State of Missouri v. Zachary L. Myers

In the Missouri Court of Appeals Eastern District DIVISION ONE

STATE OF MISSOURI, ) No. ED108903 ) Respondent, ) Appeal from the Circuit Court of ) Madison County vs. ) ) Honorable Jerel L. Poor II ZACHARY L. MYERS, ) ) Appellant. ) Filed: March 23, 2021

I. Introduction

Zachary Myers (“Myers”)1 appeals the trial court’s judgment finding him guilty on two class D felony counts of sodomy in the second degree and one class D felony count of domestic assault in the second degree. Myers raises four points on appeal. In Point I, Myers argues that the trial court erred by permitting the State to refer to the complaining witness as the “victim” throughout trial. In Point II, Myers argues that the trial court erred by admitting the sexual assault nurse examiner’s report (“SANE Report”) into evidence because it contains inadmissible hearsay. In Point III, Myers appears to argue that the prosecutor had a conflict of interest in this case. Finally, in Point IV, Myers seems to bring a claim of ineffective assistance of counsel.

We affirm.

1 Myers’s surname is spelled “Meyers” in the appellant’s brief, but because all other documents use “Myers,” we shall adopt this spelling.

II. Factual and Procedural Background

Myers was charged by information on February 5, 2019, with two counts of the class D felony of sodomy in the second degree, § 566.061, 2 and one count of the class D felony of domestic assault in the second degree, § 565.073. A jury found Myers guilty on all three counts and the judge sentenced him to three consecutive seven-year terms of incarceration, for a total of twenty-one years.

The evidence at trial established that Myers met M.L.3 in September 2018 at the factory where they both worked. They began a sexual relationship around September 10, 2018, where they engaged in consensual vaginal intercourse. Shortly thereafter, M.L and Myers moved in together. Myers and M.L. maintained their sexual relationship from around September 15 until September 24, 2018.

On the morning of September 24, Myers told M.L. that he wanted to have anal intercourse with her, which she refused. Myers ignored M.L., rolled her over, and penetrated her anus while she physically resisted, telling Myers to stop and that he was hurting her. Myers did not stop. Between September 24 and September 28, Myers would again try to have anal intercourse with M.L., which she refused and resisted each time, thus angering Myers.

On September 28, Myers attempted to penetrate M.L.’s anus as she physically and verbally resisted. Myers became angered by this, eventually stopping before making a second attempt, to which M.L. resisted again. M.L. then went to buy lubricant from Walmart because she feared he would try again, thinking that the lubricant would make it less painful. M.L. testified that, upon her return from Walmart, Myers told her that “he didn’t want to use the lube

2 All references to statutes are to Mo. Rev. Stat. Cum. Supp. 2018, unless otherwise indicated. 3 Pursuant to § 595.226.1, we refer to the victim of the sodomy as “M.L.” so as to protect her identity.

because he wanted to traumatize me and make it hurt, that way I wouldn’t say no anymore.” She also testified that she did not try to leave because she feared Myers.

Myers again tried to penetrate M.L.’s anus on September 29, to which she again resisted. Myers stopped and told her that if she would not “do [her] job,” then he would find someone else to do it, and proceeded to leave the house. While Myers was away, M.L. packed her belongings and left the house. She later went to the hospital where Tamra Ray, a registered nurse and sexual assault nurse examiner, performed a SANE examination on her. Ray prepared the SANE Report and testified at trial that she observed injuries to M.L.’s rectum.

This appeal follows.

III. Discussion

Rules 30.06 and 84.04

Rule 84.04 4 describes the mandatory requirements for appellate briefing in Missouri. Carmen v. Olsen, 611 S.W.3d 368, 370 (Mo. App. E.D. 2020). These requirements apply to both civil and criminal briefs. Rule 30.06. Myers’s brief egregiously violates Rule 84.04 in that none of his arguments contain “a concise statement describing whether the error was preserved for appellate review; if so, how it was preserved; and the applicable standard of review.” Rule 84.04(e).

The standard of review is essential to all appellate arguments, as it outlines this court’s role in disposing of the matter before it. It is not this court’s duty to supplement a deficient brief with its own research, to comb the record in search of facts to support an appellant’s claim of error, or demonstrate it is properly preserved for appellate review.

Porter v. Santander Consumer USA, Inc., 590 S.W.3d 356, 358 (Mo. App. E.D. 2019) (internal citations omitted), transfer denied (Dec. 24, 2019). Myers also ignores the Rule 84.04(c)

4 All rule references are to Missouri Supreme Court Rules (2018), unless otherwise indicated.

requirements for his Points Relied On and he fails to develop his arguments or cite to the record, as required by Rule 84.04(e). We discuss these violations in more detail infra.

We prefer to review cases on the merits “where disposition is not hampered by rule violations and the argument is readily understandable.” Bennett v. Taylor, 615 S.W.3d 96, 98 (Mo. App. E.D. 2020). “However, ‘[a]n appellant’s failure to substantially comply with Rule 84.04 preserves nothing for our review and is grounds for dismissing the appeal.’” Id. (alteration in original) (quoting Bruce v. City of Farmington, 551S.W.3d 65, 66 (Mo. App. E.D. 2018)). “[I]f the brief is so deficient that we cannot competently rule on the merits without first reconstructing the facts and supplementing the appellant’s legal arguments, then nothing is preserved for review and we must dismiss the appeal.” Carmen, 611 S.W.3d at 371 (quoting Unifund CCR Partners v. Myers, 563 S.W.3d 740, 743 (Mo. App. E.D. 2018)).

This Court may dismiss some points on appeal for Rule 84.04 violations while reviewing other points within the same brief ex gratia. See, e.g., Scott v. King, 510 S.W.3d 887 (Mo. App. E.D. 2017) (dismissing three points for Rule 84.04 violations while reviewing two points ex gratia).

Point I

In his first point on appeal, Myers argues that the trial court erred in overruling his Third Motion in Limine, which sought to prohibit the State from referring to the complaining witness as a “victim.” Myers argues that the State referring to M.L. as a “victim” would constitute improper vouching because its use “gave the jury leave to give undue weight to [M.L.’s] testimony before she even testified.”

Myers’s first point violates Rule 84.04(e) in that he fails to “include a concise statement describing whether the error was preserved for appellate review; if so, how it was preserved; and *5 the applicable standard of review.” This violation alone justifies dismissal of the point because “[t]he standard of review is essential to all appellate arguments, as it outlines this court’s role in disposing of the matter before it.” Porter, 590 S.W.3d at 358. Nevertheless, we prefer to rule on the merits whenever possible, see Bennett, 615 S.W.3d at 98, and this violation does not impede our review of Point I. Therefore, we exercise our discretion to review the merits of this point ex gratia. In doing so, however, we must carefully avoid supplementing either party’s argument in order to maintain our role as a neutral adjudicator. Bennett, 615 S.W.3d at 98; Carmen, 611 S.W.3d at 371.

Standard of Review

The trial court maintains “a great deal of discretion in the conduct of a trial carried on before it.” State v. Moore, 925 S.W.2d 466, 467 (Mo. App. E.D. 1996) (citing State v. Dunmore, 822 S.W.2d 509 (Mo. App. W.D. 1991)). Specifically, the trial court “is generally vested with wide discretion in the conduct of voir dire,” State v. Oates, 12 S.W.3d 307, 310 (Mo. banc 2000), so “[r]ulings by the trial court are reviewed only for an abuse of discretion.” Id. at 311. In addition, “[t]he scope of opening statements is within the discretion of the trial court, and we review an objection to opening statements for abuse of discretion.” State v. Alexander, 505 S.W.3d 384, 391 (Mo. App. E.D. 2016) (citing State v. Thompson, 68 S.W.3d 393, 395 (Mo. banc 2002)). On direct appeal, we review claims of trial court error “for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009) (internal quotation marks omitted); Thompson, 68 S.W.3d at 395; Oates, 12 S.W.3d at 311.

Analysis

Myers argues that referring to the complaining witness as a “victim” constitutes improper vouching of that witness, which undermines his presumption of innocence. “Vouching occurs when a prosecutor implies that he or she has facts establishing the veracity of a state’s witness that are not before the jury for [its] consideration.” Glover v. State, 225 S.W.3d 425, 430 (Mo. banc 2007); accord State v. McFadden, 369 S.W.3d 727, 747 (Mo. banc 2012). A prosecutor may not assert personal knowledge; however, “[s]tating that a witness is telling the truth does not constitute vouching as long as the prosecutor does not imply that the statement is based on evidence not before the jury.” Glover, 225 S.W.3d at 430.

The Missouri Court of Appeals has only addressed the merits of whether a prosecutor may refer to a complaining witness as a “victim” once, in Cloud v. State, 507 S.W.2d 667 (Mo. App. 1974); see also City of Kansas City v. Hudson, 12 S.W.3d 747 (Mo. App. W.D. 2000) (dismissing an appeal in which this question arises for violations of mandatory briefing requirements). In Cloud, the appellant complained that the State’s reference to the complaining witnesses as “victims” was impermissibly inflammatory and thus warranted reversal. Cloud, 507 S.W.2d at 668. Although the court in Cloud did not specifically use the term “vouching,” it held that in the circumstances where the defense disputed the identity of the perpetrator but not that a crime occurred, “the use of the term by the prosecutor could not reasonably have been understood as a disparagement of the defendant, but rather as properly descriptive of the persons who had been subjected to the malefactions shown by the evidence.” Id. (citing Chambers v. United States, 237 F. 513, 520 (8th Cir. 1916)). In contrast, Myers disputes that any crimes occurred, maintaining that he and M.L. engaged in consensual relations, and that the State’s *7 usage amounted to impermissible vouching of the complaining witness, not a disparagement of himself.

With the many differences between Cloud and this case in mind, we hold that, in the context of these particular facts, no prejudicial error has resulted from the circuit court’s decision to allow the prosecutor to refer to M.L. as the “victim” at trial. The transcript shows that the prosecutor made only two references to M.L. as the “victim” before the jury: once during voir dire and once in its opening statement. We find merit in the State’s argument that the prosecutor’s use of the word “victim” merely indicated the role that M.L. played in the State’s theory of the case. At trial, the State put evidence before the jury to prove its theory that Myers victimized M.L. See McFadden, 369 S.W.3d at 747 (“There was no vouching as the State’s opening statement only included subsequent evidence that was presented to the jury at trial.”). Furthermore, the prosecution can state that a witness’s testimony is truthful, so long as the prosecutor “does not imply that the statement is based on evidence not before the jury.” Glover, 225 S.W.3d at 430. Nothing indicates that the prosecutor’s references did as much in this case. Therefore, the prosecutor’s statements during voir dire and in the State’s opening statement do not amount to impermissible vouching within this context.

Point I is denied.

Point II

In his second point on appeal, Myers argues that the trial court erred in admitting the SANE Report into evidence, asserting that it is hearsay that does not fall within any exception. Although we prefer to review cases on the merits, Myers’s disregard for Rule 84.04 leaves us with no choice but to dismiss his second point on appeal.

As mentioned before, Myers fails to provide a short statement of the applicable standard of review or inform us that this issue has been properly preserved for appeal. See Porter, 590 S.W.3d at 358. These omissions violate Rule 84.04(e) and warrant dismissal as it is not the Court’s duty to search the record or the applicable law to make these determinations. Id.

Most importantly, Myers does not develop an argument. He merely “provides legal conclusions that ‘are not developed, lack legal analysis and supporting rationale, and are not linked to specific evidence in the case.’” Carmen, 611 S.W.3d at 372 (quoting Midtown Home Improvements, Inc. v. Taylor, 578 S.W.3d 793, 797-98 (Mo. App. E.D. 2019)). This violates Rule 84.04(e). “Noncompliance with Rule 84.04(e) justifies dismissal, as it is not our duty to supplement the deficient brief with our own research.” Id. (quoting City of Bellefontaine Neighbors v. Carroll, 597 S.W.3d 335, 340 (Mo. App. E.D. 2020)). Myers “does not explain why, in the context of the case, the law supports the claim of reversible error.” Carmen, 611 S.W.3d at 372 (internal citation omitted). He contends that circuit court erred by admitting into evidence the SANE Report, which he claims contains contributions from others that amount to inadmissible hearsay, and that the SANE Report does not fall within the business records exception to hearsay under Uniform Business Records as Evidence Law, § 490.660. However, he fails to construct any argument applying the law to the facts of this case. He merely asserts simple conclusory statements and appends a copy of § 490.660. “A contention that is not supported with argument beyond conclusions is considered abandoned.” State v. Bell, 266 S.W.3d 287, 290 (Mo. App. E.D. 2008) (citing Prosser v. State, 243 S.W.3d 496, 497 (Mo. App.

E.D. 2008)).

Furthermore, Rule 84.04(e) requires that “[a]ll factual assertions in the argument shall have specific page references to the relevant portion of the record on appeal.” However, Myers *9 makes no effort to cite any of his factual assertions to the record. For example, he asserts that the SANE Report “contained contributions by other individuals who were not present at trial,” and that it “was published to the jury,” without supplying us with information regarding such claims or citing to the record. “Specific relevant cites to the record are mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record.” Carmen, 611 S.W.3d at 371 (quoting P & J Ventures, LLC v. Yi Yu Zheng, 479 S.W.3d 748, 752 (Mo. App. E.D. 2016)). “This court will not act as an advocate by scouring the record for facts to support Defendant’s contentions.” Bell, 266 S.W.3d at 290 (citing Prosser, 243 S.W.3d at 498).

We cannot advocate for Myers, but we would have to do just that to address this point on the merits, by reconstructing the facts he asserts and developing his argument for him. “[T]he function of an appellate court is not to serve as an advocate for the parties on appeal, and this Court must carefully safeguard its role as a neutral adjudicator.” Carmen, 611 S.W.3d at 371 (internal quotation marks omitted) (quoting Hamilton v. Archer, 545 S.W.3d 377, 381 (Mo. App. E.D. 2018)). Therefore, we must dismiss this point on appeal.

Point II is dismissed.

Point III

In his third point on appeal, Myers alleges that his rights were denied based upon a conflict of interest between himself and the prosecutor. We dismiss Point III for substantial noncompliance with Rule 84.04.

Myers does not “identify the trial court ruling or action that the appellant challenges,” in violation of Rule 84.04(d)(1)(A). “This rule is not a judicial word game or a matter of hypertechnicality, rather it serves to notify the opposing party of the precise matters under *10 contention and inform our Court of the issues presented for review.” Carmen, 611 S.W.3d at 371 (citing Scott v. King, 510 S.W.3d 887, 892 (Mo. App. E.D. 2017)). “A point relied on that fails to comply with Rule 84.04(d) preserves nothing for review.” Hamilton, 545 S.W.3d at 380 (citing Washington v. Blackburn, 286 S.W.3d 818, 821 (Mo. App. E.D. 2009)). Myers also includes five cases below the Point Relied On for this point, ignoring the text of Rule 84.04(d)(5), which reads: “Immediately following each ‘Point Relied On,’ the appellant… shall include a list of cases, not to exceed four, and the constitutional, statutory, and regulatory provisions or other authority upon which that party principally relies.” (Emphasis added).

Again, Myers fails to comply with Rule 84.04(e). He does not include the applicable standard of review, information regarding the preservation of this issue for review, or citations to the record for the factual claims he makes. These errors justify dismissal on appeal. Porter, 590 S.W.3d at 358. Furthermore, the factual assertions he makes have no support anywhere in the record. “Recitals in an appellant’s brief that are unsupported by the record on appeal are insufficient to supply this Court with the record of trial court proceedings necessary for our review.” Poke v. Mathis, 461 S.W.3d 40, 42 (Mo. App. E.D. 2015).

Point III is dismissed.

Point IV

In his fourth point on appeal, also replete with Rule 84.04 violations, Myers appears to bring a claim of ineffective assistance of counsel. However, “Missouri courts have held that ‘a claim of ineffective assistance of counsel… is not cognizable on direct appeal.’” State v. West, 551 S.W.3d 506, 517 (Mo. App. E.D. 2018) (alteration in original) (quoting State v. Webber, 504 S.W.3d 221, 230 (Mo. App. W.D. 2016)). Such claims “must be presented pursuant to the procedure set forth in Rule 29.15 or 24.035 which provide for the development of a full and *11 complete record… [because] [t]hese rules provide the exclusive procedure through which postconviction relief because of ineffective assistance of counsel may be sought.” Id. (internal citations omitted).

Point IV is dismissed.

IV. Conclusion

For the reasons stated above, we affirm the judgment of the circuit court.

_______________________________ Kelly C. Broniec, Judge

Colleen Dolan, P.J. and Robert M. Clayton III, J. concur.