State v. Loper

609 S.W.3d 725

STATE of Missouri, Respondent,

v.Rashidi Don LOPER, Appellant.

No. SC 98295

Supreme Court of Missouri, en banc.

Opinion issued October 13, 2020

Rehearing Denied November 24, 2020

Loper was represented by Susan A. DeGeorge of the public defender's office in St. Louis, (314) 340-7662; and Mary L. Bruntrager and Jonathan N. Bruntrager of Bruntrager & Billings PC in Clayton, (314) 646-0066.

The state was represented by Garrick Aplin of the attorney general's office in Jefferson City, (573) 751-3321.

GEORGE W. DRAPER III, Chief Justice

Rashidi Don Loper (hereinafter, "Loper") was convicted after a jury trial of first-degree attempted rape, second-degree domestic assault, first-degree domestic assault, two counts of armed criminal action, and victim tampering against E.S.L., with whom he had a romantic relationship. Loper raises five points of evidentiary error on appeal.¹ This Court holds the circuit court committed no error regarding Loper's claims and affirms the circuit court's judgment.

Factual and Procedural Background

Loper does not challenge the sufficiency of the evidence to support his convictions. Loper and E.S.L. were involved in an on-and-off romantic relationship beginning in 2009. On April 3, 2015, Loper went to see E.S.L. even though they had no contact during the prior six months. E.S.L. admitted Loper into her apartment. E.S.L. went to her bedroom, laid down on her bed, and pulled the covers over her head. Loper pulled the covers off of E.S.L. and pulled her legs toward him. E.S.L. told Loper she did not want to have sex with him. Loper pulled down his pants, exposed himself, and started pulling down E.S.L.’s pants. E.S.L. attempted to fight off Loper by kicking him and pulling at her pants. Loper grabbed E.S.L. by the throat and choked her until she lost consciousness.

E.S.L. woke up naked and submerged in water in her bathtub with the shower running. E.S.L. had a severe cut on her wrist "to the point it was barely attached to [her] arm." E.S.L. found a kitchen knife lying between her legs. E.S.L. pulled herself out of the bathtub, wrapped her wrist to try to stop the bleeding, and called 911. E.S.L. initially told Officer Wesley Pierce (hereinafter, "Officer Pierce") and a paramedic she cut her wrist, although she could not remember doing it. After receiving medical treatment, E.S.L. remembered Loper had been present and she realized she had not cut her wrist.

E.S.L. had significant swelling to her face and tiny bruises and hemorrhaging in the whites of her eyes, which suggested she had been strangled. E.S.L. had ligature marks around her neck consisting of a pattern of vertical lines that could have been caused by a landline telephone cord. Investigators found trails of blood throughout the apartment, including one leading out of the bathroom and into the living room where the telephone cord, which had blood on it, was located. There was blood on E.S.L.’s mattress.

Loper was arrested and charged with several counts: (I) first-degree attempted rape; (II) first-degree domestic assault for strangling E.S.L. with a telephone cord; (III) armed criminal action correlating to count II; (IV) first-degree domestic assault for cutting E.S.L.’s wrist; (V) armed criminal action correlating to count IV; (VI) felony kidnapping;² and (VII) victim tampering for actions Loper took after he was arrested to dissuade E.S.L. from assisting in his prosecution. E.S.L. later helped secure Loper's pretrial release. Loper and E.S.L. resumed their relationship and got married, but they were separated at the time of trial.

E.S.L. testified at trial how Loper came to her apartment and how she fought him off as he attempted to rape her. E.S.L. described Loper choking her, losing consciousness, and waking up in the bathtub with injuries. Defense counsel cross-examined E.S.L. about two prior instances in which she allegedly attempted suicide after breaking up with Loper, which E.S.L. denied.

Officer Pierce testified an unidentified hospital doctor told him E.S.L.’s wrist injury was not self-inflicted, which prompted him to refer the case to Detective Kara Lindhorst (hereinafter, "Detective Lindhorst"), a detective with the domestic assault response team (hereinafter, "DART"). Detective Lindhorst testified about her investigation and how the characteristics of power and control were manifested in this case. Dr. Erin Quattromani (hereinafter, "Dr. Quattromani") treated E.S.L. at the hospital and opined E.S.L.’s wrist injury was not self-inflicted given the depth and length of the injury and E.S.L.’s reporting she did not inflict the cut herself. Other medical personnel testified about E.S.L.’s injuries resulting from being strangled and choked. Michelle Schiller-Baker (hereinafter, "Schiller-Baker") testified as an expert in the general behaviors and characteristics of domestic assault victims. Schiller-Baker explained how power and control worked in domestic violence cases involving strangulation and sexual assault. Schiller-Baker did not testify regarding the specifics of the parties’ relationship or the facts of the case.

Loper testified about his tumultuous relationship with E.S.L. and how they both engaged in domestic violence. Loper admitted he went to E.S.L.’s apartment on the day of the offenses. Loper testified they began having sex, but he stopped during the act because he realized he should not cheat on his current girlfriend. Loper claimed E.S.L. became irate and began fighting him as he tried to leave. Loper stated he "pushed her by her throat ... like pushed her back to get her off of [him]." Loper stated at that point he left the apartment. Loper denied using force during sex, cutting E.S.L.’s wrist, or choking her until she lost consciousness.

The jury found Loper guilty as charged on all counts, except for count II, in which it found Loper guilty of second-degree domestic assault for choking E.S.L. with his hands instead of strangling her with a telephone cord. Loper was sentenced to a term of fifteen years’ imprisonment for first-degree domestic assault and three years’ imprisonment for the associated armed criminal action offense, seven years’ imprisonment for first-degree attempted rape, five years’ imprisonment for second-degree assault and three years’ imprisonment for the associated armed criminal action offense, and three years’ imprisonment for victim tampering. Loper's sentences were ordered to run concurrently, except for the first-degree attempted rape, which was ordered to run consecutively, for a total of twenty-two years’ imprisonment. Loper appeals.

Standard of Review

Loper raises five points challenging the circuit court's rulings admitting or excluding certain evidence. The circuit court "has broad discretion to admit or exclude evidence during a criminal trial, and error occurs only when there is a clear abuse of this discretion." State v. Hartman , 488 S.W.3d 53, 57 (Mo. banc 2016) (internal quotation omitted). An abuse of discretion occurs only if the circuit court's ruling admitting or excluding evidence "is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." State v. Blurton , 484 S.W.3d 758, 769 (Mo. banc 2016) (internal quotation omitted). "This Court will reverse the [circuit] court's decision only if there is a reasonable probability that the error affected the outcome of the trial or deprived the defendant of a fair trial." State v. Wood , 580 S.W.3d 566, 574 (Mo. banc 2019).

When defendants have not preserved their claims of evidentiary error, this Court may exercise its discretion to review the claim for plain error. Rule 30.20. "[T]his Court will not review a claim for plain error unless the claimed error ‘facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.’ " State v. Clay , 533 S.W.3d 710, 714 (Mo. banc 2017) (quoting Rule 30.20).

Detective Lindhorst's Testimony

Loper argues the circuit court abused its discretion in overruling his objection and allowing the state to present testimony from Detective Lindhorst that the case was about Loper exercising "power and control" over E.S.L. Loper argues admitting this testimony deprived him of a fair trial because these comments amounted to expert testimony that invaded the province of the jury by vouching for E.S.L.’s credibility. The state maintains Loper failed to preserve this claim and is entitled only to plain error review.

Detective Lindhorst testified she has been a police officer for sixteen years and worked with DART for nine years. Detective Lindhorst stated she received specialized domestic violence training at local, state, and national levels. She also teaches and speaks to advocacy groups about domestic violence. Detective Lindhorst indicated she has handled thousands of domestic violence cases over nine years. Detective Lindhorst testified extensively and without objection about how she became familiar with the concept of power and control through her training and experience handling domestic violence cases. Detective Lindhorst explained,

In general, domestic violence, unlike a lot of crime, it's all about power and control and authority over one person. We have -- a lot of our offenders this is what they do. They want to make sure that the victim is controlled all the time, no matter how long they've been in the relationship, no matter how long the relationship has been over. We try to get that from our victim to help us understand what happened in that relationship, because it's important for them to recognize and for us to be able to talk to them about what happened in the relationship, why is that power and control which includes harassment, stalking, threatening behavior, threats to the victim, threats to the victim's family. We try to get all that information, talk to the victims about it. We also train

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