Opinion
No. 58123
Filed: August 7, 2001
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, The Honorable K. Preston Dean, Judge.
Susan Lynn Hogan, Appellate Defender Office, Kansas City, MO, for Appellant.
Jeremiah W. (Jay) Nixon, John Munson Morris and Stephanie Morrell, Office of Attorney General, Jefferson City, MO for Respondent.
Before Thomas H. Newton, Presiding Judge, Joseph M. Ellis, Judge, and Ronald R. Holliger, Judge.
After an extensive review of the trial transcript we find that the State never presented evidence or testimony claiming or suggesting that J.H.'s precocious sexual knowledge was acquired from an encounter with Sales. Thus, our case is unlike Douglas where the testimony about the absence of a hymen had only a purpose to support the victim's testimony that the defendant had intercourse with her. Nor is this case one where the State attempted to introduce so-called general profile testimony describing behaviors and other characteristics commonly observed in sexually abused victims. See State v. Williams, 858 S.W.2d 796, 798-99 (Mo.App. 1993).
The trial court correctly excluded evidence of J.H's previous abuse because it did not fall within any of the four exceptions under the rape shield statute, and it was not relevant or material to any issue in the case. Further, we find that Sales' constitutional rights were not violated, because, unlike the prosecution in Douglas, the State did not present evidence which was intended to show or to infer that J.H. must have acquired his knowledge of sexual matters from abuse by Sales. The court in Douglas said that but for the State's introduction of evidence of the victim's torn hymen, cross-examination seeking to explore whether or not she had sex with her boyfriend would have been inadmissible under the rape shield statute as well as irrelevant under the common law. Douglas, 797 S.W.2d at 534-35. Here, the state did not attempt to use evidence of J.H.'s unusual sexual knowledge to establish Sales' guilt, therefore, Sales was not constitutionally entitled to cross-examine J.H. about any past abuse or present other evidence of that abuse.
Lastly, Sales argues that even though the State did not expressly present evidence of the J.H.'s unusual knowledge, J.H.'s testimony, as well as the comment made by the prosecutor during closing argument, allowed the jury the inference that J.H. had an overly mature sexual knowledge because he was abused by Sales. This court in Harvey, 641 S.W.2d at 798, expressly rejected this argument. We also held that just because the only evidence of a sexual encounter before the jury involved the defendant, it did not trigger any constitutional protections under Douglas. Id. In order for Sales' constitutional rights to come in to play, the State must rely on evidence of J.H.'s unusual sexual knowledge in attempting to prove Sales' guilt. Here, the State did no such thing. Although during closing argument the prosecutor did question "how does a six and a nine year old know about putting a penis in someone's rectum?", defense counsel objected and the judge sustained the objection. Sales sought no other relief. Defense counsel neither requested a mistrial nor that the jury be instructed to disregard the prosecutor's comments. Thus, the judge properly remedied the prosecutor's improper comment and we find no error. Point denied.
Failure to Grant Mistrial
In his second point on appeal, Sales argues that the trial court erred when it overruled his request for a mistrial after Barbara Perusse, a DFS investigator, testified she found probable cause to believe that O.M. had been sexually abused.
Prior to trial, the State filed a motion to prevent the defense from presenting evidence concerning the credibility and suggestibility of child witnesses. The parties agreed that an expert should not be permitted to comment on the credibility of the complainants because to do so would invade the province of the jury. At trial, the State called Barbara Peruse, a DFS investigator, and the following exchange took place:
Question: And after you conducted your investigation, what findings did you make with regard to [O.M.]?
Answer: I felt there was probably [sic] cause for sexual abuse to [O.M.] by Richard Sales.
At this time, Sales' attorney objected and requested the court either "mistry the case or ask the jury to disregard that comment." (emphasis added). The court denied the motion for mistrial but did instruct the jury "to ignore any findings made by DFS." The judge further told them "the question of whether there was abuse or not is solely for you to decide."
Standard of Review
We review a trial court's decision to deny a request for mistrial for an abuse of discretion only. State v. Johnson, 968 S.W.2d 123, 134 (Mo.banc 1998). A mistrial is a drastic remedy to be used only in extraordinary circumstances. Id.
We will not find that the trial court abused its discretion in refusing to grant a mistrial when it was not expressly requested to do so or where the request was for alternative relief and the judge granted one of the suggested alternatives. Sales' attorney requested that the court either mistry the case or instruct the jury to disregard Perusse's comment. The court chose the second alternative suggested by Sales. The trial judge did not abuse his discretion. Point denied.
Sentencing as Persistent Offender
In his final point on appeal, Sales argues that the trial court erred in sentencing him as a persistent offender. Sales was convicted in 1992 of what was defined at the time as sodomy. Sales was charged with touching the victim's vagina with his hand. At the time of his sentencing for the abuse to J.H. and O.M. in 1999, Sales objected to being sentenced as a persistent offender, arguing that the state's proof was insufficient to establish him as a persistent sexual offender. The court took the issue under advisement and found him to be a persistent sexual offender.
Section 558.018.1 instructs a court to sentence any person who is convicted of the felony of rape, forcible rape, sodomy, forcible sodomy, statutory rape or statutory sodomy or the attempt to commit any of those crimes, to an extended term of imprisonment if the court finds such person to be a persistent sexual offender. Section 558.018.2 defines persistent sexual offender as one who has been previously convicted of rape, forcible rape, sodomy, forcible sodomy, or an attempt to commit any of those offenses.
In 1992 when Sales pled guilty to the crime of touching a victim's vagina with his hand, such action was defined as sodomy. In 1992 sodomy was defined as " deviate sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion." § 566.010(2) RSMo 1986 Deviate sexual intercourse was defined as "any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person." Section 566.010(2) RSMo 1986. In 1994 the Missouri legislature slightly changed its definition of deviate sexual intercourse to "any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person." Section 566.010(1) RSMo 1994, effective January 1, 1995. The 1994 definition excluded the word "hand." The 1994 definition of sexual contact was "any touching of another person with the genitals or any touching of the genitals or anus of another person . . . for the purpose of arousing or gratifying sexual desire. § 566.010(3), RSMo 1994. Sexual contact, at that time, was an element of child molestation in the first and second degrees. Sections 566.067 and 566.068, RSMo 1994.
For his convictions of the abuse of J.H. and O.M., Sales was sentenced on December 17, 1999, at which time the 1994 definition was still in effect.
It is worth noting, that the legislature again altered the definition of deviate sexual intercourse, which currently is: "any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person." Section 566.010, RSMo 2000, effective January 1, 2001.
Sales argues that at the time of his sentencing in this case, the crime to which he pled guilty in 1992, touching the victim's vagina with his hand, was no longer considered sodomy, and, therefore, did not place him under the definition of a persistent offender set forth in § 558.018.1. Sales contends that under Section 1.160, RSMo 1994, he should have been sentenced as a prior offender rather than a persistent offender.
Section 1.160 states:
No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except:
(1) That all such proceedings shall be conducted according to existing procedural laws; and
(2) That if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amendatory law.
Sales cites a number of cases in support of his contention that years after his conviction and sentence he should still receive the benefit of the amendatory law. See State v. Rogers, 964 S.W.2d 501 (Mo.App. 1998); State v. Cline, 808 S.W.2d 822 (Mo.banc 1991); State v. Whardo, 859 S.W.2d 138 (Mo.banc 1993). Despite his thorough discussion of each case, Sales fails to draw a necessary distinction between the law cited in these cases and his case before us. All three of the aforementioned cases involve situations where a defendant was charged and convicted under one statute, which was changed or altered prior to sentencing. In these cases, the Missouri Supreme Court and the Court of Appeals found the defendants were entitled to sentencing under the amendatory law because the law had changed before they were sentenced. In Sales' 1992 case, however, he was both convicted and sentenced years before any change was made to the statute under which he was convicted. The definition of deviate sexual intercourse was not amended until nearly three years after his sentencing. Nevertheless, Sales argues that he should benefit from the amendatory law as he faces being sentenced as a persistent offender.
The State counters by arguing that the language of § 1.160 does not apply to Sales' situation. The State draws a distinct line between the cases affected by § 1.160 and Sales' case by explaining that Sales' prior conviction and sentence for sodomy in 1992 was valid and was not affected by § 1.160 because the law was not changed prior to sentencing. Further, the State cites supportive case law explaining that § 1.160 only allows a defendant to benefit from a lesser punishment provision in an amended law. However, even in the event that the court erred as to sentencing, the defendant would still be tried and convicted under the statute in effect at the time of the commission of the crime. Therefore his convictions would remain the same, only his punishment lessened . State v. Phelps, 965 S.W.2d 357, 359-60 (Mo.App. 1998). "Section 1.160 only authorizes the reduction of the punishment; the offense itself, if committed prior to the amendment of a penal law, is unaffected by the amendment." Id. at 359 (citing State v. Sumlin, 820 S.W.2d 487, 493 (Mo.banc 1991)).
At the time of both Sales' conviction and sentencing in 1992, the 1986 statute in effect defined hand to genital contact as sodomy. Because Sales admitted to touching the victim's genitals with his hand, he was convicted of sodomy and sentenced accordingly. Because the statutory change Sales relies upon did not take place before his sentencing, and, in fact, did not happen until nearly three years later, Sales is not now entitled to be treated as if he was not convicted of what the law then defined as sodomy and thus avoid the status of a persistent offender.
As mentioned above, in order for a defendant to be sentenced as a persistent offender, the State must prove beyond a reasonable doubt that he has been previously convicted of rape, forcible rape, sodomy, forcible sodomy, statutory rape, statutory sodomy or an attempt to commit any of those offenses. Here, the State conclusively proved that Sales was validly convicted of sodomy in 1992 and, therefore, could be sentenced as a persistent offender. Point denied.
The judgment is affirmed.