State of Missouri v. Tommie L. McDowell

• Court: Missouri Court of Appeals
• Decided: May 27, 2025
• Docket: ED112380
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION THREE

STATE OF MISSOURI, ) No. ED112380 ) Respondent, ) Appeal from the Circuit Court ) of St. Louis County v. ) Cause No. 22SL-CR07039 ) TOMMIE L. MCDOWELL, ) Honorable Stanley J. Wallach ) Appellant. ) Filed: May 27, 2025

Introduction

A jury found Appellant Tommie McDowell guilty of two counts of child molestation in

the first degree. In a single point on appeal, Appellant challenges the purported exclusion of

Appellant’s expert witness during the trial. Because we find no evidence in the record that

Appellant called an expert witness or that the circuit court excluded Appellant’s expert, there can

be no evident, obvious, and clear error. Thus, we affirm the circuit court’s judgment.

Background

On August 23, 2015, Victim, who was four years old at the time, was taken to her aunt’s

house by her mother. Appellant, Victim’s cousin, lived in the home and was present on that day.

When Victim’s mother returned to take her home that evening, Victim told her mother that

Appellant pulled her into his room and “made her sit on his lap.” Victim further stated that

sitting on Appellant’s lap hurt, and that she did not like it.

1 Victim’s parents immediately took her to the hospital. At the hospital, a sexual assault

nurse examiner interviewed Victim and performed a physical examination. Victim’s clothes

were placed in a bag to be used in the ensuing investigation and were analyzed by a DNA lab for

the detection of fluids on the clothing. Without prompting, Victim disclosed additional details of

the assault to the nurse examiner, including that Appellant’s penis and mouth touched her vagina

and bottom. The nurse examiner testified that Victim’s disclosures were consistent throughout

the interview and examination.

The examination revealed trauma to Victim’s rectal area. A DNA swab of the rectal area

showed the presence of Victim’s DNA and the DNA of another person, although there was

insufficient genetic information to identify the other person. Victim’s underwear was determined

to have male DNA present. Appellant provided a sample of his DNA during the investigation,

which matched the sample of male DNA on Victim’s clothing.

Appellant was charged with two counts of child molestation in the first degree. At trial,

the State introduced expert testimony about the DNA evidence. However, the defense never

called a DNA expert to testify. The jury found Appellant guilty as charged. This appeal follows.

Discussion

In his sole point on appeal, Appellant argues that the circuit court plainly erred when it

excluded Appellant’s DNA expert witness. Appellant asserts that the exclusion of the witness

deprived him of evidence that would be exculpatory, in that the expert’s testimony would have

explained why Appellant’s DNA would be present on Victim’s clothing but not present on her

body, and as such the exclusion was evident, obvious, and clear error resulting in a manifest

injustice. Appellant concedes that his claim is unpreserved and requests that this court undertake

plain error review of his point on appeal.

2 This Court does not generally review unpreserved claims of error. State v. Brandolese,

601 S.W.3d 519, 526 (Mo. banc 2020). Rule 30.20 provides an exception allowing 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. (quoting Rule

30.20). Rule 30.20 makes clear that plain error review is a discretionary, two-step process.

See State v. Minor, 648 S.W.3d 721, 731 (Mo. banc 2022). The first step is to determine whether

the claim of error facially establishes substantial grounds for believing that manifest injustice or

miscarriage of justice has resulted. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009).

Plain errors are those that are evident, obvious, and clear. Id. In the absence of such a

determination, an appellate court should decline to review for plain error. See Brandolese, 601

S.W.3d at 526. If plain error is found on the face of the claim, then the court may proceed to the

second step to determine whether the claimed error resulted in manifest injustice or miscarriage

of justice. See Baumruk, 280 S.W.3d at 607. “To show manifest injustice or a miscarriage of

justice, a defendant must demonstrate outcome-determinative error.” State v. Vitale, 688 S.W.3d

740, 746 (Mo. E.D. App. 2024).

“We will not convict a trial court of error when there is no evidence in the record from

which to substantiate an appellant’s claim.” Thomas v. Dir. of Revenue, 874 S.W.2d 427, 429

(Mo. App. W.D. 1994). In this case, Appellant’s claim of error rests on the exclusion of his

expert witness at trial. However, we can find nothing in the trial record showing the defense

called the expert witness, that the State objected to the expert witness, or that the circuit court

excluded the expert witness. In fact, a review of the record does not reveal a discussion of such

expert witness during trial. While the defense did file the expert witness’s curriculum vitae prior

to the trial and later alleged in the motion for new trial that the expert witness would have

3 testified about the DNA evidence, these actions before and after trial are insufficient to show that

the defense attempted to call the witness during trial or that the circuit court explicitly excluded

the expert witness. See State v. Lavender, 680 S.W.3d 119, 134 (Mo. App. S.D. 2023)

(“[appellant]’s failure to raise the issue until after the verdict coupled with the lack of anything in

the record that would indicate a request was ever made ultimately dooms his claim.”). Therefore,

we find that Appellant’s claim is “doomed” and there can be no evident, obvious, and clear error.

Since there was no “plain error affecting substantial rights,” we decline to undertake the second

step of plain error review. State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014). Point denied.

Conclusion

For the reasons set forth above, the judgment is affirmed.

Renée D. Hardin-Tammons, J.

Philip M. Hess, P.J., and Gary M. Gaertner, Jr., J., concur.