State of Missouri vs. Nancy Russell

• Court: Missouri Court of Appeals
• Decided: July 29, 2025
• Docket: WD86606
• Status: Published

Opinion

MISSOURI COURT OF APPEALS WESTERN DISTRICT

STATE OF MISSOURI, ) ) Respondent, ) ) v. ) WD86606 ) NANCY RUSSELL, ) Filed: July 29, 2025 ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY THE HONORABLE J. DALE YOUNGS, JUDGE

BEFORE DIVISION ONE: KAREN KING MITCHELL, PRESIDING JUDGE, LISA WHITE HARDWICK, JUDGE, AND MARK D. PFEIFFER, JUDGE

Nancy Russell appeals her convictions and sentences for four counts of first-

degree domestic assault and four counts of armed criminal action. Russell contends the

circuit court plainly erred in allowing a treating physician to offer what she claims was

inadmissible particularized testimony that improperly vouched for the victim’s

credibility. For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Russell does not challenge the sufficiency of the evidence to support her

convictions. In October 2017, Victim was nine years old and lived in Kansas City with Russell, who was his mother, and his younger sister. On October 1, 2017, Russell came

into the house angry about money. She then got angry with Victim for incorrectly doing

his chores. Russell “whooped” Victim, first with an extension cord and then with what

Victim described as a “metal pole.” Afterward, there was blood everywhere, and Russell

made Victim clean it up. Russell did not check Victim’s injuries but told him to go to

bed.

The next morning, Victim’s grandfather (“Grandfather”) picked up Victim.

Grandfather saw Victim’s injuries but did not ask what happened. He cleaned Victim’s

wounds, kept Victim overnight, and called Victim’s grandmother (“Grandmother”), who

lived in Arkansas. Grandfather asked Grandmother to meet him halfway between Kansas

City and Arkansas to pick up Victim and his sister. Grandmother found Victim’s arm

wrapped in paper towels and tape, and Victim was holding his arm and crying. When

Grandmother unwrapped the towels, she saw a “big gash” on Victim’s arm that was “real

bad.” She took Victim and his sister to Arkansas and drove straight to an emergency

room. When Grandmother asked Victim what happened, he told her “his momma took a

pipe and was hitting him on his arm.”

When Victim arrived at the emergency room on the morning of October 4, 2017,

he needed a wheelchair because he could not walk. He had bruising in various stages of

healing on his arms and legs, his legs were swollen, and he had lacerations and abrasions

to his forearms, face, head, and ear. Additionally, his foot was fractured. Victim told the

emergency room nurse that “his momma hit him with a metal pole because he didn’t fold

the clothes right.” The nurse believed Victim’s injuries were consistent with abuse. A

2 police officer interviewed Victim at the hospital. Victim told the officer that “his mom

was mad at him because he didn’t do the laundry correctly and she started beating him

with a metal pipe” on his head, back, arm, and legs. Victim was transferred to Arkansas

Children’s Hospital for specialty treatment of his injuries.

At Arkansas Children’s Hospital, Victim was treated by a pediatrician who

specialized in medicine related to child abuse and neglect (“Doctor”). According to

Doctor, Victim’s injuries were a few days old and had not been treated. Doctor took a

focused history from him to determine the cause of his injuries. Victim said his mom had

hit him with a metal pipe. Doctor documented “innumerable injuries from head to toe,”

four major open wounds, and a broken foot. Additionally, Victim had two large open

lacerations on his scalp, a deep laceration that caused obvious deformity to his right ear,

and a laceration on his left forearm that was “down to the muscle.” Victim’s low red-

blood cell count was consistent with significant blood loss. Also, he had excessive

quantities of the creatine kinase enzyme, which is caused by the breakdown of muscle

tissue and is sometimes seen in physically abused children when they have had extensive

blunt force trauma to muscles in different parts of their body. Doctor also noted

numerous scars, patterned and non-patterned, all over Victim’s body, in various stages of

healing. Doctor opined Victim’s injuries were consistent with inflicted trauma and with

the history he provided.

Victim was interviewed by a forensic interviewer while at Arkansas Children’s

Hospital. Victim told the interviewer he had gotten a “beating” and a “whooping” by

Russell with an extension cord and a metal pole because he had not done his chores.

3 Victim said he had been hit with extension cords, belts, and switches before, and that

Russell had punched, kicked, and stomped on him before.

In March 2019, Russell was indicted on four counts of first-degree domestic

assault and four counts of armed criminal action.1 A jury trial was held in March 2023.

In cross-examining the police officer who talked to Victim at the first hospital, defense

counsel elicited from the officer that, several years after the incident, Victim recanted his

claim that Russell caused his injuries, instead saying that his stepfather had caused them

in Arkansas. However, Victim later recanted his claim that his stepfather had caused his

injuries. During his trial testimony, Victim said he did not remember how he got his

injuries, but he said he told the truth when he was interviewed in 2017, and no one told

him to lie about it. Russell testified in her own defense, denying that she caused any of

Victim’s injuries. She denied knowing about Victim’s broken foot or the severity of

Victim’s cut on his arm, which she claimed happened while he was playing with other

kids in the woods and fields in Kansas City, and she was unable to explain Victim’s head

and scalp injuries.

The jury found Russell guilty on all counts. The court sentenced her to concurrent

terms of 15 years in prison on each of the four first-degree domestic assault counts, to run

consecutively to concurrent terms of five years in prison on each of the four armed

criminal action counts, for a total prison term of 20 years. Russell appeals.

1 The State filed an information in lieu of indictment charging the same offenses in February 2023.

4 STANDARD OF REVIEW

Russell admits she did not preserve her point on appeal because she failed to

object to the allegedly improper testimony and assert it as error in her new trial motion.

Therefore, she requests plain error review. Rule 30.20 gives us discretion to review for

“plain errors affecting substantial rights” when we find that “manifest injustice or a

miscarriage of justice has resulted therefrom.” In conducting plain error review, this

court first must determine whether the claim of error “facially establishes substantial

grounds for believing that manifest injustice or miscarriage of justice has resulted.” State

v. Mills, 687 S.W.3d 668, 675 (Mo. banc 2024) (citation omitted). “All prejudicial error,

however, is not plain error, and plain errors are those which are evident, obvious, and

clear.” Id. (citation omitted). If we find plain error, we then must determine whether the

error resulted in manifest injustice or miscarriage of justice. Id. “To obtain a new trial

on direct appeal based on a claim of plain error, the appellant must show the error was

outcome determinative.” Id. (citation omitted).

ANALYSIS

In her sole point, Russell contends the circuit court plainly erred in allowing

Doctor to offer what she claims was particularized expert testimony that improperly

vouched for Victim’s credibility. After detailing Victim’s injuries, Doctor testified the

injuries she observed on Victim were consistent with inflicted trauma and, specifically,

were consistent with someone who had been struck by a metal pipe. The State then asked

Doctor, “[Does] the fact that a child told you the manner in how the injuries occurred

5 rather than an adult say, hey, [this] is how those injuries occurred, does that affect what

was told to you in any way?” Doctor replied:

Yes. So children don’t really have as much ability to – people raise the question about like children tell stories, children make up stories. What they do is children make up stories about things that are developmentally appropriate for them to make up stories about. They make up stories about their favorite movie character, they make up stories about things that children make up stories about.

One thing that they’re not really developmentally able to do is to make up a history that is false but contains a plausible mechanism for traumatic injuries, you know, that would match the specific injuries, just not really plausible for a nine-year-old child to do.

(Emphasis added.) Russell asserts Victim’s credibility at nine years old, the age when he

alleged she caused his injuries using a metal pipe, was the central issue to be resolved by

the jury, and Doctor’s particularized testimony about Victim’s credibility usurped the

jury’s function as the ultimate fact finder in this case.

To support her claim that Doctor’s testimony was inadmissible, Russell cites the

distinction commonly made in child sex abuse cases between generalized and

particularized expert testimony. While an expert is permitted to give generalized

testimony that describes “the general behaviors and characteristics commonly found in

children who have been abused, ”an expert is not allowed to give particularized testimony

“regarding the specific victim’s credibility.” State v. D.W.N., 290 S.W.3d 814, 817 (Mo.

App. 2009). Particularized expert testimony “is inadmissible because it usurps the jury’s

province to determine the credibility of witnesses.” Id.

Russell argues Doctor’s testimony is similar to inadmissible particularized

testimony in State v. Williams, 858 S.W.2d 796 (Mo. App. 1993). In Williams, a doctor

6 testified that sexually abused children “very rarely” lie about abuse, that incidents of

lying among sexually abused children are “very low, less than three percent,” and that, if

the child is not asked leading questions, then the child’s spontaneous response about who

committed the sexual abuse “declares who it was.” Id. at 800. On appeal, the court held

this testimony “went beyond admissible testimony concerning general, behavioral

characteristics of sexually abused children” and vouched for the victim’s credibility,

supplying “improper verisimilitude on the issue of whether the appellant was guilty.” Id.

at 801.

Unlike the doctor in Williams, Doctor did not opine on the overall credibility of

Victim or of nine-year-old children in general. As the context of her testimony shows,

Doctor limited her testimony to the developmental ability of a nine-year-old child to

fabricate a plausible mechanism for his injuries, i.e., being struck by a metal pipe. “[A]n

expert is permitted to testify as to his or her opinion on an ultimate issue in a criminal

case as long as the opinion does not state that the defendant is guilty of the crime.” State

v. Wadlow, 370 S.W.3d 315, 322 (Mo. App. 2012). Doctor did not discuss whether

Victim’s statement that Russell was the one who struck him was credible, and she did not

offer any opinion on the ability of a nine-year-old child to fabricate the perpetrator of his

injuries. See State v. Johnson, 477 S.W.3d 218, 224 (Mo. App. 2015) (finding an

expert’s “diagnosis of child sexual abuse did not amount to an improper expert witness

comment on [the victim’s] veracity as a witness insofar as [the expert] never identified

[the appellant] as the perpetrator of the abuse”). Rather, the clear purpose of the

testimony at issue was to discuss the accuracy, based on the developmental ability of

7 nine-year-old children in general, of Victim’s statement that he was struck by a metal

pipe, which supported Doctor’s opinion that Victim’s injuries were, in fact, caused by

being struck by a metal pipe. See State v. Carpenter, 605 S.W.3d 355, 362 (Mo. banc

2020) (noting the distinction between expert testimony regarding accuracy versus

credibility).

As such, Doctor’s testimony is similar to the testimony at issue in Wadlow, 370

S.W.3d at 321-22. In Wadlow, a counselor affirmed during her testimony that, after

watching for signs as to whether a child victim was talking about a real event or a

something that was not real, “[i]n this particular case . . . it was very clear to [counselor]

that [the victim] was talking about something that actually happened to her.” Id. at 321.

The counselor further affirmed that, after she determined whether the victim could

distinguish between truth and untruth, there was not “any doubt in [her] mind that this

child was the victim of sexual abuse.” Id. On appeal, the court found this testimony did

not constitute plain error because it did not vouch for the victim’s credibility but merely

supported the counselor’s opinion that the victim had been sexually abused and,

additionally, the counselor never stated the appellant was guilty of committing the abuse.

Id. at 322. See also State v. Webb, 674 S.W.3d 189, 191-93 (Mo. App. 2023) (holding

expert’s testimony that the triggering event for the victim’s PTSD was the sexual assault

the victim experienced did not vouch for the victim’s credibility and, therefore, did not

constitute plain error); and State v. Collins, 163 S.W.3d 614, 623 (Mo. App. 2005)

(finding expert’s testimony that the victim’s penchant for correction during her interview

was “one of the hallmarks of credibility for kids” was not directed to the victim’s overall

8 credibility as a witness but, instead, was merely a comment on the expert’s ability to

assess the victim’s believability in the story related to the expert). Based on Wadlow,

Webb, and Collins, Doctor’s testimony in this case did not vouch for Victim’s credibility.

Russell has failed to demonstrate Doctor’s testimony constituted evident, obvious,

and clear error such that the circuit court should have sua sponte intervened. Circuit

courts “should act sua sponte in the trial of a case only in exceptional circumstances.”

Wadlow, 370 S.W.3d at 322 (citations omitted). “Uninvited interference by the trial

judge in trial proceedings is generally discouraged, as it risks injecting the judge into the

role of a participant and invites trial error.” Id. at 322-23 (citations omitted). Russell has

not made the requisite facial showing necessary for this court to engage in plain error

review. See Webb, 674 S.W.3d at 193. Point denied.

CONCLUSION

The judgment is affirmed.

_____________________________ LISA WHITE HARDWICK, JUDGE All Concur.