State v. Marsh

826 S.W.2d 846, 1992 Mo. App. LEXIS 461, 1992 WL 45030
CourtMissouri Court of Appeals
DecidedMarch 12, 1992
DocketNos. 16963, 17527
StatusPublished
Cited by1 cases

This text of 826 S.W.2d 846 (State v. Marsh) 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. Marsh, 826 S.W.2d 846, 1992 Mo. App. LEXIS 461, 1992 WL 45030 (Mo. Ct. App. 1992).

Opinion

FLANIGAN, Chief Judge.

A jury found defendant guilty of sexual abuse in the first degree, § 566.100,1 and he was sentenced to three years’ imprisonment. Defendant appeals, and that appeal is No. 16963. After the trial, defendant filed a motion for relief under Rule 29.15, and the trial court denied the motion. Defendant appeals from that ruling, and that appeal is No. 17527. The appeals are consolidated and will be dealt with separately.

No. 16963

The information, in addition to its formal portions, charged that the defendant, on March 21, 1989, in Greene County, “subjected Tiffany Page, a person less than 12 years, to sexual contact.”

‘Sexual contact’ means any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” Section 566.010(3).

Defendant’s first point is that the evidence is insufficient to support the ver-[848]*848diet, and the trial court erred in ruling otherwise, “because the only proof the state presented consisted of the alleged victim’s uncorroborated testimony which was of such a contradictory nature and in such conflict with the physical facts, surrounding circumstances, and experience as to be unconvincing.”

In reviewing defendant’s challenge to the sufficiency of the evidence, this court considers the evidence and all reasonable inferences arising therefrom in the light most favorable to the verdict, and disregards those portions contrary to a finding of guilt. This court does not weigh the evidence nor determine the credibility of the witnesses. The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that defendant was guilty. State v. Whittle, 813 S.W.2d 336, 337 (Mo.App. 1991).

The state’s witnesses were the 9-year-old victim, Tiffany Page, Dorothy Temple, who is Tiffany’s aunt, and Detective Truly Applegate of the Springfield Police Department.

Dorothy Temple testified that on March 21, 1989, she and Tiffany went to defendant’s house. Defendant was sitting in his chair by the door in the living room. Dorothy left the room to look at a new skirt which defendant’s wife, Debbie Marsh, had bought. She talked to Debbie about it. When they first arrived at the house, Tiffany sat on the couch, but Dorothy later saw Tiffany sitting on defendant’s lap. When Dorothy “came back in,” Tiffany was off his lap and sitting on the couch. Tiffany “cleared her throat” and nodded toward the door. “Tiffany wanted me to take her home, which I did.” When they got home, which was nearby, Tiffany started to cry and told Dorothy what happened. It was not too long before Tiffany’s mother got there.

Tiffany Page testified she had a new doll which she showed to defendant while she was standing by his chair. Tiffany gave the following testimony:

Q. (By Prosecutor Cynthia Rushefsky) Okay. Now, what happened if anything when you were over by Mr. Marsh’s chair?
A. He pulled me over and sat me on his lap and then he started touching me.
Q. Where did he touch you?
A. On the top part of my chest, right here, and on my front part, private part.
Q. Your front private part, the part between your legs?
A. Uh-huh.
Q. How did he do that? What did he do?
A. Well, he just put his hand there.
Q. Were your clothes on or off?
A. On.
Q. When he touched you, was it on top of your clothes or underneath your clothes?
A. On top.
Q. Did he say anything to you when he touched you down there?
A. He asked me what that was between my legs.
Q. Did you say anything to him?
A. (Indicating.)
Q. What did you do when he touched you like that?
A. I tried to get up, and he pulled me back.
Q. Did he say anything else to you while you were standing there, then?
A. He said that — not to tell anyone.
Q. All right. Did he do anything else while he was there with you?
A. He tried to stick his tongue in my mouth.
Q. Okay. Did you say anything to him, then?
A. Huh-uh.
[849]*849Q. Did you say anything to your Aunt Dorothy?
A. Uh-huh. I told her. I put my doll up against my face and I told her, “Let’s go.”
Q. Okay. Did — when did you tell her, though, what happened?
A. As soon as we got over to her house.
Q. All right. Why didn’t you tell her when you were over at Mr. Marsh’s house?
A. Because I didn’t want him to hear me.
Q. All right. When he said this to you, how loud was he saying it? Was he saying it loud enough for everybody to hear?
A. No, he whispered it.
Q. Now, when you got back and you told your Aunt Dorothy, did you tell anybody else about it?
A. As my mom came to pick me up, I told her.

Detective Applegate testified that he interviewed the defendant on March 28,1989, and gave him the Miranda warnings. During the interview, defendant became quite agitated, “fell on the floor, and feigned crying quite loudly.” Defendant told the detective about his contact with Tiffany on March 21. Defendant said that he did not intend to scare or hurt Tiffany when he touched her, and he wanted the detective to put in his report that defendant was sorry he touched Tiffany. Defendant said he was glad to get it off his chest, that he had not intended to hurt Tiffany, that the Lord had cured him of his alcoholism and he felt the Lord had the power to cure him of this problem also. Defendant said he thought that counseling would help him “since this was his first time.”

In State v. Evans, 802 S.W.2d 507 (Mo. banc 1991), an appeal from a conviction for raping a 9-year-old girl, the court said, at 514:

Through direct and cross-examination, she maintained her story without variation. This was sufficient to submit the issue, for the uncorroborated testimony of a victim will sustain a conviction of rape unless such testimony is so unconvincing and contradictory as to “cloud the mind of the court with doubts.” State v. Hamrick, 714 S.W.2d 566, 567 (Mo.App.1986). No such contradictions appear.

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Bluebook (online)
826 S.W.2d 846, 1992 Mo. App. LEXIS 461, 1992 WL 45030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marsh-moctapp-1992.