372 S.W.3d 455 (Mo. 2012), SC 91948, State v. Miller

Docket Nº:SC 91948.
Citation:372 S.W.3d 455
Opinion Judge:ZEL M. FISCHER, Judge.
Party Name:STATE of Missouri, Respondent, v. David Bryan MILLER, Appellant.
Attorney:Shaun J. Mackelprang, Attorney General's Office, Jefferson City, for respondent. Kent E. Gipson, Law Office of Kent Gipson LLC, Kansas City, for appellant.
Judge Panel:All concur.
Case Date:July 03, 2012
Court:Supreme Court of Missouri
 
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372 S.W.3d 455 (Mo. 2012)

STATE of Missouri, Respondent,

v.

David Bryan MILLER, Appellant.

No. SC 91948.

Supreme Court of Missouri, En Banc.

July 3, 2012

Rehearing or Rehearing En Banc Denied Aug. 14, 2012.

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Shaun J. Mackelprang, Attorney General's Office, Jefferson City, for respondent.

Kent E. Gipson, Law Office of Kent Gipson LLC, Kansas City, for appellant.

ZEL M. FISCHER, Judge.

Procedural History

David Bryan Miller was convicted of six sexual offenses against his minor daughter and was sentenced to concurrent terms of imprisonment of 50 years, 10 years, seven

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years, four years, five years, and four years.

Miller appeals the circuit court's decision overruling his motion for judgment of acquittal. He argues that the evidence was legally insufficient to support his convictions of first-degree statutory sodomy, deviate sexual assault, sexual misconduct involving a child, and endangering the welfare of a child in the first degree because the state failed to present any evidence to support essential elements of the offenses as charged in the information and submitted to the jury in Instruction Nos. 7, 9, 10, and 12. Miller argues that the circuit court committed plain error in submitting Instruction No. 8, which was the verdict directing instruction for the class B felony of first-degree child molestation. Miller next argues that the circuit court committed error in failing to declare a mistrial, sua sponte, because the State introduced evidence of his post-arrest silence at trial, by precluding a witness for the defense as a sanction for untimely endorsement, and in allowing evidence of uncharged bad acts into evidence at trial. Miller also argues that the circuit court erred in allowing argument of facts not in evidence at trial and that the circuit court erred in failing to sustain his motion for new trial because the cumulative effect of the errors at trial so infected the proceedings with unfairness that justice demands he receive a second trial. This Court granted transfer after opinion by the court of appeals and, therefore, has jurisdiction over this appeal pursuant to article V, section 10, of the Missouri Constitution.

This Court reverses the judgment with respect to Miller's convictions for first-degree statutory sodomy, deviate sexual assault, and first-degree child molestation. In all other respects, the judgment is affirmed. The case is remanded.

Facts

In late December 2005, Miller's 14-year-old daughter, E.N.M., informed a friend that her father had been abusing her sexually since she was 6 years old. The friend told her mother, who, in turn, informed E.N.M.'s mother as to what E.N.M. had said. E.N.M. was taken to the police station where E.N.M. informed officers that she had been abused sexually by Miller at Miller's farm house in Hatfield from the time she was 6 years old. On January 31, 2006, sheriff's deputies served an order of protection on Miller at his Hatfield home. Miller gave the deputies permission to search the home. When the deputies asked Miller if he had any condoms, Miller retrieved a box of condoms from under the bathroom sink. At some point, a deputy provided Miller with Miranda warnings, and Miller indicated he understood those warnings. After discussing the order of protection with Miller for a while, the deputies asked Miller to come to the police station for an interview.

After they arrived at the station, a deputy again provided Miller with Miranda warnings, and Miller signed a Miranda form. Miller denied the allegations and indicated that he thought his ex-wife had put his daughter up to making those allegations.

Miller was charged with 10 counts alleging that he sexually molested, raped, and sodomized his natural daughter, E.N.M., over an eight-year period between December 3, 1997, and January 22, 2006, at the Miller's family residence in Harrison County. Count I charged Miller with the class C felony of statutory rape in the second degree, in violation of § 566.034,1 alleging that Miller had sexual intercourse with his daughter between January 21,

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2006, and January 22, 2006, when E.N.M. was younger than 17 years old; count II charged Miller with the class C felony of sexual assault in violation of § 566.040, alleging that Miller had sexual intercourse with his daughter between January 21, 2006, and January 22, 2006, without her consent; count III charged Miller with the unclassified felony of statutory sodomy in the first degree in violation of § 566.062, alleging that Miller had deviate sexual intercourse with his daughter between December 3, 2004, and December 3, 2005, at a time when E.N.M. was younger than 14 years of age; count IV charged Miller with the class B felony of first-degree child molestation in violation of § 566.067, RSMo 1994, alleging that Miller subjected his daughter to sexual contact between December 3, 1997, and December 3, 1998, when she was younger than 14 years of age; count V charged Miller with the class C felony of deviate sexual assault in violation of § 566.070, alleging that Miller had deviate sexual intercourse with his daughter between December 3, 2004, and December 3, 2005, without her consent; under count VI, Miller was charged with the class D felony of sexual misconduct involving a child in violation of § 566.083, alleging that Miller knowingly exposed his genitals to his daughter between December 3, 1997, and December 3, 1998, when she was younger than 14 years of age, for the purpose of arousing or gratifying the sexual desire of any person; count VII charged Miller with the class D felony of incest in violation of § 568.020, which alleged that between January 21, 2006, and January 22, 2006, Miller had sexual intercourse with his daughter, who was his descendant by blood; count VIII charged Miller with the class C felony of endangering the welfare of a child in the first degree in violation of § 568.045, RSMo Supp.2003 and Supp.2005,2 alleging that between December 3, 2004, and December 3, 2005, Miller engaged in sexual contact with his daughter, who was younger than 17 years of age and over whom Miller was a parent; count IX charged Miller with the class D felony of incest in violation of § 568.020, alleging that between December 3, 2004, and December 3, 2005, Miller engaged in sexual intercourse with his daughter, whom Miller knew to be his descendant by blood; count X charged Miller with the unclassified felony of first-degree statutory rape in violation of § 566.032, alleging that Miller had sexual intercourse with his daughter between January 30, 2004, and January 31, 2005, when his daughter was younger than 14 years of age.

Miller pleaded not guilty. The case proceeded to a jury trial, and the jury returned verdicts finding Miller not guilty under counts I, II, VII and X. The jury found Miller guilty as charged under counts III, IV, V, VI, VIII, and IX. Miller was sentenced to concurrent terms of imprisonment of 50 years on count III, 10 years on count IV, seven years on count V, four years on count VI, five years on count VIII, and four years on count IX.

SUFFICIENCY OF THE EVIDENCE TO PROVE THE CHARGES INCLUDED IN THE INFORMATION AND INSTRUCTION NOS. 7, 9, 10, and 12

Miller challenges the sufficiency of the evidence to support his convictions for first-degree statutory sodomy, deviate sexual assault, sexual misconduct involving a

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child, and first-degree endangerment of the welfare of a child.

Standard of Review

" This Court's review is limited to determining whether there was sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Letica, 356 S.W.3d 157, 166 (Mo. banc 2011). " The evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict, disregarding any evidence and inferences contrary to the verdict." State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). " This is not an assessment of whether the Court believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt." State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011) (internal quotations and citations omitted). When reviewing the sufficiency of evidence supporting a criminal conviction, the Court does not act as a ‘ super juror’ with veto powers. State v. Grim, 854 S.W.2d 403, 414 (Mo. banc 1993). In such cases, this Court gives great deference to the trier of fact. Id.

Miller argues that the State failed to prove that he engaged in first-degree statutory sodomy and deviate sexual assault because there was no evidence that he committed these crimes consistent with the dates alleged in both the information setting forth the charges and the jury instructions. Miller also argues that, because of a discrepancy in dates included in the information and jury instructions, the evidence adduced at trial was insufficient to convict him of sexual misconduct involving a child and first-degree endangerment of a child.

Evidence of First-Degree Statutory Sodomy and Deviate Sexual Assault at Trial

The information charging Miller with counts III and V, first-degree statutory sodomy and deviate sexual assault, respectively, alleged that Miller inserted his finger into E.N.M.'s vagina between December 3, 2004, and December 3, 2005. Miller admits that there was evidence presented at trial that he did so when E.N.M. was...

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