In the Missouri Court of Appeals Western District STATE OF MISSOURI, ) ) Respondent, ) WD83687 ) v. ) OPINION FILED: November 23, 2021 ) JAMES PATRICK DODD, JR., ) ) Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Justine E. Del Muro, Judge
Before Division Three: Lisa White Hardwick, Presiding Judge, Gary D. Witt, Judge and Edward R. Ardini, Jr., Judge
James Dodd ("Dodd") appeals from the judgment of the Circuit Court of Jackson
County, Missouri ("trial court") convicting Dodd of two counts of first-degree child
molestation, section 566.067;1 one count of first-degree statutory sodomy, section 566.062;
one count of attempted first-degree statutory sodomy, section 566.062; one count of
second-degree statutory rape, section 566.034; and three counts of second-degree statutory
sodomy, section 566.064. Dodd raises two issues on appeal: (1) the evidence presented at
1 All statutory references are to R.S.Mo. 2016, as currently updated by supplement, unless otherwise noted. trial was insufficient to support a conviction on counts I-VII; and (2) the offenses against
the two separate victims were improperly joined in the indictment and were not severed.
Finding no error, we affirm.
Factual and Procedural Background2
This case involves the sexual molestation and rape of two separate child victims:
K.J.K. and B.B.3 The sexual molestation of the two victims occurred during different time
periods, and the two victims do not know each other.
K.J.K. is the daughter of "Mother" and the niece of "Aunt." Aunt is Dodd's ex-
girlfriend and is the mother of Dodd's twin boys, who were born in 2005. During the
relevant time periods, Dodd and Aunt did not share a residence, but Dodd frequently visited
Aunt's home to spend time with the twin boys while they were growing up. K.J.K. also
visited Aunt's house frequently with Mother during this time frame.
The charges against Dodd regarding K.J.K. arose from three incidents in 2009, when
K.J.K. was six or seven years old. Dodd sexually molested K.J.K. at Aunt's house on three
separate occasions. The first incident occurred while K.J.K., Dodd, and K.J.K.'s male
cousin, D.K., were watching television together in the living room. When D.K. went to
the restroom, Dodd lifted K.J.K. onto his lap, unbuttoned her pants, and put his hands down
the front of her pants. Dodd touched and rubbed K.J.K.'s vagina, skin to skin. Dodd also
placed his hands up K.J.K.'s shirt to feel her breasts. While being held on Dodd's lap,
2 We consider the testimony in a light most favorable to the verdict, and contrary evidence and inferences are disregarded. State v. Rutter, 93 S.W.3d 714, 720 (Mo. banc 2002). 3 We have used the victims' initials to protect their identity pursuant to section 595.226.1.
2 K.J.K. could feel Dodd's erect penis through his pants. After a couple of minutes, D.K.
came out of the restroom, and Dodd took K.J.K. off his lap without buttoning her pants.
The second incident occurred just weeks later on the first floor of Aunt's house.
K.J.K. and two other children were setting up a video game while Dodd sat on a reclined
exercise chair. When the children's backs were toward him, Dodd pulled K.J.K. to him.
He unzipped his pants and pulled them down slightly, then he pulled K.J.K.'s pants down
slightly and placed K.J.K. onto his lap. He moved K.J.K. around on his penis so that his
penis touched her vagina without penetration. K.J.K. felt a liquid "shoot up" in between
her thighs, on her vagina, and on her buttocks. Dodd then pulled K.J.K.'s pants back up
and pulled her off his lap.
The final charged incident between Dodd and K.J.K. occurred at Aunt's home in the
living room. Mother dropped K.J.K. off at Aunt's house for the evening while she went to
night school. Dodd was the only person present at Aunt's home that evening. Dodd sat on
the couch playing a video game, and K.J.K. asked him if she could eat a Nutter Butter
snack. Dodd told K.J.K. that she could not have a snack unless she "did something" first.
K.J.K. asked what she had to do, and Dodd pulled out his penis and started rubbing it.
Dodd asked K.J.K. if she was going to "do it," but she shook her head "no." Dodd grabbed
K.J.K.'s hand and put it on his penis. He placed his hand on top of her hand and began
moving the two hands together up and down.
During eighth grade, K.J.K. had become rebellious and started acting out at school.
Mother had a conversation with her about her behavior problems, and during the
conversation K.J.K. began crying and told Mother about the sexual molestation by Dodd.
3 Mother called the police to report the abuse. K.J.K. was then interviewed by law
enforcement, the Children's Division, and a forensic interviewer regarding the molestation.
Dodd's and Aunt's relationship ended around 2009 or 2010. Dodd then began dating
"Wife," whom he later married. B.B. is Wife's cousin, and B.B. met Dodd at Wife's house
when she was thirteen or fourteen years old. Dodd and Wife have four children together,
and B.B. frequently visited their home to babysit the children and hang out with Wife and
Dodd. B.B. initially enjoyed spending time with Dodd, and he did not make her feel
uncomfortable. However, after she turned fifteen years old, Dodd began touching B.B.
inappropriately. He tickled her and rubbed up against her body whenever he walked passed
her. Ultimately, Dodd's touching led to inappropriate actions and sexual abuse on three
separate occasions in 2015.
The first incident occurred in Wife's basement. While Wife and the children were
upstairs, Dodd and B.B. were alone smoking marijuana in the basement. Dodd wanted to
show B.B. a smoking trick; he blew smoke into B.B.'s mouth for her to inhale. When he
blew the smoke, he kissed her on the lips. B.B. did not tell anyone about the incident
because she believed it was a one-time incident related to the smoking trick.
The second incident also occurred at Wife's home. After Wife and the other children
went to bed, Dodd invited B.B. to the basement to smoke marijuana again. Dodd went
down the stairs first, and B.B. followed. Dodd stopped halfway down the stairs and sat
down on a step to prevent B.B. from going any farther. Dodd pulled B.B. onto his lap and
stuck his hand up B.B.'s shirt to feel her breasts. Dodd and B.B. then went down the stairs
to the basement where they began smoking marijuana. Dodd made B.B. smoke more than
4 she wanted, and once she was "past her limit," he showed B.B. a pornographic video on
his phone. He then asked to perform oral sex on B.B. When B.B. declined, Dodd sat down
next to her on an ottoman and placed her hand on his jeans and told her to "touch it." B.B.
pulled her hand away multiple times, so eventually Dodd pulled his penis out of his pants
and forced B.B.'s head down toward it until her mouth touched his penis. She performed
oral sex on him, and then he took her pants and underwear off while she lay on the ottoman
so that he could perform oral sex on her. Then, he put his penis in her vagina and raped
her until he ejaculated on her buttocks. Dodd wiped his ejaculate off of her with a t-shirt
he found in the basement. The next day, she was sore in her vaginal area.
The final incident between B.B. and Dodd occurred one month later. B.B. continued
to visit Wife because she believed that if she stopped going to Wife's house, her parents
would become suspicious that something occurred. Believing that Dodd would once again
abuse her, B.B. stole a condom from a gas station before going to their house out of fear of
becoming pregnant. When she arrived at their home, Wife had to leave to attend a meeting
with a wedding planner in preparation for her wedding with Dodd, and the other children
were upstairs. Dodd ordered B.B. to go to the basement. Once in the basement, B.B. gave
Dodd the condom and asked him to use it because by the way he ordered her to go to the
basement she knew what he was going to do to her. Dodd made B.B. bend over the
ottoman, and he raped her from behind. He ejaculated on her buttocks and wiped it up with
a t-shirt.
One week after the final sexual incident between B.B. and Dodd, B.B. and Wife
were speaking on the phone about church, God, and forgiveness. Because B.B. believed
5 she was at fault and needed to be forgiven, she told Wife about the three incidents involving
Dodd. Wife informed B.B.'s parents about Dodd's crimes, who then took B.B. to the police
station. B.B. spoke to law enforcement, a forensic interviewer, and a doctor about the
incidents with Dodd.
Dodd was convicted on Counts I-VII,4 and the court sentenced him according to the
jury's recommendations, with the sentences for the crimes against K.J.K. to run
consecutively to the sentences for the crimes against B.B., for a total sentence of thirty-
seven years. This appeal follows.
Sufficiency of the Evidence
Standard of Review
Dodd's first point argues the trial court erred by overruling his motion for acquittal
at the close of evidence because the State's evidence was "uncorroborated, contradictory
and/or inherently incredible." "The review of a trial court's denial of a motion for judgment
of acquittal is the same as reviewing a claim that there was insufficient evidence to convict
the defendant of the charged offense." State v. Bass, 81 S.W.3d 595, 614 (Mo. App. W.D.
2002).
When reviewing the sufficiency of the evidence supporting a criminal conviction, the Court gives great deference to the trier of fact. Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. In applying this standard, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary.
4 One count of second-degree statutory sodomy was dismissed by the State at trial prior to submission.
6 State v. Weaver, 481 S.W.3d 927, 930 (Mo. App. W.D. 2016) (internal quotations omitted).
Analysis
Dodd argues, in a single point relied on, that the trial court erred in overruling his
motion for acquittal at the close of evidence as to all seven counts relating to both victims.
In challenging sufficiency of the evidence to support the convictions for all seven charges,
involving multiple victims which occurred at separate times in a single point, Dodd's first
point is multifarious. "Multiple claims of error in one point relied on renders the point
multifarious and as such is a violation of Rule 84.04, made applicable to briefs in criminal
appeals by Rule 30.06(c)." State v. Leonard, 490 S.W.3d 730, 736 (Mo. App. W.D. 2016)
(internal quotation omitted).
Here, Dodd does not argue trial court error in regard to a specific conviction, or that
the failure to sufficiently prove a single element that is common to all seven charges
requires reversal; rather, he argues the trial court erred by denying his motion for judgment
of acquittal as to all seven counts by pointing to inconsistencies between various statements
each separate victim gave at different times and pointing to evidence which he argues
should have been found more credible. "Generally, multifarious points preserve nothing
for appellate review and are ordinarily subject to dismissal." Id. (internal quotation
omitted). Dismissal of Dodd's appeal, therefore, is within our discretion. However,
because "we prefer to decide cases on the merits where an appellant's argument is readily
understandable--as is the case here" id. at 736-37, we exercise our discretion to review the
case on the merits.
7 Counts I-IV pertain to Dodd's molestation of K.J.K. The convictions of Counts I-
IV include two counts of child molestation in the first degree, one count of attempted
statutory sodomy in the first degree, and one count of statutory sodomy.
On appeal, Dodd does not argue that the State failed to adduce evidence establishing
facts supporting the submission of Counts I-IV, rather Dodd argues "[t]here was significant
evidence at trial to contradict and refute the testimony of K.J.K. and other State's evidence."
Dodd points to testimony given by defense witnesses that question Dodd's presence at
Aunt's house during 2009, where the molestation of K.J.K. occurred. For example, Q.V.,
a friend of Dodd, testified that Dodd did not have contact with Aunt in 2009. Other defense
witnesses testified; 1) that Dodd could not have traveled to Aunt's house because Dodd did
not have a car; 2) Aunt had an order of protection against Dodd that would have prevented
Dodd from visiting Aunt's home; and 3) that they never saw Dodd at Aunt's house.
Dodd also argues K.J.K.'s testimony should be found not to be credible based on
inconsistencies between her prior statements to law enforcement compared to her trial
testimony. Officer Pugh testified that K.J.K. only mentioned two acts of molestation, not
three. Officer Pugh also testified K.J.K. told him she was fully clothed during the second
act of molestation, but K.J.K.'s trial testimony was that Dodd pulled her pants down slightly
to place his penis against her vagina. During the forensic interview, K.J.K. did not mention
Dodd placed his hands down her pants during the first act of molestation; however, at trial,
K.J.K. testified Dodd did put his hands down her pants during the first incident. Dodd also
argues K.J.K.'s testimony is not credible due to the time lapse between the crimes (2009)
and the reporting of the crimes (2016).
8 Counts V-VII pertain to B.B.'s sexual abuse. Counts V-VII include two counts of
statutory sodomy in the second degree and one count of statutory rape in the second degree.
Dodd argues the State's evidence was insufficient to convict of the charged offenses
because the defense offered testimony contradicting the State's evidence. Dodd's witnesses
testified that in 2015, B.B. came to Wife's and Dodd's house only a few times and never
stayed long enough or had the opportunity to be alone with Dodd. Wife testified that even
if B.B. were alone with Dodd, the walls in their home were so thin that she would have
been able to hear anything happening downstairs and would have been able to smell
marijuana. Wife further testified there was no furniture in the basement, even though B.B.
testified that Dodd raped her on the basement furniture. Finally, Dodd himself testified he
was never alone with B.B.
Dodd's arguments fail as a matter of law. Dodd essentially asks this Court to either
reweigh the credibility of the evidence, which we cannot do, or to apply the Corroboration
Rule and Destructive Contradictions Doctrine, both of which the Missouri Supreme Court
abolished in State v. Porter, 439 S.W.3d 208, 211, 213 (Mo. banc 2014). While we
acknowledge that Dodd never refers to the Corroboration Rule and Destructive
Contradictions Doctrine by name, the arguments made in support of the Point Relied On
are directly based on these two standards.
The Corroboration Rule and Destructive Contradictions Doctrine were judicially
created standards of evidentiary review that were only applicable to sexual offenses.
"Under the former Corroboration Rule, corroboration of a witness'[s] testimony was
required if the witness's testimony [was] determined to be contradictory or if the appellate
9 court's review of the evidence raise[d] some undetermined level of uncertainty regarding
the evidentiary support for the conviction." Weaver, 481 S.W.3d at 931 (internal
quotations omitted). "The court completely abolished the rule in Missouri and held that
claims regarding the sufficiency of evidence to support a conviction for a sex crime should
be reviewed as any other claims alleging insufficient evidence." Id. Similarly, the
Destructive Contradictions Doctrine "permitted an appellate court to disregard testimony
that it determine[d was] inherently incredible, self-destructive[,] or opposed to known
physical facts with respect to an element of the crime." Id. (internal quotations omitted).
Porter also abolished this doctrine because "it too require[d] appellate courts to engage in
credibility determinations that [were] properly left to judges and juries sitting as triers of
fact." 439 S.W.3d at 213. For these reasons, we decline Dodd's request that we apply the
now abolished Corroboration Rule and Destructive Contradictions Doctrine and
independently determine that the State's evidence was "uncorroborated, contradictory,
and/or inherently incredible."
As to the suggestion that we should reweigh the evidence, "[w]e do not reweigh the
evidence but, instead, accept as true all evidence and inferences supporting guilt and ignore
all contrary evidence and inferences." State v. Garcia, 587 S.W.3d 688, 692 (Mo. App.
W.D. 2019). The trier of fact may believe all, some, or none of the testimony of a witness
when considered with the facts, circumstances, and other testimony in the case. State v.
Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002). "The testimony of a single witness is
sufficient to support a conviction even if the testimony of the witness is inconsistent." State
v. Bell, 936 S.W.2d 204, 207 (Mo. App. W.D. 1996). The jury is in the best position to
10 resolve credibility issues, such as inconsistencies in the victim's trial testimony and out-of-
court statements. Porter, 439 S.W.3d at 213-14. And the Court will not engage in
credibility determinations that are properly left to the trier of fact. Id. at 214.
Here, the evidence supports a conviction of each of the charged offenses. Both
K.J.K. and B.B. testified regarding Dodd's actions. Both victims detailed the three
incidents each experienced in which Dodd either molested or raped them. Their testimony
alone is sufficient evidence to convict if the jury believed their testimony and if the
elements of the offenses were satisfied. But Dodd does not argue the elements of the
offenses were not satisfied; rather, he argues that both the victims' conflicting statements
and his own witnesses' testimonies render the victims' testimonies incredible.
The inconsistencies Dodd points to on appeal were thoroughly raised by Dodd's
counsel on cross-examination and highlighted in his argument to the jury. The jury was
fully aware of the alleged contradictions but clearly found the testimony of K.J.K. and B.B.
credible. Dodd also presented evidence that contradicted the victims' testimony regarding
Dodd's presence at Aunt's house in 2009 and Dodd's opportunities to be alone with B.B. in
2015. The jury was also aware of the seven-year time lapse between K.J.K.'s abuse and
her reporting it. But the jury as the trier of fact remains in the best position to weigh the
credibility of the witnesses and determine if the State has proven each element of each
charged offense beyond a reasonable doubt. This Court will not second guess the
credibility determinations of the jury.
Dodd's point one is denied.
Joinder and Severance
11 Standard of Review
Dodd's second point argues the offenses against K.J.K. and the offenses against B.B.
were improperly joined in the charging instrument and should have been severed, resulting
in substantial prejudice to Dodd. Appellate review of claims of improper joinder and
failure to sever, if the issue is properly preserved, involves a two step-analysis; first, the
appellate court must determine whether joinder was proper as a matter of law, and if not,
then prejudice is presumed and severance is mandatory, but if joinder was proper, the
appellate court then must determine whether the court abused its discretion in denying the
defendant's motion to sever. State v. Holliday, 231 S.W.3d 287, 292 (Mo. App. W.D.
2007).
Dodd argues joinder was improper as a matter of law and that the trial court abused
its discretion by denying severance. Joinder and severance are separate and distinct issues.
State v. Collins, 527 S.W.3d 176, 180 n.4 (Mo. App. W.D. 2017). "Joinder" addresses
what crimes can be charged in a single proceeding, while "severance" assumes that joinder
is proper and gives the trial court discretion to determine whether substantial prejudice
would result if the charges were tried together. State v. Hyman, 37 S.W.3d 384, 393 (Mo.
App. W.D. 2001).
Joinder of two or more offenses within a single charging document is proper if the
offenses charged are (1) of the same or similar character; (2) based on the same act or
transaction; (3) based on two or more acts or transactions connected together; or (4)
constitute parts of a common scheme or plan. Section 545.140.2; Rule 23.05. Liberal
12 joinder of offenses is favored to achieve judicial economy. State v. Davis, 825 S.W.2d
948, 953 (Mo. App. E.D. 1992).
Whenever two or more offenses are jointly charged in an indictment or information,
the court shall order both or all offenses to be tried together. Section 545.885. If it appears
that a defendant or the state is substantially prejudiced by a joinder of the offenses for trial,
upon a written motion of the defendant or the state and upon a particularized showing of
substantial prejudice, the court may grant a severance of offenses and provide whatever
relief justice requires. Id.; Rule 24.07.
As an initial matter, we must first address whether Dodd preserved the issue of
improper joinder and severance for appeal. If a defendant fails to object to the joinder of
offenses before trial, he waives the right to obligate the State to "elect among the counts"
as to which counts it will try. State v. Shubert, 747 S.W.2d 165, 168 (Mo. App. W.D.
1988). Further, an "appellant cannot claim error with respect to action by the court on any
motion or request directed to the severance of [the offenses] because he filed no motion
and therefore waived the error." Id. at 169. "Any contention [an] appellant may make on
this point is therefore reduced to a contention that the trial judge should have acted sua
sponte to afford appellant separate trials." Id. (emphasis added). And because Section
545.885 requires that offenses charged together in the indictment be tried together unless
a party files a motion for severance, a "court which undertook sua sponte to sever jointly
charged offenses would be in direct violation of the statute." Id. (emphasis added).
Therefore, "where multiple counts in an information [or indictment] charge two or more
13 offenses and no motion for severance is filed, the court has no alternative but must try all
of the offenses to one jury in a single trial." Id.
Here, the record lacks any indication that Dodd moved to sever the offenses or
objected to the single trial of the multiple offenses which were charged together in the
indictment. Dodd did not file any motion arguing improper joinder, nor did he move the
trial court to sever the offenses, regardless of whether they were properly joined or not.
Even in his appellate brief, Dodd does not reference any pretrial motion arguing for
severance or improper joinder.
Dodd's only pretrial argument regarding the indictment was his Motion to Dismiss
Counts II and IV because the counts were "multiplicitous." Dodd argued the counts
contained the exact same language without additional facts or details to distinguish the
counts. But Dodd's Motion to Dismiss Counts II and IV was not a motion to sever. Dodd's
Motion to Dismiss made no mention of improper joinder as a matter of law, nor did it argue
for severance due to substantial prejudice of joinder. Moreover, Counts I-IV pertained to
K.J.K.'s abuse, and Counts V-VII pertained to B.B.'s abuse, so Dodd's Motion to Dismiss
Counts II and IV could not have been a motion to sever K.J.K.'s offenses from B.B.'s
offenses. See id. at 167 ("There was no pre-trial objection made to the composition of the
information, no motion to sever . . . was filed and the new trial motion did not mention the
present claim of error."). Accordingly, Dodd did not properly preserve his claim of
improper joinder, and the trial court did not err in failing to sever the charges sua sponte
because it was prohibited by Section 585.885 from severing the offenses absent a motion
by the defendant.
14 Even if Dodd had properly preserved his claim by filing a motion to sever, the trial
court would not have abused its discretion by denying severance of the offenses. If
properly preserved, the appellate court must first determine if joinder was proper as a
matter of law. The State only argues one basis for joinder; that is, joinder was proper
because the offenses were of the same or similar character. See Section 545.140.2.
The use of similar or comparable tactics is sufficient to show that the offenses are
of the same or similar character for purposes of joinder. Holliday, 231 S.W.3d at 293.
"[T]he manner in which the crimes were committed, or the connection otherwise between
the offenses, must be so similar or so related that the manner or the relationship is pertinent
evidence that the same person committed all the charged offenses." Id. The tactics need
only resemble or correspond with one another; they do not need to be identical. Id.
Nonexclusive factors that show similar tactics include commission of the same type of
offenses, victims of the same sex and age group, offenses at the same location, and offenses
closely related in time. Id.
Dodd's tactics of abuse against K.J.K. and B.B. were of the same or similar
character. Both victims were underage girls. Dodd had penis-to-vagina contact with both
victims. Dodd first initiated physical contact with each victim by touching their breasts
and genitals before escalating to genital-genital contact. Dodd used his relationship with
the victims' relatives to secure alone time with them. Each incident occurred in the house
of the victims' relatives. Although a time lapse occurred between the victims' abuse, the
character of the crimes was sufficiently similar to satisfy the joinder requirements of
Section 545.140.2.
15 After finding joinder to be proper, appellate courts must next determine whether the
court abused its discretion in denying the defendant's motion to sever. Id. at 292. Dodd's
argument on appeal must fail because he did not file a written motion to sever as required
by the statute. Further, Dodd fails to set forth how the failure to sever resulted in substantial
prejudice. Dodd simply states, without support, "The Trial Court placed [Dodd] in an
untenable position having to defend against two separate victims with each victim alleging
multiple counts or offenses against [Dodd]." Even if his argument were properly
preserved, Dodd did not explain how defending against multiple victims led to substantial
prejudice. Accordingly, even if Dodd had properly preserved the issue for appeal, he failed
to file a motion to sever as required and failed to make a particularized showing of
substantial prejudice requiring reversal for the failure to severe the offenses.
Dodd's point two is denied.
Conclusion
For all of the above-stated reasons, we affirm the judgment of the trial court.
__________________________________ Gary D. Witt, Judge
All concur