State v. Messer

207 S.W.3d 671, 2006 Mo. App. LEXIS 1826, 2006 WL 3423172
CourtMissouri Court of Appeals
DecidedNovember 29, 2006
DocketNo. 27366
StatusPublished
Cited by4 cases

This text of 207 S.W.3d 671 (State v. Messer) 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. Messer, 207 S.W.3d 671, 2006 Mo. App. LEXIS 1826, 2006 WL 3423172 (Mo. Ct. App. 2006).

Opinion

NANCY STEFFEN RAHMEYER, Presiding Judge.

John L. Messer (“Appellant”) was convicted of first-degree child molestation, a violation of section 566.067.1 He was convicted by a jury and sentenced to five years in the Missouri Department of Corrections. Appellant brings three points on appeal. In Point I he argues that there was insufficient evidence to establish beyond a reasonable doubt that he acted with the purpose of arousing or gratifying his own sexual desire. In Points II and III, Appellant contends that the trial court plainly erred in failing sua sponte to instruct the jury to disregard various statements made by the prosecutor during closing arguments. We affirm.

In March 2005, Appellant had been living for approximately two months with family friends, Donald and Lisa Hitz. Also living in the Hitz home at that time was Ms. Hitz’s 16-year-old son, V.A., Ms. Hitz’s sister Cynthia Stewart and her three sons, as well as Ms. Hitz’s nieces, one of whom was the victim, S.E. S.E., who is developmentally-disabled, was 12 at the time of the incident. Appellant was 22 at the time.

When Ms. Hitz came home from work on the evening of March 15, 2005, Ms. Stewart told her that something may have happened to S.E. Ms. Hitz asked S.E. if anything happened on one of the walks she and the other children frequently took with Appellant. S.E. dropped her head and started to cry as she explained that she was on a walk with the other kids when Appellant ran up behind her, grabbed and squeezed her breasts, smacked her behind, and reached for her groin. Ms. Hitz confronted Appellant and he admitted to her that he grabbed and [673]*673squeezed S.E.’s breasts and slapped her behind.

Officer Robert Willson with the Rocka-way Beach Police Department responded to Ms. Stewart’s request that he come to the Hitz home. Upon arriving, S.E. told him that she was on a walk with the other children when V.A. yelled something to the effect “[t]he first person to catch [S.E.] can grab her boobs and her butt.” S.E. told Officer Willson that Appellant then ran up from behind and grabbed her breasts and behind, but she did not mention any attempts to reach for her groin. She told Officer Willson that Appellant ignored her pleas to stop.

Appellant went with Officer Willson to the police station. After being given the Miranda warning,2 Appellant admitted to responding to V.A.’s challenge to get S.E. by reaching her first and grabbing “her boobs and her a — .” Appellant also told Officer Willson something to the effect that he enjoyed touching S.E. and thought that she enjoyed it also. Appellant estimated that he touched S.E. for five minutes.

In addition to Ms. Hitz, Officer Willson, and Ms. Stewart, S.E. also testified at trial. She did not recall V.A.’s challenge to race to her and then grope her, but she remembered that both Appellant and V.A. “grabbed her boobs and her butt.” She said they did not stop when she told them to.

During closing argument, the State argued that Appellant “was [nice] to her. And he gets her alone, and he starts grab-bing_” The State also interpreted Appellant’s confessions to Officer Willson and Ms. Hitz as evidence of guilt: “the reason why they [confess] is because they know they’ve done wrong. And they feel guilty. And they want to get it off their chest. That’s why people confess. They don’t confess for any reason to help you, the taxpayers.” The State continued, “is there any testimony that came from this witness stand from anybody that said W.A. said get S.E.’ No, there wasn’t anybody.” The prosecutor further argued, “He was nice to her. He treated her nice.... He was grooming her.”

During his rebuttal, the prosecutor responded to defense counsel’s argument that the group was on a public road by saying, “now, this is outside the record, I didn’t object, but she wants to say that people were everywhere around this road. There is no evidence that this is a — is a city road or it’s in the country between— there’s no evidence of that. That was just made up.” The State went on to say “It’s — that evidence was made up exactly like the evidence of, ‘Oh, it was [V.A.] did it. [V.A.] said [l]et’s see who can grab S.E. first.’ That was made up. And that was to deflect the guilt from her client to V.A.” There was no objection to any of these arguments by the prosecutor.

Appellant did not adduce any evidence and moved for a judgment of acquittal. The trial court denied the motion. The jury convicted Appellant of first-degree child molestation. The court adopted the jury’s recommendation and sentenced Appellant to five years. This appeal followed.

In his first Point, Appellant claims that the evidence was insufficient to establish beyond a reasonable doubt that Appellant acted with the purpose of arousing or gratifying his own sexual desire, as the circumstances surrounding the incident indicated that Appellant touched S.E. because he was challenged to tease her, instead of engaging in a sexual act. Challenges to the sufficiency of the evidence used to support a criminal conviction are reviewed by this Court to deter[674]*674mine whether a reasonable juror could find all of the elements of the offense beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). It is not this Court’s role to weigh the evidence or judge the witnesses’ credibility. State v. O’Brien, 857 S.W.2d 212, 215 (Mo. banc 1993). Rather, we must consider all of the evidence in the light most favorable to the prosecution. Id.

It is the State’s burden to prove each and every element of a criminal case. State v. Love, 134 S.W.3d 719, 722 (Mo.App. S.D.2004). Absent direct proof of criminal intent, jurors often rely on circumstantial evidence. State v. Martin, 882 S.W.2d 768, 770 (Mo.App. E.D.1994). In determining the sufficiency of the evidence, the same principles apply regardless of whether the evidence reviewed is direct or circumstantial. Id.

First-degree child molestation occurs when one subjects another person under the age of fourteen to sexual contact. Section 566.067.1. Sexual contact is “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” Section 566.010(3).

The State produced sufficient evidence from which a reasonable juror could find beyond a reasonable doubt that Appellant acted with the purpose of arousing or gratifying his own sexual desire. Contrary to Appellant’s claim that he did not act with purpose of arousing or gratifying his sexual desire, there was evidence from which the jury could conclude that this was not merely an innocent game of “tag.” S.E. testified that Appellant grabbed and squeezed her breasts and smacked her behind and ignored her pleas to stop groping her. Appellant also told Officer Will-son that he grabbed S.E. for five minutes and he enjoyed it and thought S.E. enjoyed it also. We cannot substitute our judgment for that of the jury. The jury was free to rely on the circumstantial evidence of Appellant’s motive. Point I is denied.

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Bluebook (online)
207 S.W.3d 671, 2006 Mo. App. LEXIS 1826, 2006 WL 3423172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-messer-moctapp-2006.