State of Missouri v. David Bennish

479 S.W.3d 678, 2015 Mo. App. LEXIS 1055
CourtMissouri Court of Appeals
DecidedOctober 20, 2015
DocketED101370
StatusPublished
Cited by13 cases

This text of 479 S.W.3d 678 (State of Missouri v. David Bennish) 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
State of Missouri v. David Bennish, 479 S.W.3d 678, 2015 Mo. App. LEXIS 1055 (Mo. Ct. App. 2015).

Opinion

Angela T. Quigless, Judge

I. INTRODUCTION

David Bennish (“Defendant”) appeals the judgment of the Circuit Court of the City of St. Louis convicting him of three counts of státutory sodomy in the second degree, in violation of section 566.064, RSMo (2000), 1 one count of endangering the welfare of a child in the first degree, in violation of section 568.045, and one count of incest, in violation of section 568.020. Defendant asserts three points on appeal. In his first two points, Defendant contends the trial court plainly erred in excluding testimony from two witnesses, Frank and Betty Bennish, regarding victim D.R.’s truthfulness. In Defendant’s third point, he argues the trial court erred in denying Defendant’s motions for acquittal at the close of the State’s evidence and at the close of all evidence. . We affirm the trial court’s judgment. , ,

II. FACTUAL AND PROCEDURAL BACKGROUND

Viewed in a light most favorable to the verdict, the evidence adduced at trial revealed the following: Defendant’s daughter, D.R., was born on October 23, 1996. During kindergarten, D.R. moved in with her paternal grandfather and step-grandmother, Frank and Betty Bennish, 2 and their daughter, A.B. The Bennish’s home was located in the City of St. Louis. Defendant did not live with them.

When D.R. was thirteen or fourteen years old, she went swimming at the home of Defendant’s friend, Raymond Williams. Williams lived one or two, blocks away from Frank and Betty Bennish in the City of St. Louis. After she went swimming, D.R. was in the bathroom changing., Defendant came in and performed anal intercourse on her.

On another occasion, Defendant was staying at Frank and Betty’s home to watch D.R. while his father and stepmother were out of town. Defendant entered D.R.’s bedroom and performed anal intercourse on her.,

A :third incident took place when D.R. was riding with Defendant in his van. The van was stopped at a light and Defendant pulled D.R.’s head down to his penis and forced her to perform oral sex on him. After the light changed, .the van started moving again and D.R. raised her head up, leaned out the window and spit.

In October of 2011, an investigator from the Department of Child Services was sent to investigate an allegation that A.B. had been abused at school. The investigator spoke to A.B. and then spoke with D.R., who disclosed the abuse by Defendant. Defendant was formally charged with six counts of various sexual crimes against D.R. At trial, the State presented D.R.’s testimony. She recounted the two incidents of anal sodomy. She also testified to the third incident in Defendant’s van. D.R,' was unable to remember exactly where the van was located when the incident occurred.

Frank Bennish testified as a witness for the defense. Frank explained that he generally only interacted with D.R. on weekends. because he was gone most of, the week as an over-the-road trucker. De *682 fense counsel then questioned Frank about D.R.’s reputation for honesty. The State objected and the court sustained its objection. Defendant did not make an offer of proof.

The defense also presented the testimony of Betty Bennish. Defense counsel asked her about D.R.’s reputation for truthfulness. Betty stated D.R. “liked to tell stories occasionally” and then she began to describe a specific instance where D.R. was untruthful. The State made an objection which the court sustained. Again, Defendant did not make a detailed offer of proof, but did include the issue in his motion for new trial.

After deliberations, the jury found Defendant guilty of three counts of statutory sodomy in the second degree, one count of endangering the welfare of a child in the first degree, and one count of incest. 3

Defendant waived jury sentencing prior to trial. The court sentenced him to a total of fifteen years’ imprisonment. The sentence consisted of consecutive terms of seven years’ imprisonment on two of the counts of statutory sodomy in the second degree and' one year’s imprisonment on the third count of statutory sodomy in the second degree, and concurrent terms of seven years’ imprisonment for endangering the welfare of a child in the first degree and four years’ imprisonment for incest. Defendant appeals.

III. DISCUSSION

A. POINTS I AND II

We will address Defendant’s first two points on appeal together as they involve common questions of law. In his first and second points, Defendant asserts the trial court abused its discretion in sustaining the State’s objections and refusing to allow Frank and Betty Bennish to testify regarding D.R,’s character for truthfulness as well as her specific acts of untruthfulness in the past. We disagree. •

As with any witness who testifies at trial, a, victim in a sex offense case places her reputation for truthfulness at issue by taking the stand, and the defense may impeach the victim’s testimony by evidence of her poor reputation for truthfulness and veracity. State v. Smith, 314 S.W.3d 802, 810 (Mo.App.E.D. 2010) (citing State v. Trimble, 638 S.W.2d 726, 735 (Mo. banc 1982)). The testimony of a character witness may be offered to show the victim has a poor community reputation for truthfulness and veracity.. See State v. Durham, 371 S.W.3d 30, 36 (Mo.App.E.D. 2012). '

A person is qualified to testify as to another witness’s reputation for truthfulness and veracity if it is shown that the person is familiar with “the general reputation of the witness in the neighborhood or among the people with whom the witness associates....” Smith, 314 S.W.3d at 810 (quotation omitted). In particular, the witness providing character testimony “must have had an opportunity to observe continuously and with some frequency the person whose reputation he describes; and .the witness must have knowledge of how others in the community view the individual.” Cantrell v, Superior Loan Corp., 603 S.W.2d 627, 639 (Mo.App.E.D. 1980).

“Conversely, it ⅛ irrelevant what the person personally knows of the general conduct of the witness to be impeached because personal opinion as to a witness’s truthfulness and veracity is immaterial and not admissible.” Smith, 314 S.W.3d at 810 (citing State v. Schell, 843 S.W.2d 382, 384 (Mo.App.E.D. 1992)). Moreover, a witness *683 called to testify as to another witness’s character for truthfulness and veracity may typically only provide testimony regarding general-reputation in the community and not testimony of specific acts. Durham, 371 S.W.3d at 36. ,

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Bluebook (online)
479 S.W.3d 678, 2015 Mo. App. LEXIS 1055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-missouri-v-david-bennish-moctapp-2015.