In the Missouri Court of Appeals Eastern District DIVISION FOUR
STATE OF MISSOURI, ) No. ED110295 ) Respondent, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) ) Honorable Elizabeth B. Hogan TYRONE VALENTINE, ) ) Appellant. ) Filed: May 2, 2023
Introduction
Tyrone Valentine (“Appellant”) appeals the judgment of the St. Louis City Circuit Court
convicting him of stealing a motor vehicle. Appellant raises two points on appeal. In Point I,
Appellant argues the trial court erred allowing a victim services advocate to sit in the jury box
during Victim’s testimony because it was inherently prejudicial, depriving him of a fair trial in
violation of his constitutional rights. In Point II, Appellant argues the trial court erred allowing the
victim services advocate’s position in the courtroom because it was actually prejudicial, depriving
him of a fair trial in violation of his constitutional rights. Because Appellant fails to demonstrate
he was inherently prejudiced by the courtroom arrangement at his trial, we deny Point I. Because
Appellant fails to demonstrate he was actually prejudiced by the courtroom arrangement at his
trial, we deny Point II. Because Appellant fails to demonstrate inherent prejudice or actual prejudice, he fails to demonstrate he was deprived of a fair trial in violation of his constitutional
rights.
We affirm.
Factual and Procedural History
The State alleged on June 27, 2020, in the City of St. Louis, Appellant unlawfully confined
Victim with a deadly weapon for the purpose of terrorizing her and took her car without her
consent. On October 22, 2020, a grand jury in St. Louis City indicted Appellant on three counts:
first-degree felony kidnapping, in violation of section 565.110, RSMo Cum. Supp. 2017; felony
armed criminal action, in violation of section 571.015; and felony stealing, in violation of section
570.030, RSMo Cum. Supp. 2017.1 Appellant pled not guilty.
Appellant was tried by a jury on December 14, 2021, during the COVID-19 pandemic.
Before the jury was sworn in, the trial court noted the jury was seated in the gallery, not the jury
box, “to respect social distancing and protocols.” The trial court noted its new chief
communications officer was seated in the jury box to “familiarize himself” with the court. The
trial court told the jury that witnesses would testify from a chair in front of the bailiff’s desk. Also,
there was a “screen” the parties could show the jury evidence on.
The State called Victim as its first witness. Appellant’s counsel approached the bench and
objected to the presence of a victim services advocate in the jury box. The trial court overruled the
objection, stating the victim services advocate was sitting “behind a screen,” approximately six
feet from Victim, who was “testifying to the right of the bailiff.”
Victim testified as follows. She dated Appellant from October or November 2017 through
December 2019, when she ended the relationship because Appellant “was really aggressive and
1 All statutory references are to RSMo 2016, unless otherwise indicated.
2 abusive.” On June 27, 2020, Victim visited Appellant at his mother’s house in St. Louis City.
When Appellant approached her car, Victim unlocked her doors and let him in. Appellant accused
Victim of infidelity during their relationship and Victim asked Appellant to get out of her car.
Appellant refused. Victim got out of her car, but Appellant caught up with her, “pull[ed] out his
gun,” put his arm around her, and told her she was “not going to make a scene.” Appellant told
Victim to get back in the car and give him her phone and keys. Appellant drove her around the city
in her car, hit her in the head with his hand and with the barrel of his gun, and repeatedly threatened
to kill her. Victim escaped the car and tried to hide while Appellant chased her with her car and
screamed at her. She crossed four lanes of traffic and used a gas station’s phone to call police. The
State showed the jury video surveillance footage of Victim running across the street to the gas
station.
Appellant moved for acquittal at the close of the State’s evidence and again at the close of
all evidence. On the second day of trial, December 15, 2021, the jury returned a verdict finding
Appellant guilty of stealing but not guilty of kidnapping and armed criminal action. On January 3,
2022, Appellant filed a motion for acquittal notwithstanding the jury’s verdict or, in the alternative,
a new trial, arguing he was prejudiced by the victim services advocate’s presence in the jury box
during Victim’s direct examination. Appellant argued under “normal circumstances” the victim
services advocate “would be seated out in the gallery and not beyond the bar during trial.”
Appellant argued this arrangement “elicited sympathy” for Victim and “enflamed the jury.” On
January 21, 2022, the trial court denied Appellant’s motion for new trial and sentenced Appellant
to ten years in the Department of Corrections. This appeal follows.
3 Standard of Review
“The trial court has considerable discretion in matters regarding examination of witnesses.”
State v. Welch, 600 S.W.3d 796, 815 (Mo. App. E.D. 2020) (quoting State v. Dickson, 337 S.W.3d
733, 743 (Mo. App. S.D. 2011)). “The exercise of that discretion should not be disturbed on appeal
unless it has been abused or substantial harm has been improperly done to the complaining party.”
Id. (quoting Dickson, 337 S.W.3d at 743). An abuse of discretion occurs when the trial court's
ruling is clearly against the logic of the circumstances before the court at the time and is so
unreasonable and arbitrary that it shocks one's sense of justice and indicates a lack of careful
consideration. Id. (citing Gallagher v. DaimlerChrysler Corp., 238 S.W.3d 157, 162 (Mo. App.
E.D. 2007)). “Whenever a courtroom arrangement is challenged as inherently prejudicial, the court
must consider whether the practice presents an unacceptable risk that impermissible factors will
come into play which might erode the presumption of innocence.” Id. (quoting State v. Gollaher,
905 S.W.2d 542, 546–47 (Mo. App. E.D. 1995)). If the practice itself is not inherently prejudicial
and no actual prejudice is demonstrated, then the trial court did not abuse its discretion. Id. (citing
Gollaher, 905 S.W.2d at 546–47). If the courtroom practice is inherently prejudicial or actual
prejudice has occurred, a violation of constitutional rights is an issue reviewed de novo. L.I.B. v.
Juv. Officer, 640 S.W.3d 813, 816 (Mo. App. W.D. 2022) (citing State v. Justus, 205 S.W.3d 872,
878 (Mo. banc 2006)).
Discussion
Point I: Inherent Prejudice
Argument
Appellant argues the trial court erred allowing the victim services advocate, an employee
of the Office of the Circuit Attorney of the City of St. Louis, to escort Victim to the witness stand
4 and sit in the jury box during Victim’s testimony because this was an inherently prejudicial, state-
sponsored courtroom practice that violated his constitutional rights to due process and a fair trial.
Appellant argues this arrangement posed an unacceptable threat to the fairness of his trial and there
was no essential state policy or interest to justify it. Appellant notes a fair trial is a fundamental
right and requires a neutral jury and courtroom free from coercion. State v. Hartman, 479 S.W.3d
692, 702 (Mo. App. W.D. 2015) (citing State v. Baumruk, 85 S.W.3d 644, 650–51 (Mo. banc
2002)). A trial court must be “extremely vigilant and take appropriate steps to minimize the
possibility that a defendant will be prejudiced.” Id. (citing State v. Peacock, 725 S.W.2d 87, 90
(Mo. App. S.D. 1987)).
Appellant argues we “must determine whether [this] procedure or arrangement was ‘so
inherently prejudicial as to pose an unacceptable threat to [his] right to a fair trial.’” Holbrook v.
Flynn, 475 U.S. 560, 572 (1986). The question is not “whether jurors actually articulated a
consciousness of some prejudicial effect,” but whether “an unacceptable risk is presented of
impermissible factors coming into play.” Id. at 570 (quoting Estelle v. Williams, 425 U.S. 501, 505
(1976)). If the arrangement is inherently prejudicial, Appellant argues it must be justified by an
essential state policy or interest. Carey v. Musladin, 549 U.S. 70, 75 (2006) (citing Williams, 425
U.S. at 505).
Appellant argues his challenge presents an issue of first impression in Missouri and he has
found no case addressing “whether an employee of the state sitting next to an adult witness while
that witness testified violates the constitutional rights of a defendant.” Therefore, Appellant relies
on cases reviewing other courtroom practices. The State cannot compel an accused to stand trial
before a jury while dressed in identifiable prison clothes. Williams, 425 U.S. at 512. If a trial court
“without adequate justification, orders a defendant to wear shackles that will be seen by the jury,
5 the defendant need not demonstrate actual prejudice to make out a due process violation.” Deck v.
Missouri, 544 U.S. 622, 635 (2005) (emphasis added). Although “the presence of guards at a
defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable,” the
“sight of a security force within the courtroom might under certain conditions ‘create the
impression in the minds of the jury that the defendant is dangerous or untrustworthy.’” Holbrook,
475 U.S. at 569 (quoting Kennedy v. Cardwell, 487 F.2d 101, 108 (6th Cir. 1973), cert. denied,
416 U.S. 959, 94 (1974)).
In Holbrook, before allowing uniformed officers to sit in the first row of the gallery,
Appellant argues the trial court held a hearing, elicited testimony, and polled the jury panel to find
the presence of police officers “would not affect the defendant’s ability to receive a new [sic] trial.”
Here, Appellant agues it is unclear from the record why the victim services advocate was present,
and the trial court elicited no testimony as to why her presence was necessary. Appellant argues
there is “nothing on the record to suggest that all of the jurors could not see the advocate, despite
the screen, as the jurors were allowed to move within their allotted spaces in the gallery,” and “it
is unclear if the advocate ever made any sort of gesture of reassurance or encouragement” to
Victim. Appellant argues it is unclear whether the screen prevented the defense from monitoring
the victim services advocate’s conduct in the jury box.
Appellant argues the jury was aware of the victim services advocate’s presence because
she accompanied Victim into the courtroom. Appellant contends the screen merely affected the
jury’s degree of awareness, not its absolute awareness. Deck, 544 U.S. at 634. Appellant argues
“there is a reasonable doubt” this arrangement “created a question in the jurors’ minds as to why
a person was sitting behind the screen, or why the screen was even there,” during Victim’s
testimony. Appellant argues the victim services advocate’s presence “elicited sympathy for
6 [Victim] and suggested to the jury [Victim] had been so traumatized by [Appellant] that she was
frail and required assistance on the witness stand by an employee of the prosecutor’s office in order
to testify.” Appellant argues Victim, who was twenty-five when she testified, did not need
protection or reassurance while testifying because she is a “grown, adult woman.” If Victim
requested the victim services advocate’s assistance, Appellant argues there was a “simple
solution”: “the advocate could have stood or sat behind the jury in the gallery.”
The State argues the victim services advocate’s position in the jury box was not inherently
prejudicial because it did not cause impermissible factors to erode the presumption of Appellant’s
innocence. The State argues the jury could not see the victim services advocate during Victim’s
testimony because the victim services advocate was seated behind the screen. The State cites State
v. Pollard, in which this Court held a victim’s mother seated “in a chair just inside the railing” was
not “in-and-of-itself an undue influence” causing “prejudicial harm to the defendant.” 719 S.W.2d
38, 42 (Mo. App. E.D. 1986). In Pollard, this Court noted courts should have “wide latitude”
regarding child victims of sexual abuse and victim’s mother was instructed not to communicate
“through gesture or otherwise, and defendant does not indicate she did so.” Id.
The State argues trial courts have “wide discretion in determining whether to take action
to avoid an environment for trial in which there is not a ‘sense or appearance of neutrality.’”
Johnson v. State, 406 S.W.3d 892, 903 (Mo. banc 2013) (quoting Baumruk, 85 S.W.3d at 650).
The State notes control of trial rests with the trial court. State v. Hendrix, 646 S.W.2d 830, 833
(Mo. App. W.D. 1982). In this case, the State argues the trial court did not abuse its discretion
because the victim services advocate sat apart from Victim and there is no evidence in the record
they communicated during Victim’s testimony. “By having the support person sit behind a screen,”
the State argues the trial court “took even more measures than the Pollard court to ensure that the
7 support person would not behave improperly.” The State argues the “fact that the court did not
appear surprised by the support person’s presence suggests that there was a pre-trial arrangement
to have the support person sit in the jury box.” The State argues this case is distinguishable from
both Williams and Holbrook because the victim services advocate was not visible to the jury and
an accommodation for a victim is unlike practices directly affecting the defendant’s appearance.
The State cites cases from foreign jurisdictions holding similar arrangements are not
inherently prejudicial. In People v. Myles, the Supreme Court of California affirmed a conviction
where a support person accompanied a prosecution witness, finding the record did not disclose any
indication the “support person improperly influenced the jury's assessment of [the] testimony.”
274 P.3d 413, 438 (2012). There, the trial court informed the jury the witness “was entitled by law
to be attended by a support person during her testimony, and admonished them that the support
person was ‘not the witness.’” Id. The court noted the record did not disclose whether the support
person had physical contact with the witness and there was no “indication that the support person
displayed emotion or gestures suggesting to the jury” she believed the witness’s account. Id. In
State v. Harrison, the Supreme Court of Utah held “allowing a victim's advocate to accompany
and sit near a minor victim during trial testimony is not inherently prejudicial” where the defendant
alleged “no inappropriate behavior by the victim's advocate” during the minor victim’s testimony.
24 P.3d 936, 941 (2001).
Analysis
Because he claims a state-sponsored courtroom arrangement violated his “rights to a fair
trial and due process,” Appellant argues we “must determine whether [this] procedure or
arrangement was ‘so inherently prejudicial as to pose an unacceptable threat to [his] right to a fair
trial.’” Flynn, 475 U.S. at 572. “It is elemental that due process includes the right to have a fair
8 trial before an impartial jury that has not been influenced by anything other than properly
introduced evidence, the court's instructions, and the attorneys' arguments.” Peacock, 725 S.W.2d
at 90. The environment of a trial must give jurors, who may otherwise have been carefully selected,
a sense or appearance of neutrality. Baumruk, 85 S.W.3d at 649. A trial court has wide discretion
to determine whether to take action to ensure a neutral environment. Johnson, 406 S.W.3d at 903
(citing Baumruk, 85 S.W.3d at 650). A trial court sits as an intimate observer of events and is in
the best position to judge whether certain conduct or messages risk depriving the accused of a fair
trial. Hartman, 479 S.W.3d at 702 (citing State v. Ward, 242 S.W.3d 698, 704 (Mo. banc 2008)).
Whenever a courtroom arrangement is challenged as inherently prejudicial, the trial court
must consider whether the practice presents an unacceptable risk impermissible factors will come
into play which might erode the presumption of innocence. Gollaher, 905 S.W.2d at 547 (citing
Flynn, 475 U.S. at 570). An inherently prejudicial practice is “one which may affect a juror's
judgment and feelings about the defendant and/or constitute ‘an affront to the very dignity and
decorum of judicial proceedings.’” Bello v. State, 464 S.W.3d 284, 289–90 (Mo. App. W.D. 2015)
(quoting Flynn, 475 U.S. at 568–69).
Appellant acknowledges no Missouri case law holds a support person’s presence near a
testifying witness is inherently prejudicial, and we are unpersuaded by Appellant’s analogy to
cases discussing arrangements affecting a defendant’s appearance in court. Unlike in those cases,
which describe a defendant in prison clothing or shackles or a conspicuous police presence
surrounding him, the arrangement in this case did not present an “unacceptable risk” impermissible
factors could come into play.
In arguing the screen between the victim services advocate and the jury did not “remove
any prejudice,” Appellant contends the State’s argument “mirrors” the one it made in Deck. In that
9 case, the U.S. Supreme Court noted a finding there was “no record of the extent of the jury’s
awareness” of restraints placed on the defendant, which “apparently were not visible to the jury,”
did not “suggest that the jury was unaware of the restraints.” 544 U.S. at 625, 635 (emphasis
added). In Deck, defense counsel stated on the record his client was “shackled in front of the jury,”
suggesting the jury was aware of the shackles even if they could not see them during trial. Id. In
this case, there is no question of the “extent” of the jury’s awareness of the victim services advocate
because there is no indication in the record the jury could see her at any time or knew who she
was, who she worked for, or what her purpose was. Appellant cites his own allegation in his motion
for new trial the jury observed the victim services advocate enter the courtroom with Victim and
suggests the jury could have seen her as they moved around, but there is nothing in the record
supporting these arguments.
The only indication the victim services advocate entered the courtroom with Victim is
Appellant’s allegation in his post-trial motion. Appellant argues for the first time in his Reply Brief
his “motion for new trial is a part of the record,” but cites no authority for this contention. Our
own review suggests this is not the case. “A bare assertion by defense counsel does not prove itself
and is not evidence of the facts presented.” State v. Smith, 996 S.W.2d 518, 523 (Mo. App. W.D.
1999) (citing State v. Shannon, 892 S.W.2d 761, 765 (Mo. App. W.D. 1995)) (holding the record
was “devoid” of proof jurors observed defendant in handcuffs because claim was supported only
by defense counsel’s assertion). We note Deck held the record made “clear that the jury was aware
of the shackles” where, following defense counsel’s objection to the defendant’s shackling in front
of the jury, the trial court acknowledged the basis of the allegation: “being shackled takes any fear
out of their minds.” 544 U.S. at 634.
10 Appellant cites Hartman, in which the Western District held a child witness testifying in a
Bikers Against Child Abuse (“BACA”) vest did not inherently prejudice the defendant. 479
S.W.3d at 706.2 This case is instructive. Among other factors, the Court was persuaded by the lack
of indication in the record BACA’s meaning was explained to the jury. Id. The Court held there
was “no evidence, beyond speculation, that any impermissible influence reached or could have
reached the jury.” Id. at 704 (emphasis added). Here, we cannot conclude Appellant was inherently
prejudiced because there is no indication in the record the jury knew who the victim services
advocate was, who she worked for, or why she was seated in the jury box. Appellant has therefore
not demonstrated this courtroom arrangement was one that could “affect a juror's judgment and
feelings about the defendant and/or constitute ‘an affront to the very dignity and decorum of
judicial proceedings.’” Bello, 464 S.W.3d 284 at 289–90 (quoting Flynn, 475 U.S. at 568–69).
We note Appellant’s assertion in his motion for new trial that he asked the trial court to
place the victim services advocate in the gallery behind the jury. Contrary to Appellant’s argument
the trial court did not make findings or see “the matter as one calling for discretion,” the trial
court’s reliance on the screen and its declining to place the victim services advocate in the gallery
were exercises of the trial court’s discretion. As Appellant suggests, “it may be assumed that the
suggestion was made by [Appellant] and was rejected by the trial court.” We therefore cannot
determine the trial court abused its broad discretion to determine whether to take action to ensure
a neutral environment. Johnson, 406 S.W.3d at 903 (citing Baumruk, 85 S.W.3d at 650). As stated
2 In his Reply Brief, Appellant argues for the first time Hartman is inapplicable because the Court reviewed conduct by private parties. Here, the parties do not dispute the victim services advocate is a state actor. But Hartman stated “[assuming] arguendo that Hartman could show that conduct by a private party could be inherently prejudicial to his right to a fair trial, Hartman has made no such showing here.” Because Hartman applied the inherent prejudice standard, we follow its reasoning here.
11 by the trial court to the jury, the courtroom arrangements were unusual because of COVID-19
precautions.
Because the victim services advocate’s presence in the jury box during Victim’s testimony
was not inherently prejudicial, the trial court did not abuse its discretion in allowing this
arrangement. Because the arrangement was not inherently prejudicial, Appellant does not
demonstrate he was deprived of a fair trial in violation of his constitutional rights. Flynn, 475 U.S.
at 572.
Point I is denied.
Point II: Actual Prejudice
Alternatively, Appellant argues the trial court erred allowing the victim services advocate
to sit in the jury box because he was actually prejudiced by this courtroom arrangement. Appellant
argues he was actually prejudiced because the victim services advocate’s presence suggested
Victim was frail as a result of Appellant’s actions and there is “a reasonable probability” it signaled
to the jury a belief “the unorthodox arrangement was required because [Appellant] did something
to [Victim], even if the jury did not otherwise find her credible.” Emphasis original.
Appellant agrees a trial court “has considerable discretion in matters regarding the
examination of witnesses” and the “exercise of that discretion should not be disturbed on appeal
unless it has been abused or substantial harm has been improperly done to the complaining party.”
Welch, 600 S.W.3d at 815 (quoting Dickson, 337 S.W.3d at 743). Appellant argues a trial court’s
action should not be affirmed under an abuse of discretion review where the trial court made no
findings supporting its decision. Deck, 544 U.S. at 634–35. Appellant argues the victim services
advocate was permitted to sit closer to Victim than the victim’s mother in Pollard and there was
12 no admonishment to prevent communication between Victim and the victim services advocate.
Appellant also argues Pollard is inapplicable because that case concerned a child witness, not a
twenty-five-year-old adult.
Appellant argues section 491.725 provides for support people to assist victim testimony in
limited circumstances, but it applies only to children. Because section 491.725 requires a multi-
step procedure which the State did not follow, Appellant argues the statute does not validate the
arrangement at Appellant’s trial even if it could apply to adults such as Victim. Appellant argues
this section is “not applicable.”
The State argues Appellant cannot prove he was actually prejudiced by the victim services
advocate’s position in the jury box because there is not a reasonable probability the jury would
have acquitted him of stealing Victim’s car. The State argues Appellant’s acquittal on the
kidnapping and armed criminal action charges suggests the victim service advocate’s presence
“did not influence the jury’s verdict and was therefore not prejudicial.” The State argues the trial
court explained the victim services advocate was six feet from Victim and seated behind the screen,
demonstrating it carefully considered Appellant’s objection and did not deny it arbitrarily.
The State argues Appellant cannot meaningfully distinguish Pollard because the court “did
not indicate how far away the victim sat from the support person.”3 The State cites State v. Powell,
which held a trial court did not abuse its discretion in allowing minor children to testify with the
assistance of stuffed animals. 318 S.W.3d 297, 304 (Mo. App. W.D. 2010). The Powell court noted
“the trial court had the opportunity to observe the child witnesses and fully consider the usefulness
3 The State addresses both of Appellant’s points in a single argument section. This violates Rule 84.04(f), which requires the “argument portion of the respondent's brief shall contain headings identifying the points relied on contained in the appellant's brief to which each such argument responds.” The State includes this argument in the portion of its brief concerning inherent prejudice, but Appellant does not mention State v. Pollard until Point II, where Appellant discusses actual prejudice. We therefore discuss the State’s contention regarding Pollard’s applicability in Point II.
13 of the teddy bears against the possibility of any prejudice” and there was “nothing to suggest that
the stuffed animals were merely an attempt to cater to the emotional sympathy of the jurors.” Id.
at 303. No reference was made “by any of the witnesses or counsel in the presence of the jury.”
Id. at 303–04. The State cites Hartman, which held the trial court did not abuse its discretion in
overruling an objection to witnesses wearing vests displaying the acronym for BACA, where the
trial court took “numerous precautions” to safeguard a neutral atmosphere. 479 S.W.3d at 704–06.
There was no indication in the record the acronym was explained to the jury, “that any effort was
made to focus attention on the vests,” or “that the use of vests was calculated to elicit emotional
sympathy from the jury.” Id. Here, the State argues Appellant’s side-bar objection is the only
reference to the victim services advocate in the record and any prejudice was outweighed by its
usefulness to Victim. The State argues the trial court went further than the precautions taken in
Powell and Hartman by separating with a screen the victim services advocate from the jury’s sight.
The State argues Appellant erroneously contends, for the first time on appeal, section
491.725 is inapplicable. The State argues section 491.725.2 permits a disinterested, court-
designated support person “to be present in the courtroom, in view of the child witness.” The State
argues Victim is a covered “child” because the section applies not only to minors, but also to “the
alleged victim or witness in any judicial proceeding under chapter 455, 565, 566, or 568.” Section
491.725.2(1). Because Appellant was charged with first-degree kidnapping under a statute in
chapter 565, the State argues the victim services advocate was permitted to sit near Victim during
her testimony. Regarding Appellant’s argument the trial court failed to make oral findings under
the statute, the State argues this is an inadequate foundation argument that cannot be raised for the
first time on appeal. State v. Tisius, 362 S.W.3d 398, 407 (Mo. banc 2012). The State argues any
14 constitutional challenge to the statute Appellant makes on appeal “is untimely and should not be
considered.”
If a challenged practice is not inherently prejudicial, a defendant must show actual
prejudice. Holbrook, 475 U.S. at 572. Appellant argues the victim services advocate’s placement
in the jury box was suggestive and there is a “reasonable probability” her presence suggested to
the jury “the unorthodox arrangement was required because [Appellant] did something to [Victim],
even if the jury did not otherwise find her credible.” Emphasis original.
We disagree because there is no indication in the record the jury knew who the victim
services advocate was, who she worked for, or why she was in the jury box. There is no indication
the victim services advocate encouraged or coached Victim in any way during her testimony. The
record demonstrates the victim services advocate was six feet away from Victim and she was not
the only person in the jury box. The screen separated the victim services advocate from the jury,
which was seated in the gallery. Appellant points out “trial courts must be cognizant of the
possibility that comfort items or other accommodations for minors may unfairly engender
sympathy for complaining witnesses.” Powell, 318 S.W.3d at 304. But as in Powell, there is no
indication in the record the victim services advocate’s presence in the jury box was “merely an
attempt to cater to the emotional sympathy of the jurors.” Id. at 303.
Appellant notes Powell suggested courts “should require some explanation of the need for
[comfort items]” upon objection. Id. As we noted in Point I, Appellant argues “it may be assumed”
Appellant made his own suggestion to place the victim services advocate in the gallery behind the
jury, which was rejected by the trial court. So, the record does not demonstrate any failure by the
trial court to consider the appropriateness of the courtroom arrangement based on arguments from
15 the parties. We reject Appellant’s argument the trial court failed to make even informal findings
because the trial court, in overruling Appellant’s objection at trial, stated on the record the victim
services advocate was seated six feet from Victim and the screen separated the victim services
advocate from the jury.
We decline to address Appellant’s argument concerning section 491.725 because it is not
preserved. To properly preserve an issue for appeal, a party’s objection at trial must be specific
and he must rely on the same grounds on appeal. Tisius, 362 S.W.3d at 405 (citing State v. Rasheed,
340 S.W.3d 280, 287 (Mo. App. E.D. 2011)). At trial, Appellant objected “under the 5th and 14th
Amendment of the United States Constitution and Article 1, Section 10, 18(a) of the Missouri
Constitution,” but made no reference to section 491.725. Appellant also argues “there is nothing
in the record suggesting that the trial court utilized the Child Witness Protection Act in permitting
the victim advocate to sit next to the adult complaining witness as she testified.” We agree. Section
491.725 is not an issue before us. We will not convict a trial court of error on an issue which was
not put before it to decide. Marck Indus., Inc. v. Lowe, 587 S.W.3d 737, 745 (Mo. App. S.D. 2019)
(citing First Bank Ctr. v. Thompson, 906 S.W.2d 849, 859 (Mo. App. S.D. 1995)).
Because Appellant does not demonstrate he was actually prejudiced by the victim services
advocate’s presence in the jury box during Victim’s testimony, we cannot determine the trial court
abused its discretion in allowing this courtroom arrangement. Because he does not establish
inherent prejudice or actual prejudice, Appellant does not demonstrate he was deprived of a fair
trial in violation of his constitutional rights. Flynn, 475 U.S. at 572.
Point II is denied.
16 Conclusion
For the reasons stated above, we affirm.
_______________________________ Philip M. Hess, Judge
Kelly C. Broniec, P.J. and James M. Dowd, J. concur.