State v. Minor

648 S.W.3d 721

STATE of Missouri, Respondent,

v.Daviune C. MINOR, Appellant.

No. SC 99469

Supreme Court of Missouri, en banc.

Opinion issued June 14, 2022

Rehearing Denied August 30, 2022

Minor was represented by Rosemary E. Percival of the public defender's office in Kansas City, (816) 889-7699.

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

GEORGE W. DRAPER III, Judge

Following a jury trial, Daviune C. Minor (hereinafter, "Defendant") was found guilty of three counts of first-degree statutory sodomy and three counts of incest. The circuit court sentenced him to a total of eighty-seven years’ imprisonment.

Defendant claims the circuit court erred in admitting evidence pursuant to article I, section 18(c) of the Missouri Constitution, overruling objections to the state's closing argument, admitting expert testimony, admitting two exhibits, and finding sufficient evidence to support one count of statutory sodomy and one count of incest. This Court finds no error. The circuit court's judgment is affirmed.¹

Factual and Procedural Background

Child was born in June 2006. In August 2013, Child lived in her paternal grandmother's home with Defendant, her mother (hereinafter, "Mother"), siblings, and grandmother. Child was seven years old. Defendant is Child's biological father.

Child shared a bedroom with her parents and siblings. One night, Child fell asleep while watching television in the bed. Child awoke in the bed with Defendant's fingers touching her vagina. Later that night, Child awoke on the floor with Defendant attempting to "stick [his penis] in [her] vagina" and "stick [his penis] in [her] butt." Child also testified Defendant touched his penis to her mouth.

In March 2014, Child's school presented information to her class about the differences between "good touches" and "bad touches." Following this presentation, Child revealed to her teacher she received a "bad touch." Child's teacher reported this information to the school counselor, who made a child abuse hotline call. An investigator from the Children's Division went to the school and met with Child and her siblings. After meeting with the children, the investigator referred Child to the Child Protection Center ("CPC") for a forensic interview. Mother testified Child disclosed to her later that day that Defendant touched her inappropriately and threatened to kill Child if she said anything.

Child's younger brother later informed Mother he saw Defendant touching Child's vagina. He noticed Child was crying and Defendant was covering her mouth with his hand.

Child began participating in individual therapy. In the meantime, Mother became aware of allegations Defendant sexually abused another girl. Mother and Child's therapist agreed it could be beneficial for Child to know she was not the only victim of Defendant's sexual abuse.

At trial and pursuant to article I, section 18(c), the state introduced propensity evidence, detailing acts for which Defendant was not on trial but had the purpose of demonstrating he had a propensity to commit the acts charged against Child. The state introduced evidence surrounding Defendant's alleged abuse of two other minor females, L.W. and D.J.

The jury found Defendant guilty of three counts of first-degree statutory sodomy and three counts of incest. Defendant appeals. To avoid repetition, additional facts will be set forth in the analysis of Defendant's points on appeal.

Point One: Propensity Evidence

Defendant asserts the circuit court abused its discretion in admitting evidence pursuant to article I, section 18(c), demonstrating he had deviate sexual intercourse with L.W. and D.J. Defendant challenges the admission of three witnesses’ testimony and five exhibits. Defendant also challenges the use of this evidence in the state's closing argument. Defendant believes this evidence was more prejudicial than probative, resulting in reversible error.

Rule 84.04

This Court independently examines the propriety of Defendant's first point on appeal. The briefing requirements set forth in Rule 84.04 are mandatory. Fowler v. Mo. Sheriffs’ Ret. Sys. , 623 S.W.3d 578, 583 (Mo. banc 2021). Any appellant who does not comply with Rule 84.04's mandates for a point relied on fails to preserve the argument for this Court's review. Id.

"Rule 84.04 is not merely an exhortation from a judicial catechism nor is it a suggestion of legal etiquette." Shockley v. State , 579 S.W.3d 881, 917 n.9 (Mo. banc 2019). "The function of [points relied on] is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review." Lexow v. Boeing Co. , 643 S.W.3d 501, 505 (Mo. banc 2022) (alteration in original) (quoting Wilkerson v. Prelutsky , 943 S.W.2d 643, 647 (Mo. banc 1997) ). "Deficient briefing runs the risk of forcing this Court to assume the role of advocate by requiring [the Court] to sift through the legal record, reconstruct the statement of facts, and craft a legal argument on the appellant's behalf."

Murphree v. Lakeshore Ests., LLC , 636 S.W.3d 622, 624 (Mo. App. E.D. 2021). These actions waste judicial resources and "create[ ] the danger that appellate courts interpret the appellant's arguments differently than the appellant intended or the opponent understood." Scott v. King , 510 S.W.3d 887, 892 (Mo. App. E.D. 2017).

To guarantee advocates are able to comply with these standards, Rule 84.04(d)(1) sets forth not only clear dictates on how to comply with its requirements, but it also sets forth an easy to understand, fill-in-the-blank template for drafting a proper point relied on. Rule 84.01(d)(1) requires each point on appeal to identify a claim of reversible error, state the legal reason for that claim concisely, and summarily explain why the stated legal reasons support the claim of reversible error. Keeping these requirements in mind, Defendant's point relied on states:

The [circuit] court abused its discretion in overruling [Defendant's] objections and allowing evidence under Mo. Const. Art. I, section 18(c) that [Defendant] had deviate sexual intercourse (a) as an adult with L.W. in the spring of 2012, and (b) as a juvenile with D.J. in September 2000. The evidence, presented through the testimony of L.W., M.W., and T.F., and State Exhibits 1, 2, 3, 15 and 16, was substantially more prejudicial than probative, violating [Defendant's] right to due process and a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 22(a) of the Missouri Constitution and was inadmissible under Art. I, [section] 18(c), in that (a) as to L.W., the testimony had little probative value, the testimony was lengthy, detailed, not impassionate, and graphic, and the jury was left to speculate that [Defendant] was not punished for the alleged crime; (b) as to D.J., the 2000 act was remote in time and not sufficiently similar to the charged crime to show a current propensity to commit the charged crime; and (c) the [s]tate repeatedly used the evidence in closing for an improper purpose, to argue that [Defendant] was a sex predator and a serial child sodomizer who preyed on his victims and had a reign of terror in the jurors’ community since 2000.

Defendant's point on appeal fails to comply with the clear standards set forth in Rule 84.04. "Rule 84.04(d) prohibits a point relied on that groups together multiple contentions not related to a single issue and such a point is subject to dismissal." State v. S.F. , 483 S.W.3d 385, 389 n.5 (Mo. banc 2016). Defendant's single point on appeal challenges the circuit court's admission of the testimony of three witness and five exhibits. Further, the point on appeal claims not only was the admission of this plethora of evidence improper, it also asserts the state erroneously used the evidence in its closing argument.² "This Court recognizes there is a tension between being a[ ] zealous advocate for one's client" and culling through the record to present potential reversible errors. State v. McFadden , 369 S.W.3d 727, 745 n.3 (Mo. banc 2012). Yet, a client's best interests are not served by including every potential error in one point on appeal.

The appellate courts’ continued reiteration of the importance of the briefing rules without enforcing any consequence "implicitly condones continued violations and undermines the mandatory nature of the rules." Alpert v. State , 543 S.W.3d 589, 601 (Mo. banc 2018) (Fischer, J., dissenting). The appellate courts may exercise their discretion, ex gratia , to address what they believe are the merits of a case. However, to be clear, this Rule 84.04 violation is more than a technical violation.

Preservation of Error

The parties dispute whether Defendant's objections to the state's propensity evidence and closing argument comments are preserved. This Court must resolve whether Defendant's multifarious claims have been preserved for appeal to determine the appropriate standard of review to apply. Defendant claims all of his objections regarding the admissibility of the state's propensity evidence were preserved for appeal.

First, Defendant asserts he raised this issue in a pretrial propensity hearing on January 2, 2018. Defendant also asserts these issues were raised in pretrial documents submitted to the circuit court. Pretrial orders regarding the admissibility of evidence are "interlocutory, unreviewable, and subject to change." State ex rel. Tipler v. Gardner , 506 S.W.3d 922, 928 (Mo. banc 2017) ; see also State v. Blurton , 484 S.W.3d 758, 775 (Mo. banc 2016). Because a pretrial ruling is interlocutory, evidence "produced at trial may prompt the [circuit] court to alter its pretrial ruling ...." Elliott v. State , 215 S.W.3d 88, 92 (Mo. banc 2007). Merely objecting to the admission of evidence in a pretrial motion is insufficient to preserve any trial error for appeal. State v. Hughes , ...