Opinion
No. ED88557
July 24, 2007
Appeal from Circuit Court of the City of St. Louis, Hon. Joan M. Burger.
Kristina Starke, Counsel for Appellant.
Shaun J. Mackelprang and Jaime Corman, Counsel for Respondent.
Opinion
James Wilson (hereinafter, "Defendant") appeals from the trial court's judgment after a jury found him guilty of one count of exposing another to HIV, Section 191.677 RSMo (2004), seven counts of second degree statutory rape, Section 566.034 RSMo (2000), and three counts of second degree statutory sodomy, Section 566.064 RSMo (2000). Defendant was sentenced to serve fifteen years' imprisonment on the count of exposing another to HIV, and seven years' imprisonment on each count of statutory rape and statutory sodomy. The trial court ordered the statutory rape and sodomy terms be served concurrently; however, that term would be served consecutively to the exposing another to HIV conviction, resulting in a total term of twenty-two years' imprisonment.
Defendant raises three points on appeal. Defendant's first two points challenge the sufficiency of the evidence to sustain five of his eleven convictions. Defendant's third point argues the trial court abused its discretion in excluding evidence of a prior false allegation which Defendant argues would impeach the victim's credibility. While we find sufficient evidence to sustain the challenged convictions, we must reverse and remand for a new trial on all counts as to Point III.
We decline to set forth a detailed recitation of the underlying facts so that the trial court will not be bound by any judicial determination upon remand. Defendant was charged with three counts of statutory sodomy, eight counts of statutory rape, and one count of recklessly exposing his girlfriend's fifteen year old daughter, D.B., (hereinafter, "the victim") to HIV. Defendant lived with his girlfriend, their three children, and the victim. The victim testified Defendant raped and sodomized her over an extended period of time beginning in January 2003 and ending in November 2003. The victim reported the assaults to her aunt in late September 2004, after discovering Defendant's medical records which indicated he was HIV-positive and upon learning her mother was infected with HIV. Defendant was tried, convicted, and now appeals.
Defendant's first two points challenge the sufficiency of the evidence to sustain five of his eleven convictions. We limit our review of a challenge to the sufficiency of the evidence supporting a criminal conviction to a determination of whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). For this review, we consider the evidence and all reasonable inferences drawn therefrom in the light most favorable to the jury's verdict, and disregard all contrary evidence and inferences.Id. While reasonable inferences may be drawn from direct and circumstantial evidence, "the inferences must be logical, reasonable and drawn from established fact." State v. Presberry, 128 S.W.3d 80, 91 (Mo.App.E.D. 2003). "In considering the sufficiency of the evidence, there must be sufficient evidence of each element of the offense." State v. Jordan, 181 S.W.3d 588, 592 (Mo.App.E.D. 2005)( quoting State v. Dixon, 70 S.W.3d 540, 544 (Mo.App.W.D. 2002)).
The State has the burden to prove each and every element of a criminal case. State v. Taylor, 126 S.W.3d 2, 4 (Mo.App.E.D. 2003). If the State fails to produce sufficient evidence to sustain a conviction, we must reverse the trial court's judgment. State v. West, 21 S.W.3d 59, 61 (Mo.App.W.D. 2000).
In his first point, Defendant argues the evidence was insufficient to support the convictions against him for three counts of statutory rape and one count of statutory sodomy. Specifically, Defendant challenges the sufficiency of the evidence with respect to Counts 3, 4, 10, and 11. Defendant claims the victim's testimony was too vague and conclusory for the jurors to find him guilty beyond a reasonable doubt. Additionally, Defendant challenges the time period alleged in the indictment and subsequent jury instructions did not match the evidence presented. We disagree.
Counts 4, 10, and 11 alleged Defendant committed statutory rape in the second degree. There are two essential elements that must be met in order to convict Defendant of statutory rape in the second degree: (1) Defendant, a person being twenty-one years of age or older, had sexual intercourse with the victim; and (2) she was less than seventeen years of age. Section 566.034.1 RSMo (2000). "Sexual intercourse" is defined in Section 566.010(4) RSMo (2000) as "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." Defendant concedes he was twenty-one years of age or older and the victim was less than seventeen years of age when the alleged incidents occurred.
When examining the victim's testimony as a whole and drawing all reasonable inferences in the light most favorable to the jury's verdict, the State presented all essential elements to convict Defendant of statutory rape in the second degree as charged in Counts 4, 10, and 11. Reading the victim's testimony within context, a reasonable inference can be drawn from her testimony that Defendant had sexual intercourse with her in her mother's bedroom by bending her over the bed. The victim then went on to discuss three other incidents. Further, the victim subsequently testified on redirect examination there were eight instances of sexual intercourse which occurred between her and Defendant. Therefore, there was sufficient evidence from which a reasonable juror could have found beyond a reasonable doubt that Defendant was guilty of statutory rape in the second degree with respect to Counts 4, 10, and 11.
With respect to the time element, even assuming arguendo that the State failed to prove these acts of statutory rape occurred within the time period specified in the indictment, we are unable to discern how Defendant suffered prejudice as a result. See State v. Carney, 195 S.W.3d 567, 572 (Mo.App.S.D. 2006). Defendant did not allege an alibi or lack of access defense to the charges, see State v. Sprinkle, 122 S.W.3d 652, 660 (Mo.App.W.D. 2003), nor did Defendant allege the statutory rape occurred outside the applicable statute of limitations.State v. Schaal, 83 S.W.3d 659, 662 (Mo.App.S.D. 2002).
In the same point, Defendant challenges the sufficiency of the evidence to sustain Count 3, second degree statutory sodomy. Count 3 of the indictment alleged Defendant committed statutory sodomy in the second degree by "putting his fingers in [the victim's] vagina" between the January 1, 2003 and May 16, 2003. Defendant argues that because the victim's testimony did not specify where Defendant "stuck his fingers", there was insufficient evidence to convict him of this count of statutory sodomy.
Section 566.064.1 RSMo (2000) states: "A person commits the crime of statutory sodomy in the second degree if being twenty-one years of age or older, he has deviate sexual intercourse with another person who is less than seventeen years of age." "Deviate sexual intercourse" is defined in Section 566.010(1) RSMo (2000) as "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 or for the purpose of terrorizing the victim." Again, Defendant concedes he was twenty-one years of age or older and the victim was less than seventeen years of age when the alleged incident occurred.
The victim testified that in January 2003, she had her first sexual encounter with Defendant. During this initial encounter, in which the victim was a virgin, the victim told Defendant "no" when he approached her and took off her clothes. Then the victim testified Defendant "had first like stuck his fingers in me and then he had sexual intercourse with me. . . ." in her mother's bedroom. Later, during cross-examination, the victim testified she told Detective Robert Jauer that Defendant "fingered me two or three times." The reasonable and logical inferences the jurors drew from the totality of the victim's testimony was Defendant "fingered" the victim in her vagina after disrobing her and prior to having sexual intercourse with her.
Based on the forgoing, there was sufficient evidence to sustain Defendant's convictions with respect to Counts 3, 4, 10, and 11. Point denied.
In his second point, Defendant alleges the State failed to prove Defendant acted recklessly with respect to the count of exposure of another to HIV, and therefore, there was insufficient evidence to support his conviction. Defendant claims the testimony presented at trial that he withdrew before ejaculating evidenced caution, not recklessness.
Section 191.677.1(2)(c) RSMo (2004) prohibits any individual knowingly infected with HIV to "[a]ct in a reckless manner by exposing another person to HIV without the knowledge and consent of that person to be exposed to HIV. . . [t]hrough contact with blood, semen or vaginal secretions in the course of oral, anal or vaginal sexual intercourse." This Section further states:
Evidence that a person has acted recklessly in creating a risk of infecting another individual with HIV shall include, but is not limited to, the following:
a. The HIV-infected person knew of such infection before engaging in sexual activity with another person, sharing needles with another person, biting another person, or purposely causing his or her semen, vaginal secretions, or blood to come into contact with the mucous membranes or nonintact skin of another person, and such other person is unaware of the HIV-infected person's condition or does not consent to contact with blood, semen or vaginal fluid in the course of such activities;
b. The HIV-infected person has subsequently been infected with and tested positive to primary and secondary syphilis, or gonorrhea, or chlamydia; or
c. Another person provides evidence of sexual contact with the HIV-infected person after a diagnosis of an HIV status.
Here, it was undisputed Defendant was aware of his HIV status and he failed to inform the victim of his status prior to engaging in sexual activity with her. Further, the victim testified that during all of the acts of sexual intercourse Defendant did not use a condom. The victim stated Defendant did not ejaculate inside of her, but rather, Defendant ejaculated on her body, in his hand, or in a towel. Defendant also performed oral sex on the victim on at least two occasions. Based upon this testimony, a reasonable juror could have found beyond a reasonable doubt Defendant acted recklessly despite withdrawing prior to ejaculation. As such, there was sufficient evidence presented to sustain Defendant's conviction of exposing another to HIV as alleged in Count 1 of the indictment. Point denied.
In his third point, Defendant argues the trial court abused its discretion in excluding evidence of the victim's prior false allegation which Defendant argues would impeach the victim's credibility. Defendant claims evidence that the victim lied to cover up a car accident she was involved in two months prior to informing police about the alleged sexual assaults with Defendant was relevant and material to the victim's credibility. Defendant claims he was deprived of an opportunity to present his defense because the excluded evidence would have caused the jurors to doubt the victim's veracity.
Trial courts have broad discretion in admitting or excluding evidence.State v. Rowan, 201 S.W.3d 82, 84 (Mo.App.E.D. 2006). This Court will reverse a trial court's decision only upon finding an abuse of discretion. State v. Nelson, 178 S.W.3d 638, 642 (Mo.App.E.D. 2005). An abuse of discretion occurs when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Clark, 197 S.W.3d 598, 599 (Mo. banc 2006). Further, when examining the trial court's ruling, we also review 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. Davis, 186 S.W.3d 367, 373 (Mo.App.W.D. 2005).
Generally, when a party wishes to offer impeachment testimony, such evidence "should be confined to the real and ultimate object of the inquiry, which is the reputation of the witness for truth and veracity."State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000). A party is permitted to cross-examine a witness regarding specific acts of misconduct as it relates to credibility; however, prior acts of misconduct cannot be proven by extrinsic evidence. Rousan v. State, 48 S.W.3d 576, 590 (Mo. banc 2001).
A specific act of misconduct becomes probative and relevant when used to show a witness's bias. Kuehne v. State, 107 S.W.3d 285, 294 (Mo.App. W.D. 2003). When addressing the issue of a witness's bias, this Court recognizes three exceptions to the general ban on proof of prior misconduct as impeachment evidence "where the inquiry shows (1) a specific interest; (2) a possible motivation to testify favorably for the State; or (3) an expectation of leniency." Wolfe, 13 S.W.3d at 258. "The `specific interest' exception applies to evidence that `demonstrate[s] a specific bias against [the] defendant.'"Kuehne, 107 S.W.3d at 294 ( quoting Wolfe, 13 S.W.3d at 258).
Defendant argues the disposition of this point is governed byState v. Long, 140 S.W.3d 27 (Mo. banc 2004). In Long, the victim alleged the defendant beat and sexually assaulted her. The defendant denied committing the assaults, there was no physical evidence linking him to the assaults, and there were no witnesses. Id. at 29. In order to rebut the victim's allegations, the defendant sought to introduce extrinsic evidence of the victim's prior false allegations of physical and sexual assault by another man via three offers of proof.Id. at 29-30. The trial court excluded this evidence, concluding it was "irrelevant and not proper character evidence." Id. at 30. The defendant was convicted of forcible rape and sodomy.
Initially, the Missouri Supreme Court acknowledged the general rule barring prior acts being proven by extrinsic evidence because it "furthers the general policy focusing the fact-finder [on] the most probative facts and conserving judicial resources by avoiding mini-trials on collateral issues." Id. However, the Court concluded when "a witness' credibility is a key factor in determining guilt or acquittal, excluding extrinsic evidence of the witness' prior false allegations deprives the fact-finder of evidence that is highly relevant to a crucial issue directly in controversy; the credibility of the witness." Id. at 30-31. Thus, the Court determined criminal defendants are permitted, in some cases, to introduce extrinsic evidence of prior false allegations provided the evidence is legally relevant.Id. at 31. Accordingly, the Supreme Court reversed the defendant's conviction and remanded for a new trial, holding the defendant was deprived of a full opportunity to present his defense when evidence of the victim's prior false allegations was excluded from evidence when her credibility was directly at issue. Id. at 32.
The Court stated certain factors, such as the similarities between the prior false allegation and the charged offense and the circumstances surrounding the allegation should be taken into account when determining legal relevance. Id. at 31. The Court directed the trial court to continue to balance the probative value of the prior false allegation with the potential prejudice, recognizing such allegations could be "so remote in time or made under circumstances so dissimilar to the charged offense that the prejudice outweighs the probative value." Id. at 31-32.
Prior to trial, the State filed a motion in limine seeking exclusion of "any specific bad acts of [the victim] as used for impeachment." The trial court granted this motion, but allowed defense counsel to make an offer of proof after the victim testified with respect to what evidence he wished to use to impeach her. Defense counsel read portions of the victim's sworn deposition testimony about an automobile accident the victim caused in July 2004 into the record.
The victim testified in her deposition she was traumatized about her mother's declining health and recent hospitalization. The victim stated she was frustrated by the fact that no one in her family would inform her why her mother was so ill and she "got mad." Specifically, the victim was "mad because [Defendant] was also still hanging around the house, driving the car and just acting like everything was just so perfect and so nice or whatever." The victim decided to take the car without permission and go see her mother at the hospital. During the ride to the hospital, the victim drove the automobile into a hardware store, fled the scene of the accident, and returned home.
When she returned home, she parked the car, went inside, and told her grandmother "someone else" damaged the car while it was parked in front of the house. The victim denied causing the damage to the car when speaking to her cousins about the accident, but Defendant confronted her. The victim said Defendant told her, "You did it. You did it." and taunted her about it by "smart talking to me" and "loud talking to me." The victim stated, "But I lied and said that someone did [it] when all along I did it. . . ."
Defense counsel said he would have offered this testimony to show a specific incident of lying to impeach the victim's credibility. The trial court ruled the evidence was irrelevant and improper impeachment. The jury did not hear any evidence about this prior incident.
In this case, the State argues the victim's deposition testimony did not amount to a "prior false allegation" because the victim did not accuse falsely an identifiable person as being responsible for the accident, but rather, asserted a hit and run must have occurred. Moreover, the State argues the facts surrounding the car accident were too dissimilar to the facts of the sexual assaults to render the car accident probative or relevant. We disagree.
As discussed in Long, it is of no importance that the victim's prior false allegation involves a car accident, and not a sexual assault, or that she failed to accuse an "identifiable person." The Supreme Court specifically rejected the notion that in order for the prior false allegation and extrinsic evidence corroborating it to be admissible, it must be of the same subject matter as the charged offense.Long, 140 S.W.3d at 31. Specifically, the Supreme Court explained, "[T]he rule limiting the inquiry to prior false allegations that are the same as the charged offense erroneously focuses the relevance analysis entirely upon the subject matter of the allegation and ignores the fact from which relevance to witness credibility is derived; the fact the allegation was false." Id. Here, the victim knew she was the one responsible for damaging the car, yet she repeatedly denied her role until she was confronted by Defendant.
"To determine whether the exclusion of evidence was harmless beyond a reasonable doubt, we examine the facts and circumstances of the particular case, `including the nature of the charge, the evidence presented, and the role the excluded evidence would have played in [the] defense's theory.'" Davis, 186 S.W.3d at 374. Initially, we note there was no physical evidence linking Defendant to the assaults and no witnesses to corroborate the victim's allegations. Further, we believe Defendant was prejudiced by the exclusion of the victim's prior false allegation. This incident, which occurred approximately two months before the victim reported the alleged assaults to her aunt, reveals the victim's bias and animosity toward Defendant who she perceived as uncaring and unsympathetic toward her mother's hospitalization because "[he] was also still hanging around the house, driving the car and just acting like everything was just so perfect and so nice or whatever."
Additionally, the victim's deposition testimony reveals some confusion as to when she became aware about her mother's diagnosis, which she testified at trial was the motivating factor in revealing the alleged assaults. Further, the victim arguably opened the door to cross-examination about this issue when she used the car accident as a point of reference to distinguish the acts of sexual assault committed by Defendant by testifying "[a]nd it was also in July because that's when like my mom's car or whatever, this thing with my mom's car. That's how I know." Defendant should have been able to rebut this testimony with the victim's prior false allegation.
Based on the foregoing, we find the trial court abused its discretion in refusing to allow Defendant to cross-examine the victim about this prior false allegation. The exclusion of this evidence was prejudicial because Defendant was deprived of a full opportunity to present his defense that the victim invented these allegations in response to her anger over her mother's diagnosis, which resulted in prejudicial error. Defendant's third point is granted.
The trial court's judgment is reversed and the cause remanded for a new trial.
I respectfully dissent. I would hold State v. Long, 140 S.W.3d 27 (Mo. banc 2004) does not apply to the present case. The court inLong concluded that "a criminal defendant in Missouri may, in some cases, introduce extrinsic evidence of a prior false allegation."Id. at 31 (emphasis added). In Long, the defendant sought to introduce testimony that the victim falsely accused another person of assaulting her, threatening her with harm, and sexually assaulting her on separate occasions. Id. at 29-30. In Long, the victim's prior false allegations were directed at a specific person. Id. Here, the victim's statement that "somebody wrecked the car" does not constitute a prior false allegation. Unlike Long, the victim in the present case did not identify a specific person. While it is true that the victim lied about a fictional person wrecking the car, that lie did not rise to the level of a prior false allegation as contemplated in Long. I do not believeLong stands for the proposition that extrinsic evidence concerning every lie a victim has ever told should come into evidence. But rather, the evidence must involve a specific prior allegation toward another person that was shown to be false.
Furthermore, the evidence of the victim lying about wrecking the car was not similar enough to the charged offense that the prejudicial value outweighs the probative value. In Long, the court noted that "[a] prior false allegation could be so remote in time or made under circumstances so dissimilar to the charged offense that the prejudice outweighs the probative value." Id. at 31-32. In Long, the defendant was charged with forcible rape and forcible sodomy and the defendant sought to introduce the victim's false allegations of assault and sexual assault.Id. 29-30. The prior false allegations in Long were made under similar circumstances to the charged offenses. Id. Here, the defendant was charged with second-degree statutory rape, second-degree statutory sodomy, and exposing another to HIV, and he sought to introduce the victim's lie concerning wrecking a car. Unlike Long, the excluded evidence in the present case was not similar to the offenses charged. Therefore, the victim's lie about wrecking the car was made under circumstances so dissimilar to the charged offenses that the prejudice outweighs the probative value.
Moreover, the victim's lie about wrecking the car did not demonstrate a specific bias against the defendant. State v. Kuehne, 107 S.W.3d 285, 294 (Mo.App.W.D. 2003) (holding evidence that demonstrates a specific bias against a defendant is admissible to show a witness's bias). In the offer of proof, the victim stated that she was mad at the defendant because "[he] was also still hanging around the house, driving the car and just acting like everything was just so perfect and so nice or whatever." However, the victim, who was sixteen years old at the time of the wreck, did not state that she lied because she was mad at the defendant. A reasonable interpretation of her testimony is that the victim lied about wrecking the car to avoid getting into trouble with her family. The victim's lie about wrecking the car did not reflect a specific bias or animosity toward the defendant.
For the reasons stated above, I do not believe the trial court abused its discretion in excluding the evidence. As the court noted inLong, "[a]s with any other relevancy ruling, the trial courts retain wide discretion in determining the legal relevance of prior false allegations." Long, 140 S.W.3d at 32 (emphasis added). In the instant case, I do not believe this court can say the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Nelson, 178 S.W.3d 638, 642 (Mo.App.E.D. 2005). The excluded evidence was not admissible pursuant to Long and did not demonstrate a specific bias toward the defendant as required under Kuehne. Therefore, there was no abuse of discretion by the trial court.
In addition, I submit there is no reasonable probability that the exclusion of the evidence affected the outcome of the trial. State v. Johnson, 207 S.W.3d 24, 34 (Mo. banc 2006). On direct appeal, this court's review is for prejudice, not mere error, and the trial court's decision will be reversed only if the error was so prejudicial that it deprived the defendant of a fair trial. Id. Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial. Id. Here, along with the evidence of the victim's testimony, there was evidence of the defendant's flight which indicates a consciousness of guilt.See State v. Clark, 858 S.W.2d 246, 247 (Mo.App.S.D. 1993). When the police received a phone call from the victim's aunt regarding the allegations against the defendant, an officer went to the residence to talk with the victim and her aunt. The officer went to speak with the defendant, but the defendant had fled out the back door of the residence. After the officer located the defendant, he told the defendant he wanted to talk to him about a phone call regarding a disturbance. The defendant immediately told the officer that the victim "was lying" and that "[h]e didn't do anything to her." The officer had not mentioned the victim's name prior to this statement. This evidence coupled with the victim's testimony was sufficient to support the defendant's conviction. The excluded evidence would not have changed the outcome of the trial and thus, the defendant was not prejudiced. I would deny the defendant's point.
I would also deny the defendant's other two points because there was sufficient evidence to support the complained of convictions.
For the foregoing reasons, I would affirm the judgment.