STATE OF MISSOURI, Plaintiff-Respondent v. BRANDON EUGENE FISHER

575 S.W.3d 508

• Court: Missouri Court of Appeals
• Decided: June 10, 2019
• Docket: SD35506
• Status: Published

Opinion

STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) No. SD35506 ) vs. ) Filed: June 10, 2019 ) BRANDON EUGENE FISHER, ) ) Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY

Honorable Judge Kelly W. Parker

AFFIRMED

Brandon Eugene Fisher ("Defendant") appeals his criminal convictions, after a

jury trial, of two counts of child molestation in the first degree. Defendant contends that

the trial court plainly erred when it failed to declare a mistrial, sua sponte, after the

prosecutor made a statement in his closing argument that speculated about the

possibility Defendant might commit similar unlawful acts in the future. Finding no

merit to Defendant's contention, we affirm his convictions and sentences.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the evidence adduced at trial

demonstrated the following facts. C.B. ("Victim") and her two sisters A.B. ("Sister") and M.B. were removed from

their home and placed in a foster home with foster parents in March 2014. Victim was 5

years old and Sister was 7. Approximately 10 days after placement, Victim informed her

foster mother that Defendant, a family friend of Victim's parents, would set Victim and

Sister on his lap and "would play with them in a bad way" and touched Victim and Sister

in their private areas. Sister told her foster mother that she had seen Defendant "do

things" to Victim. Foster mother testified that Victim told her Defendant would "hump"

Victim.

Foster mother called Jennifer Hart ("Hart"), the children's caseworker with the

Department of Social Services, Children's Division ("Children's Division"). Hart came to

the house, talked to the children, and hotlined the abuse. Sister told Hart that

Defendant would touch Sister and Victim in their vaginal areas, using the word

"coochie" to describe that area. Victim nodded in agreement to Sister's statements to

Hart.

Based on the hotline report of abuse, an investigator with Children's Division, Joe

Tiffany ("Tiffany"), came to the home. Tiffany asked Victim if she knew why he was at

the house and Victim told him "Yes because my mom and dad and [Defendant] were in

bed humping, sometimes with me in the bed and sometimes with my sisters."

Diane Silman ("Silman"), a forensic interviewer, interviewed Victim and Sister in

April 2014, and Victim again in June 2014. In those interviews, Victim described being

"humped" by Defendant on several occasions. Victim also stated Defendant's clothes

were off and Defendant touched her on her breasts and belly. Sister told Silman that

Defendant had touched her vagina.

2 Morgan Galloway, a forensic interviewer, interviewed Sister in June 2014. Sister

reported that Defendant had touched her vagina, and Defendant had touched Victim in

the same manner.

Melissa Meloy ("Meloy"), a licensed counselor, testified that Victim was her

client. Victim told Meloy that her father and Defendant "would hump her and her sister

in the living room[.]" Victim stated "it happened a lot." Victim told Meloy that

Defendant and her father were naked, but that the girls had their underwear on.

Jennifer Naeger ("Naeger"), a licensed clinical social worker, counselled Victim

and Sister beginning in 2015. Victim described to Naeger sexual abuse incidents

occurring on three different dates in 2015 and 2016, including being touched in a

sexually inappropriately way by Defendant. Sister also reported that Defendant had

touched Sister inappropriately.

Defendant was charged with two counts of the class B felony of child molestation

in the first degree in violation of § 566.067.1 This charge was later amended to reflect

Defendant's status as a persistent offender.

At trial, the State presented its evidence through various live witnesses and video

interviews of Victim and Sister.2 Both Victim and Sister also testified at trial. Although

Victim testified she did not now remember Defendant, Sister testified that she knew

who Defendant was and that he had sexually abused both Victim and her. Defendant

did not testify.

1Unless otherwise noted, all statutory citations are to RSMo. Cum. Supp. (2013). 2Prior to trial, the State made motions to admit hearsay statements made by Victim and Sister under § 491.075, which governs statements made by children under age 14 relating to certain offenses. The trial court determined that the childrens' statements demonstrated sufficient reliability and were admissible as evidence subject to the conditions of § 491.075. Multiple video interviews of Victim and Sister were presented to the jury as part of the State's evidence.

3 After a two-day jury trial, the jury found Defendant guilty. He was sentenced to

two terms of life imprisonment, each to run concurrently. This appeal followed.

Additional facts will be included below as relevant to Defendant's point on appeal.

Standard of Review

Defendant concedes his claim of error was not preserved for appellate review.3

Consequently, the request for appellate review is for plain error only. See Rule 30.20;4

State v. Brownlee, 493 S.W.3d 439, 446 (Mo. App. E.D. 2016) (noting that under

Rule 30.20, an appellate court may review an unpreserved claim for plain error).

"[P]lain 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." Rule 30.20. "Plain error 'is error that is evident, obvious and

clear.'" State v. Collins, 150 S.W.3d 340, 349 (Mo. App. S.D. 2004) (quoting State v.

White, 92 S.W.3d 183, 189 (Mo. App. W.D. 2002)). "Plain error review is a two-step

process." State v. Jensen, 524 S.W.3d 33, 42 (Mo. banc 2017); State v. Tramble,

383 S.W.3d 34, 38 (Mo. App. E.D. 2012). First, this Court must "review the record to

determine whether the trial court committed evident, obvious, and clear error that

affected the substantial rights of the defendant." Tramble, 383 S.W.3d at 38 (internal

quotation omitted). Second, if such error is found, this Court must determine "whether

the alleged error actually resulted in manifest injustice." Jensen, 524 S.W3d at 42; see

State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014). This Court reviews the evidence

in the light most favorable to the verdict. State v. Davis, 318 S.W.3d 618, 629 (Mo.

banc 2010); see also State v. Strong, 142 S.W.3d 702, 710 (Mo. banc 2004).

3 Defendant did not object to the prosecutor's closing argument at trial nor request a mistrial. Defendant

also did not include this argument in his motion for a new trial or raise this issue at any other time prior to this appeal. 4 All rule references are to Missouri Court Rules (2019).

4 Analysis

Defendant claims that the trial court plainly erred when it failed to declare a

mistrial, sua sponte, after the prosecutor stated in closing argument that it was the

jury's choice whether to find Defendant guilty or whether they would allow Defendant to

"get up out of that chair, walk out that door to this community to do again what he's

done[.]" Defendant claims this violated his right to be tried only on the crimes for which

he is charged because this statement was "impermissible speculation about crimes

[Defendant] might commit in the future." Defendant contends that because the

prosecutor's statement at issue was the "last thing" the jury heard before deliberations,

these words had a "decisive effect" on the jury and resulted in manifest injustice.

In this case, the prosecutor's statement at issue was part of the prosecutor's final

closing argument, where he said:

Do you believe this man is one of the one's [sic] that did something to her[?] Did [Defendant] molest [Victim]? She couldn't say it today but she has said it again and again. For three years this case has been mine. For a long time it's also been [Defendant's attorney's case] but in a few minutes it will not be mine or her's [sic] any longer it will be your's [sic]. It is your choice, do you make this man take seriously his actions? Is he held responsible or does he get up out of that chair, walk out that door to this community to do again what he's done? The choice is yours.

(emphasis added).

In general, a prosecuting attorney should not seek to "inflame the passions or

prejudices of the jury against a defendant." State v. Dominguez-Rodriguez, 471

S.W.3d 337, 350 (Mo. App. E.D. 2015) (quoting State v. Douglas, 720 S.W.3d 390,

393 (Mo. App. S.D. 1986)). An argument that is "designed to induce a jury to act on

passion or prejudice may include . . . speculation about future crimes the defendant

might commit[.]" Id. When the State speculates "about a defendant's propensity to

5 commit future criminal acts[,]" this is error. Collins, 150 S.W.3d at 353. To put it

another way, a defendant has a right to be "tried only for what crime he has or has not

done, and not for what crime he might do in the future." Id. (quoting State v.

Schaefer, 855 S.W.2d 504, 507 (Mo. App. E.D. 1993)).

However, in its closing argument, "the State is permitted considerable latitude in

arguing the necessity of law enforcement, the duty of the jury to convict the defendant

and prevent crime, and the results to society of a failure to uphold the law." Tramble,

383 S.W.3d at 38. Statements that are made during a closing argument "must be viewed

in context of the entire record." Dominguez-Rodriguez, 471 S.W.3d at 349. This is

particularly true when an allegedly improper closing argument is subject to plain error

review. Under those circumstances, a conviction will be reversed "only if the defendant

demonstrates the comments had a decisive effect on the outcome of the trial, amounting

to a manifest injustice[.]" Brownlee, 493 S.W.3d at 446.

In State v. Vorhees, the defendant made a similar argument after he was

convicted of statutory rape in the first degree. 342 S.W.3d 446, 447 (Mo. App. S.D.

2011). The defendant argued that the trial court plainly erred in failing to declare a

mistrial after the prosecutor, during closing argument, stated to the jury:

Think about that little girl if you let that man think he can walk out of this courtroom today and not suffer any penalty for what he did. And don't just think about what it would do to her. Think about the next little girl and the next little girl.

Id. at 450. This Court in Vorhees, noted several examples of closing arguments that

had not merited relief under plain error review. Id. at 451. These cases included a

prosecutor's statements in closing argument, where the prosecutor argued to the jury:

(1) "make sure there's not another little girl out there" id. (quoting State v. Wolf, 326

6 S.W.3d 905, 907 (Mo. App. S.D. 2010)); (2) "[s]end [the defendant] to prison for the

rest of his life so he's not out raping any other little girls" id. (quoting State v. Dixon,

70 S.W.3d 540, 550 (Mo. App. W.D. 2002)); and (3) that the prosecutor didn't "want

[defendant's] penis in another child's mouth" id. (quoting State v. Brass, 781 S.W.2d

565, 567 (Mo. App. E.D. 1989)). The Court stated that the prosecutor's reference to the

"next little girl" was vague as to its meaning and "[i]t is not clear at all that the

prosecutor meant future victims of Appellant rather than little girls whose abuser

walked out with no penalty." Id. This Court concluded that "[i]n light of the

considerably more inflammatory statements Missouri courts have condoned on review

for plain error," the defendant in Vorhees "did not suffer a miscarriage of justice" for

the trial court's failure to declare, sua sponte, a mistrial. Id.

Similarly, in Wolf, the Court found that the prosecutor's statement instructing

the jury to "make sure there's not another little girl out there" was subject to multiple

interpretations. 326 S.W.3d at 907. They found it could be interpreted as the State's

effort to "urg[e] jurors to uphold the law and protect children from sexual predation,

which is an appropriate argument," and concluded no manifest injustice resulted. Id. at

907-08. Here, the prosecutor's statement could be interpreted, as in Wolf, to support

the lawful goal of protecting children from sexual predation. Id. at 908; Vorhees, 342

S.W.3d at 451. The prosecutor's previous remarks in his closing argument support this

assertion, when the prosecutor stated "[c]hild sex abuse doesn't happen around people

who are watching out for the child[,]" and also that "[m]olesters know those things and

that's why they are able to get away with it."

7 Finally, Defendant bears the burden to demonstrate the decisive effect of a

statement made in closing argument.5 State v. O'Haver, 33 S.W.3d 555, 561 (Mo.

App. W.D. 2000). For this "decisive effect" to occur, there must exist a reasonable

probability that in the absence of the statement at issue, the verdict would have been

different. Thompson, 390 S.W.3d at 176.

"Brief, isolated, nonrepetitive remarks of the State in closing argument rarely call

for plain error relief." O'Haver, 33 S.W.3d at 562. Here, the "brevity of the remark,

especially in the context of the whole argument[,]" State v. Kalter, 828 S.W.2d 690,

692 (Mo. App. E.D. 1992), and in light of the overwhelming evidence against Defendant

show no manifest injustice resulted.

The evidence presented at trial in this case included the testimony of multiple

witnesses relaying Victim and Sister's statements about how Defendant sexually abused

them, the video evidence of forensic interviews of Victim and Sister, and Sister's

testimony at trial regarding the abuse. In light of the totality of this evidence and given

our standard of review, Defendant has failed to convince us that the prosecutor's

statement in his closing argument had a decisive effect on the jury's verdict that resulted

in manifest injustice. See Brownlee, 493 S.W.3d at 446.

The overwhelming evidence against Defendant shows no manifest injustice

resulted and the trial court did not plainly err when it failed to, sua sponte, order a

mistrial in this case.

5 As to a closing argument, plain error relief is "rarely" granted and "is generally denied without explanation." State v. Wilson, 343 S.W.3d 747, 752 (Mo. App. E.D. 2011) (quoting State v. Garner, 14 S.W.3d 67, 76 (Mo. App. E.D. 1999)). "[I]n the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention." Collins, 150 S.W.3d at 349 (quoting State v. Boyd, 954 S.W.2d 602, 609 (Mo. App. W.D. 1997)). "[A] holding that would require the trial judge to interrupt counsel would present myriad problems." State v. Thompson, 390 S.W.3d 171, 176 (Mo. App. E.D. 2012).

8 Conclusion

The trial court's judgment is affirmed.

MARY W. SHEFFIELD, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

DANIEL E. SCOTT, J. – CONCURS