State v. Lane

415 S.W.3d 740, 2013 Mo. App. LEXIS 1470, 2013 WL 6492149
CourtMissouri Court of Appeals
DecidedDecember 10, 2013
DocketNo. SD 32044
StatusPublished
Cited by16 cases

This text of 415 S.W.3d 740 (State v. Lane) 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 v. Lane, 415 S.W.3d 740, 2013 Mo. App. LEXIS 1470, 2013 WL 6492149 (Mo. Ct. App. 2013).

Opinion

GARY W. LYNCH, J.

Following a jury’s guilty verdict and the trial court’s imposition of a twelve-year sentence of incarceration, Marlin Dallas Lane (“Defendant”) appeals his conviction on one count of statutory sodomy in the first degree, see section 566.062.2.1 Defendant claims the trial court abused its discretion in admitting certain testimony and a recording of a forensic interview of the victim and in denying his motion for new trial. In addition, he claims that the trial court erred in overruling his motion for judgment of acquittal and in failing to intervene during closing argument when the prosecutor allegedly misstated evidence presented at trial. Finding no merit in Defendant’s claims, we affirm.

Factual and Procedural Background

Defendant challenges the sufficiency of the evidence to support his conviction. The evidence adduced at trial in the light most favorable to the verdict established the following. See State v. O’Brien, 857 S.W.2d 212, 215 (Mo. banc 1993). Victim was born in November 2006. When she was about four months old, her parents separated; their divorce was final in June 2007. Victim remained in the custody of her mother (“Mother”) and had no relationship with her biological father for more than two years following the divorce.

In April 2007, Mother began dating Defendant. Victim was about five months old at that time. Early in July 2007, Mother learned she was pregnant with Defendant’s child. During a visit to her obstetrician at the end of July, Mother was diagnosed with chlamydia. Mother and Defendant married September 9, 2007, and Defendant lived with Mother and Victim thereafter. Two months before their son [744]*744was born in March 2008, Mother was diagnosed for the first time in her life with genital warts. During Mother’s pregnancy, Defendant was also having problems with chlamydia and genital warts.

Mother and Defendant separated in the fall of 2008, and afterward, Defendant moved in with his mother and step-father. Mother and children moved in with her parents. Until a vehicular accident in February 2009 left Defendant severely injured, he babysat the children while Mother worked. After the accident, Defendant was hospitalized for almost six weeks and returned to live with his mother and stepfather after his release. Defendant was in a full brace that extended from his neck to his stomach until October 2009. After Defendant’s accident, the children generally stayed at the home of a babysitter, although they stayed with Defendant and his parents on occasion. Although Victim was not the biological child of Defendant, up until that time, he was the only father she had known.

Mother and Defendant’s divorce was finalized in September 2009. Their son lived with Mother, and the couple had amicably agreed to a visitation schedule for Defendant. Sometime in September 2009, Defendant called Mother after Victim had been at his house to tell Mother that Victim might say that he had touched her, but he had just tickled her. After that, Mother quit taking Victim to see Defendant, but she continued to allow their son to visit. At some point, however, Mother stopped taking their son to visit Defendant, saying she wanted to protect him.

Dr. Gabrielle Curtis diagnosed Victim with genital warts in September 2009 during a well-child visit. Victim was two years old and turned three the following November. Dr. Curtis did not place a hotline call based on Victim’s diagnosis because she believed Victim was safe in her mother’s care. When Victim’s condition worsened and after she began having urinary tract infections and yeast infections, Mother took Victim back to the doctor. On October 30, 2009, Victim was referred to Dr. Timothy Fursa, who then contacted Family Services “to report a case that could potentially be child abuse.” In his opinion, “a diagnosis of genital warts or the contraction of genital warts oftentimes comes through genital-to-genital touching or touching of the genitalia.”

Jennifer Blankenship, an investigator with the Children’s Division, was assigned to investigate. She contacted the Webster County Sheriffs Office and contacted Mother on October 31 to schedule a visit at her home. After the visit to Mother’s, Blankenship contacted a deputy to report what she had learned and then scheduled a forensic interview at a Child Advocacy Center (“CAC”) on November 18, 2009.

Victim underwent a SAFE exam in November 2009. Before that examination, Victim had never said anything about being subjected to abuse. The nurse practitioner who examined Victim, Cindy Tull, saw multiple venereal warts on Victim’s anus and labia. An extremely large wart obstructed much of the hymen, and she was unable to assess whether there was injury to the hymen. Although she could not say definitively, such symptoms made her “highly suspicious” that sexual abuse may be involved, because genital warts “are predominantly sexually transmitted.” She could not definitively say that Victim’s genital warts were a result of sexual abuse and, while it is possible that genital warts can be transmitted in other ways, she opined it was “not probable.” She referred Victim’s case to Dr. David Redfern.

Dr. Redfern reviewed photographs obtained during the SAFE exam of Victim. He diagnosed genital warts around Vic[745]*745tim’s rectum, anus, the opening of the vagina, and hymen, and detected a large genital wart on the hymen. He testified that human papilloma virus (HPV) causes genital warts and is most usually transmitted via “skin-to-skin contact.” He also opined that the wart on the hymen was “a red flag indicative of the potential increased risk for sexual assault.”

During the SAFE exam, Blankenship watched through a two-way mirror; she did not speak with Victim. At that time, Victim never stated that she had been subjected to any abuse. Blankenship observed, however, that interviews with three-year-olds are sometimes not productive, and it is “less likely” that a three-year-old discloses abuse. On November 30, 2009, Blankenship notified Mother that the case was being closed. She recommended that Victim participate in play therapy, which she advised can assist young children in working through traumatic experiences.

Victim participated in play therapy sessions beginning January 20, 2010. Kelley Jones, a licensed professional counselor and registered play therapist, was Victim’s therapist at the Victim’s Center. The goal of play therapy is to provide a therapeutic environment for kids to enable them to communicate through play. In all, she saw Victim about fifty times. On March 17, 2010, during a play therapy session, Jones told Victim that Mother had said there had been touching problems. Victim stated, “[M]y daddy touched my privates.” Victim also “stated it was with his body.” Victim told Jones that “she loved her daddy and that he loved her.” In another session, on April 7, 2010, Victim told Jones, “My bubby’s daddy hurt me.” Victim sometimes referred to her little brother as “Bubby.” She further stated that “he hurt her face on both cheeks and her belly.” Play therapy was terminated after a May 12 visit on Jones’s belief that Victim was exhibiting normal developmental play. Play therapy sessions resumed in October 2010 following laser surgery to remove Child’s genital warts.

At some point early in 2010, Defendant filed a motion to modify custody of his son; Mother had not been allowing their son to visit Defendant because she said she was trying to protect him.

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Bluebook (online)
415 S.W.3d 740, 2013 Mo. App. LEXIS 1470, 2013 WL 6492149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lane-moctapp-2013.