Graham v. Commonwealth

571 S.W.3d 575
CourtMissouri Court of Appeals
DecidedApril 18, 2019
Docket2018-SC-000055-MR
StatusPublished
Cited by7 cases

This text of 571 S.W.3d 575 (Graham v. Commonwealth) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graham v. Commonwealth, 571 S.W.3d 575 (Mo. Ct. App. 2019).

Opinion

OPINION OF THE COURT BY JUSTICE WRIGHT

*578A Muhlenberg County Grand Jury indicted Appellant, Jesse Leroy Graham, on eight counts of first-degree sodomy and four counts of first-degree sexual abuse. These counts concerned four minor children, all of whom were under twelve years of age-two counts of sodomy and one count of sexual abuse related to each of the children. The trial court severed the allegations contained in counts 1-6 from those in counts 7-12 based on the location of the alleged abuse. A jury trial was held concerning counts 7-12, which resulted in a Muhlenberg Circuit Court jury finding Appellant guilty of all six counts (four counts of first-degree sodomy and two counts of first-degree sexual abuse). Following the jury verdict, Appellant entered an Alford plea as to the severed counts. The trial court accepted the plea and sentenced Appellant to thirty years' imprisonment.

Appellant now appeals as a matter of right, Ky. Const. § 110 (2)(b), alleging that: (1) the trial court abused its discretion in its admission of improper evidence pursuant to Kentucky Rules of Evidence (KRE) 404(b) ; (2) the trial court abused its discretion in denying Appellant's motion for mistrial; and (3) the Commonwealth improperly questioned Appellant, amounting to a violation of Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997). For the following reasons, we affirm the trial court.

I. BACKGROUND

Appellant was the director of SOS Ministries of Muhlenberg County during all times relevant to this case. The ministry provided food and transportation to doctors' appointments and mowed yards for Muhlenberg County residents in need. After Appellant divorced his then-wife in 2015, he moved in with his son, Logan and Logan's family. Logan said his father was involved with young boys and would take them on fishing trips.

Joseph,1 Appellant's great nephew, was one of the boys with whom Appellant became involved. Joseph has Asperger's syndrome and borderline Oppositional Defiant Disorder. Appellant had taken Joseph on some fishing trips in the past, but, in 2015, Joseph also began spending the night with Appellant at Logan's house. Joseph said he and Appellant would play computer games and watch YouTube. Joseph said that one night, he asked Appellant if he could stay up later than his normal bedtime, and Appellant said he could if Joseph would let him "suck [his] peepee." Joseph said he did so and Appellant let him stay up an additional hour.

On another occasion, Joseph said that Appellant bet he could make Joseph lose the computer game he was playing. When they made the bet, Appellant got under the desk, pulled Joseph's pants down and put his mouth on Joseph's penis. Joseph also testified that he would sometimes wet the bed and that Appellant would hold his penis, telling Joseph it would help him not wet the bed.

Joseph's mother, Sandra, was contacted by a social worker concerning sexual abuse allegations. The social worker told Sandra that Joseph's name repeatedly came up in *579interviews with other boys regarding Appellant. Sandra agreed for Joseph to speak with the social worker. He initially denied that anything had happened, but later went to his mother and admitted he was a victim of Appellant's abuse.

Another child, Lonnie, moved to Muhlenberg County in late 2015 with his mother, Martha. Martha was concerned about being able to buy Lonnie Christmas gifts and reached out to Appellant for help after seeing his Facebook posts regarding his ministry work. Appellant came to Martha's home with some gifts for Lonnie and agreed to help her. At some point, Appellant gave Lonnie a guitar his son, Logan, donated. Appellant began visiting Lonnie weekly (once or twice accompanied by Joseph) and eventually proceeded directly to Lonnie's bedroom after greeting Martha. Appellant took Lonnie fishing and hiking and sometimes took him on trips to distribute food for the ministry.

When Appellant visited Lonnie at home, Appellant would sit with Lonnie on his bed and watch Lonnie play video games. Lonnie said the first time Appellant touched him inappropriately, he was sitting on the bed playing a video game and Appellant said, "I bet I can make you lose." Appellant then stuck his hand down Lonnie's pants, inside his underwear. Lonnie said this was not an isolated incident. On another occasion, Lonnie said Appellant licked his "privates." Then, at a different time, Lonnie testified Appellant forced the child's head to his exposed "privates." Lonnie said he did not wish to do so, but that Appellant threatened to take the guitar back if Lonnie did not acquiesce.

Lonnie said he did not initially tell his mother because he was scared, but did eventually tell his school counselor. When Martha asked her son about the abuse, he initially became agitated and said nothing had happened. When school personnel asked Lonnie what happened, he likewise initially denied anything. However, he then admitted to the sexual abuse.

In addition to the six counts related to Joseph and Lonnie (two counts of sodomy and one count of sexual abuse related to each), Appellant was also indicted for the same counts regarding two additional victims. These acts of abuse occurred during fishing trips. Prior to trial, Appellant moved for the crimes relating to each of the four victims to be severed from the others. The trial court granted Appellant's motion in part, severing the counts related to Joseph and Lonnie from those concerning the other two boys based upon the location of the acts.

As noted above, the counts regarding Joseph and Lonnie were tried. When Appellant was convicted of all counts, he entered an Alford plea as to the remaining six counts of the indictment. This appeal followed.

II. ANALYSIS

A. KRE 404(b)

Appellant alleges that the trial court erred when it overruled his objection concerning the Commonwealth's introduction of what he alleges was evidence of the severed charges-amounting to a KRE 404(b) violation. That rule provides, in pertinent part: "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."

On appeal, "[w]e will not disturb a trial court's decision to admit evidence absent an abuse of discretion." Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005) (citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996) ). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal *580principles." Commonwealth v. English,

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Cite This Page — Counsel Stack

Bluebook (online)
571 S.W.3d 575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-commonwealth-moctapp-2019.