State v. Renfrow

• Decision Date: 16 August 2016
• Docket Number: WD 78253
• Citation: 495 S.W.3d 840
• Parties: State of Missouri, Respondent, v. Russell Allen Renfrow, Jr., Appellant.
• Court: Missouri Court of Appeals

495 S.W.3d 840

State of Missouri, Respondent,

v.Russell Allen Renfrow, Jr., Appellant.

WD 78253

Missouri Court of Appeals, Western District.

OPINION FILED: August 16, 2016

Rachel Flaster, Jeferson City, MO, for respondent.

Samuel Buffaloe, Columbia, MO, for appellant.

Before Division Four: Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge

Gary D. Witt, Judge

Russell Renfrow appeals his convictions for felony forcible rape under § 566.030, RSMo,¹ and misdemeanor second-degree child molestation under § 566.068, RSMo. Renfrow argues that the circuit court plainly erred in permitting his probation officer to testify to incriminatory statements Renfrow had made, in violation of § 559.125.2, RSMo. Renfrow also argues that his conviction for second-degree child molestation should be reversed, because § 566.068 should be interpreted to only apply to offenders who are 21 years of age or older. We affirm.

Factual Background²

Renfrow was convicted of forcible rape, an unclassified felony under § 566.030 RSMo, and second-degree child molestation, a misdemeanor under § 566.068 RSMo, following a bench trial in the Circuit Court of Saline County.³ The circuit court sentenced Renfrow to a twenty-five year term of imprisonment on the forcible rape conviction, and to a one-year term for child molestation, with the sentences to run concurrently.

Renfrow's convictions arose out of incidents in 2013 involving a 15-year-old female victim.⁴ Renfrow was 18 years old at the time of the incidents in question.

According to the evidence at trial, Renfrow encountered the victim outside a high-school football game in Marshall in 2013. Renfrow and the victim had previously dated. Renfrow called to the victim. After she approached and spoke to him, he led her to an area behind a grocery store. Renfrow forced the victim to lie down on the ramp of the grocery store's loading dock. Renfrow then proceeded to partially remove the victim's clothes and engaged in sexual intercourse with the victim against her will. Renfrow had his hand around the victim's throat during the incident, and at some point the victim lost consciousness. Renfrow fled the scene before she awoke.

After regaining consciousness the victim returned to the football game, where witnesses saw that she was in distress. The victim reported what had happened to emergency medical personnel who were stationed at the game. She was taken to the hospital, where a sexual assault examination was conducted. The nurse conducting the examination found genital trauma inconsistent with consensual sex. The Highway Patrol Crime Lab tested samples collected during the victim's sexual assault examination. A sample collected from the victim's genital area was consistent with semen. A DNA analyst testified that the genetic profile of this sample was consistent with Renfrow's profile, with an approximate frequency of one in 1.314 trillion in the Caucasian population, and one in 96.71 trillion in the African-American population.

During the trial, the Court heard testimony from the victim, witnesses from the football game, police, and medical personnel. The Court also heard testimony from Renfrow's probation officer, Lauren Bartlett. Bartlett testified regarding a conversation she had with Renfrow regarding the incident, as well as about Renfrow's previous relationship with the victim. According to Bartlett, Renfrow was initially inconsistent regarding his whereabouts on the day the rape occurred, but ultimately admitted that he “probably had [had sex with the victim], but he couldn't remember” due to certain drugs he had been taking. Renfrow later told Bartlett that the victim had “stalked” him, and that she instigated their sexual encounter at the football game.

Bartlett also testified that Renfrow “stated he believed that they had had sex twice when they dated,” which the victim testified was between October 2012 and February 2013. This prior consensual sexual relationship was the basis for the misdemeanor second-degree child molestation charge based on the victim's age at the time.

Following his conviction and sentencing, Renfrow filed this appeal.

Analysis

I.

In his first Point, Renfrow claims that his conviction for forcible rape should be reversed, because “the trial court plainly erred in allowing [his] probation officer to testify regarding statements [he] made to her,” in violation of § 559.125.2, RSMo. (emphasis added).

Appellant concedes that he did not preserve this claim of error for appellate review and requests this Court to engage in plain error review. Under plain error review, the defendant must show that an evident, obvious, and clear error affected a substantial right resulting in manifest injustice or a miscarriage of justice. Rule 30.20. It is the defendant's burden to demonstrate plain error.

State v. Williams , 427 S.W.3d 259, 266–67 (Mo.App.E.D.2014) (citation and footnote omitted).

Section 559.125.2 provides:

Information and data obtained by a probation or parole officer shall be privileged information and shall not be receivable in any court. Such information shall not be disclosed directly or indirectly to anyone other than the members of a parole board and the judge entitled to receive reports, except the court or the board may in its discretion permit the inspection of the report, or parts of such report, by the defendant, or offender or his attorney, or other person having a proper interest therein.

We explained the purpose and operation of § 559.125.2 in Richardson v. Sherwood , 337 S.W.3d 58 (Mo.App.W.D.2011) :

We see no argument that the statute does not mean exactly what it says, which is that “such information” shall not be disclosed to anyone other than the named individuals. ... [¶] The purpose of the statute is that the probationer know that information learned by the probation officer will be held in confidence, subject only to specific exceptions. Information obtained by the probation officer is to be regarded as privileged information, and “shall not be disclosed directly or indirectly to anyone other than the members of a parole board and the judge entitled to receive such reports ....” [¶] The statute does not authorize discretion.

Id. at 65 (citation omitted).

In Richardson, we held that a probation officer had violated § 559.125.2 when she disclosed that a probationer was using crack cocaine to his employer, a trucking company:

[The probation officer] was bound by law not to disclose privileged, confidential information. The statute takes no notice of whether the employer would have benefited from that information and would have had a legitimate interest in the information. The statute also takes no notice of whether the withholding of information from the employer could have jeopardized the public.

Id. Similarly, in Williams v. State , 168 S.W.3d 433 (Mo.banc 2005), the Missouri Supreme Court held that a trial court did not err in denying a capital-murder defendant's request for disclosure of probation and parole records of two prosecution witnesses who testified that the defendant had made incriminating statements to them. Although the defendant was facing the death penalty and sought information concerning two of the State's primary witnesses against him, the Supreme Court held that the defendant was not entitled to discovery because “the probation and parole records are confidential under section 559.125, RSMo 2000”). Id. at 445.

The statute unambiguously provides that the information Renfrow provided to Bartlett “shall be privileged information,” and that this information “shall not be receivable in any court.” The State does not argue that allowing Bartlett to testify was consistent with § 559.125.2, or that any of the exceptions to the statutory privilege are applicable here. The admission of Bartlett's testimony violated the terms of § 559.125.2. However, no objection was raised as to this testimony and the terms of this statute were never presented to the trial court. We do not convict the trial court of error when it was never given an opportunity to correct such error. State v. Lewis, 243 S.W.3d 523, 525 (Mo.App.W.D.2008).

Renfrow's only avenue for relief is pursuant to plain error review.

In order to justify reversal for plain error, a defendant must demonstrate that error in the circuit court resulted in a manifest injustice. “Under Missouri law, plain error can serve as the basis for granting a new trial on direct appeal only if the error was outcome determinative.” State v. Baxter , 204 S.W.3d 650, 652 (Mo.banc 2006) (quoting Deck v. State , 68 S.W.3d 418, 427 (Mo.banc 2002) ). “Missouri courts have consistently held that no manifest injustice or miscarriage of justice results when guilt is established by overwhelming evidence.” State v. Barnaby , 91 S.W.3d 221, 228 (Mo.App.W.D.2002) ; see also , e.g. , State v. Walter , 479 S.W.3d 118, 131 (Mo.banc 2016) (“Overwhelming evidence of guilt may lead an appellate court to find that a defendant was not prejudiced by trial court error.”).

Renfrow's guilt of the felony forcible rape charge was established by overwhelming evidence. At trial, the Court heard detailed testimony from the victim regarding the rape, and from two witnesses who described the victim's distraught state shortly after the rape occurred. The nurse who conducted the victim's physical examination testified that the victim had two abrasions on her back (consistent with having lain on a concrete surface during the attack), a suction or bite mark on her left breast (consistent with the victim's description of Renfrow's actions), and a one-centimeter laceration on her labia. The nurse testified that the laceration on the victim's genitals was a “major trauma” and was “very uncommon,” because “it takes a lot of trauma, a lot of blunt trauma to actually lacerate that area.” She testified that this laceration was not consistent with a consensual sex act, and that in twelve years of practice in gynecological clinics, she had...