State v. Givens

851 S.W.2d 754, 1993 Mo. App. LEXIS 553, 1993 WL 118523
CourtMissouri Court of Appeals
DecidedApril 20, 1993
DocketNos. 59727, 61565
StatusPublished
Cited by7 cases

This text of 851 S.W.2d 754 (State v. Givens) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Givens, 851 S.W.2d 754, 1993 Mo. App. LEXIS 553, 1993 WL 118523 (Mo. Ct. App. 1993).

Opinion

SIMON, Judge.

Appellant, Harry Givens, appeals his jury convictions for two counts of sodomy, § 566.060 R.S.Mo. (1986) (all statutory references are to R.S.Mo.1986 unless otherwise noted), and one count of first degree sexual abuse, § 566.100, for which he received consecutive terms of fifteen years for each sodomy count and a concurrent term of seven years on the sexual abuse count. He was charged and sentenced as a prior and persistent offender under §§ 558.016 and 557.036.4, and as a persistent offender under § 558.019 R.S.Mo. (Cum.Supp.1989). He also appeals the denial of his post-conviction relief (Rule 29.15) motion after an evidentiary hearing.

On appeal, appellant raises numerous points claiming essentially that the trial court erred in: (1) failing to declare a mistrial, sua sponte, following the state’s closing argument during which the prosecutor read an essay about the lasting effects of childhood sexual abuse and discussed the law’s failure throughout history to protect children; (2) allowing the state to impeach appellant regarding his 1950 and 1956 convictions, admitting the record of his 1950 conviction in evidence, and allowing the state to examine him about statements he made during a pretrial mental examination; (3) overruling his motion to strike the prior and persistent offender allegation under § 558.019 (Cum.Supp.1989) from the amended information and using his 1950 and 1956 convictions for purposes of finding him a prior and persistent offender under §§ 558.016 and 558.019 (Cum.Supp. 1989); (4) denying his disclosure request seeking production of the mental health records of two of the state’s witnesses; (5) admitting testimony concerning sexual acts with which he was not charged; (6) allow-, ing cross-examination of appellant’s charac^ ter witnesses during which the prosecutor alluded to appellant as a “child molester” and suggested that one of the witnesses was associated with child molesters; and (7) submitting MAI-CR3d 302.04 defining “reasonable doubt.” He also claims the motion court erred in denying his Rule 29.15 motion based on ineffective assistance of counsel. We affirm.

Appellant does not challenge the sufficiency of the evidence, so we briefly review the evidence in a light most favorable to the verdicts. The victim, T.K.G., appellant's daughter who was eleven years old at the time of the charged offenses, slept in a large bed with her two sisters and her stepsister. On one occasion, appellant called the victim into the bathroom and made her hold his penis. On other occasions, appellant came into her bedroom at night, pulled her to the foot of the bed or on to the floor and sexually molested her by fondling her breasts and vagina, having [758]*758her perform oral sex on him, and/or rubbing his penis on her bottom. When she tried to tell him to stop, he would smack her in the face. He also threatened to kill her, her sisters and her mother if she told anybody what he was doing. T.K.G., one of her sisters, and her stepsister all testified that appellant also performed similar acts on each of them on numerous occasions. Eventually the girls told their mother, Mrs. Givens, what had occurred, and she reported it to the police.

Appellant has raised numerous points on appeal, some of which we have combined for purposes of clarity in our discussion. In his first and second points on appeal, appellant contends that the trial court should have declared a mistrial, sua sponte, after improprieties in the state’s closing argument. In the opening portion of his argument, the prosecutor read to the jury an essay entitled Warrior Child, which describes the long term negative effects of sexual abuse on children. The prosecutor introduced the essay by arguing the future effects of appellant’s conduct on the victim and her sisters. In the rebuttal portion of his argument the prosecutor argued about the failure of society, throughout history, to protect children, and about his fear that this would be another case where the legal system fails to protect children. He argued that appellant gets a trial by a jury of his peers, but the children do not.

Appellant made no objection to this argument at trial, and failed to raise the points in his motion for new trial. Therefore, these points were not preserved for review. State v. Stallings, 812 S.W.2d 772, 778[7, 8] (Mo.App.1991). Since these points were not preserved, we review only for plain error. State v. Stepter, 794 S.W.2d 649, 655[11] (Mo. banc 1990). Relief is granted under plain error only when the error so substantially affects the rights of the accused that manifest injustice or miscarriage of justice inexorably results if left uncorrected. State v. Burgess, 800 S.W.2d 743, 746[7] (Mo. banc 1990).

The prosecutor should not express his belief of appellant’s guilt to the jury in such a way that it implies knowledge on his part of facts not in evidence pointing to appellant’s guilt. State v. Evans, 820 S.W.2d 545, 547[2] (Mo.App.1991). Nor should he make any argument which would inflame the passions or prejudices of the jury. State v. Douglas, 720 S.W.2d 390, 393[2] (Mo.App.1986). The declaration of a mistrial, however, is a drastic remedy that should be employed in those extraordinary circumstances in. which prejudice to the defendant cannot otherwise be removed. Burgess, at 746[7]. The decision to declare a mistrial rests largely in the discretion of the trial court which, having had an opportunity to observe the incident, is better able to determine whether prejudice necessitating a mistrial occurred. Id. For that reason, its decision will rarely be disturbed on appeal. Id.

Here, the record reveals sufficient evidence of guilt to support appellant’s conviction. A reading of the record reflects that the challenged portions of the prosecutor’s argument were not based on evidence contained in the record and were thus clearly improper. Relief should rarely be granted, however, on assertions of plain error as to closing argument, for where no objection to the argument is lodged, trial strategy is an important consideration and such assertions are generally denied without explication. State v. Newlon, 627 S.W.2d 606, 616[12—14] (Mo. banc 1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). This is true because in the absence of an objection, request for admonishment to disregard, or other specific request for relief the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase in the risk of error by such interference. Id. Improper argument will constitute plain error only if it has a decisive effect on the jury. State v. Murphy, 592 S.W.2d 727, 732[9] (Mo. banc 1979). Here, based on the record, we cannot say that the challenged arguments had such an effect on the jury. Points denied.

Appellant next raises several points relating to his prior convictions. Prior to trial, the state established that appellant [759]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Heidbrink
546 S.W.3d 597 (Missouri Court of Appeals, 2018)
Vicory v. State
117 S.W.3d 158 (Missouri Court of Appeals, 2003)
Johnson v. State
962 S.W.2d 892 (Missouri Court of Appeals, 1998)
State v. Stoner
907 S.W.2d 360 (Missouri Court of Appeals, 1995)
State v. Hamilton
892 S.W.2d 371 (Missouri Court of Appeals, 1995)
State v. Jones
860 S.W.2d 386 (Missouri Court of Appeals, 1993)
State v. Coleman
857 S.W.2d 363 (Missouri Court of Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
851 S.W.2d 754, 1993 Mo. App. LEXIS 553, 1993 WL 118523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-givens-moctapp-1993.