STATE OF MISSOURI,                                    )
                                                      )
         Plaintiff-Respondent,                        )
                                                      )
v.                                                    )        No. SD36081
                                                      )
BLAINE URIAH DOWNUM,                                  )        Filed: April 7, 2020
                                                      )
         Defendant-Appellant.                         )

               APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                                     Honorable Dean G. Dankelson
AFFIRMED

         A jury found Blaine Uriah Downum (“Defendant”) guilty of child molestation in the

first degree, statutory rape in the first degree, resisting arrest by fleeing, and unlawful

possession of a firearm. See sections 566.067, 566.032, 575.150, and 571.070.1 In this

appeal of his convictions, Defendant raises nine points of alleged trial-court error. Finding

no reversible error, we affirm.

                      The Relevant Evidence and Procedural Background

         We recite the evidence and the reasonable inferences therefrom in the light most

favorable to the verdict. State v. Lammers, 479 S.W.3d 624, 630 (Mo. banc 2016). We

mention other information only to provide context for Defendant’s points.



1
 Unless otherwise noted, all statutory citations are to RSMo 2016. All rule citations are to Missouri Court
Rules (2019).


                                                          1
       Victim, eleven years old at the time of trial, is Defendant’s daughter. Just one year

earlier, she was visiting Defendant at his hotel room. Victim was playing on her phone

when Defendant woke up and asked her if she wanted to have sex. Victim said no.

Defendant asked again. When Victim again declined, Defendant took her by the wrists,

threw her on the bed, and removed her clothes. Defendant licked Victim’s vagina and then

inserted his penis. It felt to Victim as if she was being stabbed with a knife, and she kicked

until she got free of Defendant’s grip. Upon freeing herself, Victim called her mother to

come pick her up from the hotel. A week later, she told her mother what had happened.

       Defendant, a persistent offender, had prior felony convictions in both Kansas and

Missouri. When law enforcement officers were unable to make contact with him by their

usual methods, they “attached an alert” for Defendant in their record management system.

That alert would notify them if Defendant “c[a]me in contact with any law enforcement[.]”

       On April 16, 2018, Officer Bobby Brown (“Officer Brown”) was driving his patrol

car by Defendant’s last-known address when he saw Defendant exiting the home. Officer

Brown stopped, told Defendant that he was under arrest, and asked him to put his hands

behind his back. Defendant turned and ran. Officer Brown commanded Defendant “to stop

or [he] would send [his] dog and [Defendant] would be bit.”

       Defendant, who was wearing a backpack, kept running. Officer Brown’s dog (the

“K-9”) chased Defendant and was able to grab ahold of his backpack. Defendant shed the

backpack and continued running. The K-9 eventually apprehended Defendant and took him

to the ground. Officer Brown took Defendant into custody, and when a detention officer at

the jail searched Defendant’s abandoned backpack, he found that it contained a loaded

handgun.




                                               2
           Defendant was charged with four felonies in an Amended Information. Counts 1 and

2 were based upon his sexual contact with Victim in Defendant’s hotel room. Count 1

charged that Defendant committed first-degree child molestation in that, between February

15 and April 16, 2018, Defendant “subjected [Victim,] who was then less than twelve years

old[,] to sexual contact,” and Victim was Defendant’s descendant by blood or adoption.

Count 2 alleged that during that same timeframe, Defendant committed first-degree statutory

rape in that he knowingly had sexual intercourse with Victim, a child less than twelve years

old.

           Counts 3 and 4 were based upon the subsequent events that occurred during

Defendant’s apprehension and arrest. Count 3 charged Defendant with resisting arrest in

that, on April 16, 2018, Defendant resisted arrest by fleeing from law enforcement. Count 4

alleged that Defendant – a convicted felon – unlawfully possessed a firearm on that same

date.

           On June 13th and September 27th, Defendant filed “pro se” motions for a speedy trial.

His trial was initially set to begin on August 15, 2018, but defense counsel requested a

continuance to have more time to prepare for trial, and the date was moved to February 5,

2019.

           The day before the February 5th trial was to begin, the State learned and disclosed

that the Children’s Center possessed Victim’s “trauma narrative” relevant to the case.

Defendant filed a “Motion to Dismiss or in the Alternative Exclude [Victim] and Associated

[Children’s Center] Workers as Witnesses” (the “motion to dismiss”). The motion to

dismiss alleged that the State had committed a Brady2 violation in failing to turn over the



2
    Brady v. Maryland, 373 U.S. 83 (1963).


                                                  3
trauma narrative at the same time it had provided other relevant documents to Defendant

during the course of discovery.

        The trial court held a hearing on the motion to dismiss the next day -- the morning of

the first day of trial. Defendant argued that the late production of the trauma narrative put

him in the position of either: (1) asking for a continuance to allow his attorneys to prepare

for trial by investigating the trauma statement and witnesses thereto, thereby forfeiting his

right to a speedy trial; or (2) having a timely trial but forfeiting his right to effective

assistance of counsel since his lawyers would not be prepared to address the trauma

narrative at trial. The trial court denied Defendant’s motion to dismiss, but it granted (at

least in part) Defendant’s alternative request for relief by stating that testimony from certain

Children’s Center witnesses that related to the trauma narrative would be excluded.

        After the motion to dismiss was denied, Defendant requested that they proceed to

trial on counts 3 and 4 as scheduled, with counts 1 and 2 to be severed off for trial at a later

date. When the trial court said that it would not grant Defendant’s request for severance,

Defendant requested a continuance on all counts, which the trial court granted. The case

was then reset for trial on March 5, 2019, just 28 days later.

        Prior to the start of the March trial, Defendant filed “Defendant’s Fifth Motion in

Limine Motion [sic] to Limit Police Presence in the Courtroom” (“the no-presence motion”).

The no-presence motion asserted that “[p]revious Jasper County jury trial cases have had

overwhelming police presence in the courtroom” and the police come “wear[ing] the regalia

of being police[.]” The motion asked that all police officers be excluded from the courtroom

in order to maintain a sense of neutrality.




                                                 4
         Also prior to trial, the State had filed its “Notice of Intent to Admit Propensity

Evidence[.]” It thereby gave notice to Defendant that the State intended to introduce

evidence -- pursuant to article I, section 18(c) of the Missouri Constitution (“section 18(c)”)

-- that Defendant had previously committed the offense of first-degree child molestation

against his other biological daughter, A.D., who was also under the age of twelve at the time

of that sexual contact.

         At trial, the trial court denied the no-presence motion,3 noting that it could not tell

who was a police officer and who was not as all of the officers present were in plainclothes

and bore no visible signs of being connected to the police department.

         A.D., then age thirteen, testified at trial as follows. When she was four years old,

Defendant had touched her “in [her] inappropriate place like down there” when she was in

his bedroom. Her entire testimony consumed seven of the 594 pages of trial transcript.

         Just before the State rested its case, the prosecutor provided the following

information to the trial court and Defendant:

         Your honor, during the break, my victim advocate, Betsy Gunlock [(“Ms.
         Gunlock”)], let me know that during the last break that one jurors [sic] [Juror
         Number 8], approached her, that she does know him outside of this case, and
         gave her a hug. They did not discuss anything to do with the case, or
         anything about the case itself, or the facts, or anything like that.

         In discussing that revelation with counsel, the trial court noted that no one had asked

potential jurors during voir dire whether they knew any members of the prosecutor’s office

or Ms. Gunlock. With the agreement of the parties, the trial court postponed ruling on

defense counsel’s request to question Ms. Gunlock until everyone had a chance to research




3
  The trial court first denied the no-presence motion before trial and then again when it was raised during the
instruction conference.


                                                        5
the applicable law, believing that no harm could come from leaving Juror Number 8 on the

jury to hear additional testimony while they did so.

       Defendant then testified in his own defense, and he denied having committed any

acts of abuse. In an attempt to cast doubt upon Victim’s account, he testified that he has a

tattoo around his penis (and introduced what purported to be a photograph of it) – something

that Victim specifically said Defendant did not have. He also testified that he kept his pubic

area shaved at the time of the charged events. Victim had testified that Defendant’s pubic

area was hairy.

                                           Analysis

                       Point 1 – Denial of Motion(s) for a Speedy Trial

       Point 1 claims:

               The trial court erred in denying [Defendant’s] motion to dismiss due
       to the State’s late disclosure of [Victim]’s “trauma narrative” in violation of
       [Defendant]’s constitutional rights to a speedy trial, to present a defense, and
       due process of law . . . in that trial counsel had no choice once the motion to
       dismiss was denied but to ask for a continuance in order to properly
       investigate the late disclosed material.

We disagree.

               To assess whether the constitutional right to a speedy trial has been
       respected or denied, the Court must balance four factors: (1) the length of
       delay; (2) the reason for the delay; (3) the defendant’s assertion of his right;
       and (4) prejudice to the defendant. See State v. Edwards, 750 S.W.2d 438,
       441 (Mo. banc 1988); Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33
       L.Ed.2d 101 (1972).

State ex rel. McKee v. Riley, 240 S.W.3d 720, 729 (Mo. banc 2007).

       On appeal, Defendant asserts only that he “was denied his constitutional right to [a]

speedy trial, caused directly by the State’s Brady violation.” His brief makes no attempt to

apply the four factors listed above to the facts of his case. “When an appellant fails to




                                               6
support contentions with relevant law and analysis beyond conclusory statements, we deem

the point abandoned.” Wallace v. Frazier, 546 S.W.3d 624, 628 (Mo. App. W.D. 2018).

Point 1 fails.

                             Point 2 – Denial of Motion to Sever

        In his second point on appeal, Defendant claims the trial court erred in

        overruling [his] motion for severance of the resisting arrest and possession of
        a firearm charges from the child molestation and statutory rape charges,
        because this violated [Defendant]’s rights to due process, a fair trial, and to
        be tried only for the crime charge [sic] . . . since the jury was likely to
        consider the evidence of the resisting and weapon crimes in deciding the
        other charges and that evidence was more prejudicial than probative.

        Our review of joinder and severance challenges is normally a two-step process,

requiring us to first determine whether joinder was proper as a matter of law. State v.

Green, 505 S.W.3d 837, 839 (Mo. App. S.D. 2016). Here, because Defendant admits that

joinder was proper and challenges “only the ruling denying the motion to sever[,]” we

review the trial court’s refusal to sever charges for an abuse of discretion. See id.

        Rule 24.07 and section 545.885, which govern the severance of offenses, require the

defendant to make “a particularized showing of substantial prejudice” in order to obtain a

severance. State v. McDonald, 321 S.W.3d 313, 319-20 (Mo. App. S.D. 2010) (quoting the

statute and the rule). Defendant claims that failing to sever the offenses prejudiced him

because “the jury’s learning that he was a convicted felon who ran from the police could not

be assuaged in any other way other than severing the charges.”

        “In considering whether severance is required, the court considers ‘the number of

offenses joined, the complexity of the evidence, and the likelihood that the jury can

distinguish the evidence and apply it, without confusion, to each offense.’” State v.

McKinney, 314 S.W.3d 339, 342 (Mo. banc 2010) (quoting State v. Morrow, 968 S.W.2d



                                               7
100, 109 (Mo. banc 1998)). McKinney held that charges need not be severed when “the

evidence relating to the attempted escape charge and the murder and armed criminal action

charges was ‘sufficiently simple and distinct to mitigate the risks of joinder.’” Id.

        That situation is present here. Defendant’s count 1 and 2 charges provided the basis

for the State to also charge him with resisting arrest and possession of a firearm in counts 3

and 4. And the evidence related to each of the four charges was distinct and uncomplicated

such that jurors could distinguish it and apply it without confusion about which charge was

based upon that evidence. Id.

        Point 2 is denied.

           Points 3 and 4 – Refusal to Exclude Police Officers from the Courtroom

        For ease of analysis, we address these related points together.

        Point 3 claims the trial court abused its discretion in “overruling [his] objection to

the presence of a group of police officers sitting in the courtroom at the end of the trial . . . in

that the presence of the officers . . . conveyed the message that [Defendant] was presumed

guilty.” Point 4 claims the trial court “abused its discretion in overruling [Defendant]’s

request to make an offer of proof regarding the police presence in the courtroom at the end

of the trial[.]” Defendant asserts that without such a record, this court would be unable to

determine whether prejudice resulted from the trial court’s ruling. No such impediment is

present here because both claims are clearly refuted by the record.

        “A trial court has wide discretion in determining whether to take action to avoid an

environment for trial in which there is not a ‘sense or appearance of neutrality.’” Johnson

v. State, 406 S.W.3d 892, 903 (Mo. banc 2013) (quoting State v. Baumruk, 85 S.W.3d 644,

650 (Mo. banc 2002)).




                                                 8
           When Defendant objected to the officers’ presence at trial, the trial court overruled

the objection and made the following record.

           In looking out [sic] the audience there are two sides on either side of the
           aisle. There are people seated on both sides of the aisle. I don’t see a badge
           or a gun amongst any of them. I wouldn’t know who was a police officer,
           who was not a police officer, or what these folks are and I don’t think there’s
           any show that they are from [the Joplin Police Department]. I happen to
           know some of them so I know that they are. The jury is not going to have
           that idea, won’t know if they are related to [Defendant] or to the State, and so
           there is no indication whatsoever that any of them are Joplin Police
           Department Officers. I don’t see anybody with a jacket on indicating they
           are from the police department. I don’t see anybody with a badge or a gun
           present and that’s from my vantage point and the jury will be on the other
           side of the room, but will have the same vantage point. And I don’t think
           anybody is going to know who they are. I don’t think there is any prejudice
           to your client. It’s an open courtroom. Folks are welcome to be here and we
           are going to proceed and the Court is not going to ask anybody to be
           excluded, except those who cannot properly maintain their behavior.

         Defendant’s argument that the trial court’s decision constituted an abuse of discretion

relies upon a federal case from the Ninth Circuit, Norris v. Risley, 918 F.2d 828 (9th Cir.

1990) (abrogated by Carey v. Musladin, 549 U.S.70, 127 S.Ct. 649, 166 L.Ed.2d 482

(2006)), and a West Virginia case, State v. Franklin, 327 S.E.2d 449, 451 (W. Va. 1985).

Both cases -- in addition to lacking any controlling authority -- are distinguishable from the

circumstances here. The spectators in Defendant’s proffered cases wore visible displays of

slogans on buttons that carried a real potential to inflame the jury. In Norris, the defendant

was convicted of sexual intercourse without consent. 918 F.2d at 829. During his trial,

women in the gallery wore “Women Against Rape” buttons. Id. In Franklin – a fatality-

producing driving under the influence of alcohol case – “MADD”4 buttons were visible in

the audience. 327 S.E.2d at 474.




4
    The case related that this was an acronym for “Mothers Against Drunk Drivers.”


                                                       9
      Here, the record affirmatively demonstrates that nothing the jury saw would give it

any indication that any of the spectators in the gallery were police officers. The trial court is

the “intimate observer of events at trial[.]” State v. Hartman, 479 S.W.3d 692, 702 (Mo.

App. W.D. 2015). Its recorded observations constitute factual findings that we rightly defer

to on appeal. Id. In addition, the State noted for the record (without any contradiction by

defense counsel) that there were additional people in the courtroom, including witnesses

who had testified, attorneys, and a reporter from a local newspaper, all of whom were

dressed similarly to the plainclothes officers described by the trial court.

      These recorded, first-hand observations reveal that the trial court did not abuse its

discretion in refusing to remove the police officers from the courtroom. As for Defendant’s

claim that the trial court erred in refusing to allow him to make an offer of proof, “[t]he

purpose of an offer of proof is to insure that the trial court and opposing counsel understand

what evidence is being offered and its relevance to the case.” State v. Townsend, 737

S.W.2d 191, 192 (Mo. banc 1987). Here, the point Defendant wished to convey through the

offer of proof was the presence of “a number of police [officers] in the courtroom” prior to

closing arguments, a claim that the trial court accepted as true. And defense counsel did not

identify any additional evidence he believed the trial court should have before making its

ruling.

      Points 3 and 4 are denied.

              Point 5 – Refusal to allow an Inquiry into Potential Juror Misconduct

          Defendant’s fifth point claims the trial court abused its discretion in overruling his

request to “inquire of [Ms. Gunlock], Director of Prosecution Services, or [Juror Number 8],




                                                 10
about how they knew each other” when Juror Number 8 hugged and spoke to Ms. Gunlock

during a break in the trial.

        The following information is relevant to this claim. During the instruction

conference, the trial court asked whether Defendant wished to make any further record in

regard to Juror Number 8. Defendant said that he “would like to make inquiry of Ms.

Gunlock[,]” to which the trial court responded, “I’m not going to permit that.” The trial

court again asked whether Defendant wished the court to take any “remedial action” on the

issue of the interaction between Juror Number 8 and Ms. Gunlock. The discussion that

followed, while lengthy, is highly relevant to our disposition of this point.

        [Defendant’s Counsel]:         Your honor, the remedial action that I would
                                       like to take and actually know the extent that I
                                       need to take would require inquiry of Ms.
                                       Gunlock. I cannot recall from memory whether
                                       [the prosecutor] asked if they knew anyone
                                       from the prosecutor’s office at that point in
                                       time. I am honestly uncertain as to whether
                                       that question was asked. I think it might’ve
                                       been, but I would like to know the nature of
                                       their relationship there, if it was one where it’s
                                       extremely close and [Juror Number 8] didn’t
                                       disclose that. And, like I said, I have an
                                       imperfect memory of whether that question was
                                       asked. I know it normally is.

        [Trial Court]:                 I don’t recall that question being asked. I know
                                       specifically her name was not mentioned in
                                       voir dire by either side.

        [Defendant’s Counsel]:         That is correct, but I think there might have
                                       been a catch all question asked. And, in fact,
                                       there was what I believe a question asked: is
                                       there any other reason why I might not be able
                                       to sit on this jury. I think that might have
                                       encompassed that if it –




                                               11
[Trial Court]:           Well, I think that would be requiring more out
                         of this jury than I think we should expect out of
                         them for that type of question.

[Defendant’s Counsel]:   Well, I’m just wanting to make a record of my
                         bases for wanting to conduct inquiry, Your
                         Honor.

[Trial Court]:           Then that wouldn’t be something Ms. Gunlock
                         would testify to. That would be something that
                         you’re alleging juror misconduct because he
                         didn’t disclose something. And that’s not
                         something that she would provide an answer
                         for. That’s something he would provide an
                         answer for.

[Defendant’s Counsel]:   I would request that the Court conduct an
                         inquiry into the nature of the relationship with
                         Ms. Gunlock or permit myself.

[Trial Court]:           As I read the cases, I think – are you alleging
                         that anything improper happened between a
                         member of the prosecutor’s staff and Juror
                         Number 8?

[Defendant’s Counsel]:   I don’t believe so, but I am uncertain Your
                         Honor. I didn’t witness it. I am not a witness
                         to that. Without the opportunity to conduct an
                         investigation, I wouldn’t be able to do so. I
                         don’t believe so. I believe that the prosecutor’s
                         office has a modicum [of] integrity to it in that
                         respect.

[Trial Court]:           I guess the question I would have was there any
                         conversation between Juror Number 8 and a
                         member of the prosecutor’s office.
                         [Prosecutor?].

[Prosecutor]:            In talking to Ms. Gunlock she said that nothing
                         was discussed about this case. It was just a hi,
                         [Ms. Gunlock], and a hug.

[Trial Court]:           Any other conversation more than that?

[Prosecutor]:            No, I don’t believe anything. [Ms. Gunlock]
                         was trying to get away because she realized she



                                 12
                                       should not have contact with [Juror Number 8].
                                       And the way I described it is she zigged and he
                                       zagged to come over and greet her.

       [Trial Court]:                  With those being the facts, [defense counsel], is
                                       there any relief that the Defense is requesting at
                                       this point in time?

       [Defendant’s Counsel]:          Let me make inquiry of my client. . . .

       [Trial Court]:                  You may speak with him.

       [Defendant’s Counsel]:          The Defendant has requested that we not seek
                                       the relief that [Juror Number 8] be removed
                                       from the jury panel.

       [Trial Court]:                  So you are prepared to continue with Juror
                                       Number [8] remaining.

       [Defendant’s Counsel]:          I am, but I would like the record to reflect that I
                                       wish to make inquiry of both [Juror Number 8]
                                       and of Ms. Gunlock to conduct an investigation
                                       of the facts.

       [Trial Court]:                  Well, I think the facts have been flushed out
                                       here.

       [Defendant’s Counsel]:          Okay.

       The conduct of a trial is within the discretion of the trial court, and its rulings will

not be overturned absent a showing of an abuse of that discretion. State v. Pendergrass, 726

S.W.2d 831, 832 (Mo. App. S.D. 1987). Defendant argues that “the trial court here denied

[Defendant] the ability to make a record about potential misconduct between a juror and a

member of the prosecutor’s staff.” Assuming that the trial court did err in refusing to allow

Defendant to inquire directly into potential juror misconduct by questioning Ms. Gunlock

and/or Juror Number 8, Defendant suffered no prejudice because he did not ask the trial

court to remove Juror Number 8 from the jury. To the contrary, Defendant affirmatively




                                               13
stated that he wanted to “not seek the relief that [Juror Number 8] be removed from the juror

panel.”

          “The rule requiring contemporaneous objections to the qualifications of jurors . . . .

serves to minimize the incentive to sandbag in the hope of acquittal and, if unsuccessful,

mount a post-conviction attack on the jury selection process.” State v. Wright, 30 S.W.3d

906, 914 (Mo. App. E.D. 2000) (quoting State v. Hadley, 815 S.W.2d 422, 423 (Mo. banc

1991)). Defendant waived his error-claim by not seeking to have Juror Number 8 removed

from the jury.

          Point 5 is denied.

                       Points 6 through 8 – Plain-Error Review Requested

          Defendant’s next three points are unpreserved, and he requests plain-error review

under Rule 30.20.

                   “Rule 30.20 is no panacea which a criminal defendant can use to
          obtain appellate review of any alleged error that is unpreserved.” State v.
          Campbell, 122 S.W.3d 736, 739 (Mo. App. S.D.2004). “[A]n appellate court
          is not required to engage in plain error review; the decision whether to grant
          or deny such a request is left to the court’s discretion.” Id. at 740. “The
          court may simply decline to exercise its discretionary authority to review the
          point for plain error.” Shifkowski v. State, 136 S.W.3d 588, 590 (Mo. App.
          S.D. 2004).

                 If we exercise our discretion and engage in the requested plain error
          review of unpreserved error, a “defendant must show not only that the trial
          court committed evident, obvious, and clear error, but also the existence of
          manifest injustice or a miscarriage of justice.” State v. Stuckley, 573 S.W.3d
          766, 768 (Mo. App. S.D. 2019).

State v. Sinor, No. SD 35936, 2020 WL 581879, at *2–3 (Mo. App. S.D. Feb. 6, 2020)

(footnote omitted). With that strict standard in mind, we proceed to an evaluation of

Defendant’s unpreserved points.




                                                 14
       Point 6 claims “[t]he trial court plainly erred in allowing the [S]tate to introduce

evidence of [Defendant]’s alleged molestation of A[.]D[.], [Victim]’s sister, because this

propensity evidence was substantially more prejudicial than probative[.]”

       Section 18(c) provides:

               Notwithstanding the provisions of sections 17 and 18(a) of this article
       to the contrary, in prosecutions for crimes of a sexual nature involving a
       victim under eighteen years of age, relevant evidence of prior criminal acts,
       whether charged or uncharged, is admissible for the purpose of corroborating
       the victim’s testimony or demonstrating the defendant’s propensity to commit
       the crime with which he or she is presently charged. The court may exclude
       relevant evidence of prior criminal acts if the probative value of the evidence
       is substantially outweighed by the danger of unfair prejudice.

       While he admits that it “is clear” that A.D.’s testimony established Defendant’s

propensity to commit the charged crimes because “it shows that [Defendant] molested

[Victim]’s sister in a similar manner[,]” Defendant argues that A.D.’s testimony should have

been excluded because the prejudicial effect substantially outweighed the probative value.

       We begin by noting that Defendant’s argument omits an important word from the

constitutional provision at issue, which allows the exclusion of “relevant evidence of prior

criminal acts if the probative value of the evidence is substantially outweighed by the danger

of unfair prejudice.” Id. (emphasis added). Prior to the adoption of section 18(c), our case

law permitted the introduction of prior criminal behavior only in limited circumstances, and

it was never admitted to prove that the defendant had a propensity to commit the charged

crime(s). See State v. Williams, 548 S.W.3d 275, 281 (Mo. banc 2018) (noting that “it is

safe to say a general prohibition against the use of propensity evidence in criminal cases has

been firmly engrained in American jurisprudence throughout much of the nation’s history”)

(footnote omitted).




                                              15
       Further, the job of “weighing” the probity of evidence, most of which is typically

subject to credibility determinations, and then deciding what prejudicial evidence is

“unfairly” prejudicial, is best left to the discretion of the trial court. And those discretionary

calls are rarely overturned, even when they are properly preserved for review, let alone

when they are reviewed only for plain error. See State v. Carr, 50 S.W.3d 848, 856 (Mo.

App. W.D. 2001).

       We decline to undertake such a fact-intensive inquiry upon a cold record and

exercise our discretion to deny plain-error review of Point 6.

       Point 7 claims:

                The trial court plainly erred in overruling [Defendant]’s objection to
       forensic interviewer Ashlea Belcher’s [(“Ms. Belcher”)] testimony that
       [Victim]’s provision of “sensory details” provided credibility to her story . . .
       in that the testimony of Ms. Belcher invaded the province of the jury, was
       more prejudicial than probative, and was improperly used to bolster
       [Victim]’s credibility.

       Ms. Belcher had interviewed Victim about her allegations of abuse. Prior to playing

Ms. Belcher’s video-recorded interview of Victim for the jury, the prosecutor asked the

following question and received the following answer:

       [Prosecutor:]           When you’ve gone to these trainings, are you taught to
                               look for something in particular to try to determine
                               credibility or whether or not you should be looking
                               further into an allegation?

       [Ms. Belcher:]          Yes.

       At that point, Defendant objected that such testimony was going down the path of

improper bolstering. The prosecutor responded that she was “going to have [Ms. Belcher]

testify about what things she looks for so that the jury can also be looking for them when

they watch the interview.” The trial court overruled Defendant’s objection and allowed the




                                                16
prosecutor to inquire into “what [Ms. Belcher] looks for without talking about what [Victim]

actually said.”

       The prosecutor then resumed her questioning.

       [Prosecutor:]         Ms. Belcher are you taught to look for things in
                             particular that might indicate whether a child has been
                             coached or is telling something based on their own
                             experience. And to be clear, I do not want you to talk
                             about specifically what [Victim] told you. Just what
                             you’ve been taught to look for?

       [Ms. Belcher:]        So whenever I’m talking to a child, I am asking for a
                             lot of details. When they are giving details of events
                             with sensory, it tells me what they are feeling, they are
                             seeing, or you know their description of what’s going
                             on. Can you repeat the last part of your question?

       [Prosecutor:]         Is there anything besides those sensory details that you
                             look for?

       [Ms. Belcher:]        Just how things happen. You know I’m collecting
                             facts. I’m wanting to know every detail of what they
                             saw, felt, who was around, things like that. Also you
                             had mentioned something about coaching. I usually
                             ask kids, you know, have you told anyone about what’s
                             happened or has anyone talked to you about what’s
                             happened. I usually ask, you know, what kind of
                             things were you told about what’s happened. If the
                             alleged perpetrator – you know I usually ask did they
                             tell you anything to say or to do or tell you to keep a
                             secret, things like that.

       [Prosecutor:]         Do you look for a child’s ability to correct you if you
                             misstate something that she or he has said?

       [Ms. Belcher:]        Yes. And hopefully in every single interview I have
                             always said, you know, let me know if I’m getting
                             anything wrong today or – and then I also assure the
                             child if you don’t know something or don’t remember
                             something, it is okay to let me know that too.

                                     ....




                                            17
       [Prosecutor:]           Is it normal for a child to continue that disclosure
                               process after that initial forensic interview with you?

       [Ms. Belcher:]          Yes.

       [Prosecutor:]           Do you also look for information that might be age
                               appropriate for a child?

                                       ....

       [Ms. Belcher:]          Yes, especially in their details and sensory details.

(Emphasis added.)

       It is clear that the State sought, and Ms. Belcher provided, testimony that was general

in nature regarding child sexual-abuse victims and did not explicitly or implicitly comment

upon Victim’s credibility. See State v. Chaidez, 543 S.W.3d 664, 669 (Mo. App. S.D.

2018). The trial court did not err, plainly or otherwise, in overruling Defendant’s objections

to that testimony.

       Point 7 is denied.

       Point 8 claims the trial court plainly erred in failing to, sua sponte, declare a mistrial

when the State, during its closing argument, implied that Defendant’s hotel room was

“dimly lit[,]” a fact that was not in evidence.

               “Our review for plain error of a trial court’s failure to sua sponte
       declare a mistrial is extremely limited.” State v. Collins, 150 S.W.3d 340,
       349 (Mo.App.2004). We are mindful that a mistrial is a drastic remedy that
       should be used sparingly and granted only in extraordinary situations. State
       v. Clover, 924 S.W.2d 853, 856 (Mo. banc 1996). Moreover, “‘sua sponte
       action should be exercised only in exceptional circumstances.’” Collins, 150
       S.W.3d at 349 (quoting State v. Drewel, 835 S.W.2d 494, 498
       (Mo.App.1992)).

State v. Stites, 266 S.W.3d 261, 266 (Mo. App. S.D. 2008).

       The following information is relevant to this point. Part of Defendant’s defense was

that Victim had incorrectly identified areas of his pubic region, thus the incidents Victim



                                                  18
described at trial could not have really happened. Specifically, Victim testified that

Defendant did not have a tattoo near his penis, but Defendant showed the jury a picture

evidencing that he did. Defendant also testified that he kept his pubic area shaved at that

time, while Victim testified that Defendant had hair in his pubic area.

       In an attempt to blunt that argument, the prosecutor argued at closing as follows.

       [Defendant] brought up the tattoo that’s in the photograph. And his
       investigator took that photograph of [Defendant] in a brightly lit room where
       that is the focus. Do you think that that’s what [Victim] was trying to focus
       on? She was in a dimly lit hotel being raped by her father.

The attorneys approached the bench, and the following colloquy ensued:

       [Defendant’s Counsel]:          The lighting in the room was not introduced
                                       into evidence.

       [Trial Court]:                  That is correct, so let’s move on. Is there any
                                       other corrective relief you are seeking?

       [Defendant’s Counsel]:          I would ask that [the prosecutor] correct that
                                       misstatement to the jury.

When the prosecutor returned to her argument, she stated only that “[t]hey were in a room

where [Defendant] had been sleeping.”

       After voicing no objection to the prosecutor’s modified argument at trial (which left

out the “dimly lit” statement), Defendant now argues for the first time on appeal that the trial

court should have, sua sponte, granted a mistrial when the prosecutor “failed to correct her

misstatement[,]” in that the “statement that the room was too dimly lit for [Victim] to see

implied that she had outside knowledge of [Defendant]’s guilt that they had not heard.”

This complaint comes too late. Under these circumstances, the trial court did not err, plainly

or otherwise, in “failing” to, sua sponte, declare a mistrial.

       Point 8 is denied.




                                               19
                      Point 9 – Insufficient Evidence on Counts 1 and 2

       Defendant’s final point claims the evidence adduced at trial was insufficient to

support his convictions of first-degree child molestation and first-degree statutory rape in

that the State’s evidence failed to prove beyond a reasonable doubt that Defendant had

sexual contact with Victim.

              In reviewing a claim that there was not sufficient evidence to sustain a
       criminal conviction, this Court does not weigh the evidence but, rather,
       “accept[s] as true all evidence tending to prove guilt together with all
       reasonable inferences that support the verdict, and ignore[s] all contrary
       evidence and inferences.” State v. Latall, 271 S.W.3d 561, 566 (Mo. banc
       2008); State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006). This Court
       “asks only whether there was sufficient evidence from which the trier of fact
       reasonably could have found the defendant guilty.” Latall, 271 S.W.3d at
       566.

State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc 2015).

       Defendant’s argument in support of his point does the exact opposite of what is

required by our standard of review – it focuses entirely on testimony that was favorable to

him, not on the lack of probative value of evidence favorable to the verdicts. State v.

Harris, 549 S.W.3d 513, 516 (Mo. App. S.D. 2018). “His complete disregard for . . . our

standard of review so weakens his arguments analytically as to strip them of any persuasive

value.” Id.

       Point 9 is also denied, and Defendant’s convictions are affirmed.


DON E. BURRELL, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

MARY W. SHEFFIELD, J. – CONCURS




                                              20
