Opinion
No. WD 61050
July 29, 2003 Modified September 30, 2003
Appeal from the Circuit Court of Clay County, The Honorable Michael J. Maloney, Judge.
Jeffrey D. Long was convicted, after trial by jury, of the offenses of Forcible Rape, § 566.030, and RSMo, and Forcible Sodomy, § 566.060, RSMo. He raises seven points on appeal, ranging from an attack upon the sufficiency of the evidence to support his conviction of forcible rape to a number of evidentiary issues. We find that the State presented sufficient evidence to support the jury's conviction with regard to the rape conviction and also affirm Long's conviction with regard to the forcible sodomy count.
Facts
The charged offenses arise out the sexual assault upon Debbie Flower by appellant Long and Chris Manning. Ms. Flower resided in a mobile home park in the North Kansas City area. Her only form of transportation was bicycle, though she often received transportation from neighbors. On April 20, 2001, Flower was invited by Manning to a party. She rode with Long and Manning, first to a liquor store where Long purchased a bottle of vodka for Flower, then to Long's apartment. After arriving at Long's apartment, all three began drinking the vodka that had been purchased. At trial, Flower testified that she was also taking prescription psychoactive drugs at the time, so only had "a little bit" of the vodka.
Some time later, Long started playing a pornographic videotape on the television. At that point, Flower attempted to leave the apartment, but Long grabbed Flower by her shirt and hair, pulling her down to the floor. After removing all Flower's clothes save her shirt, Long proceeded to anally penetrate Flower. Flower struggled but was unable to resist. Subsequently, Long attempted to have oral sex with Flower, but she tried to bite Long's penis. At that point, he struck Flower, knocking her unconscious. She regained consciousness sometime later, after which Manning and Long continued to sodomize her.
After Long and Manning finished their assault, they picked Flower up and tossed her out of the apartment, together with her underwear and shorts, into the building's hallway. She remained in the hallway until the following morning, out of fear and pain. In the morning, she walked to a nearby grocery store, where a security guard called a taxi for her. She went home and bathed, in an attempt to relieve pain she was suffering as a result of the assault.
A few days later she reported the incident to the police. A subsequent medical examination revealed bruising consistent with Flower's statements that she had resisted the attack. The exam disclosed signs of trauma to Flower's rectum supporting her claims that she had been sodomized. It also revealed abrasions and tears in Flower's vagina consistent with some sort of forced penetration. Flower, however, did not recall having been vaginally penetrated at any point in the assault.
Long was charged with the offenses of Forcible Rape, § 566.030, RSMo, and Forcible Sodomy, § 566.060, RSMo. At the conclusion of trial, he was found guilty of both offenses and was sentenced as a prior and persistent offender. Long now appeals those convictions.
Discussion I.
In the first of seven points on appeal, Long contends the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence and in sentencing him upon his conviction for forcible rape because the State did not prove beyond a reasonable doubt that either the appellant or his co-defendant had sexual intercourse with Ms. Flower. Specifically, he contends that there was insufficient evidence that there was any alleged penetration of Ms. Flower's sex organ by either Long's or his co-defendant's male sex organs. The State responds that the trial court did not err in overruling Long's motion for judgment of acquittal on insufficiency grounds because there was sufficient evidence of vaginal penetration in that medical testimony established that the victim's vagina was forcibly penetrated, and the victim's testimony established that her assailants did not penetrate her with anything other than their penises.
In reviewing a challenge to the sufficiency of the evidence, this court considers whether, in light of the evidence, a reasonable juror could find appellant guilty of the charged offense beyond a reasonable doubt. State v. Crawford, 68 S.W.3d 406, 408 (Mo.banc 2002); State v. Dawson, 985 S.W.2d 941, 951 (Mo.App. 1999). In applying this standard, this court must look to the elements of the crime and consider each in turn, taking the evidence in the light most favorable to the State and granting the State all reasonable inferences from the evidence. State v. Grim, 854 S.W.2d 403, 411 (Mo.banc 1993). We do not weigh the evidence and we disregard contrary inferences that can be drawn from the evidence. Crawford, 68 S.W.2d at 408. The sole exception is where a contrary inference is such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard that inference. Grim, 854 S.W.2d at 411. This court may not supply missing evidence, or give the State the benefit of unreasonable, speculative or forced inferences. State v. Whalen, 49 S.W.3d 181, 184 (Mo.banc 2001).
The statutory definition of Forcible Rape is found in Section 566.030, RSMo, which states, in relevant part:
A person commits the crime of forcible rape if such person has sexual intercourse with another person by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse.
§ 566.030.1, RSMo.
The term "sexual intercourse" is defined in Section 566.010(4), as "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." Thus, in order to convict Long of forcible rape, the State was required to prove that Flower had been penetrated by a male sex organ through forcible compulsion. The State charged Long with forcible rape and the verdict directing instruction regarding that offense charged Long with acting in concert with Christian Manning. Long argues the State failed to prove that Flower was penetrated by either Long's or Mannings' male sex organ.
Neither the appellant nor the State have provided us with much legal authority on this point other than boilerplate citations concerning proof of penetration by circumstantial evidence. The State argues that State v. Dunn, 7 S.W.3d 427 (Mo.App. 1999), is a similar case sustaining the sufficiency of the evidence as not equivocal as to penetration. In Dunn there was medical evidence of serious injuries to the vaginal area. The victim testified clearly to one act of sexual intercourse by the defendant and the sufficiency of the evidence question arose as to a second act of forcible rape. As to that second act, the victim testified in answer to a question of whether the penis penetrated her vagina said "I think so." Id. at 430.
We agree with the State that medical evidence of penetration coupled with other testimony is sufficient. We do not agree that medical evidence in Dunn played a large role in the sufficiency of evidence on the second rape since there was no way to establish that the injuries were incurred in the second as opposed to the first rape. Nor do we think that the testimony of the victim in Dunn is comparable to the testimony of the victim here. Dunn's victim testified that she believed she had been penetrated; however, the victim here didn't think that she had been penetrated (but didn't really know) but thought she might have been but was unable to feel any vaginal penetration because of the pain from the sodomy. Proof that something might have happened or could have occurred is not, without something more, sufficient to sustain the State's burden of proof beyond a reasonable doubt of each element of the crime.
The victim's testimony need not describe the acts in detail, so testimony that the defendant had sexual intercourse with her is sufficient to allow a reasonable inference of penetration of the vagina by the male sex organ. State v. Elmore, 723 S.W.2d 418, 420 (Mo.App. 1986). But we have no such testimony by the victim here. Nevertheless, we believe that the State can make a submissible case on the issue of penetration in the absence of any affirmative evidence of penetration by the victim herself. In State v. Stackhouse, 146 S.W. 1151 (Mo. 1912), the court rejected a contention that medical testimony in the absence of testimony by the victim of penetration was insufficient. As said by the court in State v. Sikes, 24 S.W.2d 989, 990 (Mo. 1930), the "condition and appearance of the genital organ of prosecutrix, immediately after assault is alleged to have occurred, was a circumstance properly to be considered by the jury in connection with all the other facts in evidence in determining whether or not penetration actually occurred."
The question, as we see it, is whether the medical evidence presented in this case permits a reasonable inference of penetration by the male sex organ. In Sikes, the physician testified that, in his opinion, the irritation and redness of the victim's vagina was the result of sexual intercourse. Id. at 989. In State v. Ivey, 303 S.W.2d 585 (Mo. 1957), the victim was mentally retarded and found to be incompetent as a witness. An examining physician found a fresh laceration of the hymen which the doctor said was most likely caused by penetration by a male sex organ (although acknowledging other possible causes). Id. at 587-88. The court found the evidence of penetration sufficient in the absence of any testimony by the victim. Id. at 588.
In the light most favorable to the State, the direct evidence at trial showed that Flower's sex organ was penetrated by something. Flower's testimony did not provide that evidence, as she testified that she did not recall feeling any vaginal penetration. She did state, however, that she was in so much pain from the forced anal intercourse that she might not have realized that vaginal intercourse was taking place. Flower also testified that she was knocked unconscious for a period of time and wavered in and out of consciousness. There was testimony from the nurse who examined Flower after the incident that her vagina showed signs of forcible penetration. Taken together, that evidence would support the inferences that she was either in too much pain to sense that she had been vaginally penetrated or might have been penetrated during one of the periods of unconsciousness. While there was clearly sufficient direct evidence for a reasonable juror to conclude beyond a reasonable doubt that Flowers was penetrated, the question is whether that evidence establishes that she was penetrated by a male sex organ.
The State argues that a juror could reasonably infer that penetration by a male sex organ had occurred. They first point out that Flower did not testify that she was penetrated orally or rectally by anything other than Manning's and Long's penises. The nurse who examined Flower testified that Flower suffered abrasions to the opening of her labia and inflammation inside and at the far end of her vagina. That testimony further indicated that such injuries were indicative of forced penetration.
On direct examination, the nurse testified that the injuries found in the vagina were indicative of forced "sex acts." In State v. Elmore, 723 S.W.2d at 420, the victim's use of the term "sexual intercourse" was sufficient to show penetration by a male sex organ. We do not believe that the term "sex acts" carries this same connotation of specificity and limitation to the male sex organ. Nevertheless, there was additional evidence from the nurse which permits an inference by a reasonable juror of penetration by a male sex organ. The nurse explained, "The positioning of a person, with non-consensual sex you have less cooperation between partners. You don't have the pelvic tilt upward accommodating the penis. You don't have the lubrication of the vaginal area. So it's like getting a rug burn from friction in that area." Viewed in the light most favorable to the State, this evidence indicated that it was the nurse's opinion that the injuries were caused by forcible penetration of the victim's vagina by a male sex organ. While the nurse did not directly state that Flower's vagina was penetrated by a male sex organ, there was sufficient evidence to support a reasonable inference that such penetration took place.
Point denied.
II.
For his second point on appeal, Long argues the trial court abused its discretion by failing to disclose to the defense the psychological, psychiatric, and medical records of Deborah Flower. He argues that this precluded him from fully exploring Flower's credibility, bias, and her ability to discern reality on the day of the charged offense and during her testimony. Specifically, Long claims that he was precluded from discovering possible evidence of false reports, of a history of self-abuse, of a history of psychiatric disorders manifesting themselves in manipulative and destructive conduct, of mental disorders having a high probative value on the issue of credibility, and of mental defects that materially affected the accuracy of Ms. Flower's testimony or tended to produce bias in her testimony. Long argues that, further, there was a waiver of the privilege because the jury was informed by the State that she was "mentally handicapped," had "a caseworker through Tri-County," received disability income, and was taking several medications for her disability.
The parties do not agree on the applicable standard of review. Long asks this court to review this point under an abuse of discretion standard. The State argues this issue should be reviewed for plain error. The State contends that at trial after the defendant requested the records by subpoena, the only relief he requested was the in camera review, which was conducted. Long replies, "But it was clear at the trial level that an in camera review was not the end all."
While Long argues that the trial court's actions should be reviewed under an abuse of discretion standard, in our view, the issues raised within this point on appeal have not been properly preserved.
As the State correctly points out, the specific arguments raised on appeal do not appear, at least from the record before this court, to have been raised before the trial court. When the trial court announced its intention to conduct an in camera review of the records, defense counsel requested that the trial court look for documents discussing these particular topics: (1) Flower's drinking of liquor with her medications, especially with any history of it resulting in hallucinations or her telling untrue stories; (2) abuse of prescription medications resulting in hallucinations or incorrect recall of events; and (3) fixation upon rape resulting in false claims that she had been raped. In his motion for new trial, the sole issue presented with regard to Flower's psychiatric records was the issue of whether Flower had made false claims with regard to an incident in Kansas where Flower allegedly made a false claim of rape. Now, on appeal, Long claims that he should have been permitted access to the records to probe for: (1) Flower's credibility, bias and her ability to discern reality on the day of the offense and during her testimony; (2) evidence of false reports; (3) evidence of self-abuse; (4) a history of psychiatric disorders manifesting in manipulative or destructive conduct; (5) mental disorders having a high probative value on the issue of credibility; and (6) mental defects that materially affected the accuracy of Flower's testimony.
Clearly, the topics raised at trial and those raised on appeal are not the same. Indeed, there is very little overlap between the two. During trial, defense counsel's request was primarily directed at two things. First, whether Flower had a history of drug and alcohol abuse that caused her to be unable to correctly recall or to fabricate past events. Second, whether Flower suffered from a condition that impelled her to make false reports of rape in the past. On appeal, Long now argues that he should have been able to seek more general evidence touching upon Flower's credibility (not just in regard to possible false allegations of rape) and her psychological condition, a much broader inquiry than the one he requested at trial. Long also argues that he should have been able to obtain records disclosing any history of self-abuse, an issue that was not raised before the trial court at all.
A party is bound by the arguments made before the trial court and cannot raise new and totally different arguments on appeal. State v. Winfield, 5 S.W.3d 505, 515 (Mo.banc 1999). Similarly, if a party seeks admission of an exhibit under a particular ground at trial, he cannot raise another ground on appeal. Id. While the grounds here are not completely different, the net result is that the arguments raised on appeal are not the arguments that were presented to the trial court. For this reason, together with the deficiencies in the record, we find that this point has not been properly preserved for appeal, limiting us to discretionary review for plain error.
While we may exercise plain error review, pursuant to Rule 30.20, in cases where a point has not been properly preserved, we will decline to engage in plain error review if we conclude that the appellant has failed to make a showing that there has been a manifest injustice or miscarriage of justice. State v. Johnson, 968 S.W.2d 123, 132 (Mo.banc 1998). Here, the trial court did not quash the subpoena seeking Flower's medical records, but instead engaged in an in camera review of the documents, looking for documents that fit within the criteria articulated by defense counsel. It tendered to the parties that limited portion of the medical records that it thought were relevant to those criteria and admissible. Thus, it is clear from the record available to us that Long's discovery was not denied outright. However, the records which were disclosed to Long's counsel after the in camera review, which were marked by the trial court as a separate exhibit, have not been filed with this Court and are therefore absent from the record on appeal. We have reviewed the sealed exhibits and some of the sealed records filed with the Court have paper clips attached, which may or may not constitute the records disclosed to Long's counsel. We will assume that those pages were disclosed. After reviewing the sealed records, we do not find that there was a miscarriage of justice due to the trial court's failure to disclose additional portions of Flower's records.
From the record before us, we do not find that Long has shown that a manifest injustice has occurred by the trial court's refusal to permit him additional discovery of Flower's psychiatric records. We, therefore, decline to engage in plain error review, and deny his second point on appeal.
III.
For his third point on appeal, Long contends the trial court abused its discretion in excluding the testimony of witnesses Timothy Wilson, Sharrie Clark, and Officer Cummings. He argues that he should have been permitted to present their testimony that Flower had accused Wilson of sexually assaulting her, physically assaulting her, and threatening her on three different occasions, where she later recanted her accusations. Long takes the position that this excluded evidence was relevant to challenge Flower's veracity and because it would have supported Long's defense that Flower had a history of or tendency to make false reports, either because of mental abnormality or alcohol impairment. The State responds the trial court did not abuse its discretion in denying Long's offers of proof in that it was an improper attempt to prove Flower's untruthfulness with specific acts of conduct. The State argues further that Wilson's offer of proof was defective as it contained inadmissible hearsay and evidence barred by the rape shield statute.
A trial court enjoys broad discretion in determining the admissibility of evidence, and appellate courts will not interfere with those decisions unless there is a clear showing of an abuse of that discretion. Winfield, 5 S.W.3d at 515. We have previously held that a complaining witness in a sex offense may be impeached by evidence that her general reputation for truth or veracity is bad, but not by acts of specific conduct. See State v. Edwards, 918 S.W.2d 841, 845 (Mo.App. 1996); State v. Foster, 854 S.W.2d 1, 4 (Mo.App. 1993). Long's claims here would seem to fall squarely within our prior holdings.
We note that our brethren in the Eastern District, however, have permitted such evidence in a number of cases and have even held it to be error to exclude such evidence. See State v. Montgomery, 901 S.W.2d 255, 256-57 (Mo.App. 1995); State v. Lampley, 859 S.W.2d 909, 911 (Mo.App. 1993). In those cases, however, the prior false reports were relevant not just on the general issue of the complaining witness' truth or veracity, but also to show that the complaining witness had a motive to testify falsely. See Montgomery, 901 S.W.2d at 257; Lampley, 859 S.W.2d at 911. Those cases are thereby distinguishable from the case at bar, as here there is no allegation that Flower's testimony against Long was prompted by a motive to testify falsely or that the excluded testimony was relevant to show such a motive. See, e.g., State v. Samuels, 88 S.W.3d 71, 84 (Mo.App. 2002). Instead, Long sought to have such evidence admitted solely because it showed "a history or tendency to make false reports of sexual allegations and later recant them." As such, it would fall under the general prohibition against putting on evidence of specific instances where a complaining witness made a false report, as stated in Edwards.
Long was properly limited to offering evidence regarding Flower's general reputation for truth and veracity in the community. The trial court did not abuse its discretion in excluding the testimony of Wilson, Clark, and Cummings regarding the alleged prior false claims of rape. Long's third point on appeal is denied.
IV.
In his fourth point on appeal, Long argues the trial court abused its discretion in precluding him from presenting crucial evidence of his innocence through the proffered testimonies of Timothy Wilson and Kevin Bonei that Flower engaged in sexually provocative actions when she was drinking alcohol. Long takes the position that this evidence was relevant because it would have supported Long's defense that, when Flower became intoxicated, she would engage in some consensual sexual acts and then, possibly due to the effect that the alcohol had on prescription medications she was taking, she would become hysterical and misconstrue what was going on. The State responds the trial court did not abuse its discretion in refusing to admit the evidence because that evidence was evidence of the victim's prior sexual conduct, which is barred by the rape shield statute, section 491.015, RSMo. As with the prior point on appeal, we review this claim of error for abuse of discretion. Winfield, 5 S.W.3d at 515.
The rape shield statute prohibits the admission of "opinion and reputation evidence of the complaining witness' prior sexual conduct [or] evidence of specific instances of the complaining witness' prior sexual conduct or the absence of such instances or conduct," unless it falls within four exceptions articulated in the statute. § 491.015, RSMo. None of those exceptions directly apply here. Nevertheless, Missouri courts have held that exclusion of evidence regarding the victim's sexual conduct may be error in certain circumstances, despite not falling within one of the four exceptions articulated in the rape shield statute. Specifically, exclusion of that evidence is error if such prohibition would deprive a defendant of a "fair trial comprehended by the concept of due process." State v. Douglas, 797 S.W.2d 532, 535 (Mo.App. 1990).
Here, Long argues that the evidence is admissible on the grounds that its exclusion violated his due process rights under the Sixth and Fourteenth Amendments to the U.S. Constitution. Long tries to bring this case under the rule articulated in Douglas, arguing that when fundamental fairness is at stake, evidence of prior sexual conduct is admissible if introduction of such evidence is necessary to secure the defendant's right to present a defense. While Long's argument follows the manner in which Missouri courts have reconciled the rape shield statute with federal constitutional precedents, that argument fails to clearly show how the exclusion of the evidence deprived Long of his due process rights and a fair trial in this matter.
In his point on appeal, Long also invokes the Fifth Amendment, but presents no argument upon that basis.
Evidence must be more than arguably relevant to the issues at trial to trigger the Douglas rule. Otherwise, the statute would be meaningless. Instead, that evidence should be directly related and probative to rebut specific evidence or inferences presented by the State or to establish a defense asserted by the defendant. For example, where the State used evidence regarding the victim's lack of a hymen to raise an inference that a defendant engaged in sexual intercourse with the victim, the defendant was permitted to bring forth evidence regarding the victim's other sexual conduct to show an alternate cause for the victim's physical condition. See, e.g., Douglas, 797 S.W.2d at 534-36.
Here, Long's defense at trial was that Flower's consumption of alcohol in combination with her prescription medication caused her to engage in sex acts and then become "hysterical." The evidence Long sought to introduce involved other situations that did not involve Long. Long wanted to show that her behavior was consistent with her past behavior of consuming alcohol and then exhibiting "bizarre" behavior. While that evidence was excluded, it did not preclude Long from raising that defense. Through his own testimony and the argument of his counsel, Long was permitted to submit his contention that Flower was intoxicated, was acting sexually provocatively, and consented to the sexual activity that resulted.
While evidence of other circumstances in which Flower's allegedly engaged in provocative behavior due to alcohol consumption would seem, at first blush, to strengthen the view Long raises, it was not essential to the defense Long asserted, nor was Long precluded from raising the defense. Further, Long's argument reduces to a claim that he should have been permitted to admit evidence of Flower's past sexual conduct to raise an inference that she initiated and consented to her sexual contact with Long. This is precisely the sort of argument and evidence that the rape shield statute is intended to prohibit.
We, therefore, conclude that the trial court did not abuse its discretion. Point denied.
V.
Long contends in his fifth point on appeal that the trial court abused its discretion in precluding him from presenting crucial evidence of his innocence through the proffered testimonies of certain witnesses that Flower had concocted a "bizarre" story of having broken or injured the neck of a Wyandotte, Kansas, man who had attempted to rape her, and that she had egged witness Tucker's truck when he refused to give her a ride. He argues that this excluded evidence was relevant because it would have supported Long's defense that Flower would make up bizarre tales of sexual assaults and had a tendency to retaliate against others. The State responds the trial court did not abuse its discretion in denying Long's offers of proof and refusing to admit the evidence because the evidence was inadmissible in that it was improper evidence of specific acts of untruthfulness, improper evidence of prior bad acts, or improper propensity evidence.
A complaining witness in a sex offense may be impeached by evidence that her general reputation for truth or veracity is bad, but not by acts of specific conduct. State v. Edwards, 918 S.W.2d 841, 845 (Mo.App. 1996). Here, Long attempted to introduce the evidence regarding her prior, allegedly false, claims of having been raped by a man in Kansas, which, as recounted by various witnesses, contained statements which some might find incredible, such as an alleged assertion by Flower that she had broken the neck of her assailant.
Long's argument proceeds upon the assumption that the unusual statements made by Flower establish the falsehood of her story of having been raped on that prior occasion. We decline to follow Long's leap of logic. Each of the witnesses who provided an offer of proof stated that Flower claimed to have been raped, and Long cites to neither evidence nor proffer in the record that would suggest that she was not raped. At best, the offers of proof suggest that Flower might have embellished her claims regarding the effectiveness of her attempts to resist that rape attempt. It is of note, however, that at least one of the witnesses' offers of proof corroborated Flower's claim that she had incurred legal entanglements as a result of that incident.
Even if we assume that Flower completely concocted her story of that prior rape, though, we are left with an argument that Long should be permitted to prove a specific instance where Flower made false statements in order to raise an inference that she was being untruthful regarding the charges she made against Long. This is the type of evidence that is expressly prohibited by Edwards. The trial court did not abuse its discretion in excluding that evidence.
The other type of evidence Long contends was improperly excluded was evidence that Flower had egged a witness' truck after the witness had refused to provide Flower a ride. The State correctly identifies that this evidence was evidence of a prior bad act and that such evidence is inadmissible at trial. See State v. Clay, 975 S.W.2d 121, 141 (Mo.banc 1998). The State's argument is persuasive on this issue.
Point denied.
VI.
Long next argues the trial court abused its discretion in sustaining the State's objection precluding defense counsel from arguing in closing that Flower's injuries could have occurred from self abuse in that defense counsel was entitled to argue reasonable inferences from the evidence in support of appellant's defense. The State replies that the trial court did not abuse its discretion in sustaining the State's objection because there was no evidence presented that the injuries could have been caused by "self-abuse." The State further argues that Long was not prejudiced because he was permitted to argue that Flower purposefully caused the injuries in order to enhance her accusations of sexual assault.
The control of closing argument is within the discretion of the trial court. State v. Barton, 936 S.W.2d 781, 783 (Mo.banc 1996). The trial court's ruling will only be reversed upon a showing of abuse of discretion resulting in prejudice to the defendant. State v. Johns, 34 S.W.3d 93, 116 (Mo.banc 2000). While a defendant should be given wide latitude in arguing to a jury, that does not mean that a defendant has no limits in closing. Closing argument must still be based upon the evidence presented at trial and the inferences that can be drawn from that evidence. See State v. Owens, 827 S.W.2d 226, 232 (Mo.App. 1991). One cannot argue inferences that are unsupported by the facts or argue facts that are imaginary. Id.
Long takes the position that it was a reasonable inference for defense counsel to argue that not only could have Flower's injures have been caused by another person, but the injuries could have been caused by self-abuse. Here, Long cites to no evidence in the record that Flower ever previously abused herself or that she might have abused herself in the complained of incident. Further, there was no medical testimony or any questions propounded on the issue of whether Flower's injuries could have been caused by self-abuse. While there was medical testimony that her injuries could (though it was considered highly unlikely) have resulted from consensual intercourse, that does not raise an inference that injuries of the same nature could also have resulted through self-abuse.
Given that there was no evidence supporting an inference of self-abuse, the trial court did not abuse its discretion in preventing defense counsel from arguing to the jury that Flower's injuries were self-inflicted. Point denied.
VII.
In his last point on appeal, Long contends the trial court abused its discretion in sending a typed witness statement to the jury during deliberations. This statement was made by Flower and taken by the investigating officer on the case. Long argues that sending that document to the jury during deliberations was impermissible because it improperly bolstered and emphasized Flower's testimony, allowing the jury to give it undue weight. The State responds the trial court did not err in allowing Flower's statement to be seen by the jury during deliberations because allowing the jury to view such an exhibit is within the trial court's discretion. The State further argues that Flower's version of the events was already the central piece of evidence in the case, which could not have been overemphasized.
Generally, the decision whether or not to allow the jury access to exhibits during deliberations is a matter within the sound discretion of the trial court. State v. Roberts, 948 S.W.2d 577, 596 (Mo.banc 1997). Allegations of trial error regarding sending specific exhibits to the jury during deliberations are, therefore, reviewed under an abuse of discretion standard. State v. Sullivan, 925 S.W.2d 483, 485 (Mo.App. 1996). An objecting party has the burden of showing the prejudicial result of sending exhibits to the jury. State v. Smith, 90 S.W.3d 132, 142 (Mo.App. 2002).
At trial, Officer Cummings was extensively cross-examined by Long's counsel about Flower's typed witness statement. Due to defense counsel's use of the statement during cross-examination, the trial court admitted the typed statement into evidence. Addressing the court by way of objection, defense counsel argued that "once it becomes a piece of evidence it may go to the jury room later and be given undue weight compared to others." During deliberations, the jury requested Flower's statement. After hearing defense counsel's objections, the trial court allowed the statement to be redacted, and then allowed the redacted statement to go to the jury room.
"In criminal cases Missouri courts have repeatedly held that exhibits that are testimonial in nature cannot be given to the jury during its deliberations." O'Neal v. Pipes Enter., Inc., 930 S.W.2d 416, 421 (Mo.App. 1995) ( citing State v. Evans, 639 S.W.2d 792, 795 (Mo.banc 1982)). In O'Neal, this court explained that the rationale for this rule is that like a transcript of live testimony is not given to a jury during deliberations, neither can, for example, depositions be given to the jury during deliberations. Id.
The threshold question, then, is whether the exhibit in question, a redacted typed statement made by Flower to the Kansas City Police Department, is testimonial in nature. Transcripts and video/audio tapes of depositions clearly qualify. Id. The distinction between an exhibit that is testimonial in nature and one that is not is that a testimonial exhibit "is introduced at trial in place of the live testimony of the same witness." Id. More than depositions qualify, however. In State v. Evans, 639 S.W.2d 792 (Mo.banc 1982), a taped statement by the defendant was apparently considered to be testimonial in nature. The trial court was not convicted of error by permitting the playing of the tape during jury deliberations, however, because of an exception to the general rule for written or recorded confessions in criminal cases. Id.
Recorded statements by witnesses apparently also qualify. In State v. Jennings, 815 S.W.2d 434 (Mo.App. 1991), trial error was alleged because the trial court permitted the playing of a recorded witness statement to the jury during deliberations. No error was found due to the exception articulated in Evans, as the witness statement involved statements made to the witness that "were admissions in the nature of a confession to the crimes charged." Id. at 440. Jennings suggests that we should consider Flower's typed witness statement to be testimonial in nature. As such, it could not be given to the jury, unless it fell within an applicable exception to the general rule prohibiting such action.
Regardless of whether an exception applies, Long was not prejudiced by the trial court's action in sending the statement to the jury room, as he made substantial use of the statement in his defense. In State v. Sullivan, a set of typed witness statements was given to the jury during deliberations. See Sullivan, 925 S.W.2d at 485. The statements were redacted and had been used by both the prosecution and the defense during the case. See id. The Sullivan court held that '[a]fter using the written statements for his benefit, defendant cannot demonstrate prejudice from a decision which allowed the jury to view all the exhibits during its deliberations." Id. at 486. Similarly, Long used Flower's typed statement for his benefit in impeaching Flower during cross-examination. In fact, the statement came into evidence as a result of Long's use of it during that cross-examination. As such, we conclude that Long was not prejudiced by the trial court's decision to permit the redacted statement to go to the jury room. Point denied.
Conclusion
Having taken up each of Long's points on appeal, we affirm Long's convictions of forcible rape and forcible sodomy.
Paul M. Spinden, Judge, and James M. Smart, Jr., Judge, concur.