In the Missouri Court of Appeals

Eastern District

DIVISION TWO

STATE OF MISSOURI, ) No. ED105903

)

Respondent, ) Appeal from the Circuit Court

) of St. Charles County

vs. ) 1611-CR00696-01

)

ORLANDO KIM FERGUSON II, ) Honorable Jon Alan Cunningham

)

Appellant/Defendant. ) FILED: February 26, 2019

OPINION

Orlando Kim Ferguson II (“Defendant”) appeals from the Judgment upon his convictions 

following a jury trial for two counts of first degree statutory sodomy in violation of Section 

566.062 RSMo 20001, and one count of first degree child molestation in violation of Section 

566.067. The trial court sentenced Defendant to eighteen years of imprisonment on both 

statutory sodomy counts and to fifteen years on the child molestation count, with all sentences 

running concurrently. We reverse and remand for a new trial.

Factual and Procedural Background

In 2005, Defendant and A.R.’s (“Victim”) mother (“Mother”) began a relationship while 

Mother was pregnant with Victim. In January of 2006, Victim was born, and in September of 

2007, Mother and Defendant married. Throughout the marriage, Defendant, Mother, Victim, and 

 

1 Unless otherwise indicated, all further statutory references are to RSMo 2000 as amended.
2

Victim’s sibling moved into and out of several apartments and family members’ homes until 

Defendant and Mother separated and later divorced in April of 2013. 

In February of 2016, while Victim was in fourth grade, Victim’s school arranged for a 

sexual abuse seminar to be given to her class. During the presentation, Victim began sobbing, 

approached Dr. Anita Hampton (“Dr. Hampton”), a school counselor, and told her “it happened 

to me,” explaining that Defendant had “touched me in my private area and...made me do bad 

things,” including “suck[ing] his hotdog.” Dr. Hampton subsequently called Mother and made a 

hotline call to the Missouri Department of Social Services Children’s Division. 

Thereafter, Victim met with Michelle Stille (“Stille”), a forensic interviewer with the 

Child Center in Wentzville, Missouri. Victim identified four instances of abuse to Stille. First, in 

“her old old [sic] apartment,” Defendant “forced her to suck his thingy.” Second, while they 

were living in Defendant’s mother’s home, Defendant made her “suck his thingy,” which caused 

her to vomit “because it tasted nasty.” Third, at the “new old apartment,” she was preparing for a 

bath when Defendant came in, picked her up, turned her upside down, and “licked her thingy or 

private part.” Finally, while spending the night at a relative’s house, Defendant woke her up, 

brought her into his bed, and “touched her private part on top of her pajamas.” 

Defendant was charged by third substitute information in lieu of indictment with two 

counts of first degree statutory sodomy and one count of first degree child molestation. Prior to 

trial, the trial court granted Defendant’s motion in limine seeking to exclude any testimony 

relating to uncharged acts of domestic violence alleged to have been committed by Defendant. 

Thereafter, the trial commenced on August 15, 2017. 

At trial, Victim explained that she remembered Defendant having, several times, 

“touched [her] in areas of [her] body that [she] ha[d] learned shouldn’t be touched.” Victim 
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testified that when she was “around two or three,” “[Defendant] stayed on the couch” while 

Mother was at work, and made her “mouth touch[] his penis.” Victim testified that she “bit it 

[because she] thought it was a hotdog, and [Defendant] got mad.” Next, Victim testified that at 

the “old apartment” when she “was younger, [she] was about to take a bath, and [Defendant] sat 

on the toilet, put [her] upside down, [and] started licking [her] privates.” Victim explained that in 

2011, while in Defendant’s mother’s home, Defendant “had [Victim] go downstairs in [the] 

basement and...made [her] touch him and do other things” that she “didn’t want to [do]” 

including putting her mouth on “[h]is privates,” causing her to vomit. Finally, Victim testified 

that on another evening, while at Defendant’s stepmother’s home, Defendant snuck into her 

room, put her into his bed, and touched her vagina over her pajamas despite her attempts to push 

his hand away. Victim testified that, initially, she “didn’t really know what [Defendant’s actions] 

actually meant,” but began to understand “around...kindergarten.” Victim testified that she 

“didn’t think [she] should tell” anyone about Defendant’s actions because she “was scared that 

[Defendant] was going to do something.” Victim testified, however, that she eventually told a 

cousin and two friends about Defendant’s actions when she was in third grade, but told them 

“not to tell.” 

The State next called Dr. Hampton and asked her at length about her education, 

occupation, and experience. Dr. Hampton testified that she is a school counselor at Victim’s 

school. She testified that she received her master’s degree from Lindenwood University and that 

she has a doctorate in counseling psychology, which she received from Argosy University in 

Chicago, Illinois. Dr. Hampton testified that she has been working as a school counselor for 

nineteen years, but that she has no specific training in conducting forensic interviews with 

children. Dr. Hampton testified that she is a mandated reporter such that, “if someone 
4

discloses...a sexual abuse...it is my job to call and report that situation.” Dr. Hampton explained 

that Victim disclosed to her several instances in which Defendant “had touched her in her private

area.” After recounting Victim’s allegations, Dr. Hampton, over Defendant’s objection, testified 

that she had “[n]o doubt at all” about what Victim told her or whether “this had actually 

happened to her.” 

Stille testified that she is a forensic interviewer trained to speak with children suspected 

of being victims of abuse. She explained that she had 550 hours of training in the areas of child 

abuse and neglect, and that one third of that training was specific to interviewing. Stille noted 

that she has personally conducted over 500 forensic interviews and observed over a thousand 

more. Over Defendant’s objection, Stille testified that Victim’s interview “was pretty 

consistent,” that Victim “shared details that were specific to those events” including sensory 

details, and that Victim “corrected me numerous times throughout the interview.” Stille testified 

that these responses are “fairly typical of kids that tend to not be suggestible.” Thereafter, Stille 

explained that Victim disclosed four instances of abuse by Defendant, namely that Defendant 

“forced her to suck his thingy” twice, causing her to vomit in one instance; that Defendant 

“picked her up[,] turned her upside down[,] and...licked her thingy or private part;” and that 

Defendant “touched her private part on top of her pajamas” while she spent the night at 

Defendant’s stepmother’s home. 

Mother testified for Defendant. During direct examination, she explained that after she 

and Defendant separated, but prior to their divorce, Mother only let Defendant see the children 

“if [they] got along,” noting that she sometimes kept the children “because [she] was physically 

abused.” Defendant’s counsel requested a mistrial, citing his motion in limine, and the trial court 

instructed Mother not to discuss allegations of domestic abuse further, but denied a mistrial. 
5

Thereafter, Defendant’s counsel confirmed that Mother and Defendant eventually divorced, and 

that Mother filed motions to modify the divorce decree seeking supervision during Defendant’s 

visitation of the children. On cross-examination, Mother explained that she sought supervision 

because Victim’s sibling told her that Defendant had him watch the film 50 Shades of Grey. 

Defendant’s counsel objected, claiming that this testimony was “extremely prejudicial,” and the 

State responded that Defendant “opened that door” by “mak[ing] a big issue of the [divorce] 

proceedings [and] choos[ing] to say what she did” therein. The trial court overruled Counsel’s 

objection. 

Defendant testified, and he denied all of Victim’s allegations, explaining that he never 

exposed his genitals to Victim or engaged in any sexual conduct with her. 

At the conclusion of all evidence the jury found Defendant guilty on all counts, and on 

August 28, 2017, the trial court sentenced him to 18 years of imprisonment on both statutory 

sodomy counts and 15 years of imprisonment on the child molestation count with all sentences 

running concurrently. Defendant filed a motion for new trial alleging, inter alia, that the trial 

court erroneously admitted testimony from Dr. Hampton and Stille that improperly vouched for 

Victim’s credibility, and erroneously admitted Mother’s prejudicial testimony that Defendant 

physically abused her and allowed Victim’s sibling to watch 50 Shades of Grey. On August 28, 

2017, the trial court denied the motion for new trial. Defendant’s appeal follows.2

Standard of Review

In Points I and II, Defendant challenges the trial court’s determinations as to the 

admissibility of evidence. Trial courts have broad discretion in determining the admissibility of 

 

2 Additional facts relevant to Defendant’s points on appeal will be set forth, as needed, in the 

relevant sections below.
6

evidence, and we review their rulings for an abuse of that discretion, which occurs when a ruling 

is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock 

one’s sense of justice and indicate a lack of careful consideration. State v. Rogers, 529 S.W.3d 

906, 910 (Mo. App. E.D. 2017). On appeal, we also review for prejudice and will reverse only if 

the error was so prejudicial that it deprived the defendant of a fair trial; an error is not prejudicial 

if there is no reasonable probability that it affected the outcome of the trial. State v. Cummings, 

400 S.W.3d 495, 507 (Mo. App. S.D. 2013).

In Points III and IV, Defendant challenges the trial court’s denial of his request for a 

mistrial. A grant of a mistrial is reserved only for the most extraordinary circumstances to avoid 

a prejudicial effect and to maintain an impartial jury. State v. Evans, 490 S.W.3d 377, 383 (Mo. 

App. W.D. 2016). A mistrial should be granted only where the prejudice that a defendant suffers 

cannot be removed in any other way. Id. Since the trial court is in the best position to determine 

whether there was a prejudicial effect upon the jury, the decision whether to grant a mistrial is 

left to the court’s discretion, and we also review this decision for an abuse of discretion. Id. To 

constitute an abuse of discretion, the trial court’s decision to deny a request for a mistrial must be 

clearly against the logic of the circumstances and be so unreasonable as to indicate a lack of 

careful consideration. Id.

Dr. Hampton’s Testimony

In Point I, Defendant argues that the trial court abused its discretion in allowing Dr. 

Hampton to testify that she had no doubts about Victim’s allegations because such testimony 

invaded the province of the jury by improperly vouching for Victim’s credibility. We agree. 

At trial, after the State questioned Dr. Hampton at length about her educational 

background, her experience, and her occupation, the following exchange occurred: 
7

[The State:] And you’ve worked with a lot of kids over the years. Having had an 

opportunity right then, and [Victim]’s first time she told an adult about this, to see 

what her demeanor was and the detail she was able to give you, did you have any 

doubt about whether this had actually happened to her?

[Dr. Hampton:] Oh, gosh, no.

[Counsel]: Excuse me one second. Objection, Your Honor. That’s within the 

scope of the jury. That’s not for her to say.

THE COURT: Your response?

[The State]: Your Honor, I think she has a lot of experience about what behavior 

is consistent when she’s talking to children and those who may be telling her 

things that are not accurate and those who are telling her things that are accurate 

and it goes to her subsequent conduct in calling her mother, and I expect a further 

question as well.

[Counsel]: Improper vouching, Your Honor. It goes to the purview of the jury.

THE COURT: Overruled. You may answer.

[The State:] You may go ahead and answer about whether you had any doubt in 

what she was telling you?

[Dr. Hampton:] No doubt at all. 

During closing argument, the State made the following remarks:

The only reason that you are on this jury is because each of you, under oath, 

indicated that if you believe the testimony of [Victim],...that you could return a 

guilty verdict...You know that the police department believed her, you know that 

the school system, her counselor, the prosecuting attorney[’s] office, but, ladies 

and gentlemen, it is now in your lap. 

On appeal, Defendant argues that Dr. Hampton’s testimony that she had “[n]o doubt at all” 

about whether the acts alleged by Victim “had actually happened to her” was improper in that it 

impermissibly vouched for Victim’s credibility.

“The credibility of witnesses and the weight of testimony are the province of the factfinder.” State v. Davis, 505 S.W.3d 401, 405 (Mo. App. E.D. 2016) (quoting State v. Crawford, 

68 S.W.3d 406, 408 (Mo. banc 2002)) (internal quotations omitted). “As the trier of fact, the jury 
8

is the sole arbiter of witness credibility, and it is free to believe or disbelieve all, part, or none of 

any witness’s testimony.” State v. Armstrong, 560 S.W.3d 563, 574 (Mo. App. E.D. 2018).

“Generally a lay witness may not testify regarding the witness’ opinion on a matter in 

dispute because the lay witness lacks specialized knowledge about the matter and, therefore, the 

jury and lay witness ‘are in equal positions to form an accurate opinion.’” State v. Presberry, 128 

S.W.3d 80, 86 (Mo. App. E.D. 2003) (quoting Winston, 959 S.W.2d at 877). “When the trier of 

fact is as capable as the witness to draw conclusions from the facts provided, opinion testimony 

is usually inadmissible.” Id. (quoting State v. Gardner, 955 S.W.2d 819, 923 (Mo. App. E.D. 

1997)) (internal quotations omitted). “[A] lay person may not give an opinion when ‘it has the 

effect of answering the ultimate issue the jury is to determine.’” Id. (quoting State v. Cason, 596 

S.W.2d 436, 440 (Mo. 1980)).

The State argues that Dr. Hampton’s testimony was proper because it went to explain her 

“subsequent conduct and the process leading to Victim’s forensic interview.” In making this 

argument, the State relies on State v. Edwards, 365 S.W.3d 240 (Mo. App. W.D. 2012). In 

Edwards, during the defendant’s first-degree sodomy trial, a children’s services investigator 

explained that investigators “only do as much of an interview as we need to, and then we send 

them to a child advocacy center.” Id. at 252. The State then asked whether there the investigator 

made a “finding on [her] part, which is part of the process, that [the victim] needs to go to the 

Children’s Advocacy Center,” and the investigator responded, “Yes, I believed her, so I wanted 

her to go on.” Id. The defendant failed to object, and on appeal, he argued that the investigator’s 

testimony improperly bolstered the victim’s credibility such that the trial court should have sua 

sponte declared a mistrial. Id. The Court disagreed, finding that the investigator’s testimony “was 

not so much an opinion regarding [the victim]’s credibility, as it was an explanation for her 
9

decision to terminate the interview,” which helped the jury understand why she ended her 

interview and referred the victim to the children’s advocacy center. Id. at 253. The Court further 

noted that the “State never again referred to [the investigator]’s testimony in subsequent 

questioning or in closing argument, and independent evidence of [the defendant]’s guilt...was 

strong.” Id.

Edwards is distinguishable. Here, the State did not couch its question about whether Dr. 

Hampton had doubts about “whether this actually happened” as an inquiry into the procedure she 

followed as a mandatory reporter. Whereas the State in Edwards asked whether the investigator 

made the requisite finding, which was “part of the process,” that a victim should be sent to the 

Children’s Advocacy Center, here, the State asked Dr. Hampton to merely comment upon 

whether she believed Victim based upon Victim’s demeanor and ability to give detail. Dr. 

Hampton did not testify that the believability of a child’s disclosure is a procedural antecedent to 

reporting an incident or sending the child to the Child Center. Nor did she testify that she called 

Mother and sent Victim to the Child’s Center specifically because she believed Victim. She 

testified only that as a mandatory reporter, she reports an incident “if someone discloses...a 

sexual abuse.” Additionally, whereas the State “never again referred to [the investigator]’s 

testimony” in Edwards, here the State highlighted Dr. Hampton’s testimony in closing argument 

when the prosecutor explained that the jury “know[s] that the school system [and] her counselor” 

believed Victim. 

Here, Victim testified at trial. Although the State asked Dr. Hampton to report upon her 

assessment of the veracity of Victim’s statements, the jury was in a position to observe and 

assess Victim’s testimony and demeanor for itself. As such, the jury was “as capable as [Dr. 

Hampton] to draw conclusions” about Victim’s credibility, such that Dr. Hampton’s opinion 
10

testimony was inadmissible. Presberry, 128 S.W.3d at 86 (quoting Gardner, 955 S.W.2d at 923). 

Dr. Hampton’s testimony was particularly prejudicial to Defendant in this case, where the State 

made substantial efforts to imply that Dr. Hampton had superior knowledge through its extensive 

questioning regarding her education, occupation, and experience that emphasized her having 

obtained a master’s degree, a doctorate degree in counseling psychology, and her having worked 

as a school counselor for nineteen years. Further, by noting that Dr. Hampton had “worked with 

a lot of kids over the years” and requesting that she provide her opinion as to the reliability of 

Victim based upon her having observed Victim’s “demeanor...and the detail she was able to 

give,” the State asked Dr. Hampton to opine about Victim’s credibility in such a way that 

suggested to the jury that she was particularly qualified to do so. Finally, the State emphasized 

Dr. Hampton’s opinion during closing argument, noting to the jury, “You know that the police 

department believed her, you know that the school system, her counselor [believed her]..., but 

ladies and gentlemen, it is now in your lap.” Here, the State’s case relied predominantly upon 

testimonial evidence of Victim’s allegations to prove its case. By allowing Dr. Hampton to 

testify as to the believability of Victim’s allegations, the trial court allowed her to bolster the 

credibility of Victim in a case where the jury’s verdict hinged upon its finding Victim and her 

allegations to be credible. See, e.g., State v. Rogers, 529 S.W.3d 906, 916 (Mo. App. E.D. 2017).

The trial court abused its discretion in allowing Dr. Hampton to provide her lay opinion as to the 

believability of Victim’s allegations. Point I is granted.

Stille’s Testimony

In Point II, Defendant argues that the trial court abused its discretion in allowing Stille to 

testify that she found the information alleged in Victim’s forensic interview to be reliable 
11

because her testimony invaded the province of the jury by improperly vouching for Victim’s 

credibility. We agree.

During Stille’s testimony, the following exchange occurred:

[The State:] Based on your training and experience and having done about fifteen 

hundred interviews, how would you characterize [Victim] in terms of whether her 

level of detail gave you any opinion on whether she was a suggestible child or 

whether she might have been making up these events or remembering them?

[Stille:] So [Victim] was—

[Counsel:] Judge, let me just go ahead and interpose my objection on it goes to 

the ultimate question and the purview of the jury. So the question is inappropriate.

[The Court:] Thank you. Overruled. You can answer.

[Stille:] So [Victim]—can you repeat that, your question?

...

[The State:] No problem. So having interviewed [Victim], was she able to give 

you an amount of detail or the information she gave you in the interview, did it 

give you any opinion, in your training and experience, about whether [Victim], 

whether what she told you was suggestive of her actually remembering those 

things or just parroting something somebody else had told her?

[Stille:] So throughout [Victim]’s interview she was pretty consistent. When I 

would go back to clarify she remained fairly consistent throughout her interview. 

She shared details that were specific to those events, sensory details and things 

that she remembered, and she also corrected me numerous times throughout the 

interview. If I would make a mistake she would stop me and correct me and that 

is fairly typical of kids that tend to not be suggestible. When children are talking 

with adults they often view those adults as authority figures and sometimes it can 

be intimidating for them to do things like correct that person, but she had no 

problem doing that through the duration of her interview.

[The State:] And what else, if anything, caused you to feel that the information 

that [Victim] was giving you in that interview was reliable?

[Stille:] [Victim] went through and talked about what happened to her in pretty 

significant detail at times. One of the reasons that we ask a lot of detail oriented 

questions in the interview is because sometimes children don’t think to offer up 

that kind of information or even recall that type of information without being 

asked and [Victim] offered up on her own many times some pretty detailed 
12

sensory information, things that she remembered about what she could see or hear 

or feel at times, and children [Victim]’s age aren’t typically able to offer up that 

type of information without having sexual knowledge that we have as adults. And 

so being able to talk about those things are just indicative of a child that has not 

been led to say what brought them to us because even if someone told them part 

of what to say they would probably not be able to give that type of information 

without having actually experienced those events themselves. 

On appeal, Defendant argues that Stille’s testimony regarding Victim’s reliability invaded 

the province of the jury because it was an improper expert opinion on the central issue of Victim’s 

credibility. 

“The general purpose of expert testimony is to assist the jury in areas that are outside of 

everyday experience or lay experience.” Rogers, 529 S.W.3d at 911. “[E]xpert opinion testimony 

should never be admitted unless it is clear that the jurors themselves are not capable, for want of 

experience or knowledge of the subject, to draw correct conclusions from the facts provided.” 

State v. McWilliams, No. WD80702, 2018 WL 4999171, at *5 (Mo. App. W.D. Oct. 16, 2018) 

(quoting State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984)) (internal quotations omitted). 

“Thus...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.” Rogers, 529 

S.W.3d at 911. 

Generally, two types of expert testimony are challenged in cases involving the sexual 

abuse of a child: general and particularized. State v. Churchill, 98 S.W.3d 536, 540 (Mo. banc 

2003). “General testimony describes a ‘generalization’ of behaviors and other characteristics 

commonly found in those who have been the victims of sexual abuse,” while “[p]articularized 

testimony is that testimony concerning a specific victim’s credibility as to whether they have 

been abused.” Id. While the trial court has broad discretion in admitting general testimony, 

“particularized testimony must be rejected because it usurps the fact-finding role of the jury and 
13

thus is inadmissible.” Rogers, 529 S.W.3d at 911. This is because “[e]xpert testimony that 

comments directly on a particular witness’s credibility or that expresses an opinion with respect 

to the credibility or truthfulness of witnesses of the same type under consideration invests 

scientific cachet on the central issue of credibility and should not be admitted.” Id. (quoting State 

v. Williams, 858 S.W.2d 796, 800 (Mo. App. E.D. 1993)) (internal quotations omitted).

We find State v. Rogers and State v. McWilliams instructive. In Rogers, an expert 

forensic interviewer testified that several indicators of reliability that a child abuse victim might 

display during an interview include making spontaneous gestures, displaying emotion, correcting 

the interviewer, or describing tactile details such as how something felt on his or her body. 

Rogers, 529 S.W.3d at 912-13. Following this generalized testimony, the expert gave several 

examples as to how the victim’s behavior conformed with those indicators of reliability. Id. at 

913-14. The expert testified, inter alia, that the victim corrected him several times throughout the 

interview, that she began to tear up during some of the questioning, and that she demonstrated on 

her leg how the defendant had “rubbed her private area.” Id. at 913-16. The expert concluded 

that the victim’s behaviors were “consistent with someone who has actually been molested.” Id. 

at 915-16. We began our analysis in Rogers by setting out cases that helped illustrate when the 

line from generalized to particularized expert testimony has been crossed, including State v. 

Silvey, which found an expert’s testimony that a child “displayed behavioral indicators 

consistent with child sexual abuse” permissible. See id. at 912 (citing 894 S.W.2d 662, 671 (Mo. 

banc 1995), abrogated on other grounds by State v. Porter, 439 S.W.3d 208 (Mo. banc 2014)). 

We concluded that “while Silvey and its progeny permit an opinion that a child’s behavior is 

‘consistent with’ sexual abuse, we remain wary that an expert’s extensive personalization of 

general characteristics, factually dissected and aggregated on an otherwise equivocal record, 
14

inevitably bolsters a victim’s credibility.” Id. at 912 (emphasis in original). Thus, when 

testimony has crossed this line is necessarily a case-by-case analysis.

In Rogers, we reversed the defendant’s conviction, concluding that the State’s solicitation 

of specific examples of how the victim’s behaviors conformed with the “indicators of reliability” 

was particularized testimony constituting an “excessive inquiry as to the...credibility[] of [the 

victim]’s statements” that invaded the province of the jury. Id. at 916. We further determined that 

the defendant suffered prejudice because the “State relied heavily on testimonial evidence of [the 

victim]’s allegations to prove its case,” and the interviewer’s testimony provided a “stamp of 

truthfulness” where the jury’s verdict hinged on its impression of the victim’s credibility. Id. 

In McWilliams, an expert forensic interviewer testified that, in assessing a child’s 

interview, an interviewer might look for whether the child provides “idiosyncratic detail,” which 

she defined as a gesture or sound accompanying the child’s speaking that is indicative of the 

child’s re-enacting the abuse in question. McWilliams, No. WD80702, 2018 WL 4999171, at *4

(Mo. App. W.D. Oct. 16, 2018). She further testified that an interviewer might consider the 

child’s ability to communicate and the child’s efforts to correct the interviewer, as these indicate 

a lack of suggestibility in the child. Id. at *7. The expert then testified that the six-year-old victim 

had provided idiosyncratic detail including pointing to her vaginal area to show where the 

defendant touched her and re-enacting how the defendant quickly walked out of her room after 

the abuse. Id. at *6. She further explained that the victim corrected her several times, which “was 

a good thing” because it indicated that she sought “to make sure [the interviewer] had the right 

information.” Id. at *7. On appeal, the Court reversed the defendant’s conviction, determining 

that the State “was asking [the expert] to comment on [the victim]’s credibility,” and that the 

testimony was “designed to buoy and lend credibility to [the victim].” Id. at 8. The Court found 
15

that the defendant was prejudiced because, his defense hinged upon the jury’s finding that the 

victim lacked credibility, which would have been “much more effective without [the expert]’s 

testimony improperly buttressing [the victim]’s credibility.” Id. at *9. 

Here, Stille first explained that a child’s ability to talk about sensory information and 

describe adult-like sexual knowledge is “indicative of a child that has not been led to say what 

brought them to us because...[a child] would probably not be able to give that type of 

information without having actually experienced those events themselves.” She further testified 

that a child’s ability to correct an interviewer “is fairly typical of kids that tend not to be 

suggestible.” Beyond this generalized testimony, however, Stille explained that Victim herself

was consistent throughout the interview in describing what happened to her and that she did so 

“in pretty significant detail.” She noted that Victim gave “detailed sensory information...about 

what she could see or hear or feel at times,” which children her age “aren’t typically able to offer 

up,” and that moreover, Victim had “no problem” correcting her if she made a mistake. Stille 

explained that this behavior led her to believe that “the information that [Victim] was giving 

[her]...was reliable.” 

Stille’s testimony referring to Victim’s individual performance during the interview was 

inadmissible particularized testimony. See McWilliams, 2018 WL4999171 at *8. Through this 

testimony, the “State was asking [Stille] to comment on [Victim]’s credibility,” and this 

“excessive inquiry as to the reliability—i.e., credibility—of [Victim]’s statements was wholly 

improper.” McWilliams, 2018 WL 4999171 at *8; Rogers, 529 S.W.3d at 916. Defendant, in 

turn, suffered prejudice. “Trial court error in the admission of evidence is prejudicial if the error 

so influenced the jury that, when considered with and balanced against all of the evidence 

properly admitted, there is a reasonable probability that the jury would have reached a different 
16

conclusion without the error.” McWilliams, 2018 WL 4999171 at *8. As noted in Point I, the 

State heavily relied upon testimonial evidence of Victim’s allegations to prove its case. As such, 

the “jury’s verdict hinged on its impression of [Victim]’s credibility,” and Stille’s particularized 

testimony invested a “scientific cachet” and “stamp of truthfulness” upon the issue of Victim’s 

credibility, which invaded the province of the jury thereby. Rogers, 529 S.W3d at 916. The trial 

court, therefore, abused its discretion in admitting Stille’s particularized testimony. Point II is 

granted. 

Mother’s Testimony That Defendant Had Victim’s Sibling Watch 50 Shades of Grey3

In Point IV, Defendant argues that the trial court abused its discretion in denying his 

request for a mistrial after Mother testified that Victim’s sibling told her that Defendant had him 

watch the film 50 Shades of Grey. We disagree.

During Mother’s direct examination, Defendant’s counsel confirmed that Defendant and 

Mother had divorced in April of 2013 and that under the divorce decree, Defendant was subject 

to child support obligations and was permitted to see Victim and Victim’s sibling every other 

weekend. Thereafter, Defendant’s counsel asked whether “there were motions to modify,” and 

Mother confirmed that there were. When Defendant asked Mother to clarify “what [she was] 

attempting to modify,” Mother answered, “[c]hild support and certain visitation days...and 

supervision.” On cross-examination, the State asked Mother whether she “asked the Court to 

make [Defendant’s] visitation supervised by someone else” because Victim’s sibling “came 

home and told you that the defendant had him watch 50 Shades of Gray [sic],” and mother 

responded, “Yes.” Defendant’s counsel objected and requested a mistrial, arguing that such 

 

3 Regarding Defendant’s Point III, we find no abuse of discretion by the trial court in denying

Defendant’s mistrial request concerning Mother’s allegations of domestic abuse by Defendant. 

Because we are granting a new trial, this issue should not recur on retrial. 
17

testimony was “extremely prejudicial” because “the jury is left with [] this notion that, you 

know, the sex offender...is having his son watching 50 Shades of Gray [sic],” a sexually-themed 

film. The State responded that Defendant’s counsel “made a decision to make a big issue of the 

[dissolution] proceedings” and that since he decided to ask Mother about “what she did in the 

divorce proceedings, she’s allowed to say why she made those decisions. He opened that door.” 

The trial court overruled the objection.

On appeal, Defendant argues that the State’s reference to the film 50 Shades of Grey was 

irrelevant to the charges at issue in this case, particularly where Victim’s sibling, and not Victim, 

was alleged to have been exposed to the film. He further argues that the probative value of the 

reference was outweighed by its prejudicial effect because it was introduced merely to “paint[] 

[Defendant] as a bad person who would show sex movies to children.”

“The general rule concerning the admission of evidence of uncharged crimes, wrongs, or 

acts is that evidence of prior uncharged misconduct is inadmissible for the purpose of showing 

the propensity of the defendant to commit such crimes.” State v. Uka, 25 S.W.3d 624, 626 (Mo. 

App. E.D. 2000). However, “a defendant may not take advantage of self-invited error nor 

complain about matters he himself brings into the case.” Id.

Here, in asking Mother about whether she sought to modify the divorce decree and 

asking her to identify which aspects of the decree she specifically intended to alter, Defendant’s 

counsel opened the door as to why Mother sought the modification. As a result of Defendant’s 

questioning, the State was permitted to ask Mother about her reasoning for altering the divorce 

decree to mandate supervision of Defendant’s visitation of the children, and the trial court did 

not abuse its discretion in denying a mistrial following Mother’s answer. Point IV is denied.

Conclusion
18

We do not disregard the harms suffered by victims of child abuse. However, as a matter 

of law, the State is prohibited from prosecuting charges in such a way that usurps the role of the 

jury and violates a defendant’s right to a fair trial. Given that the State’s witnesses, Dr. Hampton 

and Stille, commented on the believability and reliability of a very young victim in a highly 

disputed case without physical evidence, Points I and II are granted. The Judgment is reversed 

and remanded for a new trial. 

____________________________

Honorable Mary K. Hoff

Philip M. Hess, Presiding Judge and Robert G. Dowd, Jr., Judge: Concur