State v. Rose

421 S.W.3d 522, 2013 WL 5433336, 2013 Mo. App. LEXIS 1138
CourtMissouri Court of Appeals
DecidedSeptember 30, 2013
DocketNo. SD 32168
StatusPublished
Cited by9 cases

This text of 421 S.W.3d 522 (State v. Rose) 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. Rose, 421 S.W.3d 522, 2013 WL 5433336, 2013 Mo. App. LEXIS 1138 (Mo. Ct. App. 2013).

Opinion

MARY W. SHEFFIELD, Judge.

Paul Ray Rose (“Defendant”) appeals his conviction for one count of first-degree statutory sodomy. See § 566.062.1 He raises five points on appeal: (1) there was insufficient evidence to support his conviction; (2) the trial court erred in preventing him from cross-examining D.W. (“Victim”) regarding her alleged prior false allegations of sexual abuse; (3) the trial court plainly erred in giving Instruction 5 for failing to specify the conduct required to find Defendant guilty beyond a reasonable doubt; (4) the trial court erred in allowing the State to cross-examine Defendant’s character witness regarding Defendant’s prior bad acts; and (5) the trial court erred in not making a record regarding a plea offer Defendant rejected prior to going to trial. These arguments are without merit, and Defendant’s conviction is affirmed.

Factual and Procedural Background

During the summer of 2010, Victim was twelve years old and lived with her mother, Defendant, and her three younger brothers. Defendant was the boyfriend of Victim’s mother.

That summer, Victim had a slumber party where she told her friends Defendant had touched her inappropriately. The next morning, Victim asked one of her friends to speak to her mother for her. She did, and then Victim’s mother spoke with Victim. Victim disclosed the abuse to her mother. Ultimately, the situation was reported to the authorities, and an investigation was conducted. Defendant was charged with one count of first-degree statutory sodomy and, in the alternative, one count of first-degree child molestation.

At trial, Victim described a number of incidents. She testified Defendant put his hands down her pants and put his fingers in her vagina. Victim stated Defendant called this action a “wedgy” and it happened over twenty times in various places in the home. She also described an incident with a hose at the waterslide that occurred in the yard, and another incident where Defendant rubbed her on the outside of her pants as she sat on his lap.

The jury found Defendant guilty of first-degree statutory sodomy. This appeal followed.

Discussion

Point I: Sufficiency of the Evidence

In his first point, Defendant argues the evidence was insufficient to support his conviction because it was circumstantial and contradictory. Defendant’s argument is without merit because it ignores the standard of review.

“In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable finder of fact might have found the defendant guilty beyond a reasonable doubt.” State v. Paulson, 220 S.W.3d 828, 832 (Mo.App. S.D.2007) (quoting State v. Bewley, 68 S.W.3d 613, 617 (Mo.App. S.D.2002)). “This Court accepts as true all evidence tending to prove guilt along with all reasonable inferences that support the guilty finding while all contrary evidence and inferences are disregarded.” Id. Furthermore, in conducting [526]*526this review, this Court “does not act as a super juror with veto powers,” but “gives great deference to the trier of fact.” State v. Wright, 382 S.W.3d 902, 903 (Mo. banc 2012) (quoting State v. Miller, 372 S.W.3d 455, 463 (Mo. banc 2012)) (internal quotation marks omitted). That is, the appellate court “does not determine the credibility of the witnesses.” Paulson, 220 S.W.3d at 832.

“The State has the burden to prove each and every element of a criminal case.” State v. Peeples, 288 S.W.3d 767, 770 (Mo.App. E.D.2009). To prove a charge of first-degree statutory sodomy the prosecution must show the defendant “ha[d] deviate sexual intercourse with another person who [was] less than fourteen years old.” § 566.062.1. Deviate sexual intercourse is defined as “any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person or for the purpose of terrorizing the victimf.]” § 566.010(1). Furthermore, “[vjictim testimony, even if uncorroborated, is generally sufficient to sustain a sexual offense conviction.” State v. Robertson, 396 S.W.3d 475, 477 (Mo.App. S.D.2013). See also State v. Anderson, 348 S.W.3d 840, 844 (Mo.App. W.D.2011); Paulson, 220 S.W.3d at 834.

Here, Victim testified Defendant put his fingers in her vagina during the summer of 2010. She also stated she was 12 years old during the summer of 2010. This evidence was sufficient to support Defendant’s conviction for first-degree statutory sodomy. See Robertson, 396 S.W.3d at 477.

Defendant’s arguments to the contrary ignore evidence favorable to the verdict and the deference this Court must give to the trier of fact. He primarily points to conflicts in Victim’s testimony regarding collateral matters and discrepancies between Victim’s testimony and the testimony of other witnesses. Those inconsistencies and discrepancies were for the fact-finder to assess in determining the relative credibility of the witnesses and the weight of the evidence. See, e.g., Paulson, 220 S.W.3d at 833 (noting that the corroboration rule does not apply to inconsistencies regarding collateral matters); Anderson, 348 S.W.3d at 844 (holding that the victim’s testimony was sufficient to support a conviction for statutory sodomy even though it conflicted with the defendant’s denial of the offense).

In sum, Defendant’s arguments are simply attempts to have this Court reweigh the credibility of the various witnesses presented at trial. Under the proper standard of review, we cannot do this. Paulson, 220 S.W.3d at 832. Defendant’s first point is denied.

Point II: Prior False Allegations

In his second point, Defendant argues the trial court erred in prohibiting him from cross-examining Victim about her alleged prior false allegations of sexual abuse. This claim was not preserved for appellate review.

Prior to trial, the prosecutor filed a motion in limine to exclude evidence of prior sexual abuse or prior allegations of sexual abuse made by Victim. The parties discussed the issue during hearings prior to trial. The prosecutor stated Defendant’s attorney told her during discovery that Victim’s mother reported Victim had made false allegations in the past. The prosecutor then made the following disclosures to the court:

[527]*527So this is what the State did. The State asked for information about who they were talking about. And one of the individuals is a person from Nevada. The State has a certified copy of the record where that defendant pled guilty with regards to sexual offenses involving the victim in this case and has provided that to defense counsel.

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Bluebook (online)
421 S.W.3d 522, 2013 WL 5433336, 2013 Mo. App. LEXIS 1138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rose-moctapp-2013.