State v. Sapien

337 S.W.3d 72, 2011 Mo. App. LEXIS 214, 2011 WL 588514

• Court: Missouri Court of Appeals
• Decided: February 22, 2011
• Docket: WD 69575
• Status: Published

Opinions

JAMES EDWARD WELSH, Judge.

Andrew Sapien appeals his conviction for two counts of statutory sodomy in the first degree involving his sister and stepbrother. Sapien makes three arguments: first, that the circuit court erroneously admitted testimony concerning an uncharged crime to explain a witness’s delayed re-potting of one of Sapien’s offenses; second, that the circuit court erroneously admitted evidence concerning the disposition of a juvenile charge during the sentencing phase of Sapien’s trial; and third, that the circuit court erroneously refused to dismiss the charges against him on the basis of prosecutorial vindictiveness. We affirm.

Factual Background

• Sapien was found guilty of two counts of statutory sodomy in the first degree. Following a separate sentencing phase of trial, the jury recommended that Sapien be sentenced to thirty years on each count. Consistent with the jury’s recommendation, the circuit court sentenced Sapien to concurrent terms of thirty years. Sapien appeals.

The incidents giving rise to Sapien!s sodomy convictions occurred in November and December of 2004. Sapien was living with his father and step-mother; Sapien’s. biological sister (“M.J.S.”),. step-brother (“D.T.”), and step-sister (“M.T.”) also lived in the house. At the time, M.J.S. was 10 years old; D.T. was 11.

The first incident, which occurred in November 2004 after the Thanksgiving break, involved Sapien, M.J.S., and D.T. After watching pornography’ on the computer, Sapien asked M.J.S. and D.T. whether they could “do [Sapien] a favor.” After initially refusing, M.J.S. and D.T. yielded and went with Sapien to- his bedroom in the basement. Sapien closed the door, and told M.J.S. and D.T. that they were not going to be let out of the room until they did what he asked. He told them to pull their pants down, and they complied. Sa-pien then directed M.J.S. and D.T. to engage in sexual acts with each other. He later sodomized M.J.S. while rubbing her vagina with his hand, and he attempted to sodomize D.T.

M.J.S. described a second incident, which occurred a couple of weeks after the first incident. After viewing pornography, Sapien again approached M.J.S. and D.T. and asked them whether they would do him a favor. Sapien took M.J.S. and D.T. to their parents’ bedroom upstairs. Sa-pien then told D.T. to leave, and took M.J.S. to a downstairs bathroom, lubricated his penis, and sodomized her.

D.T. also described other incidents in which he was sodomized by Sapien. During these incidents, Sapien had D.T. get on his hands and knees while Sapien got on his knees behind D.T. D.T. testified that Sapien’s penis was definitely inside D.T.’s “butt” on these other occasions.' He testified that these incidents occurred once in M.T.’s bedroom, and otherwise in Sapien’s bedroom. D.T. testified that M.J.S. was present during the other incidents, except on one occasion when she acted as a lookout and alerted Sapien and D.T. when Sapien’s mother returned home.

Neither M.J.S. nor D.T. initially told anyone about the first incident. Following the second incident, M.J.S. told M.T., her older step-sister, what had happened; however, the girls did not inform either of their parents at that time. M.T. testified at trial that she had herself observed a further incident, which involved Sapien and D.T. in the bathroom in November-December 2004. M.T. witnessed Sapien standing behind D.T. while both had their pants down; D.T. was on his knees, bent over the toilet. M.T. testified that she did not immediately reveal this incident to anyone because Sapien had raped her previously, and she was scared of him. ■

In January 2005, M.J.S. was again approached by Sapien to “do a job;” This-time, she refused and, with M.T., told her parents about Sapien’s behavior. Sapien fled the house quickly, not even bothering to put on shoes, despite the fact that it was cold and snowy.

M.J.S. and D.T. were interviewed by police and examined by doctors. The examinations, performed by Dr.. Michael Moran, did not show any physical abnormalities, although Dr. Moran testified that sodomi-zation trauma often heals over time.

Jill Hazell, a member of Synergy Services, a child advocacy center, interviewed M.J.S. and D.T. individually on February 10, 2005. These interviews were recorded and transcribed, and admitted in evidence during Sapien’s trial.

Sapien was initially charged with two counts of child molestation in the first degree (one for the acts involving M.J.S. and one for the acts involving D.T.). The State subsequently filed a first amended information amending both charges from child molestation in the first degree to the greater offense of statutory sodomy in the first degree. Prior to doing so, the State had notified- defense counsel of its intention to file the amended charges, indicating that it would forego filing them if Sapien would enter a plea of guilty to the lesser charges of child endangerment in the first degree and accept a proposed disposition. Sapien rejected the State’s plea offer, and the State thereafter filed the enhanced charges.

Sapien filed a motion to dismiss the first amended information, arguing that the filing of the new, heightened charges constituted vindictive prosecution because it was done in response to his rejection of the plea proposal. The motion was denied.

■ Sapien filed a pretrial motion in limine to exclude any evidence of his juvenile record. The. circuit court entered an order in limine that such evidence was not to be introduced during the guilt phase unless Sapien testified. After the jury’s finding of guilt in the first phase of Sapien’s trial, the State asked the circuit court to order Sapien’s juvenile records unsealed. Sa-pien objected. The circuit court ordered that the petition and order of disposition regarding Sapien’s rape of M.T. be released to both attorneys. During the penalty phase and over Sapien’s objection, M.T. testified about the details of Sapien’s rape of her in March 2004. The State also introduced the petition and order of disposition from the juvenile division concerning this offense, again over Sapien’s objection.

Analysis

In his first point, Sapien argues that the circuit court erred in allowing M.T.’s testimony regarding his prior rape of her. In his cross-examination of M.T., Sapien’s counsel highlighted the fact that, after discovering Sapien and D.T. apparently engaged ih a sexual act in her bathroom, M.T. “[djidn’t [immediately] tell anybody about it” or “bring it to anybody’s attention” but, instead, simply “went downstairs, sat on the couch, and watched TV.” (M.T. and M.J.S. together informed their parents of Sapien’s sexual acts involving M.J.S. and D.T. several weeks la-. ter.) In response to this cross-examination, the prosecution argued that Sapien had opened the- door concerning the reasons for M.T.’s delayed reporting of what she had witnessed. The circuit court agreed. Over Sapien’s objection, the court permitted the State on redirect examination to elicit testimony from M.T. that the reason she had not immediately reported Sapien’s misconduct was because she was scared of him, because he had previously raped her.¹

We need not decide whether the circuit court properly exercised its discretion in permitting testimony concerning Sapien’s prior rape of M.T. Even if the court’s evidentiary ruling were erroneous, it would not justify reversal because Sa-pien has failed to establish that he suffered sufficient prejudice to require a new trial. “On direct appeal we review the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999) (citation and internal quotation marks omitted).

The test for prejudice is whether the improper admission was outcome-determinative. A finding of outcome-determinative prejudice expresses a judicial conclusion, that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all evidence properly .admitted, there is a reasonable probability that the jury would have reached a different conclusion but for the erroneously admitted evidence. In determining prejudice, this court considers the amount of the erroneously admitted evidence and the extent to which the evidence was referenced during the trial. When the inadmissible evidence is substantial and there are several references to the inadmissible evidence, prejudice is found.

State v. Chism, 252 S.W.3d 178, 185 (Mo.App.2008) (citations and internal quotation marks omitted) (concluding that the erroneous admission of evidence of uncharged misconduct was not prejudicial and, therefore, did not mandate a new trial).

We first note that the evidence concerning the uncharged offense admitted during the guilt phase of Sapien’s trial was exceedingly limited and was essentially limited to M.T.’s three-word response — “He raped me.” — to a question by the prosecution as to the source of her fear of Sapien. While it is a very serious allegation, it is significant that this issue was not highlighted during the testimony and no details concerning this other incident were provided to the jury. During closing arguments, the State referenced this allegation solely to argue that the jury should credit M.T.’s testimony as to the incident she had witnessed.

We also note that the evidence against Sapien was strong. While there was no physical evidence of his offenses, the testimony of his two victims, and their out-of-court statements, corroborated each other’s accounts. The essence of the victims’ accounts remained unchanged and consistent across the years and multiple retellings: Sapien’s viewing pornography on the computer and then asking them to “do him a favor”; Sapien’s engaging in acts of anal intercourse with each child; D.T.’s watching the door while Sapien sodomized M.J.S. in Sapien’s bedroom; Sa-pien’s telling the children not to tell their parents or the authorities; the physical position in which Sapien put the children when sodomizing them; and his use of a particular lubricant. While the dissent points out certain specific inconsistencies in the children’s testimony, “in cases dealing with very sensitive subjects, it is common for the testimony of a victim of tender

years to contain some variations, contradictions or lapses in memory.” State v. Kelley, 945 S.W.2d 611, 615 (Mo.App.1997) (citation and internal quotation marks omitted). The children’s testimony was also corroborated by M.T.’s testimony as to the incident that she witnessed involving D.T.

It is also significant that, after his parents had been told and the police were called, Sapien fled from the home. Indeed, Sapien was in su.ch a hurry that he left without shoes or a jacket, despite the fact that it was a cold January day with snow on the ground. His flight is significant additional evidence supporting a finding of guilt. See, e.g., State v. Moyers, 266 S.W.3d 272, 284 (Mo.App.2008).

Despite the emotional nature of the mention of the rape of the witness, in these circumstances we cannot conclude that there is a reasonable probability that the jury would have reached a different conclusion but for the allegedly erroneously-admitted evidence. We, therefore, deny Sapien’s first point.

In his second point, Sapien argues that the circuit court violated section 211.271.3, RSMo 2000, when it allowed his juvenile court records into evidence during the sentencing phase of his trial.² We disagree.

Resolution of this point requires the reconciliation of two statutes that are seemingly in conflict. On the one hand, section 211.271.3 states, that records of juvenile courts are not lawful and proper evidence against the child and shall' not be used in any proceedings other than Chapter 211 proceedings.³ On the other hand, section 211.321.2(2), RSMo Cum.Supp.2010, provides that the record of a disposition of a juvenile case is public information to the same extent as records in criminal proceedings, if the juvenile was found to be delinquent based upon behavior that would have been a felony offense for an adult.⁴

Section 211.271.3’s seemingly absolute mandate must be read in conjunction with section 211.321.2(2). A general statute must yield to a later and more specific statute in the event that the two conflict. See, e.g., Smith v. Mo. Local Gov’t Emps. Ret. Sys., 235 S.W.3d 578, 581 (Mo.App.2007); Normandy Fire Prot. Dist. v. Vill. of Pasadena Park, 927 S.W.2d 516, 518 (Mo.App.1996). As opposed to section 211.271.3, which speaks in general terms about records in all juvenile cases, section 211.321.2(2) specifically addresses records in juvenile delinquency proceedings in which the charged offense would constitute a felony, a far more limited category. Moreover, while section 211.271.3 was last amended in 1969, section 211.321.2(2) was added to the statute in 1995. See H.B. 174, 325 & 326, 1995 Mo. Laws 544, 558-59. To the extent of any conflict, then, section 211.321.2(2)-supersedes and qualifies section 211.271:3.

Section 211.321.2(2) plainly applies in this case. Sapien’s juvenile adjudication was conducted pursuant to section 211.031.1(3), the jurisdictional statute for violations of the law committed by children under the age of seventeen. The petition and order at issue concerned a charge that Sapien had raped M.T. in 2004, which would constitute a felony if committed by an adult. Pursuant to section 211.321.2(2), therefore, the juvenile adjudication was a public record to the same extent as the records in criminal proceedings.⁵ We deny Sapien’s second point.

In his third point, Sapien argues that the State engaged in prosecutorial vindictiveness by filing the amended information charging him with two counts of first-degree statutory sodomy. A prosecution arising out of vindictiveness violates the defendant’s due process rights under the Fourteenth Amendment. Wasman v. United States, 468 U.S. 559, 565-66, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984).

A defendant can show prosecutorial vindictiveness in two different ways. State v. Potts, 181 S.W.3d 228, 233 (Mo.App.2005). In certain circumstances, a defendant may rely upon a presumption of prosecutorial vindictiveness, which arises when the circumstances create a reasonable likelihood of vindictiveness. Id. If this presumption is triggered, the burden of production shifts to the State to provide an objective, on-the-record reason for filing the enhanced charge besides punishing a defendant for exercising constitutional rights. Chrisman v. State, 297 S.W.3d 145, 148 (Mo.App.2009).

Where the presumption is inapplicable, a defendant can prove vindictiveness by putting on evidence of actual vindictiveness. Potts, 181 S.W.3d at 233-34. The defendant must show that the prosecutor’s actual purpose in bringing enhanced charges was to penalize the defendant for exercising a constitutional right. Id. at 234.

In arguing for a presumption of vindictiveness, Sapien argues against well-established case law, which has generally refused to apply the presumption in a pretrial setting. Chrisman, 297 S.W.3d at 149 (citing Potts, 181 S.W.3d at 235); State v. Massey, 763 S.W.2d 181, 183 (Mo.App.1988) (citing United States v. Goodwin, 457 U.S. 368, 381, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). This is not to say that the presumption can never be applied to pretrial situations, however. In Potts, the court recognized that the presumption of vindictiveness was not rigidly limited to the circumstance where enhanced charges are filed following appellate reversal of a conviction and remand for a new trial. 181 S.W.3d at 234. However, Potts merely held that the presumption applied where enhanced charges were filed after a mistrial had been declared based on prosecutorial questioning in voir dire. Id. at 236-37; see also State v. Cayson, 747 S.W.2d 155, 157-58 (Mo.App.1987) (applying presumption where enhanced charges filed after circuit court ordered new trial based on instructional error); State v. Juarez, 26 S.W.3d 346, 354 (Mo.App.2000) (suggesting that presumption may apply where enhanced charges filed after defendant permitted to withdraw guilty plea to lesser charges). Indeed, Potts itself recognizes that “Missouri courts have consistently refused to apply the ... presumption in the pretrial setting.” 181 S.W.3d at 235.

As a general proposition, a presumption of prosecutorial vindictiveness does not apply where enhanced charges are filed against a defendant in connection with pretrial plea negotiations. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the defendant was originally indicted for uttering a forged instrument. Id. at 358, 98 S.Ct. 663. During subsequent plea’ negotiations, the prosecutor informed the defendant that, if the defendant did not plead guilty, he would re-indict with an additional, and more severe, charge. Id. at 358-59, 98 S.Ct. 663.’ The State did not contest either that the prosecutor possessed the evidence regarding the additional charge at the time of the original indictment or that the defendant’s rejection of the plea agreement led to the additional charge. Id. at 359, 98 S.Ct. 663.

Bordenkircher recognized that the prospect of a trial on enhanced charges likely has the effect of reducing defendants’ willingness to exercise their right to trial; the Court nevertheless held that such an effect must be tolerated if the plea bargaining system is to be accepted. Id. at 364, 98 S.Ct. 663. Due process is not violated so long as the enhanced charges are supported by probable cause, and the defendant is free to accept or reject the plea offer. Id. at 363-64, 98 S.Ct. 663. Because the prosecution is permitted to attempt to induce guilty pleas, Borden-kircher concluded that it is best that such efforts take place in the open with clear communication between opposing counsel. Id. at 364-65, 98 S.Ct. 663.

Bordenkircher was followed in Goodwin, 457 U.S. 368, 102 S.Ct. 2485. Goodwin observed that the distinction between a prosecutor dismissing charges from an original indictment as an inducement for a plea of guilty, and a prosecutor adding charges after plea negotiations failed, was one without a constitutional difference. Id. at 378 n. 10, 102 S.Ct. 2485. Thus, prosecutors can induce guilty pleas either by charging heavily up front and offering to dismiss charges or amend them to lesser offenses or, instead, by charging lightly at the outset and warning of possible additional charges; in neither case does a presumption of vindictiveness arise. For just as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded. Id. at 378, 102 S.Ct. 2485. As long as the charges are supported by probable cause, a prosecutor can raise the prospect of enhanced or additional charges in order to induce a guilty plea, just as the prosecutor can bring such charges at the outset and offer to reduce or drop them.

The case at bar is indistinguishable in all relevant aspects from Bordenkircher and Goodwin. Here, Sapien was initially charged with two counts of child molestation, a Class B felony. In subsequent negotiations, the prosecutor offered to amend the information to charge two counts of child endangerment in the first degree, a Class C felony. The prosecutor also informed Sapien that, should he not accept the offer, the State would file an amended information, charging him with the unclassified felonies of statutory sodomy in the first degree.⁶ Thus, the prosecutor initially charged Sapien with appropriate charges and then offered to either reduce the charges in the event of a guilty plea or assert more severe charges if plea negotiations failed. This is an amalgam of the tactics approved by the Supreme Court in Bordenkircher and Good,win. No presumption of vindictiveness arises.

Sapien contends that vindictiveness is established because the State possessed all of the necessary evidence for bringing the enhanced charges at the time of the original indictment and acknowledged that Sa-pien’s refusal to plead guilty led to the enhanced charges. Under Bordenkircher and Goodwin, however, these facts are irrelevant (absent a presumption of vindictiveness which is inapplicable here). Indeed, the prosecution in Bordenkircher made a similar acknowledgment that its charging decisions had been motivated by the defendant’s refusal to plead guilty. See 434 U.S. at 359, 98 S.Ct. 663. We deny Sapien’s third point.

Conclusion

We, therefore, affirm the circuit court’s judgment convicting Sapien of two counts of statutory sodomy in the first degree.

JAMES EDWARD WELSH, Judge writes for the majority.

THOMAS H. NEWTON, Presiding Judge, concurs.

ALOK AHUJA, Judge, writes the dissent.

1 . In making his record on this subject, the prosecutor specifically mentioned the tone of defense counsel's cross-examination. While our record cannot replicate the tone of the cross-examination, we acknowledge that the circuit court had the benefit of experiencing it first hand, and it may well have played a part in the court’s ruling.

2 . Sapien makes no argument that the juvenile records were otherwise irrelevant or inadmissible in the sentencing phase of his trial.

3 . Section 211.271.3 provides that "all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter."

4 . Section 211.321..2(2) provides: "After a child has been adjudicated delinquent pursuant to subdivision (3) of subsection 1 of section 211.031, for an offense which would be a felony if committed by an adult, the records of the dispositional hearing and proceedings related thereto shall be open to the public to the same extent that records of criminal proceedings are open to the public.”

5 . We also note that M.T. had already testified to the underlying -offense and adjudication described in the petition and order. Sapien does not challenge the admission of M.T.'s sentencing-phase testimony in this appeal. Given M.T.'s testimony, admission of the petition and order was merely cumulative. See, e.g., State v. Bell, 274 S.W.3d 592, 596 (Mo.App.2009).

6 . There is no dispute that the more severe charges of statutory sodomy were fully justified by the evidence and that the State had probable cause for asserting them.