State v. Price

• Decision Date: 29 June 2005
• Docket Number: No. 26318.,26318.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Clayton D. PRICE, Defendant-Appellant.
• Court: Missouri Supreme Court

165 S.W.3d 568

STATE of Missouri, Plaintiff-Respondent, v. Clayton D. PRICE, Defendant-Appellant.

No. 26318.

Missouri Court of Appeals, Southern District, Division Two.

June 29, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas D. Carver, Springfield, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Office of Attorney General, Jefferson City, for Respondent.

KENNETH W. SHRUM, Judge.

A jury found Clayton Price ("Defendant") guilty of statutory sodomy in the first degree (§ 566.062).¹ On appeal, Defendant charges the trial court committed plain error on four separate occasions when it did not sua sponte exclude certain at-trial testimony.² We affirm.

FACTS

Since Defendant does not challenge the sufficiency of the evidence, we view the evidence that the jury heard in the light most favorable to the jury's verdict, disregarding all contrary evidence and inferences. State v. Lopez, 128 S.W.3d 195, 196[1] (Mo.App.2004).

M.A. ("Victim"), born June 16, 1995, lived primarily with her paternal grandmother, Jeanne Graves ("Graves"), for the first nine months of her life. From approximately March 1996 to March 2002, Victim resided with her mother, Tonya Cavaness ("Mother").

Mother began dating Defendant in December 2001, and he moved into her home one month later. On the morning of March 11, 2002, Victim called Graves from Mother's house and asked her "to come and pick me up." She told Graves that Defendant and Mother had been hurting her.

When Graves arrived, she found Victim crying, shaking, and terrified. After discussions among Graves, Mother and Victim's maternal grandmother, it was agreed Victim would go to Graves' house after Graves got off work. That evening, Victim "was still scared" and "would not talk about anything."

Three days later, Victim told Graves that Defendant touched her vagina and anus. The next morning (Friday), Graves reported this to the Division of Family Services. On Monday (March 18), Victim was examined by Mitzi Huffman ("Nurse Huffman"), a nurse practitioner with the local child advocacy center. After a general physical examination, Nurse Huffman sought to examine Victim via "colposcopy."³ This proposed examination upset Victim and she "became extremely hysterical," exclaiming "you're not going to touch me, you're not going to put anything inside of me."

Ultimately, the procedure began after explanations and other attempts to calm Victim. Even so, Nurse Huffman characterized the examination as "inadequate" in that she was unable to complete it. The colposcopy videotape was reviewed by Dr. Lawrence Huffman ("Huffman"), who also worked at the child advocacy center.⁴ He testified that it was "inadequate in many respects in terms you couldn't see inside [the vagina] very well." However, he did note a "scratch" that was "inside the outer edge of the vagina."

After the physical examination, Victim told Nurse Huffman that Defendant "hurt me, he put his fingers inside of me three times." Victim then recounted, via a diagram, where Defendant touched her.

Due to the inadequacy of the first vaginal examination, Victim was asked to undergo another such examination. She did so on March 27, 2002. After this second procedure, another videotaped interview of Victim was conducted. During this, Victim again told Nurse Huffman Defendant had touched her. When asked to indicate on a diagram of a female body where the touching occurred, Victim marked the genital and rectal part of the diagram.

Victim's at-trial testimony was that Defendant penetrated her vagina and anus with his fingers.⁵ Victim also told the jury that Defendant threatened to kill her and her paternal grandparents if she reported the abuse. She also testified that Cathy Adams, her maternal grandmother, told her to lie by telling the authorities that she made up the abuse allegations.

Defendant testified on his own behalf and told the jury that he did not sexually abuse Victim. Another defense witness (Mother) testified Victim wanted to live with Graves, and this desire was heightened "every time [Victim] would get mad at [Mother], if [Mother] wouldn't let her do what she wanted to do." Mother told the jury Victim "was out of control" and a discipline problem. She also said she never saw Defendant inappropriately touch Victim and that Victim was alone with Defendant on only two occasions.

Another defense witness (Victim's maternal grandmother) testified Victim told her "that she had lied" about the abuse. Finally, Dr. Robert Block, testifying for the defense, stated that the physical findings regarding Victim's rectum and vagina (as reported by the Huffmans) could not be linked to sexual abuse.

After the case was given to the jury, it deliberated twenty minutes and returned a guilty verdict. The court sentenced Defendant to twelve years' imprisonment. This appeal followed.

Point I: Testimony Commenting on Victim's Credibility

Defendant's first point on appeal maintains the trial court committed plain error when it allowed Nurse Huffman and Dr. Huffman "to offer particularized expert testimony as to the veracity of [Victim's] testimony that she had been sexually abused." Defendant claims that their testimony improperly "invaded the province of the jury in violation of [Defendant's] right to a fair trial."

As a general rule, "expert witnesses should not be allowed to give their opinion as to the veracity of another witness's statement, because in so doing, they invade the province of the jury." State v. Churchill, 98 S.W.3d 536, 538-39[3] (Mo.banc 2003). When an expert witness testifies that a particular witness is telling the truth, prejudice often arises because the expert's testimony invests scientific cachet to an issue (credibility) that the jury is capable of determining without an expert's help. State v. Taylor, 663 S.W.2d 235, 240-41 (Mo.banc 1984); State v. Williams, 858 S.W.2d 796, 798-800 (Mo.App.1993).

Even so, credibility assessments of child abuse victims by expert witnesses in criminal cases do not always mandate reversal. Churchill, 98 S.W.3d at 539 n. 8. Moreover, Defendant seeks plain error relief, which requires more than merely showing prejudice; he must show that an "error affected his rights so substantially that a miscarriage of justice or manifest injustice will occur if the error is left uncorrected." State v. Rutherford, 967 S.W.2d 679, 682 (Mo.App.1998).

In criminal cases charging sexual abuse of children, there are two types of expert testimony that typically give rise to a challenge: general and particularized. Churchill, 98 S.W.3d at 539. General profile testimony describes a generalization of behaviors and other characteristics commonly found in victims of sexual abuse which is usually admissible. Id.; Williams, 858 S.W.2d at 798-99. "Particularized testimony is that testimony concerning a specific victim's credibility as to whether they have been abused." Churchill, 98 S.W.3d at 539. In most instances this type of testimony, i.e., that which explicitly or implicitly vouches for a victim's credibility, is inadmissible. Williams, 858 S.W.2d at 799.

In the argument beneath Point I, Defendant claims Nurse Huffman "improperly gave particularized testimony concerning [Victim's] credibility." To support that conclusory comment, Defendant asserts that "Nurse Huffman testified . . . she believed [Victim] because her `injuries' were consistent with sexual abuse because of the `knowledge and experience and history given by the child.'" (Emphasis supplied.) This argument fails, however, because it is based on a mischaracterization of the record. Nurse Huffman never testified she believed Victim. To the contrary, Nurse Huffman's testimony was that, in her opinion, the injuries noticed on the first examination (rectal scarring) were consistent with sexual abuse. This was based on her knowledge, training, twenty-nine years of experience, Victim's social and medical history, and the injuries themselves. Such testimony, i.e., the rectal scarring observed on Victim was "consistent" with sexual abuse, was admissible expert testimony. Taylor, 663 S.W.2d at 239; see also State v. Pollard, 719 S.W.2d 38, 41-42 (Mo.App.1986) (finding no manifest injustice when a doctor testified that injuries were caused by sexual abuse rather than stating the injuries were consistent with abuse).

Turning to another part of his first point, the following is an excerpt lifted from the argument section of Defendant's brief:

"Nurse Huffman was particularly impressed with [Victim's] ability to discern feelings of anger toward her mother, a skill not normal for a child [Victim's] age. She testified:

`There's a great deal of psychological data behind it, but for a child of that age to be aware of her feelings and be able to separate them, being mad and sad because of the loss of feeling protected by her mother, was profound for me.'

"Nurse Huffman also testified that despite performing 150 to 200 SAFE exams each year, she remember[ed] [Victim] `for a lot of personal reasons,' a fact not relevant for any other purpose other than to convey to the jury that she believed the child.

"Nurse Huffman's testimony is no different from the particularized expert testimony the court in Churchill found to be reversible error. Her belief that [Victim] was abused was based on the child's history, demeanor and especially her ability to discern emotion that went beyond the scope of her developmental age.

"Further, Nurse Huffman placed [Victim] at the top of the list of children she had interviewed over the years, which could have no other effect but to convince the jury that more than any other child, [Victim] was telling the truth. This testimony in effect quantified the believability of [Victim's] testimony because her story stood out more than any other heard by Nurse Huffman." (Emphasis supplied.)

This "argument" comprises all of Defendant's reasons regarding why he claims that Nurse Huffman's "profound" impact observation...