STATE OF MISSOURI, Plaintiff-Respondent v. CEDRIC TERRIL PACE, Respondent-Appellant

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STATE OF MISSOURI, Plaintiff-Respondent, v. CEDRIC TERRIL PACE, Respondent-Appellant.

No. SD38716

APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY Honorable D. Blake Pearson, Judge AFFIRMED Cedric Terril Pace ("Defendant") appeals his convictions for two counts of statutory rape (§566.032) 1 and one count of statutory sodomy (§566.062), alleging that the trial court: 1) committed plain error in failing to sua sponte exclude testimony from an expert witness, and 2) erred in denying Defendant's Motion for Acquittal because there was insufficient evidence to convict him of statutory sodomy in the first degree. Upon review of the record, we decline to exercise plain error review and hold there was

1 Unless otherwise noted, all statutory references are to RSMo 2016, as amended through June 4,

In Division

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sufficient evidence to support Defendant's conviction for statutory sodomy when viewing the evidence in the light most favorable to the verdict. The judgment of the trial court is affirmed. Facts and Procedural History Victim was born in October 2007 and turned 12 years old in 2019. Defendant was the boyfriend of Victim's mother's cousin, and lived across the street from Victim and her mother with his girlfriend and their five children, some of whom were Victim's age. Victim would play with Defendant's children almost every day and would stay the night at Defendant's house approximately every other weekend. At trial, Victim testified that there were times when she would end up alone with Defendant at his house, such as when Defendant's girlfriend would go to work and the other children would go to the park. Victim testified that Defendant would try to get her alone with him because he wanted to "do things to [her]." Victim testified that Defendant touched her inappropriately on her breasts and private area and that he would have her touch his "private area," which she clarified meant his penis. Victim testified that Defendant put his penis in her vagina on multiple occasions and that it had hurt. Victim testified that she was afraid of Defendant and that he had threatened to shoot her "if [she] told." On October 23, 2019, Victim told her mother about Defendant's sexual abuse, which had last occurred the previous day on October 22, 2019. Victim's mother immediately called the police. An officer responded to Victim's residence, and Victim informed the officer that "[Defendant] would have her remove her clothing, kiss her all

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over her body, [and] have sexual intercourse with her." The officer asked if the clothes that Victim was wearing at the time of the incident had been washed. When Victim and her mother indicated that they had not, the officer collected the clothing. Sperm cells and DNA consistent with Defendant's genetic profile were found on the knee area of Victim's sweatpants. Sexual Assault Nurse Examiner ("SANE" nurse) Tracy Smith testified at trial that injuries she observed to Victim's vagina were diagnostic of penetration. The State then asked her whether, in her opinion, these injuries were definitive evidence of sexual assault. She responded: For a person under the age of consent, too young to consent, that would be supportive of everything she said in her interview and in her exam with me and diagnostic with assault, because a 12-year-old child cannot consent to that. If I saw the same injury in an adult female who'd been sexually active for years and of the age of consent for years, that could have happened any time. For this child, at the age of 12, that kind of penetrative trauma is not consensual, because even if she said yes, she's too young to say yes. So, I would say it's diagnostic of assault, because of those things.

Defendant did not object to this testimony. Also at trial, the State played portions of a video-recorded forensic interview conducted with Victim on October 24, 2019. 2 In the interview, Victim stated that when Defendant abused her on October 22, 2019, he grabbed her butt, sucked on her breast and put his penis into her vagina. Victim also stated that on two occasions Defendant grabbed

2 The trial court held these statements were admissible under §491.075, and Defendant does not challenge that ruling on appeal. "Once such statements are properly admitted according to the procedure in section 491.075, admissibility is not the issue, but rather whether the trier of fact believes the evidence." State v. Lane, 415 S.W.3d 740, 751 (Mo. App. S.D. 2013) (citing State v. Benwire, 98 S.W.3d 618, 623 (Mo. App. W.D. 2003)) (internal quotations omitted).

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her head and forced it onto his penis and made her "suck it." When asked what it tasted like in her mouth, Victim replied "nasty." Kendra Eads, the forensic examiner who interviewed Victim, testified that Victim described the sexual abuse in the interview as consisting of Defendant touching her breasts, vagina and bottom, sucking on her breasts, kissing her, inserting his penis into her vagina and "making her put her mouth on his penis as well." When cross-examined on these disclosures, Eads further stated that her understanding of Victim's statements during the interview was that Defendant would force Victim to "suck on his private part for a few seconds, then put it into her vagina...." Eads' written interview summary, which was admitted into evidence without objection as State's Exhibit 5, also describes Victim discussing in the interview that Defendant's penis went into her mouth. During her testimony at trial, Victim denied both on direct examination and cross- examination that Defendant's penis went in her mouth. During redirect, the Victim agreed that these events had happened five years earlier, and her memory may be a little "fuzzy" on these issues. Victim admitted that she may have forgotten some things with respect to Defendant's sexual abuse, and her memory would have been clearer at the time of her interview with Eads. In its closing argument, the State told the jury:

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We know that in the [forensic interview] video, [Victim] said that that occurred, that his penis did go into her mouth. We know that [the forensic interviewer], ... and [the SANE nurse] ... testified to that. [The forensic interviewer] ... testified, yes, she told me that two days after the last sexual encounter. I'm not going to make any bones about it. ... [Victim], said no, that didn't happen. But she did admit that her memory is fallible. ... [T]his is something that you, as the jury, have to assess. But I will implore you just to remember that memory is fallible. Five years is quite a bit of time, okay?

During deliberations, the jury submitted a question to the trial court, which the trial court described as follows: The jury had a question. It says: Count IV says deviate sexual intercourse by inserting penis into her mouth. Deviate sexual intercourse defines hand, mouth, tongue, or anus. I think this is: Are we to judge mouth only, as she stated her hands were used?

In response to the question, the trial court directed the jury to be guided by the evidence as they recalled it and the instructions as given. The jury ultimately acquitted Defendant of one charge of statutory rape, but convicted him on two others. The jury also found Defendant guilty of statutory sodomy in the first degree. The trial court sentenced Defendant to thirty years for each conviction, with the sentences to run consecutively. This appeal followed. Analysis Exclusion of expert testimony In his first point on appeal, Defendant asserts that the trial court erred in failing to sua sponte exclude the testimony of the SANE nurse who testified that her findings were "diagnostic of assault" and supported everything Victim said in her interview and during

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her exam. Defendant acknowledges he failed to preserve this point for appeal and requests plain error review. Rule 30.20[ 3 ] is the exclusive means by which an appellant can seek review of any unpreserved claim of error, and said claim - no matter if it is statutory, constitutional, structural, or of some other origin - is evaluated by this Court's plain error framework without exception.

State v. Bodine, 702 S.W.3d 514, 516 (Mo. App. S.D. 2024) (quoting State v. Brandolese, 601 S.W.3d 519, 530 (Mo. banc 2020)). The decision as to whether to grant plain error review is within this Court's discretion. Id. (citing State v. Perkins, 640 S.W.3d 498, 501 (Mo. App. S.D. 2022)). Plain error review involves a two-step analysis: The first step requires a determination of whether the claim of error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear. If plain error is found, the court then must proceed to the second step and determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.

Id. (quoting State v. Minor, 648 S.W.3d 721, 731 (Mo. banc 2022)). Defendant also must establish the error was outcome-determinative. Id. at 517 (citing State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019)). As a general rule, "expert witnesses should not be allowed to give their opinion as to the veracity of another witness's statement, because in so doing, they invade the province of the jury." State v. Price, 165 S.W.3d 568, 572 (Mo. App. S.D. 2005) (quoting

3 Unless otherwise noted, all rule references are to Missouri Court Rules (2024).

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State v. Churchill, 98 S.W.3d 536, 538–39 (Mo. banc 2003)). "When an expert witness testifies that a particular witness is telling the truth, prejudice often arises because the expert's testimony invests scientific cachet to an issue (credibility) that the jury is capable of determining without an expert's help." Id. While an expert witness should not be permitted to comment on the veracity of another witness, an expert is permitted to testify as to his or her opinion on an ultimate issue in a criminal case as long the opinion does not state that the defendant is guilty of the crime.

State v. Beck, 557 S.W.3d 408, 422–23 (Mo. App. W.D. 2018) (quoting State v. Wadlow, 370 S.W.3d 315, 322 (Mo. App. S.D. 2012)). In this case, the SANE nurse never testified she believed Victim or that Defendant was the perpetrator of any abuse. In response to the State's question about whether physical findings related to the Victim were "definitive evidence" of sexual assault based on her training and experience, the SANE nurse testified that the findings were "supportive" of Victim's statements at her interview and exam and "diagnostic" of assault. As our appellate courts have previously held, such statements constitute permissible expert testimony and are not grounds for reversal. See Price, 165 S.W.3d at 572–73 (noting that defendant's characterization of expert's testimony that she "believed" victim was incorrect, as expert only testified that injuries were consistent with sexual abuse and such expert testimony was admissible); Beck, 557 S.W.3d at 422–23 (concluding there was no plain error or manifest injustice in a child sexual abuse case where the expert diagnosed victim as having suffered child sexual abuse, even though such diagnosis was based in part on victim's allegations of abuse, and did not state

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defendant was guilty of the abuse or otherwise comment on victim's veracity); and State v. Fewell, 198 S.W.3d 691, 698 (Mo. App. S.D. 2006) (holding that, where child had no physical injuries, doctor's opinion that child was sexually abused did not vouch for child's credibility and did not constitute plain error even though it was based in part on child's allegations of abuse). While Defendant cites several cases in support of his argument, all of them are distinguishable. In State v. Evans, 490 S.W.3d 377, 386–87 (Mo. App. W.D. 2016), which is not a plain error case, the court rejected expert testimony offered by a defendant because the proffered testimony was "particularized to the circumstances" of the case, and tied the victim's specific mental health diagnosis to her potential credibility. Here, the SANE nurse's testimony was not particularized to the Victim or her credibility, and instead was related to her diagnosis based on her observations and experience. In State v. Williams, 858 S.W.2d 796, 798 (Mo. App. E.D. 1993), the State's expert was asked questions that were directed both to the credibility of the victim as well as identifying the defendant as the potential abuser. In response, the expert testified that "very rarely" do sexually abused children lie, that incidents of children lying is low, that the child's spontaneous response "declares who it was" that abused her, and that physical findings and behavioral indicators can only support what the child said. The Williams court concluded that these statements, emphasized by the State in closing arguments, went beyond the general, behavioral characteristics of sexually abused children, improperly vouching for the victim's credibility and constituting plain error. Id. In this case, the SANE nurse's testimony did not discuss whether Victim might be lying or

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telling the truth and made no statements suggesting that Defendant was the one who perpetrated any abuse. Finally, in State v. McWilliams, 564 S.W.3d 618, 629 (Mo. App. W.D. 2018), which was not a plain error case, the court held that the State asked their expert a series of questions that, when read together, were designed to "buoy and lend credibility" to the victim's testimony after the victim testified she could not remember certain details. Id. The court noted that the objectionable questions made up a "significant portion" of the expert's testimony, and that the State looped the answers concerning the victim's credibility into its questions. Id. Here, Defendant complains of one brief answer given by the SANE nurse, and points out no efforts by the State to emphasize such response. Moreover, a review of the record shows that Defendant's counsel likely allowed the SANE nurse to testify about her findings being diagnostic of assault because this testimony was inconsistent with her written report where she did not indicate she observed evidence of abuse. Indeed, this inconsistency was thoroughly explored by Defendant's counsel during cross-examination and repeatedly emphasized during closing argument. Because Defendant's lack of an objection to the testimony challenged on appeal arguably advanced a defense strategy at trial, the trial court declining to exclude such testimony sua sponte was not plain error. Fewell, 198 S.W.3d at 697–98 (citing State v. Collins, 163 S.W.3d 614, 621 (Mo. App. S.D. 2005)). Because the trial court committed no error, plain or otherwise, in not sua sponte excluding the challenged testimony by the SANE nurse at trial, Defendant has not

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facially established substantial grounds to believe that a manifest injustice or a miscarriage of justice has occurred. Thus, we decline to exercise plain error review. Sufficiency of the Evidence In his second point on appeal, Defendant challenges the sufficiency of the evidence to support his conviction for statutory sodomy. Defendant does not challenge the sufficiency of the evidence to support his two convictions for statutory rape. On a defendant's challenge to the sufficiency of the evidence to support a conviction, this Court determines "whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Riley, 440 S.W.3d 561, 564 (Mo. App. E.D. 2014) (quoting State v. Primm, 347 S.W.3d 66, 72 (Mo. banc 2011)). This is not an assessment of whether the [appellate court] believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in the light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt.

State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011) (internal quotations omitted). "[A]ll evidence favorable to the State is accepted as true, including all favorable inferences drawn from the evidence." Id. "All evidence and inferences to the contrary are disregarded." Id. Appellate courts may "not supply missing evidence or give the State the benefit of unreasonable, speculative, or forced inferences." State v. Moses, 265 S.W.3d 863, 865 (Mo. App. E.D. 2008) (citing State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001)). However, this Court does not act as a "super juror" with veto powers over the

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jury's conviction, but defers to the trier of fact. State v. Gibbs, 306 S.W.3d 178, 181 (Mo. App. E.D. 2010) (citing State v. Jones, 296 S.W.3d 506, 509-10 (Mo. App. E.D. 2009)). The State charged Defendant with statutory sodomy in the first degree pursuant to §566.062, RSMo. The jury was instructed that they should convict Defendant of such offense if they found that Defendant had deviate sexual intercourse with Victim "by inserting his penis into her mouth" on October 22, 2019. In challenging the evidence to support his conviction, Defendant emphasizes that at trial the Victim denied multiple times that Defendant had placed his penis in her mouth and that the statements made during her forensic interview did not mean what the State asserts they mean. Such arguments, however, are inconsistent with our standard of review and ignore the fact that we are required to disregard "all evidence and inferences" that are contrary to the jury's verdict. Nash, 339 S.W.3d at 509. While Victim clearly denied at trial that Defendant's penis went into her mouth, she also testified that her memory could be "fuzzy" because the events occurred five years prior, and that her recollection of the incidents in her recorded forensic interview, which occurred only two days after the last offense, would likely have been "clearer" than it was at trial. During Victim's interview, she stated that Defendant's penis went into her mouth. Eads also testified at trial that this was her understanding of what Victim told her. Further, the written report from the interview also indicated that Victim had stated that Defendant placed his penis in her mouth. Consistently, "our courts recognize that 'the testimony of young victims about sensitive matters commonly contains some variations, contradictions, or lapses in memory'" and that "such variations,

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contradictions, and lapses in memory are matters for the fact-finder to resolve." State v. Hankins, 531 S.W.3d 77, 81 (Mo. App. S.D. 2017) (quoting State v. Jackson, 439 S.W.3d 276, 280 (Mo. App. E.D. 2014)). The jury's question to the trial court during deliberations demonstrates that they recognized the Victim's conflicting testimony. Ultimately, the jury resolved those conflicts in favor of a conviction. We are not permitted to disturb those factual findings on appeal. Disregarding the contrary evidence in the record, as we are required to do, we conclude that there was sufficient evidence from which the jury could find Defendant guilty of statutory sodomy beyond a reasonable doubt. Point 2 is denied. Conclusion The judgment of the trial court is affirmed.

MATTHEW P. HAMNER, J. – OPINION AUTHOR DON E. BURRELL, J. – CONCURS BECKY J. WEST, J. – CONCURS