State v. Nieto

689 S.W.3d 239

STATE of Missouri, Plaintiff-Respondent,

v.Elmer Antonio NIETO, Defendant-Appellant.

No. SD 37894

Missouri Court of Appeals, Southern District, In Division.

Filed: May 7, 2024

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY, The Honorable Gayle L. Crane, Judge

Attorney for Appellant – Randy S. Anglen of Columbia, MO.

Attorneys for Respondent – Andrew Bailey (Attorney General), Julia E. Rives of Jefferson City, MO.

JENNIFER R. GROWCOCK, J.

Elmer Antonio Nieto ("Nieto") appeals the trial court’s judgment convicting him of child molestation in the second degree following a jury trial. See section 566.068.¹ Nieto raises three points on appeal alleging the trial court plainly erred by failing to declare a mistrial sua sponte in response to the State’s statement in closing argument that Nieto could not explain the mark on the child’s body because that violated Nieto’s right against self-incrimination and due process in that it was an improper comment on his failure to testify (Point I), and it was an attempt to mislead the jury on the burden of proof (Point II). In Point III, Nieto claims the trial court erred in denying his motion for judgment of acquittal at the close all evidence because "the State failed to prove beyond a reasonable doubt that Mr. Nieto committed" child molestation in the second degree. We determine none of the three points have merit but remand to the trial court for it to correct the judgment nunc pro tunc.

Factual Background and Procedural History

Victim, being eight years old, lived with her mother ("Mother") and siblings. Nieto had been dating Victim’s grandmother ("Grandmother") for 25 years, and Victim lived with them for a year after Victim’s family immigrated to the United States from El Salvador. On August 16, 2021, Mother borrowed Grandmother’s car and took Victim and her siblings to shop for groceries. When they returned the car to Grandmother, Nieto drove Mother, Victim, and the other children to their home.

When they got home, Victim lifted her blouse to wipe the sweat off her face. Mother noticed a mark on Victim’s left breast that looked like a hickey and asked Victim how she got that mark. Victim started crying and said she was afraid. Victim stated Nieto "had done that to her on her chest[,]" had put his "private parts" on her several times, and asked Victim to touch his private parts. Mother called her sister and Grandmother, who both came to Mother’s home. Grandmother accused Vic- tim of lying and said they could work it out privately. Mother then called the police.

An ambulance came to Mother’s home and took Victim’s vital signs and temperature, and law enforcement told Mother to take Victim to the hospital. Mother took Victim to the hospital that evening, but they were never seen. Later the next morning, Mother took Victim to the Children’s Advocacy Center ("CAC") for a forensic interview. Victim told the interviewer that Nieto put his mouth on her skin and closed his teeth down.

The State charged Nieto with one count of statutory rape in the first degree (Count I), statutory sodomy in the first degree (Count II), and child molestation in the second degree (Count III). At trial, Victim’s brother testified he and his siblings spent two to three days a week at Grandmother’s house while Mother worked. He also testified that Victim got bigger, more significant gifts than the others whenever Nieto gave gifts to the children. Nieto also took Victim to another room and locked the door almost every time she visited. Victim testified Nieto grabbed her in Grandmother’s room and bit and bruised her chest with his mouth after she and her family came back from shopping on August 16, 2021. She also recounted Nieto putting his mouth between her legs "[t]hree times a day." A clinical child therapist from the CAC testified that Victim described Nieto pulling her pants down "when he put it in" on five separate occasions. From this evidence, the jury found Nieto guilty of child molestation (Count III) but not guilty of statutory rape (Count I) and statutory sodomy (Count II).

Points I and II: Plain Error Review is not Warranted Without a Facial Showing of Manifest Injustice or Miscarriage of Justice

Nieto claims the trial court erred when it failed to declare a mistrial sua sponte during the State’s closing argument in Points I and II. He claims in Point I that the State’s statement to the jury "that the defense could not explain the mark" on Victim’s body was an improper comment on Nieto’s failure to testify, and he casts the same statement under Point II as an attempt to mislead the jury on the State’s burden of proof. He admits he failed to preserve both points for appeal and requests plain error review.

Standard of Review

[1–5] Plain error review for a trial court’s failure to declare a mistrial sua sponte is "extremely limited." State v. Stites, 266 S.W.3d 261, 269 (Mo. App. S.D. 2008) (quoting State v. Collins, 150 S.W.3d 340, 349 (Mo. App. S.D. 2004)). This Court will not review a claim for plain error unless it "facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." State v. Perkins, 640 S.W.3d 498, 501 (Mo. App. S.D. 2022) (quoting State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020)). Once shown, this Court may determine whether the claimed error resulted in actual manifest injustice or miscarriage of justice. State v. Minor, 648 S.W.3d 721, 731 (Mo. banc 2022). Unless manifest injustice or miscarriage is shown, an appellate court should decline to exercise plain error review. Brandolese, 601 S.W.3d at 526. The alleged error must be evident, obvious, and clear; as well as outcome determinative. Minor, 648 S.W.3d at 731.

Analysis

[6–10] Criminal defendants maintain a constitutional and statutory right to not testify. U.S. Const. amend. V; Mo. Const. art. I, section 19; section 546.270; Rule 27.05(a).² The State is forbidden from commenting on the exercise of this right directly or otherwise. State v. Rice, 573 S.W.3d 53, 75 (Mo. banc 2019); State v. Barnum, 14 S.W.3d 587, 592 (Mo. banc 2000). A direct reference "is made when the prosecutor uses words such as ‘defendant,' ‘accused’ and ‘testify’ or their equivalent[,]" whereas an "indirect reference is one reasonably apt to direct the jury’s attention to the defendant’s failure to testify." State v. White, 291 S.W.3d 354, 359 (Mo. App. S.D. 2009) (quoting State v. Neff, 978 S.W.2d 341, 344 (Mo. banc 1998)). An indirect reference requires reversal only if the State exhibits a calculated intent to magnify the defendant’s decision to the jury. Rice, 573 S.W.3d at 75. The State must also not misstate the burden of proof to the jury or attempt to shift its burden onto the criminal defendant. See State v. Campbell, 600 S.W.3d 780, 793-94 (Mo. App. W.D. 2020) (analyzing whether the State’s closing statement improperly shifted the burden of proof); see also State v. Brightman, 388 S.W.3d 192, 201-02 (Mo, App. W.D. 2012) ("When a prosecutor seriously misstates the law so as to lower the State’s burden of proof, it is error.").

[11–13] Courts review the propriety of a State’s closing argument "in the context of the entire record." State v. Boyd, 659 S.W.3d 914, 929-30 (Mo. banc 2023). "Statements made in closing argument will rarely amount to plain error, and any assertion that the trial court erred for failure to intervene sua sponte overlooks the fact that the absence of an objection by trial counsel may have been strategic in nature." White, 291 S.W.3d at 359 (quoting State v. Cole, 71 S.W.3d 163, 171 (Mo. banc 2002)). The statement at issue here came from the State’s rebuttal to Nieto’s closing statement. Nieto challenged whether the State proved the mark on Victim’s chest was a hickey. He noted a nurse practitioner testifying for the State could not independently confirm the mark was a hickey. In response, the State focused on the lack of evidence disputing the mark:

And then you look at [Victim] – and you look at [Victim] and this picture (indicating) was taken that day that she went to the CAC. And this (indicating) is the hickey. And [Mother] called it a hickey. And [the nurse practitioner] called it a hickey. And the defense can’t explain this. There’s been no explanation for this. This is where this came from. There’s no explanation of how she got that. She told how she got that over and over and over again. This can’t be explained.

Nieto claims the trial court’s failure to declare a mistrial at this point was outcome-determinative error because this statement about the hickey related to the only offense the jury found him guilty of – child molestation.

However, and even if the State directly referred to Nieto’s decision not to testify or somehow misstated or shifted the burden of proof, Nieto has not facially established substantial grounds for believing manifest injustice or miscarriage of justice resulted from the State’s isolated statement in closing argument given that the jury was otherwise properly instructed on both grounds. See State v. Green, 307 S.W.3d 197, 202 (Mo. App. S.D. 2010) ("[W]hen the jury is provided with the correct trial court instructions giving the definition of reasonable doubt it cures any harm from an erroneous statement of reasonable doubt by the prosecutor."); see also State v. Garrison, 292 S.W.3d 555, 560 (Mo. App. S.D. 2009) (finding no manifest injustice from a statement about a criminal defendant not testifying "because the jury was properly instructed"). Further, the State’s comment did not necessarily imply that Nieto did not explain the mark. The "defense," while not required to do so, could have presented other evidence that might explain the mark’s nature and presence; it did not have to be seen as the absence of direct testimony by Nieto.

[14] Here, the trial court’s submitted jury instructions, as read to the jury before closing arguments at the end of the trial, explained Nieto had no obligation to testify,...