STATE OF MISSOURI,                          )
                                            )
              Plaintiff-Respondent,         )
                                            )
v.                                          )       No. SD33565
                                            )       Filed: September 14, 2016
JAMES A. RIGGS,                             )
                                            )
              Defendant-Appellant.          )

           APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY

                        Honorable R. Craig Carter, Circuit Judge

AFFIRMED

       After a jury trial, James Riggs (Defendant) was found guilty of committing

statutory sodomy in the first degree by having deviate sexual intercourse with A.A., who

was less than 14 years of age. See § 566.062.1 Defendant has presented 10 points on

appeal. These points involve alleged errors in the admission and exclusion of evidence,

the improper use of a teddy bear during A.A.’s testimony and in the State’s closing



       1
           Section 566.062.1 provides that a “person commits the crime of statutory
sodomy in the first degree if he has deviate sexual intercourse with another person who is
less than fourteen years old.” Id. All references to statutes are to RSMo Cum. Supp.
(2011). All references to rules are to Missouri Court Rules (2016).
argument. Because we find no merit in any of Defendant’s points, the trial court’s

judgment is affirmed.

                         Factual and Procedural Background

       Defendant was charged by information with committing the unclassified felony of

statutory sodomy in the first degree. See § 566.062. The information alleged that

Defendant had deviate sexual intercourse with A.A., a child less than 14 years of age, by

placing his penis in the child’s mouth. In July 2014, a jury found Defendant guilty of

statutory sodomy. The court imposed a 15-year sentence.

       Defendant does not challenge the sufficiency of the evidence to sustain his

conviction. We consider the facts and all reasonable inferences derived therefrom in a

light most favorable to the verdict. State v. Garrison, 292 S.W.3d 555, 556 (Mo. App.

2009). All contrary evidence and inferences are disregarded. Id. Viewed from that

perspective, the following evidence was adduced at trial.

       A.A.’s family met Defendant’s family through the families’ involvement in Girl

Scouts, and the two families became friends. The families would get together for social

events approximately once a month, usually at Defendant’s home. Sometimes A.A. and

her siblings would spend the night at Defendant’s home. On one occasion when A.A.

was at Defendant’s home watching a movie with her sisters, Defendant took A.A. into a

basement garage, covered her eyes with a hat, put frosting on his penis, and then put his

penis in her mouth. A.A. was eight at the time.

       A.A. did not reveal what happened to anyone until over a year later when

Defendant showed up at her home on his motorcycle. A.A. got scared and hid under the

trampoline in her yard, prompting her to explain to her older sister, K.A., what had

happened. K.A. then reported what happened to her oldest sister, who in turn told their

                                            2
stepmother, C.A. (Stepmother).       Stepmother called A.A.’s father, M.A. (Father).

Because A.A. was already scheduled to see her therapist, Dr. Sara Wilson (Dr. Wilson),

Stepmother took A.A. to Dr. Wilson’s office. Father met Stepmother and A.A. there. Dr.

Wilson briefly interviewed A.A. so as not to disrupt any future police investigations. She

also made a hotline call to the Division of Family Services and told Father and

Stepmother to report the incident to police. Father and Stepmother then took A.A. to the

county sheriff’s office to report the abuse. Father and Stepmother were not aware of

anyone else who had ever molested A.A.

       Robin Buchanan (Buchanan), who worked at that time for Children’s Division as

an abuse investigator, was assigned A.A.’s case. When Buchanan inquired whether

Defendant had asked A.A. to lick icing off his penis, A.A. nodded her head affirmatively.

Based on A.A.’s affirmations and her subsequent forensic interview, Buchanan

concluded that “most likely something happened” and found abuse by a preponderance of

the evidence.

       Sheriff Chris Degase then interviewed Defendant, who initially denied ever being

alone with A.A. Thereafter, Trooper Donald Jones interviewed Defendant at police

headquarters. At the end of that interview, Trooper Jones handed his business card to

Defendant and told him to call if he wanted to talk further. According to Trooper Jones,

Defendant responded that “he live[d] his life a certain way for so many years and threw it

away for one mistake.” When Trooper Jones said “now’s the time to get it off your

chest[,]” Defendant explained that A.A. “had asked [him] to show her his penis, because

her uncle used to show her his” and that Defendant did so. Defendant then wrote out a

letter of apology which stated: “I’m sorry for what happened between [sic] the incident



                                            3
with [A.A.] I mad [sic] a big mistake by showing her my penis win [sic] she asked me to

so if you can please forgive me[.]”

                                 Discussion and Decision

       As noted above, Defendant has presented 10 points of alleged trial court error.

For ease of analysis, we will consider some of Defendant’s points in combination and out

of order due to the intertwined nature of the issues presented. Additional facts necessary

to the disposition of the case are included below as we address Defendant’s points.

                                          Point 4

       Defendant’s fourth point involves testimony adduced from child abuse

investigator Buchanan during two parts of her direct examination. In the first relevant

portion, she gave the following testimony:

       Q. All right. So, this, I take it, was not your first investigation of a sexual
       act, abuse on a child?

       A. No, sir.

       Q. Do you know – can you tell the jury about how many you did or was it
       too numerous to lose [sic] track of?

       A. It was too numerous to – to lose [sic] track of. In nine years, I would
       average, oh, several cases – alleged cases a year.

       Q. Now, to be fair to the jury, not – were all those always substantiated?

       A. No, sir. Uh-uh.

       Q. And how about this one?

       A. This – this one was found preponderance of the evidence.

       Q. All right. Now, you understand that’s not the same burden necessarily
       that we’re looking at here today?

       A. No, sir. Our – our criteria is [sic] much different than law enforcement
       and court.


                                             4
Buchanan was unable to determine from her initial interview with A.A. whether

something criminal had happened, so a forensic interview at the Child Advocacy Center

(CAC) was conducted. In the second relevant portion of Buchanan’s testimony, she

recounted her conversation with police after the forensic interview had been conducted:

       Q. All right. So, eventually, did you – were you made aware of the fact
       that the interview was completed and there was a transcript –

       A. Yes.

       Q. – by the CAC – Child Advocacy Center in West Plains?

       A. Yes.

       Q. And did you receive a call from Sheriff Chris Degase?

       A. Yes, I did.

       Q. And what was the purpose of that call, if you recall?

       A. The purpose of the call the first time was to find out if the interview
       had been conducted, which it did. He wanted to know what had happened,
       and I told him just briefly. And I told him that, in my opinion, there was
       enough in this child’s statement to say that – that most likely something
       had happened. He requested a copy of my report, and he asked that the
       CAC send the information, which they automatically do, but he asked
       anyway, to get the CAC DVD.

       All of the foregoing testimony from Buchanan was admitted without objection.

Defendant contends the trial court plainly erred by allowing “the State to elicit evidence

from Robin Buchanan that she had found A.A.’s allegations by a ‘preponderance of the

evidence,’ and that ‘in [her] opinion, there was enough in this child’s statement to say

that … most likely something had happened,’ because … Buchanan’s ‘findings’ invaded

the province of the jury[.]”

       Rule 30.20 provides, in pertinent part, that “plain errors affecting substantial

rights may be considered in the discretion of the court when the court finds that manifest

injustice or miscarriage of justice has resulted therefrom.” Id. “A claim of plain error
                                             5
places a much greater burden on a defendant than an assertion of prejudicial error.” State

v. Wright, 216 S.W.3d 196, 199 (Mo. App. 2007). Plain error and prejudicial error are

not synonymous terms, and mere allegations of error and prejudice will not suffice. Id.

“Plain error must be evident, obvious, and clear.” State v. Walter, 479 S.W.3d 118, 131

(Mo. banc 2016). “Plain error can serve as the basis for granting relief on direct appeal

only if the error was outcome determinative.” State v. Placke, 290 S.W.3d 145, 153 (Mo.

App. 2009).     “A finding of outcome-determinative prejudice expresses a judicial

conclusion that the erroneously admitted evidence so influenced the jury that, when

considered with and balanced against all of the evidence properly admitted, there is a

reasonable probability that the jury would have reached a different conclusion but for the

erroneously admitted evidence.” State v. Barriner, 34 S.W.3d 139, 150 (Mo. banc 2000)

(internal quotation marks and citation omitted).

       Defendant argues that the trial court committed plain error in allowing Buchanan,

an expert sexual assault investigator, to testify about whether a sexual assault occurred

based solely on her view of A.A.’s believability.2 Defendant relies upon the following

three cases to support that argument.

       In State v. Churchill, 98 S.W.3d 536 (Mo. banc 2003), our Supreme Court held

that the defendant was deprived of a fair trial when the victim’s doctor testified that the

victim’s abuse “was real” based solely on the victim’s change in demeanor when

recounting the abuse. Id. at 538-39. The victim had no physical signs of abuse. Id. at

539 n.8.

       In State v. Foster, 244 S.W.3d 800 (Mo. App. 2008), the doctor who conducted

the victim’s examination testified that he believed the victim was sexually abused based
       2
          Defendant’s argument assumes Buchanan was as an expert witness. Without
deciding the issue, we make the same assumption for the purpose of addressing this point.
                                          6
solely on her statements. Again, there was no physical evidence of abuse. Id. at 802.

The doctor compounded the impropriety of his testimony by stating that his years of

experience allowed him to determine a child’s truthfulness in alleging abuse. Id. This

Court held that the admission of the doctor’s testimony was prejudicial error. Id. at 804.

       In State v. Clements, 789 S.W.2d 101 (Mo. App. 1990), a doctor testified that the

defendant had deliberated prior to killing the victim. Id. at 107. This Court concluded

that the issue of deliberation was for the jury to determine, and the admission of expert

testimony on that issue deprived the accused of a fair trial. Id. at 110-11. Clements was

distinguished in State v. Mackey, 822 S.W.2d 933 (Mo. App. 1991), because the witness’

testimony in Mackey did not point to the defendant being the perpetrator of a child’s

sexual abuse. Id. at 937-38.

       This case is factually distinguishable from Churchill, Foster and Clements. First,

Defendant’s oral and written admissions to the police directly implicate him as the

perpetrator of the offense against A.A. Second, the relevant portions of Buchanan’s

testimony were brief and were not highlighted during closing argument. See State v.

Wadlow, 370 S.W.3d 315, 322 (Mo. App. 2012); Clements, 789 S.W.2d at 110. Third,

Buchanan acknowledged that the preponderance-of-the-evidence threshold she used

during her investigation was much different than the one to be used by the jury. See State

v. Smith, 422 S.W.3d 411, 418 (Mo. App. 2013). Buchanan’s testimony that “most likely

something had happened” considered in context, merely explained her role in the

investigative process. See State v. White, 466 S.W.3d 682, 687-89 (Mo. App. 2015).

Neither portion of Buchanan’s testimony stated that Defendant had abused A.A. The

import of Buchanan’s testimony was that someone had abused A.A. See Mackey, 822

S.W.2d at 937-38; see also Wadlow, 370 S.W.3d at 322. Given these differences,

                                             7
Defendant has failed to meet his burden of showing an evident, open and obvious error

by the trial court in not intervening sua sponte to prevent the testimony from Buchanan

that is being challenged on appeal. Point 4 is denied.

                                          Point 5

        Defendant’s fifth point involves the following testimony given by Father during

his direct examination at trial:

        Q. Now, I want to ask you one final question, [Father]. To your
        knowledge, has anyone ever molested [A.A.] besides Mr. Riggs?

        A. No.

        [DEFENSE COUNSEL]: Objection, Your Honor. That’s what’s on trial
        here.

        [PROSECUTOR]: Well, I’m asking besides Mr. Riggs.

        [DEFENSE COUNSEL]: Yeah. But you’re alleging that that has
        happened, and that’s what’s on trial now.

        [PROSECUTOR]: Allegedly.

        THE COURT: Overruled. Overruled.

        BY [PROSECUTOR]:

        Q. You may answer.

        A. No.
Defendant argues that the “trial court abused its discretion in overruling defense

counsel’s objection to the prosecutor’s question, posed to [Father], as to whether anyone

else had ever molested A.A. besides [Defendant], because … the prosecutor’s question

invaded the province of the jury and amounted to unsworn testimony by the prosecutor

on the ultimate fact at issue[.]”

        Defendant’s argument ignores the fact that essentially the same testimony was

given by Stepmother without objection during her direct examination:
                                             8
       Q. All right. And the counselor [Dr. Wilson] told you to do what?

       A. [Dr. Wilson] hotlined DFS and told my husband and I we needed to
       report what we had found out to the sheriff’s department.

       Q. And did you?

       A. Yes.

       Q. Now, I probably left out a step. At some point, did you call your
       husband, [Father]?

       A. Yes.

       Q. And what – do you remember where he was working, by chance?

       A. He was working in Mansfield that week.

       Q. And did he – did he come down?

       A. Yes. He met me at [Dr. Wilson’s] office.

       Q. Now, I want to ask you: Up until that time, had you ever been aware
       that [A.A.], your youngest stepdaughter, had ever been touched
       inappropriately by anybody?

       A. No.

       Q. Ever been touched since then inappropriately by anyone?

       A. No.

On appeal, Defendant has not challenged the admission of this testimony by Stepmother.

It is well settled law that “[a] defendant is not prejudiced when allegedly improper

evidence was merely cumulative to other evidence admitted without objection

establishing the same facts.” State v. Hutson, 487 S.W.3d 100, 108 (Mo. App. 2016);

see also State v. Davies, 330 S.W.3d 775, 797 (Mo. App. 2010). Therefore, the trial

court’s decision to overrule the objection to Father’s testimony was not prejudicial. Point

5 is denied.



                                            9
                                     Points 2 and 3

       Points 2 and 3 arise from the following cross-examination of Defendant about his

prior criminal conviction:

       Q. Have you – do you have any criminal record? Have you been
       convicted – let me ask it this way. Have you been convicted of any crimes
       in this state or any other state?

       A. I do – a DUI.

       Q. Oh, just a DUI?

       A. Yeah.

       Q. And where was that at?

       A. That was in Arizona.

       Q. And would you tell the jury what type of rig you were driving?

       A. I do believe it was a Freightliner semi.

       Q. Semi Freightliner.

       A. Right.

       Q. And you got a pretty hefty fine for that, didn’t you?

       A. Yeah.

       Q. And, of course, you rushed right out and paid it, didn’t you?

       A. No.

       Q. In fact, there’s a warrant for you for not paying it in Arizona, isn’t
       there?

       A. That’s because the – when I got arrested, when I was making my
       payments that I set up with them, they put a no-hold bond warrant out for
       me because I – I’m in here, in jail.

       Q. So, it wasn’t for nonpayment?

       A. That’s just because my payments had stopped.

       Q. Oh, it was for nonpayment. All right.
                                         10
       A. Right.

       ….

       Q. I’m going to show you what’s been marked Exhibit 14 from the
       Kingman, Arizona, and apparently that’s some kind of record from out
       there. So, tell us if you can identify that, will you, Mr. Riggs?

       A. Yes. It was driving a – driving a vehicle while under influence of
       intoxication liquors or – as a commercial driver of a .04 or less.

       Q. All right. Because as a commercial truck driver – and you knew this
       because you were – held yourself out to be a professional, right? You
       can’t drive – for everybody else, it’s .08, but for professional drivers, it’s
       .04, isn’t it?

       A. I didn’t know that at the time.

       Q. Oh, you didn’t?

       A. No.

All of this testimony was admitted without objection. The trial court then admitted

Exhibit 14, a certified copy of Defendant’s Arizona conviction, over defense counsel’s

objection that Defendant had already admitted to the DUI.

       Defendant’s second point contends the “trial court plainly erred in allowing the

State to cross-examine [Defendant] about the details and underlying facts leading to his

prior DUI conviction … in that … ‘no further justification existed for inquiry into the

details of the prior crime’ ….” Because plain error review is involved, Defendant is not

entitled relief unless the error was outcome determinative. Placke, 290 S.W.3d at 153.

To meet that standard, we must conclude that “the erroneously admitted evidence so

influenced the jury that, when considered with and balanced against all of the evidence

properly admitted, there is a reasonable probability that the jury would have reached a

different conclusion but for the erroneously admitted evidence.” Barriner, 34 S.W.3d at

150.

                                            11
       The procedure for impeaching a witness using a criminal conviction is set out in

§ 491.050 RSMo (2000), which states:

       Any person who has been convicted of a crime is, notwithstanding, a
       competent witness; however, any prior criminal convictions may be
       proved to affect his credibility in a civil or criminal case and, further, any
       prior pleas of guilty, pleas of nolo contendere, and findings of guilty may
       be proved to affect his credibility in a criminal case. Such proof may be
       either by the record or by his own cross-examination, upon which he must
       answer any question relevant to that inquiry, and the party cross-
       examining shall not be concluded by his answer.

Id. Because Defendant took the stand, he opened the door to an attack on his credibility

through proof of his prior conviction. See State v. Tramble, 383 S.W.3d 34, 40 (Mo.

App. 2012). For the purpose of impeachment, the prosecutor had an absolute right to

inquire into the nature, date, place and resulting sentence for the prior conviction. Id.

The only restriction was that the prosecutor not go into the details of the crime leading to

the conviction. Id.

       According to Defendant, he is entitled to plain error relief because the following

three portions of his testimony were unduly prejudicial: (1) Defendant was driving a

semi-truck at the time; (2) he incurred a “hefty fine” that he did not immediately pay; and

(3) a warrant was issued for his nonpayment. We disagree. The testimony about the type

of vehicle Defendant was driving went to the nature of the crime because he was

convicted under a statute that only applied to commercial drivers. The testimony that he

had to pay a “hefty fine” that was not immediately paid went to the resulting sentence.

The imprecision in characterizing the fine as “hefty” may have redounded to Defendant’s

benefit and certainly did not warrant sua sponte intervention by the trial court. The

admission of the testimony that a warrant was issued for nonpayment of the fine is not an

evident, open and obvious error because it arguably went to the sentence imposed and did

not involve improper details about the crime itself. More importantly, Defendant has
                                          12
failed to persuade us that there is a reasonable probability the jury would have reached a

different conclusion if the warrant testimony had been excluded. See Barriner, 34

S.W.3d at 150. The cases cited by Defendant are factually distinguishable.

       In State v. Sanders, 634 S.W.2d 525 (Mo. App. 1982), the accused was charged

with rape. On direct examination, he admitted that he had previously been convicted of

two counts of rape and one count of kidnapping. On cross-examination, the prosecutor

read verbatim from the felony informations for the earlier rape and kidnapping charges.

Id. at 526-27. The appellate court held that constituted prejudicial error because the

informations were graphic, repetitive and used only to show that Defendant had a

tendency to commit rape. Id. at 527.

       In State v. Phelps, 677 S.W.2d 418 (Mo. App. 1984), the accused was charged

with robbery in the first degree and admitted on direct examination that he had previously

pleaded guilty to robbery in the second degree. Id. at 419. On cross-examination, the

“court permitted the state to inquire as to the planning, acquisition of weapon, and the

relationship between the defendant as a resident of the city of St. Louis and the location

of the crime, St. Louis County.” Id. at 421. The appellate court held that this was

prejudicial error because it exceeded the allowable scope of impeachment pursuant to

§ 491.050 by inquiring about the details of the crime. Id.

       In State v. Aye, 927 S.W.2d 951 (Mo. App. 1996), the accused was charged with

the possession of cocaine and admitted on direct examination that he had been convicted

of the same offense twice in the past. Id. at 953. On cross-examination, the state

inquired into the details of the earlier convictions in order to show the defendant’s

knowledge that the substance was cocaine. Id. at 956. Because knowledge was not

contested, this line of inquiry was prejudicial error. Id.

                                             13
          The case at bar is unlike Sanders, Phelps or Aye. Defendant’s prior conviction

was not the same as the crime for which he was being tried, and the prosecutor never

argued that Defendant’s DUI shows a propensity to commit statutory sodomy. In closing

argument, the prosecutor’s only reference to alcohol was what Defendant himself had

stated – that he had been drinking on the day when he claimed A.A. asked to see his

penis. Moreover, two of the three areas of inquiry during Defendant’s cross-examination

were proper impeachment that went to the nature of the crime and resulting sentence.

The third area of inquiry about the warrant was not the sort of evident, open and obvious

error that required sua sponte intervention by the trial court, and there is no reasonable

probability that it affected the outcome of the trial. Point 2 is denied.

          In Point 3, Defendant contends the trial court abused its discretion in allowing the

State to introduce Exhibit 14 into evidence. Defendant argues that Exhibit 14 contains

the same unduly prejudicial information already identified and discussed in Point 2. We

have already denied plain error relief as to that testimony, which was admitted without

objection. As noted above, a defendant is not prejudiced by the admission of allegedly

improper evidence when the same facts were established without objection by other

evidence. See Hutson, 487 S.W.3d at 108; Davies, 330 S.W.3d at 797. Because the

challenged facts in Exhibit 14 were cumulative of Defendant’s own testimony, Point 3 is

denied.

                         Point 6: Child Advocate Holding Teddy Bear

          Defendant’s sixth point arises from the following facts. A child advocate for A.A.

had been seated at the prosecutor’s counsel table for most of the trial. During a recess

just before A.A. testified, defense counsel objected to A.A. being permitted to hold a

teddy bear during her testimony because the notice and hearing requirements of

                                              14
§ 491.725.3(4) had not been met. The court sustained the objection and ruled that the

child advocate, not A.A., could hold the teddy bear for A.A. at the prosecutor’s counsel

table.

         After the jury returned, the trial resumed. A.A. was called as a witness and

questioned about her understanding of the oath to tell the truth. As the prosecutor started

to question A.A., the following colloquy occurred at a bench conference:

         [DEFENSE COUNSEL JOHNSON]: We have to object to the way [child
         advocate’s] holding the teddy bear. It’s drawing attention to it. It’s
         unfairly prejudicial.

         [DEFENSE COUNSEL BABCOCK]: It should be on the record that
         she’s holding it right in front of the jury and took it away right in front of
         the jury from the child.

         THE COURT: Okay. All right.

         [DEFENSE COUNSEL BABCOCK]: It’s more prejudicial than if she
         didn’t take it away.

         THE COURT: Okay. All right. Overruled. You may continue.
         (Proceedings returned to open court.)

         Defendant’s sixth point contends that the “trial court abused its discretion in …

allowing the ‘child advocate’ to hold a teddy bear at the table in view of A.A., and in

front of the jury, because … it was contrary to Section 491.725 ….” The relevant

subsection of this statute states:

         Upon motion made by the child, his or her representative, or any party to
         the judicial proceeding, at least thirty days in advance of the judicial
         proceeding, the court may allow the child to have a toy, blanket, or similar
         item in his or her possession while testifying, but such item shall only be
         allowed if:

         (a) All parties agree; or

         (b) If the movant shows the court by a preponderance of evidence that:

                 a. The child in question cannot reliably testify without the
                 item in his or her possession; and
                                               15
               b. Allowing the item is not likely to prejudice the trier of
               fact in hearing and evaluating the child’s testimony[.]

§ 491.725.3(4) (italics added). This subsection only restricts the child’s possession of a

toy while testifying. A.A. did not possess the teddy bear while testifying. Therefore, we

find no merit in Defendant’s argument that the trial court’s decision to allow the child

advocate to hold the teddy bear violated the provisions of § 491.725.3(4). Point denied.

                                          Point 7

       Defendant’s seventh point arises from the following facts. The case was set for a

jury trial to commence on July 29, 2014.        Defense counsel designated their expert

witnesses on July 2, 2014. One of those experts was Dr. Rosalyn Schultz (Dr. Schultz).

On July 25, 2014 (the Friday before the trial started on Monday), the prosecutor filed a

motion to compel disclosure of Dr. Schultz’ report. It was faxed to the prosecutor at 3:39

p.m. that same day.

       On the morning trial commenced, the prosecutor moved to strike Dr. Schultz as

an expert. The court took that motion with the case. Prior to Dr. Schultz’ testimony, the

prosecutor renewed the motion to strike due to the lack of opportunity to depose Dr.

Schultz or prepare to cross-examine her. The trial court was concerned about permitting

Dr. Schultz to testify because her report was provided to the prosecutor such a short time

before trial commenced. Out of an abundance of caution, however, the court made the

following ruling:

       The Court’s order is going to be as such, and this is not fair to the State.
       But what is going to happen, the Court is going to allow … Dr. Schultz to
       testify. It is going to be very – very narrow in scope, especially due to this
       summary coming in the day – the last working day before trial. The Court
       will let her testify as to the proper way to conduct a CAC interview or the
       – or this other interview that Ms. Buchanan conducted, what wasn’t proper
       about it …. [T]he Court will allow her to just testify about proper
       interview techniques only because this child – and only as it relates to a
       child this age. This is not going to take very long, and we’re not going –
                                              16
       we’re not going on a huge fishing expedition with this, period. And we’re
       not going to get into whether – whether this testimony was truthful or
       untruthful. It is basically going to be how to do an interview on a seven-
       or eight-year-old kid, period.

       During Dr. Schultz’ direct examination, she testified about the following

generally accepted guidelines and best practices for first responders in a sexual abuse

case: (1) the child’s initial interview should be a brief, fact-finding interview; and (2) the

interviewer should not name the alleged perpetrator or give any details about the case

because that would be leading, suggestive and inappropriate. Defense counsel then

adduced the following testimony from the witness:

       Q. So, if best practices are not followed, how could that possibly
          influence the first interview?

       A. It can influence the first interview because the child is receiving
          initially – the first time the child is being interviewed in the – in the
          formal investigation, the child is being interviewed and being given
          information that the child had not yet said, so that it can be that the
          child – and there can be children that can assume then that they’re
          supposed to be saying what – and giving that information because it
          was given by an authorative [sic] figure, for example. And it can taint
          the outcome of the case.

       Q. When you say “taint the outcome of the case,” what do you mean?

       A. It – it could – it could affect what the child actually states.

       [PROSECUTOR]: Well, I’m going to object, Judge.                That is not a
       conclusion permissible by this expert.

       THE COURT: Sustained.

       [PROSECUTOR]: I’m going to ask that her answer be stricken from the
       record.

       THE COURT: Okay. Folks, disregard the last answer.

Dr. Schultz then testified about the following best practices and guidelines for CAC

interviews: (1) let the child do the talking; (2) ask open-ended questions; and (3) don’t


                                             17
use suggestive questions. Dr. Schultz testified that “there were several significant best-

practice guidelines that were not followed” in the CAC interview of A.A.

       In Point 7, Defendant contends the trial court abused its discretion in sustaining

the foregoing objection and striking Dr. Schultz’ answer. Defendant argues that this

ruling was an improper limitation upon the expert’s testimony. We disagree.

       The decision to exclude evidence as a discovery sanction is left to the trial court’s

discretion. State v. Hillman, 417 S.W.3d 239, 245 (Mo. banc 2013). We will reverse a

discovery sanction ruling on appeal only when the sanction results in fundamental

unfairness to the defendant. Id. at 245-46. That standard has not been met here. Dr.

Schultz’ report was not provided to the prosecutor until late Friday afternoon before the

Monday commencement of trial. Because of the timing of that disclosure, the trial court

limited Dr. Schultz’ testimony to the general topic of the proper method of interviewing a

child victim in a sexual abuse case. The court decided that Dr. Schultz would not be

permitted to testify about whether A.A.’s testimony would be truthful or untruthful. Dr.

Schultz was allowed to testify about best practices and accepted guidelines for both an

initial and a CAC interview of a child. The trial court’s ruling left standing Dr. Schultz’

answer that failure to follow best practices could influence the child and taint the

outcome of the case. The court only struck Dr. Schultz’ testimony that “it could affect

what the child actually states.” We find no abuse of discretion in this ruling. More

importantly, the exclusion of this one answer did not result in fundamental unfairness to

Defendant because Dr. Schultz was allowed to testify extensively about best practices

and accepted guidelines for child interviews. Point 7 is denied.




                                            18
                                          Point 8

       Defendant’s eighth point arises from the following facts. During the State’s case-

in-chief, the prosecutor presented evidence that Father and Stepmother took A.A. to see

her therapist, Dr. Wilson, before A.A. was taken to the county sheriff’s office. It was

during Defendant’s case-in-chief that Dr. Schultz testified about the best practice and

guidelines for performing an initial interview of a child sexual abuse victim.          As

mentioned previously, Dr. Schultz testified that the failure to follow those best practices

could influence the first interview and taint the outcome of the case.

       After the defense rested, the prosecutor called Dr. Wilson as a rebuttal witness.

The prosecutor stated that the purpose of Dr. Wilson’s testimony would be “to rebut Dr.

Schultz because Dr. Schultz says that you can’t basically believe anything [A.A.] said

because the interviewing techniques were flawed.” Defense counsel objected that Dr.

Wilson’s testimony would not be proper rebuttal. The trial court ruled that it would allow

Dr. Wilson “to testify as to questioning a child of this age ….”

       In relevant part, Dr. Wilson gave the following rebuttal testimony. She was a

licensed psychologist with a doctorate in clinical psychology. She provided individual

therapy to A.A. After A.A. reported the sexual abuse, Father and Stepmother brought

A.A. to Dr. Wilson’s office. Dr. Wilson was a mandated reporter of child sexual abuse

cases. She reported the incident and advised Father and Stepmother to contact law

enforcement. Dr. Wilson also talked to A.A. at the office. Dr. Wilson was careful about

what she asked A.A., so as not to interfere with a forensic interview or an investigation

that might ensue after she made her mandatory report.

       In Point 8, Defendant contends the trial court abused its discretion in permitting

Dr. Wilson to testify as a rebuttal witness. Defendant argues that Dr. Wilson’s testimony

                                            19
was not proper rebuttal because “it did not explain, counteract, or refute evidence offered

by the defense.” We disagree.

       A trial court is vested with broad discretion concerning the admission and scope

of rebuttal evidence. State v. Hurley, 208 S.W.3d 291, 293 (Mo. App. 2006). “Rebuttal

evidence may directly or indirectly explain, counteract, repel, or disprove a defendant’s

evidence either directly or by implication.” State v. Hamilton, 892 S.W.2d 371, 379

(Mo. App. 1995). An appellate court will not interfere with the exercise of a trial court’s

discretion unless it is clear that the court’s ruling is against the logic of the circumstances

and is “so unreasonable and arbitrary that it shocks the sense of justice and indicates a

lack of careful, deliberate consideration.” Hancock v. Shook, 100 S.W.3d 786, 795 (Mo.

banc 2003). We find no abuse of discretion here. Dr. Schultz testified that failure to

follow best practices and guidelines during an initial interview of a child sexual abuse

victim could influence the interview and taint the outcome of the investigation. The trial

court properly allowed Dr. Wilson to testify about the limited nature of her questioning of

A.A. to rebut any inference that Dr. Wilson’s interview tainted the outcome of the

ensuing investigation by the police and forensic interviewers. Defendant’s argument that

Dr. Wilson’s short and focused testimony improperly bolstered Stepmother’s testimony is

unpersuasive. Point 8 is denied.

                                           Point 1

       Point 1 seeks relief pursuant to Rule 30.20 based upon an alleged plain error

committed by the trial court during the prosecutor’s closing argument. As previously

explained, Rule 30.20 states in relevant part that “plain errors affecting substantial rights

may be considered in the discretion of the court when the court finds that manifest



                                              20
injustice or miscarriage of justice has resulted therefrom.” Id. “Plain error must be

evident, obvious, and clear.” State v. Walter, 479 S.W.3d 118, 131 (Mo. banc 2016).

       Point 1 arises from the following facts. Just prior to opening statements, defense

counsel asked that the rule on witnesses be invoked. The trial court granted the request.

On the morning of the second day of trial, the prosecutor informed the court that defense

counsel had endorsed Defendant’s daughter, A.R. (Daughter), as a witness.             The

prosecutor objected to Daughter being called as a witness because she had been in the

courtroom the prior day listening to all of the testimony, including that given by A.A.

Because defense counsel had invoked the rule on witnesses and Daughter had been in the

courtroom the prior day, the trial court excluded her testimony. Defense counsel later

made an offer of proof out of the presence of the jury. During the prosecutor’s closing

argument, he argued without objection that “the State contends [Defendant] was in the

basement with [A.A.], and that’s not rebutted by anyone other than the Defendant.”

       Defendant argues that the trial court committed a plain error by allowing the

foregoing argument because:     (1) Daughter’s testimony was excluded at the State’s

request; and (2) the prosecutor’s argument resulted in manifest injustice because the jury

was urged to draw “an adverse inference from the absence of evidence which was

excluded at the State’s request[.]” We find no merit in this argument.

       In State v. Barlow, 162 S.W.3d 135 (Mo. App. 2005), the western district of this

Court summarized the applicable principles that guide our review of this issue:

       A prosecutor is not permitted to comment on or refer to evidence or
       testimony that the court has excluded. In particular, the State may not
       intentionally misrepresent the facts in closing argument by informing the
       jury that no evidence exists when evidence was offered by the defendant
       but the State successfully caused the evidence to be excluded. Whether
       that error requires reversal depends on the circumstances of the particular
       case, and particularly on the strength of the other evidence and whether

                                           21
       the prosecutor intentionally misrepresented the facts in making the
       comment.

Id. at 143 (quotation marks and citations omitted). The defendant in Barlow was charged

with murder, but he claimed that a man named Miles was the “ring leader” and primarily

responsible for the charged crime. Id. at 141. To support this theory, the defendant

attempted to admit into evidence a statement by Miles to the police in which Miles

claimed to have struck the victim several times with a hammer and said it was his idea to

dispose of the body in a storm sewer. Id. The trial court sustained the prosecutor’s

hearsay objection to the statement.     Id. at 141-42.    During closing argument, the

prosecutor addressed defendant’s claim that Miles was the “ring leader” in the following

manner: “There’s no evidence to support this Miles accusation. The only evidence you

have is coming from this defendant.” Id. at 142. The defendant appealed and raised a

plain error claim that the prosecutor had improperly commented on excluded evidence.

Id. at 143. The Barlow court observed that the excluded statement did not support the

defendant’s claim that Miles was the “ring leader,” but instead showed only that Miles

joined the defendant in committing the murder and participated in the cover-up. Id.

Accordingly, the prosecutor correctly observed that the defendant’s testimony was the

only evidence presented to support his claim to the contrary. Id. The Barlow court

concluded that no plain error resulted from the prosecutor’s statement and noted further

that “[p]rosecutors are entitled to argue matters supported by the evidence or matters

reasonably inferable from the record. That includes pointing out to the jury an absence of

evidence to support a theory suggested by the defendant.” Id. (quotation marks and

citations omitted).

       We reach the same conclusion here. Defendant premises his argument on the

following portion of Daughter’s excluded testimony:
                                           22
       Q. And to your knowledge, was your dad ever alone with any of the
       children?

       A. No. Just me and my sister.

Our review of the entire offer of proof, consisting of seven pages of transcript, reveals the

following. On the date in question, Daughter arrived home from school sometime after

Defendant had picked up the other children, including A.A. Therefore, Daughter did not,

and could not, account for Defendant’s activities during the entire time when Defendant

was alone with the children. Accordingly, Daughter’s excluded testimony would not

have been sufficient to rebut the allegation that Defendant and A.A. were, at some point,

alone in the basement. For this reason, the prosecutor did not misrepresent the evidence

by claiming that the only evidence to rebut the State’s theory was Defendant’s testimony.

       The cases cited by Defendant are factually distinguishable because they involve

instances in which a prosecutor deliberately misrepresented the nature or existence of

evidence that had been offered, but excluded. See, e.g., State v. Williams, 119 S.W.3d

674, 679-81 (Mo. App. 2003) (prosecutor’s statement to the jury that “there’s not one

piece of evidence” supporting the theory that alleged victim was lying was plain error

where tape-recording of alleged victim’s inconsistent statements had been improperly

excluded); State v. Weiss, 24 S.W.3d 198, 200-02 (Mo. App. 2000) (prosecutor’s

statement to the jury that “not one single record, no payroll record, nothing, to show that

this other money even ever existed” in reference to defendant’s “buy-out” defense in

stealing case was plain error where documents tending to support that defense had been

offered and excluded on hearsay grounds); State v. Hammonds, 651 S.W.2d 537, 539

(Mo. App. 1983) (prosecutor’s statement to the jury that a witness in the court room did

not testify for fear of perjury was plain error where prosecutor had precluded witness’

testimony on the basis of late disclosure).
                                              23
       In sum, Defendant has failed to demonstrate that the prosecutor’s challenged

comment constituted an evident, obvious and clear error requiring the trial court to

intervene sua sponte in closing argument. See State v. Ramirez, 447 S.W.3d 792, 799

(Mo. App. 2014). Point 1 is denied.

                                      Points 9 and 10

       Points 9 and 10 also challenge comments by the prosecutor during closing

argument. Both points again ask this Court to review for plain error.

       In Point 9, Defendant contends the trial court plainly erred in failing to sua sponte

declare a mistrial when the prosecutor misattributed testimony that “this is the way little

girls are and that she found nothing unusual about it” to Dr. Wilson because those facts

were not in evidence. While Dr. Wilson did not give the testimony attributed to her by

the prosecutor, similar testimony was received in evidence by two other witnesses,

Buchanan and the CAC forensic interviewer, Tina Ahad. This Court has previously

found no manifest injustice from a similar situation where the prosecutor referred to facts

in evidence but attributed the testimony to the wrong witness. See State v. Farmer, 777

S.W.2d 322, 323-24 (Mo. App. 1989). Defendant has likewise failed to demonstrate the

existence of manifest injustice in this case. Point 9 is denied.

       In Point 10, Defendant contends the trial court plainly erred in failing to sua

sponte instruct the jury to disregard the prosecutor’s closing arguments about why he

filed charges against Defendant because those comments improperly implied that the

prosecutor had evidence that the jury had not heard establishing the truth of A.A.’s

allegations. Just before summarizing the evidence, the prosecutor stated:

        There’s a lot of charges that come across the desk. I think – I believe it
        was Tina Ahad that said, hey, most of these are unsubstantiated. I’m
        talking about these sexual crimes. And there are a lot of cases I receive
        that I don’t file on. It’s not necessarily that I don’t believe the victim, but
                                              24
        they’re just not provable. Sometimes people are in divorce cases and
        there’s been a bunch of nonsense going on back and forth, and sometimes
        there’s neighbors and there’s relative squabbles, you know. And I’ve got
        to pick the ones that I think a jury will believe, you know. Of course,
        sometimes I might see it a little differently than what you all might see.
        That’s why you’re here to determine the facts. … I do try to pick the
        cases I think are serious, and this is a serious case. And I happen to
        believe that the Defendant did just what he’s charged with in this case.
        Of course, you’ll be the ultimate decider of that.

Defendant maintains that the prosecutor’s statements improperly vouched for the truth of

the State’s case based on evidence not before the jury. We disagree.

       Improper vouching occurs when the State implies that it has facts establishing the

veracity of witnesses and the truthfulness of its case that are not before the jury for its

consideration. State v. Collins, 150 S.W.3d 340, 351-52 (Mo. App. 2004). The State

may, however, express personal opinions on matters, including guilt, where they are

fairly based on the evidence. Id. at 352.

       The challenged statements here, when taken in context, expressed the prosecutor’s

view that: (1) this was not a case of unsubstantiated charges between parties as part of an

ongoing dispute; and that (2) based on the evidence, Defendant was guilty of the crimes

charged. The argument did not imply a knowledge of outside facts, nor did it improperly

vouch for the credibility of the state’s witnesses. See, e.g., State v. Chism, 252 S.W.3d

178, 187 (Mo. App. 2008). We further note the prosecutor emphasized during the

argument that the jury was the ultimate judge of the facts and was not bound by the

State’s opinion. The trial court did not plainly err in failing to sua sponte intervene in the

argument. Point 10 is denied.

       Finding no merit in any of Defendant’s points, the judgment of the trial court is

affirmed.



                                             25
JEFFREY W. BATES, J. – OPINION AUTHOR

MARY W. SHEFFIELD, C.J. – CONCUR

DANIEL E. SCOTT, P.J. – CONCURS BY SEPARATE OPINION




                                   26
STATE OF MISSOURI,                        )
                                          )
              Respondent,                 )
                                          )
v.                                        )      No. SD33565
                                          )
JAMES A. RIGGS,                           )
                                          )
              Appellant.                  )

       APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY

                        Honorable R. Craig Carter, Judge

                   OPINION CONCURRING IN RESULT

       I differ with the majority opinion in several respects, but see no

practical value in detailing those differences as I too would deny each point,

albeit sometimes on a different basis. Because I find no preserved prejudicial

error, and certainly no plain error justifying relief, I concur in the result.

DANIEL E. SCOTT, P.J. – SEPARATE OPINION AUTHOR
