                  In the Missouri Court of Appeals
                                       Western District

    STATE OF MISSOURI,                        )
                                 Respondent, )
    v.                                        )               WD81348
                                              )
    TIMOTHY G. KIDD,                          )
                                   Appellant. )               FILED: May 28, 2019

           APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY
                 THE HONORABLE WILLIAM B. COLLINS, JUDGE

           BEFORE DIVISION ONE: VICTOR C. HOWARD, PRESIDING JUDGE,
               LISA WHITE HARDWICK AND GARY D. WITT, JUDGES

         Timothy Kidd appeals from his conviction of first-degree domestic assault,

for which he was sentenced to eleven years in prison. He contends the circuit

court erred in failing to intervene sua sponte when one of the State’s witnesses

offered allegedly improper character and propensity testimony. We affirm.

                               FACTUAL AND PROCEDURAL HISTORY

         In July 2015, Kidd and the victim were dating. On the morning of July 21,

2015, they woke up on a flatbed trailer in the front yard at the home of Kidd’s

brother, John.1 Kidd and the victim had spent the night outside on the trailer



1
  To avoid confusion, we will refer to Kidd’s brother by his first name, John. No disrespect or
familiarity is intended.
because John would not let them sleep inside the house. After they woke up, Kidd

wanted to have sexual intercourse with the victim, but she refused. Kidd kept

rubbing the victim’s hip, but she told him to stop. Kidd became angry and got off

of the trailer.

       The victim also got off of the trailer, folded her blanket, and stacked her

pillow and blanket on the edge of the trailer. She put her purse on her shoulder

and used her cell phone to call her sister and ask her to come pick her up. Kidd

tried to grab the victim’s cell phone, so she stuck it in the pocket of her cargo

shorts. The victim then took her suitcase and started to walk away from Kidd.

       The victim took two or three steps before Kidd went after her and started

beating her. He knocked her to the ground, sat on top of her waist, and repeatedly

hit her with his fists in her face, neck, and chest. She lost consciousness. As the

victim woke up, she remembered hearing John tell her to stay down because she

was hurt. He also told her that the police and an ambulance were on their way.

       According to John, he had been awakened that morning by loud voices

arguing. He looked out of his bedroom window and saw Kidd and the victim, so he

went back to bed. Later, when he got up, he went to the living room and heard

someone crying outside. John went outside and saw the victim. Her face was red

and swollen. It had not been like that when he had seen her the night before. He

did not see Kidd. John called the police.




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      When the police arrived, they noticed that the victim’s face was red and

swollen, and she was bleeding from her mouth. She appeared dazed and confused.

The police were not able to locate Kidd.

      The victim was taken to the hospital in the ambulance. During the

ambulance ride, she was in and out of consciousness. The emergency room doctor

who treated the victim determined that she had signs of a head injury with an

altered level of consciousness, signs of blunt force trauma to her head and face, a

depressed fracture of her left maxillary sinus cavity, soft tissue swelling to the

face, and a hematoma in her sinus cavity. The injuries were all acute, which meant

that they were recent. The victim’s injuries were serious enough that the

emergency room doctor activated the trauma team and had a trauma surgeon

evaluate her. As a result of her injuries, the victim could eat only soft food for

three weeks after the incident because of the pain.

      The State charged Kidd, as a prior domestic violence offender, with first-

degree domestic assault. A jury trial was held. The jury found Kidd guilty, and

the court sentenced him to eleven years in prison. Kidd appeals.

                                       ANALYSIS

      In his sole point on appeal, Kidd contends the circuit court erred in failing to

intervene sua sponte when John offered improper character and propensity

testimony. Specifically, during direct examination, the State had just started to ask

John about the incident when the following exchange occurred:




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      Q. You indicated that they were over at your house on this particular
      incident in July. Do you remember why they were staying there?

      A. I don’t know. I figured he had a court date somewhere.

(Emphasis added.) Defense counsel did not object to the italicized testimony,

which Kidd now asserts was inadmissible. Therefore, he requests plain error

review.

      Plain error relief is granted “‘only when the alleged error so substantially

affects the rights of the accused that a manifest injustice or miscarriage of justice

inexorably results if left uncorrected.’” State v. Baumruk, 280 S.W.3d 600, 616

(Mo. banc 2009) (citation omitted). Not all prejudicial error is plain error, however.

Id. Plain errors are only those errors that are “‘evident, obvious, and clear.’” Id.

(citation omitted).

      Kidd argues that John’s statement, “I figured he had a court date

somewhere,” constituted improper character and propensity evidence because it

allowed the jury to infer that he had prior convictions, was facing other criminal

charges, or had committed prior bad acts. He argues that the court plainly erred by

not intervening sua sponte and instructing the jury to disregard the statement. We

disagree.

      John’s statement was uninvited, as the State had asked him only if he

remembered why Kidd and the victim had spent the night in his front yard. Only

John’s answer, “I don’t know,” was responsive to the question; his follow-up

statement, “I figured he had a court date somewhere” was nonresponsive and


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volunteered. In determining the prejudicial effect of an uninvited reference to other

crimes, courts generally examine five factors:

       (1) Whether the statement was, in fact, voluntary and unresponsive to
       the prosecutor’s questioning or caused by the prosecutor; 2) whether
       the statement was singular and isolated, and whether it was
       emphasized or magnified by the prosecution; 3) whether the remarks
       were vague and indefinite, or whether they made specific reference to
       crimes committed by the accused; 4) whether the court promptly
       sustained defense counsel’s objection to the statement, and instructed
       the jury to disregard the volunteered statement; and 5) whether, in
       view of the other evidence presented and the strength of the State’s
       case, it appeared that the comment played a decisive role in the
       determination of guilt.

State v. Goff, 129 S.W.3d 857, 866 n.7 (Mo. banc 2004). Applying these factors

to this case, we find that, in addition to the fact that John’s statement was

nonresponsive and volunteered, it was singular, isolated, and was not repeated by

the State in the rest of the trial; it was vague and indefinite and did not specifically

refer to any other criminal charges or prior bad acts that Kidd may have committed;

there was no objection for the circuit court to rule on2; and the evidence against

Kidd was so strong that the statement did not play a decisive role in the

determination of his guilt. Indeed, the testimonies of the victim and John proved

that Kidd assaulted the victim, and the testimony of the emergency room doctor

established the seriousness of the victim’s injuries. Based upon these factors, Kidd




2
  That defense counsel failed to object at trial “suggests that the statement then did not seem
significant or objectionable.” State v. Smith, 293 S.W.3d 149, 152 (Mo. App. 2009).

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did not suffer prejudice, let alone manifest injustice or a miscarriage of justice, from

John’s unsolicited statement.

      Furthermore, we note that “Missouri courts historically reject invitations to

criticize trial courts for declining to sua sponte take action on behalf of a party

during witness examinations.” State v. Giles, 386 S.W.3d 822, 824 (Mo. App.

2012). The reason such action is discouraged is because “it risks injecting the

judge into the role of participant and invites trial error.” Id. “We do not expect trial

judges to assist counsel in the trial of a lawsuit[.] They preside to judge a lawsuit.

Sua sponte action should be exercised only in exceptional circumstances.” Id.

(quoting State v. Drewel, 835 S.W.2d 494, 498 (Mo. App. 1992)). There are no

exceptional circumstances in this case. We find no error, plain or otherwise, in the

circuit court’s failure to intervene sua sponte during John’s testimony. Point

denied.

                                      CONCLUSION

      The judgment is affirmed.



                                               _____________________________
                                               LISA WHITE HARDWICK, JUDGE
ALL CONCUR




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