State v. McArthur

343 S.W.3d 726, 2011 Mo. App. LEXIS 919, 2011 WL 2620384

• Court: Missouri Court of Appeals
• Decided: July 5, 2011
• Docket: ED 95094
• Status: Published

Opinions

ROY L. RICHTER, Presiding Judge.

David A. McArthur (“McArthur”) appeals the judgment upon a jury’s verdict convicting him of one count of attempted statutory rape in the first degree and four counts of first-degree statutory sodomy. We affirm.

I. BACKGROUND

Without going into detail, there was sufficient evidence adduced at trial to permit a jury to find beyond a reasonable doubt that McArthur committed various sexual acts on his underage step-daughter and step-son. The trial was bifurcated, and the jury recommended life sentences on each count.

II. DISCUSSION

In his sole point on appeal, McArthur claims the trial court erred in allowing the State to introduce improper character evidence during the penalty phase. Specifically, McArthur argues the introduction of testimony from McArthur’s biological daughter that he previously sexually assaulted her was improper because it was not relevant to McArthur’s history or character.

A. Standard of Review

Generally, the trial court has discretion during the penalty phase of trial to admit any evidence it believes may be helpful to the jury in assessing punishment. State v. Fassero, 256 S.W.3d 109, 118-19 (Mo. banc 2008).

B. The Trial Court did not Abuse its Discretion in Admitting Testimony During the Penalty Phase

Pursuant to section 557.036.3 RSMo Supp.2003¹ evidence supporting or mitigating punishment may be introduced during the penalty phase of trial. This evidence may include, “within the discretion of the court, evidence concerning the impact of the crime upon the victim, the victim’s family and others, the nature and circumstances of the offense, and the history and character of the defendant.” (emphasis added) The State may present evidence of criminal conduct for which a defendant was never convicted; however, the jury may only consider such evidence during the penalty phase if the evidence is proven by a preponderance of the evidence. Fassero, 256 S.W.3d at 119.

During the penalty phase of McArthur’s trial, the State introduced the testimony of McArthur’s biological daughter. She testified that when she was thirteen years old, McArthur put his hand up her shorts and touched her vagina. She also testified that McArthur would ask if he could put his mouth on her vagina and told her “it would feel good.” Although McArthur’s daughter testified the case relating to these allegations “was dropped,” she also stated she was aware McArthur received probation because of the incident when he touched her.

McArthur relies upon State v. Fassero, 256 S.W.3d 109 (Mo. banc 2008), to support his argument that the testimony from his daughter concerning the alleged incident was relevant only to prove he had initially been charged with first-degree statutory sodomy, not that he had actually done the acts described. As a result, McArthur claims her testimony was not evidence of his history and character, as allowed by section 557.036. McArthur’s reliance upon Fassero is misplaced.

In Fassero, during the penalty phase, the State attempted to introduce evidence of a 2003 Illinois indictment against Fasse-ro for child sexual abuse. 256 S.W.3d at 118. The Missouri Supreme Court noted that during the penalty phase of Fassero’s trial, the State “could have introduced evidence that Fassero committed the acts of criminal sexual abuse described in the indictment to prove that Fassero had a history of molesting children.” Id. at 119. The Court held that if the State proved by a preponderance of the evidence that Fassero did commit the acts of sexual abuse contained in the indictment, the jury could have considered these acts in assessing punishment. Id. However, the State did not present any additional evidence that Fassero committed the acts of sexual abuse. Id. Instead, the State presented only the indictment, and no testimony or other evidence concerning the acts charged by the indictment. Id. The Court found that the indictment itself was relevant only to prove Fassero was charged with a crime and not that Fassero actually engaged in any criminal conduct. Id. Therefore, the indictment was not evidence of Fassero’s history and character, and was inadmissible. Id.

The present case is distinguishable from Fassero. Here, the State presented direct testimony from the victim of McArthur’s alleged sexual abuse. As the Court in Fassero noted, evidence that a defendant committed the acts of criminal sexual abuse with which he was charged is admissible to show the defendant’s history of molestation. 256 S.W.3d at 119. McAr-thur was charged with several counts of statutory sodomy in the first degree for alleged sexual abuse of his step-children, and his biological daughter’s testimony that he touched her vagina was evidence of McArthur’s history of molesting children, particularly children in his family. Unlike the circumstances in Fassero, where the only evidence presented was the indictment, here, the State presented direct testimony from the victim of the alleged abuse. Thus, the trial court did not abuse its discretion in admitting the evidence during the penalty phase pursuant to section 557.036. Point one is denied.

III. CONCLUSION

The judgment is affirmed.

KENNETH M. ROMINES, J., concurs in part; dissents in part in separate opinion. KENNETH F. THOMPSON, Sp. J., concurs in majority opinion.

1 . All further statutory references are to RSMo Supp.2003.