Missouri Court of Appeals Southern District
In Division STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD38053 ) CHARLES KENNETH MULVERHILL, ) Filed: May 30, 2024 ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable David C. Jones, Judge
AFFIRMED
Charles Kenneth Mulverhill (“Defendant”) appeals his convictions on four counts of
statutory rape in the first degree (Counts I through IV), one count of statutory rape in the second
degree (Count V), and one count of child molestation in the first degree (Count VI). In his sole
point on appeal, Defendant contends that the trial court erred in allowing hearsay statements of
the Victim into evidence. While the State concedes that the hearsay evidence was not
admissible, it argues that such error was not prejudicial. Because the Victim testified at trial,
was asked about the same matters related to the hearsay statements and was subject to cross
examination, the admission of the evidence was not prejudicial to Defendant. The judgment is
affirmed. Factual Background and Procedural History
Victim was born in 2000, and Defendant was born in 1964. Victim met Defendant when
she was nine or ten years old and living in the State of Arizona. Defendant eventually moved in
with Victim and her family, which consisted of her mother, older sister, and older brother. Both
Victim and Defendant denied that Defendant and Victim’s mother were in a romantic
relationship.
Victim did not have a relationship with her biological father, and Defendant became a
father figure to her. Defendant took Victim, and no one else, to Disneyland for her eleventh
birthday. They shared a bed and cuddled during that trip. Defendant touched Victim’s vaginal
area and whispered in her ear that he would not force her to do anything that she did not want to
do. Victim rolled over and went to sleep.
Shortly after that trip, Victim’s family and Defendant moved to Arkansas. While living
in Arkansas, Defendant rubbed his penis on Victim’s butt. Defendant also bought Victim many
gifts, which he did not do for her siblings.
In the spring of 2014, when Victim was thirteen years old, Victim’s family and
Defendant moved to Springfield, Missouri. They initially lived in a two-bedroom motel suite.
While they were at the motel, Defendant touched Victim’s vagina with his hands, Victim
touched Defendant’s penis with her hands, and Defendant had vaginal intercourse with Victim.
The first instance of intercourse occurred when Victim’s mother and siblings had gone to a
convenience store, leaving Defendant and Victim alone in the room. Victim said that there were
probably other instances of intercourse at the motel, but that first incident was the one that she
remembered most vividly. Victim’s family and Defendant stayed at the motel for about two
months before moving to a five-bedroom home in Willard, Missouri.
2 Defendant was convicted in 1990 in the State of California on two counts of lewd and
lascivious acts with a minor under the age of fourteen. In March 2015, Defendant was arrested
in Springfield by a United States Marshal for failing to register as a sex offender. Defendant’s
phone was seized during the arrest. A picture of Victim was the screen saver of the phone.
Several other pictures of Victim were found on the phone, many of which were taken while
Victim was asleep. Defendant and Victim also exchanged messages by email and by Facebook
Messenger, some of which were suggestive in nature. In one exchange, Defendant told Victim
that he was thinking about her while he masturbated. Several of the messages and emails were
deleted on Defendant’s phone, but were still recoverable through forensic examination.
Defendant told Victim in one message to erase all the emails from her account.
Defendant was subsequently charged with four counts of statutory rape in the first degree
under section 566.032 1; one count of statutory rape in the second degree under section 566.034;
and one count of child molestation in the first degree under section 566.067. Defendant’s jury
trial was conducted in January 2023.
On direct examination, the Victim testified that after they moved to the house in Willard
and before school started in the Fall of 2014, she and the Defendant were having sex two to three
times a month. Victim further testified that she and the Defendant had sex after school started in
the middle of August 2014. When asked whether she remembered the last time something
happened with Defendant, Victim stated, “[k]ind of. Sort of. Not exactly.” Victim was asked
whether she had sex with Defendant in March 2015, and responded: “I want to say yes, and I
want to say no. It’s just really hard to remember.” Victim stated that things did continue to
1 Unless otherwise noted, all statutory references are to RSMo 2000, including, as applicable, statutory changes effective June 5, 2006.
3 happen between her and the Defendant up until around March 2015, and that she had sex with
Defendant after she turned fourteen.
During cross-examination, Victim testified again that she and the Defendant had sex in
the Willard house before school began, and that they continued to have sex two to three times a
month until he was arrested in March 2015. Victim stated that she could not remember the
specifics, but she knew sex was happening with the Defendant until he got arrested. According
to Victim, when Defendant got arrested was when “all of everything stopped.”
The State subsequently called Ashley Reese as a witness. Ms. Reese conducted a
forensic interview of Victim on June 19, 2015. At that time, Victim was fourteen years old. The
State asked Ms. Reese about statements the Victim made to her about the last time something
happened between her and Defendant, and the following exchange was had:
State: And what did [Victim] say about when the last time was? Defense Counsel: Objection. Hearsay. State: Judge, this is a prior inconsistent statement. The victim testified she did not remember the incident that happened just before the defendant’s arrest. Court: I’ll allow it, over the objection. You may answer.
No other objections were raised by Defendant’s counsel to the question or the testimony. After
the objection was overruled, Ms. Reese testified that Victim told her something happened with
Defendant five to six days before he was arrested on March 13, 2015, that it happened at night in
Defendant’s bedroom in the house in Willard and that Defendant had sex with her. The State
referred to Ms. Reese’s testimony during its closing argument.
The last witness at trial was the Defendant, who denied any sexual contact with the
Victim. The last testimony received by the jury was the following exchange:
State: How do you think this looks? You, a convicted sex offender, sending those types of e-mails to a child, living with a child, sleeping with the child, that you have no genetic ties to?
4 Defendant: Is it wrong? State: No further questions, Your Honor.
After instructions and closings, the jury convicted the Defendant on all six counts. In
Defendant’s Motion for New Trial, the only error alleged related to Ms. Reese’s testimony was
that it was improper hearsay. The trial court denied Defendant’s motion, and sentenced him to
life in prison on Counts I through IV, and on Count VI. The Defendant was sentenced to seven
years on Count V. All sentences were ordered to run consecutively.
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Missouri Court of Appeals Southern District
In Division STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD38053 ) CHARLES KENNETH MULVERHILL, ) Filed: May 30, 2024 ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable David C. Jones, Judge
AFFIRMED
Charles Kenneth Mulverhill (“Defendant”) appeals his convictions on four counts of
statutory rape in the first degree (Counts I through IV), one count of statutory rape in the second
degree (Count V), and one count of child molestation in the first degree (Count VI). In his sole
point on appeal, Defendant contends that the trial court erred in allowing hearsay statements of
the Victim into evidence. While the State concedes that the hearsay evidence was not
admissible, it argues that such error was not prejudicial. Because the Victim testified at trial,
was asked about the same matters related to the hearsay statements and was subject to cross
examination, the admission of the evidence was not prejudicial to Defendant. The judgment is
affirmed. Factual Background and Procedural History
Victim was born in 2000, and Defendant was born in 1964. Victim met Defendant when
she was nine or ten years old and living in the State of Arizona. Defendant eventually moved in
with Victim and her family, which consisted of her mother, older sister, and older brother. Both
Victim and Defendant denied that Defendant and Victim’s mother were in a romantic
relationship.
Victim did not have a relationship with her biological father, and Defendant became a
father figure to her. Defendant took Victim, and no one else, to Disneyland for her eleventh
birthday. They shared a bed and cuddled during that trip. Defendant touched Victim’s vaginal
area and whispered in her ear that he would not force her to do anything that she did not want to
do. Victim rolled over and went to sleep.
Shortly after that trip, Victim’s family and Defendant moved to Arkansas. While living
in Arkansas, Defendant rubbed his penis on Victim’s butt. Defendant also bought Victim many
gifts, which he did not do for her siblings.
In the spring of 2014, when Victim was thirteen years old, Victim’s family and
Defendant moved to Springfield, Missouri. They initially lived in a two-bedroom motel suite.
While they were at the motel, Defendant touched Victim’s vagina with his hands, Victim
touched Defendant’s penis with her hands, and Defendant had vaginal intercourse with Victim.
The first instance of intercourse occurred when Victim’s mother and siblings had gone to a
convenience store, leaving Defendant and Victim alone in the room. Victim said that there were
probably other instances of intercourse at the motel, but that first incident was the one that she
remembered most vividly. Victim’s family and Defendant stayed at the motel for about two
months before moving to a five-bedroom home in Willard, Missouri.
2 Defendant was convicted in 1990 in the State of California on two counts of lewd and
lascivious acts with a minor under the age of fourteen. In March 2015, Defendant was arrested
in Springfield by a United States Marshal for failing to register as a sex offender. Defendant’s
phone was seized during the arrest. A picture of Victim was the screen saver of the phone.
Several other pictures of Victim were found on the phone, many of which were taken while
Victim was asleep. Defendant and Victim also exchanged messages by email and by Facebook
Messenger, some of which were suggestive in nature. In one exchange, Defendant told Victim
that he was thinking about her while he masturbated. Several of the messages and emails were
deleted on Defendant’s phone, but were still recoverable through forensic examination.
Defendant told Victim in one message to erase all the emails from her account.
Defendant was subsequently charged with four counts of statutory rape in the first degree
under section 566.032 1; one count of statutory rape in the second degree under section 566.034;
and one count of child molestation in the first degree under section 566.067. Defendant’s jury
trial was conducted in January 2023.
On direct examination, the Victim testified that after they moved to the house in Willard
and before school started in the Fall of 2014, she and the Defendant were having sex two to three
times a month. Victim further testified that she and the Defendant had sex after school started in
the middle of August 2014. When asked whether she remembered the last time something
happened with Defendant, Victim stated, “[k]ind of. Sort of. Not exactly.” Victim was asked
whether she had sex with Defendant in March 2015, and responded: “I want to say yes, and I
want to say no. It’s just really hard to remember.” Victim stated that things did continue to
1 Unless otherwise noted, all statutory references are to RSMo 2000, including, as applicable, statutory changes effective June 5, 2006.
3 happen between her and the Defendant up until around March 2015, and that she had sex with
Defendant after she turned fourteen.
During cross-examination, Victim testified again that she and the Defendant had sex in
the Willard house before school began, and that they continued to have sex two to three times a
month until he was arrested in March 2015. Victim stated that she could not remember the
specifics, but she knew sex was happening with the Defendant until he got arrested. According
to Victim, when Defendant got arrested was when “all of everything stopped.”
The State subsequently called Ashley Reese as a witness. Ms. Reese conducted a
forensic interview of Victim on June 19, 2015. At that time, Victim was fourteen years old. The
State asked Ms. Reese about statements the Victim made to her about the last time something
happened between her and Defendant, and the following exchange was had:
State: And what did [Victim] say about when the last time was? Defense Counsel: Objection. Hearsay. State: Judge, this is a prior inconsistent statement. The victim testified she did not remember the incident that happened just before the defendant’s arrest. Court: I’ll allow it, over the objection. You may answer.
No other objections were raised by Defendant’s counsel to the question or the testimony. After
the objection was overruled, Ms. Reese testified that Victim told her something happened with
Defendant five to six days before he was arrested on March 13, 2015, that it happened at night in
Defendant’s bedroom in the house in Willard and that Defendant had sex with her. The State
referred to Ms. Reese’s testimony during its closing argument.
The last witness at trial was the Defendant, who denied any sexual contact with the
Victim. The last testimony received by the jury was the following exchange:
State: How do you think this looks? You, a convicted sex offender, sending those types of e-mails to a child, living with a child, sleeping with the child, that you have no genetic ties to?
4 Defendant: Is it wrong? State: No further questions, Your Honor.
After instructions and closings, the jury convicted the Defendant on all six counts. In
Defendant’s Motion for New Trial, the only error alleged related to Ms. Reese’s testimony was
that it was improper hearsay. The trial court denied Defendant’s motion, and sentenced him to
life in prison on Counts I through IV, and on Count VI. The Defendant was sentenced to seven
years on Count V. All sentences were ordered to run consecutively.
Standard of Review
“The trial court has broad discretion in determining whether to admit or exclude
evidence at trial.” State v. Wiggley, 672 S.W.3d 243, 247 (Mo. App. E.D. 2023) (citing State v.
Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006)). “An abuse of discretion is found when the
decision to admit or exclude evidence is clearly against the logic of the circumstances and is so
unreasonable and arbitrary as to indicate a lack of careful consideration.” Id. (citing State v.
Barriner, 210 S.W.3d 285, 296 (Mo. App. W.D. 2006)). Upon finding an abuse of discretion, a
reviewing court will reverse only if the prejudice resulting from the improper admission of
evidence is outcome-determinative. Id. (citing State v. Cole, 483 S.W.3d 470, 474 (Mo. App.
E.D. 2016)). See also State v. Placke, 290 S.W.3d 145, 153 (Mo. App. S.D. 2009). “Prejudice
is outcome-determinative 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
conclusion but for the erroneously admitted evidence.’” Wiggley, 672 S.W.3d at 247 (quoting
Cole, 483 S.W.3d at 474).
Analysis
Defendant does not contest the sufficiency of the evidence to support any of his
convictions, but instead argues that the admission of the hearsay statements of Victim through
5 Ms. Reese was in error. The State concedes in its brief that there was an insufficient foundation
at trial for the admission of Victim’s hearsay statements as prior inconsistent statements. While
it is undisputed that admission of the hearsay statements was error, the Court must consider
whether such error was prejudicial to Defendant.
Hearsay testimony is generally disfavored by the courts because the person who makes
the statement is not under oath and is not subject to cross-examination. State v. Hamilton, 892
S.W.2d 371, 378-79 (Mo. App. E.D. 1995). Improper admission of hearsay, however, is not a
basis to reverse a conviction unless it was prejudicial to the accused. Placke, 290 S.W.3d at 153,
Hamilton, 892 S.W.2d at 378-79. Prejudice will not be found from the admission of hearsay
testimony where the declarant was also a witness at trial, testified on the same matter, and was
subject to cross-examination because the primary defects in hearsay testimony are alleviated.
State v. Jackson, 426 S.W.3d 717, 719 (Mo. App. E.D. 2014), State v. Steele, 314 S.W.3d 845,
850-51 (Mo. App. W.D. 2010), State v. McClanahan, 202 S.W.3d 64, 68-69 (Mo. App. S.D.
2006).
In this case, Ms. Reese testified as to hearsay statements made by the Victim related to
additional details concerning Victim’s last sexual encounter with Defendant in March 2015. The
Victim was a witness at trial, testified extensively about various sexual encounters between her
and the Defendant, including in March 2015, and was subject to cross-examination. Under direct
examination, the Victim testified that she could not remember exactly the last encounter she had
with the Defendant before he was arrested, but that things did continue to happen between her
and the Defendant up until around March 2015, and that she had sex with Defendant after she
turned fourteen. On cross-examination, the Victim further testified that she and the Defendant
had sex in the Willard house before school began in August 2014, and that they continued to
6 have sex two to three times a month until he was arrested in March 2015. Victim stated that she
could not remember the specifics, but she knew sex was happening with the Defendant until he
got arrested. According to Victim, it was not until Defendant was arrested that “all of everything
stopped.”
All of Victim’s statements were placed before the jury, who had the opportunity to assess
the testimony and demeanor of both Victim and Defendant, who also testified at trial. See
McClanahan, 202 S.W.3d at 68-69 (holding admission of hearsay was not prejudicial to
defendant as both defendant and alleged victim testified extensively at trial and the jury had the
opportunity to assess their demeanor and testimony). Further, Victim’s hearsay statement
regarding the final encounter in March 2015 was in addition to her description of the many other
improper sexual encounters between Defendant and Victim during the relevant time frame. 2 The
Court finds no prejudice to the Defendant from the improper admission of the hearsay statements
of Victim under these circumstances.
At trial and in his Motion for New Trial, Defendant asserted only that Ms. Reese’s
testimony concerning the statements of Victim were inadmissible hearsay. For the first time on
appeal, Defendant also argues that the hearsay statements constitute improper bolstering. Issues
of hearsay and improper bolstering are separate and distinct from each other. See Forrest, 183
S.W.3d at 224 (analyzing issues of hearsay and bolstering as separate claims with distinct
elements). “Improper bolstering occurs when an out-of-court statement of a witness is offered
solely to duplicate or corroborate trial testimony.” Id.
2 At trial, Defendant was convicted of six Counts. Only Count V, Statutory Rape in the 2nd Degree, involved conduct from March 2015. Victim’s hearsay statement related only to her last sexual encounter with Defendant in March 2015. Victim’s hearsay statement was thus irrelevant to the charges in Counts I through IV and Count VI, all of which concerned conduct of the Defendant that occurred earlier than March 2015. Defendant has not raised any claim of error with respect to the evidence that supports those Counts, and thus there is no basis to disturb his sentences for those convictions.
7 Only those objections or grounds of objection which were urged in the trial court, without
change and without addition, will be considered on appeal. State v. Prine, 456 S.W.3d 876, 881
(Mo. App. S.D. 2015). Since the issue of improper bolstering was not preserved for appellate
review, it can only be reviewed for plain error, and plain error review is discretionary. “If there
is no facial showing of manifest injustice or miscarriage of justice, appellate courts should
decline to exercise plain error review.” State v. Moore, 682 S.W.3d 436, 445 (Mo. App. S.D.
2024) (citing State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020)).
Abuse of discretion (for preserved error) is a lower standard of review than plain error
review. Lawrence v. State, 628 S.W.3d 777, 785 (Mo. App. S.D. 2021) (citing Deck v. State, 68
S.W.3d 418, 427 n.5 (Mo. banc 2002)). Thus, a lack of prejudice under an abuse of discretion
review necessarily precludes finding prejudice under a higher standard. Id. at 785. Even if the
Court were to assume that Victim’s statement constituted improper bolstering, this Court’s
finding that there was no prejudice from the trial court’s error under the abuse of discretion
standard precludes a finding of prejudice under plain error review. As plain error review would
be futile, this Court declines to exercise its discretion to review Defendant’s claim of improper
bolstering.
Conclusion
For the reasons stated above, the Judgment of the trial court is affirmed.
MATTHEW P. HAMNER, J. – OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS