State v. Porter, SC 93851.

• Decision Date: 29 July 2014
• Docket Number: No. SC 93851.,SC 93851.
• Citation: 439 S.W.3d 208
• Court: Missouri Supreme Court
• Parties: STATE of Missouri, Respondent, v. Sylvester PORTER, Appellant.

439 S.W.3d 208

STATE of Missouri, Respondent

v.Sylvester PORTER, Appellant.

No. SC 93851.

Supreme Court of Missouri, En Banc.

July 29, 2014.

Rehearing Denied Sept. 30, 2014.

Amy E. Lowe, Public Defender's Office, St. Louis, for Porter.

Evan J. Buccheim, Attorney General's Office, Jefferson City, for the State.

Opinion

RICHARD B. TEITELMAN, Judge.

Sylvester Porter appeals a judgment convicting him of two counts of statutory sodomy in the first degree. Porter argues that the trial court erred in denying his motion for judgment of acquittal because the victim's testimony was contradictory and lacked corroboration. Porter's argument is based on the “corroboration rule” and the “destructive contradictions” doctrine.¹ This Court abolishes both the corroboration rule and destructive contradictions doctrine because, among other reasons, both require appellate courts to act as the finder of fact. Review of the record according to the applicable standard of review demonstrates there was sufficient evidence to support the jury's finding that Porter committed statutory sodomy.

Porter also contends that the trial court erred in allowing the jury to have unrestricted access to the videotaped forensic interview of the victim during its deliberations. This point is without merit because Porter did not object or develop a factual record showing the extent of the jury's review of the video.

The judgment is affirmed.

Facts

Porter managed a rooming house where A.L. rented a room for herself and her three-year-old daughter, K.W. Porter, also known as “J–Money,” had a room at the boarding house.

One weekend, K.W.'s grandmother took care of K.W. while A.L. was away. Grandmother awakened from a nap and discovered that K.W. was gone. Grandmother found K.W. in Porter's room. K.W.'s pants were off, and Porter was shirtless. Porter's head was between K.W.'s legs.

Grandmother removed K.W. from Porter's room. K.W. told Grandmother that Porter was “sniffing around down there” and “messing with her bottom part.” When A.L. returned approximately one half hour after the incident, K.W. told A.L. that Porter touched her “kookoo,” which was K.W.'s word for her vagina. A.L. then confronted Porter, who denied touching K.W. K.W. overheard Porter's denial and told him “yes you did, you touched my kookoo.” A.L. called the police.

Grandmother later described Porter's actions to a children's division employee in terms of performing oral sex on K.W. Approximately two weeks later, K.W. told a forensic interviewer at the Child Advocacy Center (CAC) that Porter put his hand in her private part, touched her private part with his tongue, and put his private part on her face near her eye. The interview was recorded and admitted into evidence at trial.

The State charged Porter with two counts of first-degree statutory sodomy for touching K.W.'s vagina with his hand (Count I) and with his tongue (Count II). The State also charged Porter with one count of first-degree child molestation for touching K.W.'s head with his penis (Count III).

K.W. was five years old when she testified at Porter's trial. K.W. testified that Porter touched her private part with his hand but not with any other part of his body. K.W. also testified as follows:

Q: K.W. can you say whether J–Money really touched you?

A: Huh-huh.

Q: Did he really touch you or not?

A: Not.

Q: He didn't touch you?

A: (Shakes head.)

Q: Or he did touch you?

A: He did.

Q: He did.

A: (Nods head.)

A jury convicted Porter on all three counts. Porter filed motions for judgment of acquittal on all three counts on grounds that there was insufficient evidence to convict because K.W.'s testimony was contradictory and uncorroborated. The circuit court sustained Porter's motion as to the child molestation charge (Count III) but overruled the motions as to the statutory sodomy charges (Counts I and II). The circuit court sentenced Porter to two concurrent sentences of 25 years in prison.

Porter raises two points on appeal, asserting that there was insufficient evidence to support his convictions on Counts I and II because K.W.'s testimony was inherently contradictory and lacked corroboration

Standard of Review

An appellate court's review of the sufficiency of the evidence to support a criminal conviction is limited to determining whether there is sufficient evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). All evidence and inferences favorable to the State are accepted as true, and all evidence and inference to the contrary are rejected. State v. Stover, 388 S.W.3d 138, 146 (Mo. banc 2012). “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) (quoting State v. Bateman, 318 S.W.3d 681, 686–87 (Mo. banc 2010) ).

The corroboration rule

Generally, a witness's testimony is sufficient evidence to sustain a conviction, and the trier of fact is left to determine credibility issues. State v. Ervin, 835 S.W.2d 905, 921 (Mo. banc 1992). In cases involving sex crimes, however, Missouri courts have created a “corroboration rule” providing that “when the evidence of such prosecutrix is of a contradictory nature or leaves the mind of the court clouded with doubt, she must be corroborated, or the judgment cannot be sustained.” State v. Tevis, 234 Mo. 276, 136 S.W. 339, 341 (1911) ; see also State v. Baldwin, 571 S.W.2d 236, 239 (Mo. banc 1978) (corroboration is required when the witness's testimony “is of a contradictory nature or, when applied to the admitted facts in the case, her testimony is not convincing and leaves the mind of the court clouded with doubts”). Under this formulation, corroboration is required if the witness's testimony is determined to be contradictory or if the appellate court's review of the evidence raises some undetermined level of uncertainty regarding the evidentiary support for the conviction. Alternatively, this Court has stated that the corroboration rule applies when “ ‘the victim's testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is thereby rendered doubtful.’ ” State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995) (quoting State v. Harris, 620 S.W.2d 349, 353 (Mo. banc 1981) ). This formulation appears limited to instances in which the witness's testimony is contradictory.

The corroboration rule, under either formulation, suffers from at least two fundamental defects warranting abolition of the rule. First, the corroboration rule requires an appellate court to engage in credibility determinations that are the province of the trier of fact. To apply the corroboration rule, the court must make what amounts to a factual determination that the testimony is sufficiently contradictory and insufficiently corroborated. By requiring appellate courts to make these determinations, the corroboration rule is inconsistent with the appropriate standard of review for challenges to the sufficiency of the evidence. That standard is premised on the notion that appellate courts are not a “super juror” with the power to override factual determinations supported by sufficient evidence. See Chaney, 967 S.W.2d at 52. Appellate courts defer to factual determinations because the trier of fact, whether a judge or jury, is “in a better position not only to judge the credibility of the witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 652 (Mo. banc 2009) ; see also Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8, 19 (1938) (the trier of fact is entitled to deference regarding factual issues because it has “many opportunities, necessarily denied to the appellate court of seeing and hearing the witnesses themselves, observing their demeanor while testifying, and of determining the weight which properly attaches to their testimony”). The corroboration rule requires appellate courts to make factual determinations they are ill-equipped to make. Rather than second-guessing the trier of fact, Missouri appellate courts simply should abide by the well-established standard of review for challenges to the sufficiency of the evidence to support a criminal conviction.

Second, because the corroboration rule applies only to sex crimes, the rule necessarily is premised on two assumptions: (1) that the testimony of sex crime victims is inherently less credible than the testimony of other crime victims; and (2) that judges and juries are uniquely unable to make accurate factual determinations in sex crime cases. Both assumptions are unsupported. There is no reason to assume that the victim of a sexual assault is less credible than the victim of a non-sexual assault, a robbery or any other crime. As the Supreme Court of Idaho observed, in the same case in which it abolished that state's corroboration rule, “there is no evidence showing that sex crime charges are frequently falsified or that sexual victims are an inherently unreliable class whose testimony should not be believed in the absence of corroboration.” Idaho v. Byers, 102 Idaho 159, 627 P.2d 788, 790 (1981).

Likewise, there is no reason to assume that judges and juries in sex crime cases are uniquely unable to arrive at accurate factual determinations relative to judges and juries in other criminal cases. To the contrary, as noted above, Missouri law long has recognized that judges and juries are in a superior position to resolve factual disputes. The corroboration rule is based...