STATE OF MISSOURI,                                      )
                                                        )
                             Respondent,                )
                                                        )
           vs.                                          )        No. SD33425
                                                        )        Filed: September 29, 2015
MAX GIBSON,                                             )
                                                        )
                             Appellant.                 )

                      APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY

                              Honorable Michael O. Hendrickson, Circuit Judge

AFFIRMED

           Max Gibson (“Gibson ”) appeals his conviction for two counts of the class C felony of

abuse of a child, pursuant to section 568.060. 1 Gibson presents three points on appeal. Finding

no merit to Gibson’s points, we affirm the trial court’s judgment and sentence.

                                     Factual and Procedural Background

           On appeal, we view the evidence and all reasonable inferences derived therefrom in the

light most favorable to the verdict; all contrary evidence and inferences are disregarded. State v.

Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010). Viewed from this perspective, the following

evidence was adduced at trial.


1
    All references to statutes are to RSMo. 2000, unless otherwise indicated.
       In August 2012, A.G., a fifteen-year-old girl, lived in Pleasant Hope, Missouri, with her

fourteen-year-old sister, E.G., her younger brother, and Gibson, her father. On the evening of

August 2, 2012, Gibson was angry and yelled at A.G. and E.G. A.G. yelled back and called

Gibson a “[s]tupid son of a bitch.” Gibson, even angrier after A.G.’s insult, started walking

toward A.G.

       A.G. ran to the bathroom and locked the door because she was fearful of Gibson after

prior physical confrontations with him. Gibson shouted at A.G. from the other side of the door,

and punched underneath the knob until the door began cracking. Unable to break the door down,

Gibson resorted to prying the door open with a spoon.

       Having gained entry to the bathroom, Gibson, holding a bottle of liquid dishwashing

soap, declared that A.G. would not be “cuss[ing] anymore.” Physically forcing and pinning A.G.

to the floor, Gibson tried to squeeze the dishwashing soap into A.G.’s mouth—however, he

discovered that the soap bottle was empty, and tossed it aside in favor of a bar of soap from the

shower. Gibson forced open A.G.’s mouth with his fingers, and shoved the bar of soap deep into

A.G.’s mouth, injuring A.G.’s mouth and lips. Gibson held the soap in A.G.’s mouth until A.G.

bit the bar of soap in half, at which time Gibson returned to the living room and sat on the couch.

A.G. sat up coughing, spitting out blood and chunks of soap. Minutes later, A.G. still had

chunks of soap in her mouth and teeth.

       A caseworker made monthly visits to the Gibson household. During the caseworker’s

August 2012 visit, Gibson gave a false account of an incident that had occurred several days

before the caseworker’s visit. E.G. gave a countervailing account of the incident. On August 15,

2012, Gibson, having learned of E.G.’s account, chastised and yelled at E.G. calling her

ungrateful, a “bitch” and a “whore,” and accused her of ruining the Gibson family.



                                                2
       Later the same day, E.G. was using the family laptop computer in her bedroom. Gibson

entered the room, demanded the computer, and yelled at E.G. that she did not deserve anything

she had. Gibson then picked up E.G.’s hair straightener, which E.G. took from him. E.G.,

having gained possession of the hair straightener, lay on her bed and held the straightener under

her bed with one hand so Gibson could not reach it. Gibson attempted to lie on top of E.G. and

reach the straightener, but was unsuccessful. Instead, he grabbed the straightener’s cord, which

was trailing from under E.G.’s bed. With the cord of the straightener wrapped around E.G.’s

neck, Gibson pulled up on the cord, choking E.G., causing her to let go of the straightener.

Gibson then retrieved the straightener and broke it in half.

       E.G. began to walk out of her bedroom when Gibson picked her up by the throat and

choked her with his hands for fifteen-to-twenty seconds while E.G. struggled to escape. Only

after E.G. successfully kicked Gibson did he release her. E.G. sustained visible red marks

around her neck from being choked. Gibson also pushed E.G.’s head into the “bare [] sheetrock”

and “wood” surrounding a window, which caused visible red marks on E.G.’s temple. E.G. then

ran to the home of a neighbor who called the police.

       Gibson was charged by a first amended felony information with the class C felony of

abuse of a child as to A.G. (Count I), pursuant to section 568.060, by “knowingly inflict[ing]

cruel and inhuman punishment upon Juvenile AG, a child less than seventeen years old, by

making her eat soap causing her to choke[]”; and the class C Felony of abuse of a child as to

E.G. (Count II), pursuant to section 568.060, by “knowingly inflict[ing] cruel and inhuman

punishment upon EG, a child less than seventeen years old, by choking her with his hands.”

       On March 26, 2014, Gibson filed a “Motion to Compel Discovery” requesting, in part,

copies of the Child Advocacy Center (CAC) video interviews of A.G. and E.G. On March 28,



                                                 3
2014, Gibson also filed a “Motion in Limine” to prevent the State from commenting on, or

introducing evidence relating to any prior uncharged bad acts of Gibson; any alleged prior

incidents of domestic violence; or any prior incidents of child abuse other than those specifically

charged.

       On April 7, 2014, a hearing was held on Gibson’s motion to compel. Gibson’s defense

counsel argued that the CAC interview video was not included in the State’s responses to

discovery, and that he was entitled to a copy of the video to prepare for trial.

       The State responded it had an open-file policy whereby defense counsel could come into

the prosecutor’s office and look at the video at any time. The State expressed concern that

defense counsel could provide the video to Gibson, who could then release the video to the

public, exposing juvenile victims’ identities. The prosecutor admitted that while his office had in

the past released copies of CAC videos to some defense attorneys, it only did so when defense

counsel agreed the videos would not be released to clients. The trial court overruled Gibson’s

motion as to the CAC video, advising defense counsel that, “You’re entitled to [the video]; it’s

available at the prosecutor’s office, for you to view.”

       At the same hearing, Gibson filed an amended motion in limine, which was also heard.

Defense counsel argued that the trial court should exclude uncharged bad acts of Gibson. The

State argued that the evidence sought to be excluded related to “systematic and continual abuse”

of the children by Gibson, and that the information was relevant to a jury to show there was a

common scheme as to Gibson’s actions with regard to the children. The motion in limine was

overruled.

       A jury trial was held on April 14, 2014. On the morning before trial, defense counsel

objected to moving forward with trial because the trial court overruled Gibson’s amended motion



                                                  4
in limine. Defense counsel also renewed a previous motion for continuance stating that while he

was able to view the CAC video in the prosecutor’s office, he was unable to make a transcription

of the video or redactions to it for viewing by the jury and for impeachment purposes. The trial

court denied Gibson’s request for a continuance.

       Following jury selection, the trial court revisited Gibson’s amended motion in limine and

sustained the motion as to references to abuse or mistreatment of A.G. and E.G., by two

individuals other than Gibson, in the State’s case-in-chief.

       Gibson did not testify and did not present any evidence. At trial, A.G. testified as to

“physical confrontations” between herself and Gibson occurring in late July or early August

2012. Defense counsel objected to this testimony as being uncharged misconduct, which the trial

court overruled.

       E.G. testified that a caseworker would come to their house monthly and she and Gibson

got into a dispute because E.G. thought Gibson had lied to the caseworker. Defense counsel

objected to this evidence of uncharged prior incidents of abuse, and this objection was overruled.

       During defense counsel’s cross-examination of A.G., defense counsel renewed his

argument “from our motion to continue” because he was not provided a copy of the CAC video

interviews under the motion to compel discovery, and had no way to impeach A.G. thus

impinging Gibson’s rights. Defense counsel renewed his motion for continuance, and requested

a mistrial and new trial setting so that he could obtain the CAC video and make redactions and

transcriptions in order to properly impeach A.G.

       The State argued that defense counsel watched the video in the prosecutor’s office, and

had plenty of opportunity to prepare for trial. The trial court denied the motion for mistrial.




                                                 5
        At the close of all the evidence, the jury found Gibson guilty on both counts of child

abuse, sentencing Gibson to two concurrent terms of three years in the Missouri Department of

Corrections. This appeal followed.

        In three points on appeal, Gibson alleges the trial court erred in: (1) overruling his

motion for judgment of acquittal and sentencing him for abuse of child because the State’s

evidence failed to establish beyond a reasonable doubt that Gibson knowingly inflicted cruel and

inhuman punishment upon A.G. because the evidence was insufficient to prove that Gibson

made A.G. “eat” soap and that the alleged conduct was cruel and inhuman punishment;

(2) overruling Gibson’s objections and allowing the State to introduce evidence of prior

uncharged allegations of “physical confrontations” with Gibson and that the family had a

caseworker who visited monthly because the uncharged misconduct had little, if any, probative

value in proving the elements of child abuse and the prejudicial effect grossly outweighed any

value; and (3) not requiring the State to provide copies of the CAC interview video of A.G. and

E.G. to Gibson’s counsel in advance of trial left defense counsel without the ability to fully

prepare for trial.

        The issues for our determination are:

        1.      Was there sufficient evidence to support Gibson’s conviction on Count I?

        2.      Did the trial court abuse its discretion in overruling defense counsel’s objections
                to testimony regarding prior physical confrontations between A.G. and Gibson,
                and the involvement of a caseworker at the Gibson residence?

        3.      Did the trial court abuse its discretion in overruling defense counsel’s motion to
                compel the prosecutor to provide a copy of the CAC interview video?




                                                 6
                 Point I: Sufficient Evidence to Support Gibson’s Conviction

                                      Standard of Review

       “Appellate review of a claim that there is insufficient evidence to support a conviction is

limited to a determination of whether there is sufficient evidence from which a reasonable juror

might have found the defendant guilty beyond a reasonable doubt.” State v. Coleman, 463

S.W.3d 353, 354 (Mo. banc 2015) (internal quotation and citation omitted). We accept as true

all of the evidence favorable to the State, including all favorable inferences drawn from the

evidence, and disregard all evidence and inferences to the contrary. Id.

                                            Analysis

       In his first point, Gibson’s argument has two components: (1) there was insufficient

evidence to support his conviction on Count I in that the evidence did not show that Gibson

made A.G. eat soap as the charging information alleged, and (2) that there was insufficient

evidence that Gibson’s conduct under Count I was cruel and inhuman.

                           Sufficiency of Evidence: Ingestion of Soap

       Gibson’s brief argues that the State failed to show that Gibson forced AG to “eat” the

soap, in that there was no evidence A.G. ingested the soap. Assuming, without deciding, that the

State was required to prove A.G. ingested the soap, Gibson’s argument nevertheless fails.

       Gibson largely ignores our standard of review in that we must view all evidence and

inferences that may be reasonably drawn in favor of the State. Coleman, 463 S.W.3d at 354.

There was evidence that Gibson forced a bar of soap into A.G.’s mouth, causing her to choke.

A.G. bit the bar of soap in half, and was coughing and spitting out soap and blood. Several

minutes after the incident, A.G. still had soap in her mouth and teeth. This is sufficient evidence

from which a fact-finder may reasonably infer that A.G. ingested some of the soap. Id.



                                                7
                  Sufficiency of the Evidence: Cruel and Inhuman Punishment

       Gibson argues that there was insufficient evidence to show that his conduct under Count I

rose to the level of cruel or inhuman punishment.

       Gibson was convicted of committing the crime of abuse of a child under section

568.060.1. A person commits this crime if he or she “knowingly inflicts cruel and inhuman

punishment upon a child less than seventeen years old.” § 568.060.1(1); State v. Hansen, 449

S.W.3d 781, 785 (Mo. banc 2014).

       The term “cruel and inhuman punishment” is not defined by statute. However, our courts

have indicated that the phrase has “a settled common-law meaning and are words of general and

common usage about which there is no great dispute as to meaning.” Hansen, 449 S.W.3d at

785 (internal quotation and citation omitted). The term “punishment” has been defined as

“severe, rough, or disastrous treatment.” Id. (internal quotation and citation omitted). “[A]n

individual can commit the crime of child abuse by inflicting cruel and inhuman punishment even

if the charged conduct does not cause or create a substantial risk of physical injury.” Id.

       Here, there was evidence that Gibson pinned A.G., a fifteen-year-old girl, down on the

floor and forced her mouth open with his fingers. Then Gibson shoved a bar of soap into A.G.’s

mouth, thereby choking A.G. In response, A.G. bit the bar of soap in half. A.G. received cuts to

her mouth and lips, and was coughing and spitting up blood. As previously discussed, the fact-

finder could have reasonably inferred under these facts that A.G. ingested some of the soap.

       The physical force used during the encounter, the age of the respective actors, and the

physical harm caused to A.G. are sufficient evidence for a fact-finder to find that Gibson’s

conduct rose to the level of cruel and inhuman punishment. Point I is denied.




                                                 8
              Point II: No Abuse of Discretion in Allowing Testimony Regarding
                       A.G. and Gibson’s Prior Physical Confrontations,
                                    and Caseworker Visits

                                        Standard of Review

       Appellate review of a trial court’s decision to admit or exclude evidence is reviewed for

abuse of discretion. State v. Ise, 460 S.W.3d 448, 459 (Mo.App. W.D. 2015). A trial court

abuses its discretion when its decision is clearly against the logic of the circumstances and is so

arbitrary and unreasonable as to indicate a lack of careful consideration. State v. Turner, 242

S.W.3d 770, 777 (Mo.App. S.D. 2008). “If reasonable persons can differ about the propriety of

the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”

Id.

       Even if we find abuse of discretion, we will not reverse unless we find that the trial

court’s error is so prejudicial that it deprived the defendant of a fair trial. State v. Howery, 427

S.W.3d 236, 250 (Mo.App. E.D. 2014) (internal quotation and citation omitted). “Error is not

prejudicial unless there is a reasonable probability that it affected the outcome of the trial.” Id.

The burden is on defendant to show both error and resulting prejudice. Id. “A trial court’s

ruling on the admissibility of evidence will be upheld if it is sustainable under any theory.” State

v. Mort, 321 S.W.3d 471, 483 (Mo.App. S.D. 2010) (internal quotation and citation omitted).

                                               Analysis

       In his second point, Gibson argues that the trial court abused its discretion in allowing the

State to present evidence that A.G. had physical confrontations with Gibson prior to the child

abuse on August 2, 2012, and in allowing E.G.’s testimony that a caseworker visited Gibson’s

home on a monthly basis in that such evidence was uncharged prior bad acts.




                                                   9
       “A defendant has the right to be tried only on the offense for which he is charged.” State

v. Davis, 226 S.W.3d 167, 170 (Mo.App. W.D. 2007) (citing State v. Barriner, 34 S.W.3d 139,

144 (Mo. banc 2000)). Hence, evidence of uncharged “separate and distinct crimes” cannot be

used to demonstrate the defendant’s propensity to commit the charged crime. State v. Vorhees,

248 S.W.3d 585, 587 (Mo. banc 2008).

       “[V]ague references to other uncharged crimes are insufficient to warrant reversal for

trying a defendant for uncharged crimes. The defendant’s association with other crimes must be

clear and definite to run afoul of the general rule of inadmissibility.” State v. Key, 437 S.W.3d

264, 270 (Mo.App. W.D. 2014) (internal quotation and citation omitted).

       Gibson argues that the trial court abused its discretion in allowing the State to present

evidence that A.G. had prior physical confrontations with Gibson. Here, A.G. testified that in

late June and early July 2012, there were “physical confrontations” between Gibson and herself.

This testimony is vague, and it is not clear from this testimony whether the prior conduct by

Gibson was criminal or even wrongful. A.G.’s testimony does not clearly and definitively

associate Gibson with prior uncharged criminal conduct. Further, the testimony was isolated and

brief, and the State did not rely on or reference the testimony in closing arguments. Under Key,

this does not rise to a “clear and definite” connection with uncharged criminal conduct.

       Gibson also argues that the trial court abused its discretion in allowing E.G.’s testimony

that a “caseworker” was visiting the family.        There was no testimony as to what kind of

caseworker visited the family, or why she visited the family. As Key indicates, the defendant’s

association with another uncharged crime must be “clear and definite.”          Id.   Plainly, the

complained-of testimony did not connect Gibson with misconduct.




                                               10
        The trial court did not abuse its discretion in failing to exclude the challenged testimony.

Point II is denied.

                                      Point III: CAC Video

        In his third point, Gibson argues the trial court abused its discretion in overruling defense

counsel’s motion to compel the State to provide a copy of the CAC interview video.

                                             Analysis

        Our standard of review for this point is the same as our standard of review in our analysis

of Point II.

        Before trial, defense counsel requested discovery including, among others items, a copy

of the CAC interview video. On April 7, 2014, a week before trial, the trial court held a pretrial

hearing, during which defense counsel moved to compel production of the video. The prosecutor

indicated that his office had an “open file” policy whereby defense counsel was free to view the

video at the prosecutor’s office “all he wants.” The prosecutor argued there were juvenile

victims involved and that defense counsel could make extra copies of the video and provide it to

Gibson, who could then release it to the public, thus exposing the juvenile victims’ identities.

The prosecutor stated that his office provided copies only to defense attorneys who would agree

not to release the copies to clients. After these arguments, the trial court overruled Gibson’s

motion to compel stating, “You’re entitled to [the video]; it’s at the prosecutor’s office, for you

to view.”

        On the morning of trial, defense counsel moved to continue on the basis that, although

defense counsel had viewed the video, he could not make a transcription of it for impeachment

purposes. The trial court denied the request for continuance.




                                                 11
        During cross-examination of A.G., defense counsel objected that he was not provided a

copy of the video, and had no way to prepare for or impeach A.G. Defense counsel renewed his

motion to continue in order to receive and review the video, and asked for a mistrial and new

trial setting. The prosecutor argued that defense counsel did watch the video at his office, and

had sufficient opportunity to prepare for trial. The trial court denied defense counsel’s motion

for mistrial.

        Rule 25.03(A)(1) requires the State to provide the defendant with the names and

addresses of persons the State intends to call as witnesses, as well as their “written or recorded

statements, and existing memoranda, reporting or summarizing part or all of their oral

statements[.]”   Rule 25.03(A)(1).     “The criminal discovery rules are designed to allow a

defendant the opportunity to prepare in advance for trial and to avoid surprise.” State v. Mabry,

285 S.W.3d 780, 787 (Mo.App. E.D. 2009). Where a discovery violation occurs, the remedy is

within the discretion of the trial court. Id. The trial court abuses its discretion where its failure

to impose a remedy for a discovery violation results in “fundamental unfairness” to the

defendant. Id. Fundamental unfairness relates to whether there was a reasonable likelihood a

timely disclosure would have affected the outcome of the trial. Id. at 788.

        Here, Gibson fails to show that the prosecutor violated the provisions of Rule 25.03. The

State disclosed the CAC video, offered defense counsel the opportunity to view the video, and

defense counsel actually viewed the video. Gibson provides no authority for his assertion that

the State was required to provide him a copy of the video, and we may not step into the role of

advocate and perform research on Gibson’s behalf. State v. Brown, 444 S.W.3d 484, 488

(Mo.App. W.D. 2014).




                                                 12
       The trial court did not abuse its discretion in rejecting Gibson’s pretrial motion to compel

or in denying Gibson’s motion for mistrial. Point III is denied.

       The judgment of the trial court is affirmed.


WILLIAM W. FRANCIS, JR., J. - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. - Concurs

GARY W. LYNCH, J. - Concurs




                                                13
