State v. Collins

163 S.W.3d 614, 2005 Mo. App. LEXIS 830, 2005 WL 1274094
Missouri Court of Appeals·Decided May 31, 2005·No. 26535·Published·Cited by 14 cases

Opinions

KENNETH W. SHRUM, Judge.

A jury found Sammy Collins (“Defendant”) guilty of child molestation in the first degree (§ 566.067).1 He was sentenced to a term of twelve years’ imprisonment. Defendant urges reversal under the plain error standard, claiming the trial judge committed reversible error when he did not sua sponte exclude certain expert testimony. We hold that admission of the questioned evidence does not mandate reversal, either under the plain error standard or otherwise. Accordingly, we affirm.

FACTS

A.J.C. (“Victim”) was born March 20, 1992, to Defendant and Carolyn Jean Collins. Along with Victim’s brother (R.K.C.), the family resided together from 1995 to 2000. These children were removed from their parents’ custody in September 2000 after the Division of Family Services (“DFS”) found they were living in “filthy” and “deplorable” conditions.

By November 2000, Victim began telling authorities about sexual abuse inflicted on her while at her parents’ home. Early on, Victim was reticent and cryptic in her disclosures about what had happened and who was responsible. Her initial reluctance to talk about the abuse, followed by her later detailed accounts thereof (which implicated several persons) is recounted more fully below.

At this point, suffice it to say that by December 2000, Defendant was suspected of being one of Victim’s abusers. Because of that, he was asked to contact the Mountain View, Missouri, police department. Upon doing so, the interviewing officer first advised Defendant of his Miranda rights. Defendant then agreed to talk with the policeman about “the allegations ... against him by his daughter, referencing sexually abusing her.”

The officer’s at-trial testimony about the interview included the following:

“Q. [to officer] Did he initially just confess, or deny it in the beginning?
“Á. He denied it at first.
“Q. [D]id he just say he didn’t do it.
“A. Yes.
“Q. And what, if anything, did you say to him?
[617]*617“A. I said to him, you know, all these years I’ve been doing this, I’ve never known a child in his daughter’s age group to he about such an allegation. I pointed out to him, it’s best to be truthful when you’ve made a mistake and own up to it, that he’s, you would be putting a lot of people through a lot of grief if you did this and tried denying it. At that particular point, he admitted to having molested his daughter.”

The officer then identified a written confession signed by Defendant. It read:

“During the summer of the year 2000 I touched my daughter’s breast and vagina in a sexual manner. I think it was less than 5 times, but I’m not sure of the number of times. These incidents happened in the bedroom of my home. These incidents happened at different times of the day or night. The details of these incidents are unknown to me at this time.”

Additional inculpatory testimony included this:

“Q. [to interviewing officer] [P]rior to filling out that statement and when [Defendant] started telling what he did, what was his demeanor?
A. He was what I would call repénta-tive [sic], he was crying and upset about what he had done and he said, ‘I’m obviously guilty and I’m sorry.’ ”

Victim’s at trial testimony, inter alia, was that Defendant “touched her [in the vaginal area;]” that he used “[h]is penis[ ]” to touch her; that this happened “more than once;” that at times Defendant went around the house naked; that usually Defendant’s penis was “pointing down” as he walked about naked, but was “pointing straight” when he used it to touch Victim. She further testified that the “touching” usually happened in Defendant’s bed, Defendant was “on top of [her],” and he [Defendant] “would stick his penis in my vagina.”

During Victim’s cross-examination, she denied Delbert Walker (an adult male baby-sitter) had ever “touched his private inside [her] private.” She also denied ever being at Delbert’s house and noticing “white stuff come out of [her] butt” when she went to the bathroom. Victim made these denials at trial, yet told counselors earlier that these things had occurred.

In a similar vein, during cross-examination, Victim denied having intercourse with her brother (R.K.C.), although in pre-trial interviews she said this had happened. Defense counsel’s efforts on re-cross to press Victim about these contradictory statements took this form:

“Q. [to Victim by defense counsel] Do you recall if I asked you [in a pre-trial interview] about whether ... you had sex with your brother?
“A. Yes.
[[Image here]]
“Q. What did you tell me?
“A. I told you that my dad made him ... do it with me.
“Q. Do it with you, you mean sexual intercourse with you?
“A. No.
[[Image here]]
“Q. What do you mean?
“A. He made me suck his dick.”

Other at-trial witnesses included child advocacy center employee Barbara Brown (“Brown”), Victim’s therapist Dr. Melissa Hagen (“Hagen”) (a psychologist), law enforcement personnel, and Leta Holh (a pediatric nurse who did a SAFE examination of Victim). Their testimony about interviews and examinations of Victim included the following. Walker (the babysitter) vaginally raped and anally sodomized Victim. As a result of Walker’s [618]*618abuse, Victim was incontinent, i.e., “her anus was open, there was no skin folds there and there was just stool that was just seeping out constantly.” Moreover, these witnesses told the jury about Victim’s other claims of sexual abuse, i.e., allegations that Defendant abused her (including acts of sexual intercourse), R.KC. (Victim’s brother) abused her, and Victim’s mother was involved. From her interviews with Victim, witness Brown concluded Victim’s mother “was frequently aware of what was happening [and] often participated in what was happening, was in the same room and did some of the same types of things to her.”

The issue on appeal involves certain testimony by witnesses Brown (the child advocacy interviewer) and Dr. Hagen (Victim’s therapist). Specifically, Defendant claims there were five instances when the trial court should have interceded, sua sponte, and kept these witnesses from commenting on Victim’s credibility. This testimony and other related matters follow.

Brown first interviewed Victim on January 18, 2001. At that interview, Victim “alluded to a lot of bits and pieces of information.” Victim stated “that she had just gotten out of bed, was going ... between the bedroom and the bathroom ... and she didn’t have any clothes on so [Defendant] put his hands [on] her titties and her private part to cover her up from the other person’s view.” During that interview, Victim said nothing about, any type of penetration of her vagina.

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State v. Collins, 163 S.W.3d 614, 2005 Mo. App. LEXIS 830, 2005 WL 1274094 (Mo. Ct. App. 2005).

163 S.W.3d 614 (State v. Collins) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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State v. Collins
163 S.W.3d 614 (Missouri Court of Appeals, 2005)