State v. Rogers

• Decision Date: 26 September 2017
• Docket Number: No. ED 104928.,ED 104928.
• Citation: 529 S.W.3d 906
• Parties: STATE of Missouri, Plaintiff/Respondent, v. George A. ROGERS, Defendant/Appellant.
• Court: Missouri Court of Appeals

529 S.W.3d 906

STATE of Missouri, Plaintiff/Respondent,

v.George A. ROGERS, Defendant/Appellant.

No. ED 104928.

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: September 26, 2017

FOR APPELLANT: William S. Margulis, Ian T. Murphy (co-counsel), 7701 Forsyth Blvd, 12^th Floor, St. Louis, Missouri 63105.

FOR RESPONDENT: Daniel N. McPherson, P.O. Box 899, Jefferson City, Missouri 65102.

OPINION

Lisa Van Amburg, Judge

George Rogers appeals the trial court's judgment after a jury convicted him of statutory sodomy and child molestation. We reverse and remand for a new trial.

Background

In January 2015, twelve year-old X.S. (Child) told her school guidance counselor (Counselor) that her grandfather (Rogers) had touched her inappropriately. Counselor contacted Children's Division, and Child was taken to the Child Advocacy Center for a forensic interview, conducted by Anthony Harper. Based on Child's revelations during the interview, the State charged Rogers with six counts of child sexual abuse. One was dismissed before trial, and Rogers was acquitted on three others. This appeal concerns the remaining two counts, alleging that Rogers undressed Child and touched her breasts and genitals during a family barbeque in 2013.

Before trial, pursuant to § 491.075, the State filed notice of its intention to offer the hearsay testimony of five witnesses to whom Child conveyed allegations of abuse: Counselor, Detective William Belcher, Child's mother, Child's friend, and Harper.

Counselor testified that Child, then in seventh grade, became upset upon entering Counselor's office and told her that Rogers had touched her inappropriately, over the clothes on an area covered by a swimsuit. Detective Belcher testified that he interviewed Child ten months later, when Child revealed new allegations that Rogers showed her pornography on his computer and molested her in a storage locker.¹ Mother testified that she thought she overheard Child telling a cousin that she "touched" or "sucked" "pawpaw." Friend testified that Child said that Rogers "used to touch her when she was younger." Rogers objected to the witnesses' testimony on the basis that Child's statements to them lacked sufficient indicia of reliability to be admitted under the hearsay exception of § 491.075. The court overruled the objections and allowed the witnesses to testify at trial.

Harper described a progressive process of disclosure commonly observed in child victims of sexual abuse: denial, tentative disclosure, active disclosure, recantation, and reaffirmation. He explained that, during the tentative stage, children might minimize or distance themselves from the events in question. He also testified that Child provided sensory details and specific locations where events occurred. Rogers filed a motion in limine to exclude Harper's testimony about the stages of disclosure insofar as it invaded the province of the jury to determine when and whether Child was telling the truth or lying. The court denied the motion. Rogers renewed his objection at trial. The State argued that Harper possessed expertise about the process of disclosure, how children communicate differently than adults, and specifically how child sex abuse victims have certain characteristics that he could describe in his capacity as an expert. The State further assured the court that the testimony would be limited to generalized testimony. Rogers recorded a continuing objection, and proceedings continued. Harper described at length typical challenges in interviewing children, the stages of disclosure, the technique of source monitoring (distinguishing reality from fiction), the difference between scripted and episodic memory (recurring patterns versus discrete events), and the significance of sensory detail unrelated to the allegations. The jury then viewed a video of Harper's interview with Child.² In that interview, as relevant to this appeal, Child told Harper that Rogers had touched her "chest" and "private area." Harper asked Child to clarify those terms on an anatomical drawing, and Child circled the genital area and breasts. Child demonstrated the motion of Rogers's fingers on her upper thigh. And she said that Rogers "kept touching me everywhere" but she didn't remember anything more because she was "really tired" at the time.

After the video, Harper explained in itemized detail, excerpted infra , how Child's specific actions and statements in the video aligned with the aforementioned interview themes and were therefore reliable and consistent with sexual abuse. Rogers didn't object during questioning but reasserted his standing objection at the conclusion of testimony on the basis that Harper's opinion as to Child's reliability invaded the province of the jury. The State argued that Harper could opine whether Child's statements were consistent with sexual abuse as long as he didn't opine whether the child was actually abused. The trial court overruled the objection. In closing argument, the State reminded the jury that Harper was an expert on the process of disclosure and, in his expertise, Child showed indicators of reliability.

The jury found Rogers guilty of one count of statutory sodomy and one count of child molestation. The trial court sentenced him to consecutive prison terms of fifteen years and five years, respectively. Rogers appeals and asserts that the trial court erred by (1) allowing Harper to opine about Child's credibility, (2) allowing Harper to reconcile Child's statements with the stages of disclosure, (3) submitting the case to the jury without sufficient evidence, (4) allowing the other witnesses' hearsay testimony about Child's statements, and (5) denying a mistrial after the jury heard evidence of uncharged conduct.

Analysis

Harper's Testimony (Points I and II)

For his first point, Rogers asserts that the trial court abused its discretion by allowing Harper to testify that Child's statements were reliable and consistent with sexual abuse. As a preliminary matter, the State asserts that the point wasn't properly preserved because Rogers's motion in limine , continuing objection, and post-trial motion challenged only Harper's general testimony about the stages of disclosure and not other communication characteristics he mentioned. Rogers's second point more directly targets Harper's testimony on the stages of disclosure. The State argues that this point is also unpreserved in that Rogers expanded the issue in his motion for a new trial.

"Allegations of error must be sufficiently definite to direct the trial court's attention to the particular acts or rulings asserted to be erroneous so that the trial court has an opportunity to correct them." State v. Howery , 427 S.W.3d 236, 248 (Mo. App. E.D. 2014). We find the issues sufficiently preserved. Rogers referred to the "stages of disclosure" because the State presented Harper's 491 testimony in that framework. Though the State added other labels at trial, the record establishes that the disclosure stages and other characteristics are not separate inquiries; they are related. For example, Harper specifically confirmed that minimizing, distancing, and progressive revelations are characteristics of tentative disclosure. Regardless of nomenclature, Rogers's motions and objections consistently articulated a singular hazard: that Harper's testimony would invade the province of the jury as to Child's credibility. Rogers sufficiently directed the trial court's attention to this concern. Accordingly, we review points I and II together under the abuse of discretion standard.³

Trial courts have broad discretion in determining the admissibility of evidence, and we review their rulings for an abuse of that discretion. An abuse of discretion occurs when a ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration. State v. Johnson , 207 S.W.3d 24, 40 (Mo. 2006). Where reasonable persons can differ about the propriety of the action taken by the trial court, no abuse of discretion will be found. Id. Further, we review 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. Churchill , 98 S.W.3d 536, 539 (Mo. 2003).

The general purpose of expert testimony is to assist the jury in areas that are outside of everyday experience or lay experience. State v. Pickens , 332 S.W.3d 303, 321 (Mo. App. E.D. 2011). However, "the expert may not express an opinion as to the guilt or innocence of the defendant. To do so would usurp the decision-making function of the jury." Id. at 322. Thus, when determining the admissibility of opinion testimony, 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. Id.

In cases involving the sexual abuse of a child, there are typically two types of expert testimony that give rise to a challenge: general and particularized. Churchill , 98 S.W.3d at 539. General testimony describes behaviors and characteristics commonly found in victims. Id. Particularized testimony concerns a specific victim's credibility as to the abuse. Id. The trial court has broad discretion in admitting general testimony, but particularized testimony must be rejected because it usurps the fact-finding role of the jury and thus is inadmissible. Id. "Expert testimony that comments directly on a particular witness's credibility" or "that expresses an opinion with respect to the credibility or truthfulness of witnesses of the same type under consideration invests ‘scientific cachet’ on the central issue of credibility and should not be admitted." State v. Williams , 858 S.W.2d 796, 800 (Mo. App. E.D. 1993). Relevant case law illuminates the demarcation line for permissible inquiry.

On the safe side of the continuum, in State v. Baker , 422 S.W.3d...