 1988
Docket NumberNo. 15189,15189
CitationState v. Potter, 747 S.W.2d 300 (Mo. App. 1988)
PartiesSTATE of Missouri, Respondent, v. Ronald L. POTTER, Appellant.
CourtMissouri Court of Appeals

Ronald A. Conway, Asst. Public Defender, Springfield, for appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

HOLSTEIN, Judge.

AppellantRonald L. Potter(Defendant) appeals, having been convicted of sexual abuse in the first degree in violation of § 566.1001 and sentenced to three years in the state penitentiary.Defendant raises five points on appeal, four of which involve the admissibility or sufficiency of the evidence.

The evidence presented at trial indicated that the victim of the offense was defendant's daughter, H.P., who was four years old at the time of the offense, but five years old at the time of trial.H.P. and her two brothers were apparently in foster care in December of 1985.The act of sexual abuse occurred on Christmas Eve, 1985, while the children were visiting in the home of defendant and their mother.

H.P. was called by the State as a witness and testified as follows:

Q.Do you remember the Christmas before last when you were at Daddy Ron and Mommy Virginia's?

A.Yes.

Q.And you went to sleep that night?

A.Yes.

Q.And your brother was in the room with you?

A.Yes.

Q.Did anyone come into the room?

A.Yes.

Q.Who came into the room?

A.Daddy Ron and Mama Virginia.

Q.And what did they do when they came into the room, what did Daddy Ron do?

A.Poked me with the scissors.

Q.Where did he poke you?

A.Down in the pee-pee.

Q.And did you have your clothes on?

A.No.

Q.Who took your clothes off?

A.Daddy Ron.

Q.And did Daddy Ron say anything to you?

A.No.

Q.Do you know a monster?

A.Yes.

Q.And who is the monster?

A.Daddy Ron.

Q.And do you know when the monster's dressed and undressed?

A.Yes.

Q.What is it when the monster's undressed?

A.His pee-pee is long.

Other evidence presented at trial indicated that "Daddy Ron" was the name by which the child referred to defendant.

Prior to trial, the court conducted a hearing outside the presence of the jury to determine the admissibility of certain out-of-court statements made by H.P. regarding the sexual assault.Pursuant to that hearing, the court found that the time, content, and circumstances of the statements made by the child provided sufficient indicia of reliability.§ 491.075.2The out- of-court statements of the child which were offered in evidence included statements made to the child's foster mother on Christmas morning, 1985, to an emergency room physician later the same day, to a social worker on December 26, 1985, and to psychologist Roy Grando during the course of the child's hospitalization in January of 1986.In each of the statements, the child complained that a "monster" had entered the room in which she was sleeping on Christmas Eve of 1985, had removed her clothing, and had touched or rubbed her "bottom" either with his hands or a foreign object.Evidence indicated also that the child used the word "bottom" to mean the vaginal area.In each instance, the "monster" was identified as "Daddy Ron."

Grando holds a doctorate in Human Development and Family Studies and has specialized in psychological counseling with children and teenagers for seven years.He identified common behavioral characteristics found in children who have been sexually abused.He testified that he found some of those characteristics exhibited by H.P.

Among the issues raised in Point I, defendant complains that the trial court should not have permitted Grando to describe the characteristics common among children who had suffered from sexual abuse because such opinion was not shown to be generally accepted in the scientific community.SeeState v. Taylor, 663 S.W.2d 235(Mo. banc 1984).No objection was made claiming that Grando's opinions had no general scientific acceptance.In the argument portion of defendant's brief, he cites State v. Ellis, 710 S.W.2d 378(Mo.App.1986), apparently for the proposition that evidence of characteristics of sexually abused children is not a proper subject of expert testimony because it improperly invades the province of the jury.No such objection was raised at trial, nor is it preserved in the points relied on.

Defendant also raises in Point I and as part of Point II the complaint that Grando's testimony and the testimony of the foster mother, social worker, and emergency room physician relating H.P.'s statements to each of them, amounted to impermissible bolstering and vouching for H.P.'s trial testimony.After a careful review of the transcript, we find no objection to any of the testimony of the above-named witnesses suggesting to the trial court that such testimony impermissibly bolstered or vouched for the testimony of H.P.

An assignment of error on appeal regarding the admission of evidence at trial must be based upon the theory stated in the objection at trial, and an accused cannot expand or change on appeal the objection as made at trial.State v. Woods, 723 S.W.2d 488, 496(Mo.App.1986).Because there was no objection to the scientific reliability of Grando's opinions, no objection was made that his opinions invaded the province of the fact-finder and no objection was made that the out-of-court statements amounted to impermissible bolstering or vouching for H.P.'s testimony, defendant is foreclosed from asserting these claims of error on appeal.While defendant makes no claim that the admission of this evidence was plain error, a review of the record indicates that the admission of the evidence did not result in manifest injustice or miscarriage of justice.Rule 29.12(b).

Turning to the other points raised under Point I, defendant claims that Grando was not qualified to give his opinion and that his opinions were not based on facts in evidence.Defendant's brief cites no authority for the proposition that Grando's education and experience specializing as a clinical child psychologist are inadequate to qualify him as an expert.The test of expert qualification is whether the witness has knowledge from education or experience which will aid the trier of fact, and the qualification of an expert is a matter resting primarily in the sound discretion of the trial court.State v. Mallett, 732 S.W.2d 527, 537(Mo. banc 1987).We find no abuse of discretion.

In support of the claim that Grando testified as to facts not in evidence when he testified as to common characteristics of sexually abused children, defendant cites cases involving experts who were giving testimony in response to a hypothetical question.Garrett v. Joseph Schlitz Brewing Co., 631 S.W.2d 652(Mo.App.1982);State v. Schmidt, 530 S.W.2d 424(Mo.App.1975);State v. Johnson, 504 S.W.2d 334(Mo.App.1973).These cases are all cases in which an expert witness gave an opinion based upon essential facts which the witness did not observe and which were not in evidence.The questions posed to Grando were not based on any hypothesized facts, but upon Grando's expert knowledge of characteristics common among sexually abused children and his direct observations of H.P.'s behavior.Assuming the question asked of Grando was a hypothetical question, the defendant's objection failed to call the court's attention to what facts were omitted from the hypothetical question.Such failure on the part of defendant justifies the trial court in overruling the objection.Pettet v. Bieterman, 718 S.W.2d 188, 193(Mo.App.1986).

Subordinate to Point II of defendant's brief, he complains that he was not informed by the State of the State's intent to use H.P.'s out-of-court statements to the foster mother, the social worker, the emergency room physician, and Dr. Grando until the morning of trial in violation of § 491.075.3.Therefore, defendant argues, the trial court erred in permitting the witnesses to testify as to H.P.'s statements.

Section 491.075.3, on which defendant relies, makes no provision for sanctions.However, Rule 25.16, relating to sanctions for failure to comply with discovery in criminal cases, is applicable in this situation.SeeState v. Mills, 723 S.W.2d 68, 69(Mo.App.1986).Under Rule 25.16, in order to justify a reversal of a conviction because of a failure of the trial court to impose sanctions, the defendant must show that the nondisclosure resulted in fundamental unfairness or prejudice to substantial rights of the defendant.State v. Sykes, 628 S.W.2d 653, 656(Mo.1982).

The record reflects that defendant was informed of the contents of the witnesses' statements well in advance of trial.The only relief sought by defendant was the exclusion of the testimony.Less drastic relief, such as a continuance, was not sought.The State did not conceal the statements, nor can defendant claim he was surprised the State intended to offer the statements.The defendant has failed to suggest what he would or could have done differently had he been given a specific notice of the State's intent to offer the statements.Because the defendant failed to request the less drastic relief of a continuance and because he has failed to demonstrate prejudice, this point is denied.SeeState v. Lingar, 726 S.W.2d 728, 738(Mo. banc 1987);State v. Mills, supra, at 70.

Defendant also argues under Point II that because H.P. made several statements inconsistent with testimony of other witnesses or which the child later recanted, the trial court erred in finding that the time, content, and circumstances of H.P.'s statements made to each of the witnesses had sufficient indicia of reliability as required by § 491.075.1(1), and the court should have excluded H.P.'s statements.

H.P.'s statement to her foster mother was made within a matter of minutes after the child had left the...

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20 cases
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    • Missouri Supreme Court
    • June 20, 1995
    ...ordinary intelligence for his age. § 491.060(2), RSMo 1994. State v. Johnson, 714 S.W.2d 752, 758-759 (Mo.App.1986); State v. Potter, 747 S.W.2d 300, 305-306 (Mo.App.1988). Nothing in the record indicates that eleven-year-old Tommy Johnson suffered from diminished mental capacity. Given the......
  • State v. Gill, WD
    • United States
    • Missouri Court of Appeals
    • February 5, 1991
    ...sister was consistent with the statements made to the police by stating that appellant had touched her. See State v. Potter, 747 S.W.2d 300, 304-05 (Mo.App.1988); State v. Bereuter, 755 S.W.2d 351, 353 The time between the occurrence of the offense and the victim's statement to police was n......
  • State v. Carey, 56949
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    • Missouri Court of Appeals
    • March 12, 1991
    ...considerable discretion in determining the reliability and admissibility of a child victim's out-of-court statements. State v. Potter, 747 S.W.2d 300, 305 (Mo.App.1988). Appellant's reliance on State v. Seever, 733 S.W.2d 438 (Mo. banc 1987), is misplaced. The testimonies of B.D., P.B., Ms.......
  • State v. Kelso
    • United States
    • Missouri Court of Appeals
    • February 5, 2013
    ...In reaching its holding, the Southern District relied upon an earlier decision from the same district of this court, State v. Potter, 747 S.W.2d 300 (Mo.App. S.D.1988). In Potter, the defendant was convicted of first-degree sexual abuse, which required the presence of “sexual contact” as de......
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