State v. Long

972 S.W.2d 559, 1998 Mo. App. LEXIS 975, 1998 WL 260947
CourtMissouri Court of Appeals
DecidedMay 26, 1998
DocketNo. WD 54040
StatusPublished
Cited by3 cases

This text of 972 S.W.2d 559 (State v. Long) 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. Long, 972 S.W.2d 559, 1998 Mo. App. LEXIS 975, 1998 WL 260947 (Mo. Ct. App. 1998).

Opinion

SPINDEN, Judge.

Paul M. Long appeals the circuit court’s judgment to convict him of sexually molesting his 10-year-old daughter. Long challenges the sufficiency of the state’s evidence and the prosecutor’s information. He complains that the circuit court permitted the prosecutor to mischaracterize evidence, to call him a molester, to give personal opinions about witnesses and the evidence, and to make “other inflammatory and prejudicial comments.” He accuses the circuit court of committing plain error by including specific acts in its verdict-directing instruction, by admitting hearsay evidence, and by not instructing the jury that it should determine whether his statement to police was voluntary. He attacks, for the first time in this appeal, the constitutionality of § 491.075, RSMo 1994, which governs admissibility of a child’s hearsay comments in a sexual abuse case. He finally suggests that he should get [561]*561a new trial because of “the cumulative errors of the trial court which prejudiced [him] by depriving him of his [constitutional] rights[.]” We find no merit in any of his contentions and affirm the circuit’s judgment.

Long’s first point is that the state’s evidence was not sufficient to support the jury’s verdict. He argues that the state’s only evidence of molestation was his daughter’s statements which were “inherently contradictory.” He noted that his daughter testified that she talked with a person from the Division of Family Services on January 25, 1996, and then spoke to a sheriffs detective “a couple of minutes” later. The detective testified that he had talked to the girl on January 26, not January 25. He also noted that his daughter testified that she did not know what time her father awakened her when he came into her bedroom — only that it was early — but she had told her mother and the detective before trial that her father awakened her at about 5 a.m. “Due to these contradictions in the testimony of the state’s witnesses,” Long argues, “[the victim’s] testimony standing alone cannot support a conviction of the defendant.” We disagree.

At trial, the girl testified that Long got into bed with her and began rubbing his penis. She said that he took her hand and had her rub his penis for a brief time. This was sufficient to convict him. The contradictions noted by Long created credibility issues for the jury to resolve, State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990), and we defer to the jury’s resolution of any conflicts in the testimony. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). The point is without merit.

In his second point, Long complains that the prosecutor’s information did not aver enough facts to inform him adequately of the cause and nature of the charges against him and that it did not allege the elements of the statute’s definition of “sexual contact,” specifically, the requisite intent element. We find no merit to this point, either. Long’s remedy for not understanding the facts averred was to seek a bill of particulars under Rule 23.04. His failure to do so waived any complaint about the sufficiency of the facts averred in the information. Rule 24.04(b)2; State v. Williams, 611 S.W.2d 26, 31 (Mo. banc 1981). As to the remainder of Long’s point concerning the prosecutor’s failure to make specific allegations concerning intent, this court has rejected the same argument in at least three previous cases stating that the indictment is sufficient where it contains all the elements of the statute. State v. Urban, 798 S.W.2d 507, 511-12 (Mo.App.1990), overruled on other grounds in State v. Carson, 941 S.W.2d 518 (Mo. banc 1997); State v. Stark, 728 S.W.2d 301, 303 (Mo.App.1987); and State v. Fults, 719 S.W.2d 46, 50 (Mo.App.1986).

The state’s information was adequate. It charged the offense in the language of the statute and recited all of the elements set out in the statute. Section 566.067.1, RSMo Supp.1996, says that “[a] person commits the crime of child molestation in the first degree if he subjects another person who is less than twelve years of age to sexual contact,” and § 566.010(3), RSMo Supp.1996, defines “sexual contact” as “any touching of another person with the genitals ... for the purpose of arousing or gratifying sexual desire of any person[.]” The prosecutor’s information said:

[T]he defendant, PAUL M. LONG, ... in violation of Section 566.067, RSMo, committed the class C felony of child molestation in the first degree punishable upon conviction under Sections 558.011 and 560.011, RSMo, in that on or about December 24,1995, in the County of Platte, State of Missouri, the defendant subjected [his daughter] who was then less than twelve years old to sexual contact.

This was sufficient to apprise Long of the facts constituting the crime charged and to allow him to prepare an adequate defense. State v. Barnes, 942 S.W.2d 362, 367-68 (Mo. banc 1997). The circuit court did not err in not dismissing the information.

In his third point, Long complains that the circuit court erred by allowing the prosecuting attorney to suggest, through his cross-examination questions, that he had told police that at one point his daughter “had a hold of my thing.” Long complains also that the circuit court allowed the prosecutor to [562]*562repeat this phrase during closing argument. Long denies using the phrase and contends that the record does not support a suggestion that he did. During the prosecutor’s cross-examination, he asked:

Q. ... Now, whenever you were talking to Detective [Robert] Burdiss about his incident[ — ]well, how you described it as, [”S]he had [a hold] of my thing.[”] Whenever you were telling Detective Burdiss about when she had [a hold] of your thing, you couldn’t remember the time period then. Isn’t that true?
A. No. I had to think about it. I know it was[ — ]it felt like a few months ago, but after I thought about it and thought about it and recollected when it was, then I remembered.

Long did not object to the prosecutor’s use of the phrase, so he did not preserve the issue for our review.

Under Rule 30.20, we do not have authority to review a claim as plain error unless the claim, on its face, establishes substantial grounds for our believing that manifest injustice or a miscarriage of justice has resulted from it. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995); State v. Clemons, 946 S.W.2d 206, 224 (Mo. banc), cert. denied, — U.S. —, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997). This is not such a claim. Long accepted the attorney’s description of his statement. We do not discern any ground — much less substantial ground — for believing that a miscarriage of justice occurred, so we deny Long’s request for plain error review.

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Bluebook (online)
972 S.W.2d 559, 1998 Mo. App. LEXIS 975, 1998 WL 260947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-long-moctapp-1998.