Anderson v. Koster

• Decision Date: 23 May 2012
• Docket Number: Case No. 11-1227-CV-W-GAF-P
• Parties: TIMOTHY LEE ANDERSON, Petitioner, v. CHRIS KOSTER, Respondent.
• Court: U.S. District Court — Western District of Missouri

TIMOTHY LEE ANDERSON, Petitioner,

v.CHRIS KOSTER, Respondent.

Case No. 11-1227-CV-W-GAF-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Date: May 23, 2012

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS, AND

DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, Timothy Lee Anderson, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on November 30, 2011, seeking to challenge his 2010 conviction and sentence for statutory sodomy in the first degree, which was entered in the Circuit Court of Livingston County, Missouri.

Petitioner raises seven grounds for relief: (1) that there was insufficient evidence for his conviction; (2) that the trial court erred in allowing the victim's mother to testify to out-of-court disclosures made by her daughter; (3) that the trial court erred in barring the defendant's daughter, Samantha Mangiaracina, from testifying during his case in chief; (4) that the trial court erred in barring Mangiaracina from testifying as a rebuttal witness;¹ (5) that petitioner cannot be convictedsimply on the testimony of a child;² (6) that trial and appellate counsel were ineffective; and (7) that "the trial court was constitutionally ineffective." Respondent contends that all of petitioner's grounds for relief are either without merit or procedurally defaulted.

SUMMARY OF FACTS

On direct appeal, the Missouri Court of Appeals summarized the facts as follows:

Viewing the evidence in the light most favorable to the verdict, the evidence established that in October of 2005 [petitioner] offered to take ten-year-old child, B.A.J., turkey hunting. He thereafter transported her to spend the night at his residence, located one block from B.A.J.'s home. B.A.J. had spent the night at [petitioner]'s home on prior occasions but always with [petitioner]'s daughter present. This time, B.A.J. and [petitioner] were alone. Although B.A.J. had slept on the couch during prior visits, [petitioner] insisted that she sleep in his bed on this occasion. B.A.J. testified that no reason for this was given, that she asked to sleep on the couch, but that she ultimately complied with [petitioner] and slept in the bed. The child and [petitioner] watched television together in [petitioner]'s bedroom; after which, he left the room, and B.A.J. fell asleep. Sometime later, B.A.J. was woken by [petitioner] sticking his fingers in her vagina. This lasted approximately five minutes, during which time the child remained silent. After he stopped, B.A.J. went back to sleep. When B.A.J. woke the following morning, it hurt her to urinate. The child asked [petitioner] to take her home. The turkey hunting excursion never occurred, as [petitioner] told B.A.J. that it was too late to go.

B.A.J.'s mother testified that, when B.A.J. returned home that morning, she was uncharacteristically quiet. As time passed, she observed B.A.J.'s grades drop and her personality go from being a people person to withdrawn. For four years, B.A.J. kept this incident a secret. She attended family events where [petitioner] was present but was never alone with [petitioner]. She never again spent the night at [petitioner]'s house. B.A.J. worried that it might happen again.

In 2009, B.A.J. disclosed the incident, first to her sister and a cousin, and then to her mother. Her mother testified at trial that B.A.J. didmake a disclosure and that B.A.J. covered her face and broke into tears while disclosing. Mother testified that, after the disclosure, B.A.J. entered counseling. Her grades improved, and her personality went "back to normal."

Deputy Michael Claypole, law enforcement officer with the Livingston County Sheriff's Office, contacted [petitioner] regarding the allegations. [Petitioner] was advised of his Miranda rights and agreed to talk to Deputy Claypole. Deputy Claypole testified that [petitioner] first denied knowing why Claypole wanted to talk to him but later admitted that he had been told that he "might have touched one of the girls." Deputy Claypole testified that prior to his inquiring into any specific events, [petitioner] volunteered that the allegations referred to a time during hunting season four years prior, that B.A.J. had slept in his bed, and that he had slept in a chair in the middle of the home.

At trial, [petitioner] admitted that B.A.J. spent the night at his home for the purpose of turkey hunting the following morning and that she slept in his bed due to the couch being flea infested. Although [petitioner] claimed that, to the best of his knowledge, he had mentioned the flea infestation in his interview with Deputy Claypole, Deputy Claypole testified that [petitioner] never mentioned it. [Petitioner] denied sexual contact with B.A.J. He testified that, after the day B.A.J. spent the night, he occasionally saw her at family gatherings. He reported that on those occasions she called him "Uncle Tim," greeted him with a hug, and did not try to avoid him. A jury convicted [petitioner] of statutory sodomy in the first degree. [Petitioner] appeals.

State v. Anderson, 348 S.W.3d 840, 842-43 (Mo. App. W.D. 2011).

Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc 1984). It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254 (e)(1).³ Because the statecourt's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.

GROUND 1

In his first ground for relief, petitioner challenges the sufficiency of the evidence. Review of this claim is extremely deferential to the state courts. Constitutionally sufficient evidence exists to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). On direct appeal, the Missouri Court of Appeals disposed of this claim as follows:

In his first point on appeal, [petitioner] contends that the circuit court erred in overruling his motion for acquittal at the close of State's evidence, and again at the close of all evidence, because the only substantive evidence the State relied upon was the testimony of his accuser. [Petitioner] asserts that his accuser's testimony was so clouded with doubt that it was insufficient to create a submissible case to the jury. We disagree.

[Petitioner] moved for acquittal at the close of [the] State's case and again at the close of all the evidence. We consider only the latter motion as [petitioner] waived any error of the former by offering evidence in his behalf. State v. Johnson, 447 S.W.2d 285, 286 (Mo. 1969). In reviewing the sufficiency of the evidence, we accept as true all evidence favorable to the State, and "[a]ll evidence and inferences to the contrary are disregarded." State v. Crawford, 68 S.W.3d 406, 407-408 (Mo. banc 2002). Our review is "limited to determining whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." Id. at 408.

We find the evidence in this case sufficient for a reasonable juror tofind [petitioner] guilty of statutory sodomy in the first degree. The child victim, B.A.J., testified that in October of 2005, she spent the night at [petitioner]'s home for the purpose of turkey hunting the following morning. [Petitioner] confirmed her testimony. B.A.J. testified that she had spent the night at [petitioner]'s home on previous occasions but always with someone else present. [Petitioner] confirmed her testimony. B.A.J. claimed that [petitioner] asked her to sleep in his bed. [Petitioner] confirmed her testimony. B.A.J. testified that she and [petitioner] never went turkey hunting the following morning because she was told by [petitioner] that it was too late to go. [Petitioner] confirmed her testimony. B.A.J. testified that, after the overnight visit, she occasionally saw [petitioner] at family functions. [Petitioner] confirmed her testimony. B.A.J. testified that she never again spent the night at [petitioner]'s home. [Petitioner] never challenged this assertion. B.A.J. testified that [petitioner] stuck his fingers in her vagina. To this, [petitioner] disagreed.

[Petitioner] asks us to find B.A.J.'s testimony contradictory, inconsistent, unaccompanied by sufficient corroboration, and, therefore, insufficient to create a submissible case to the jury. We do not. "It is only in those cases where the evidence of the [accusing witness] is of a contradictory nature or, when applied to the admitted facts in the case, [the] testimony is not convincing and leaves the mind of the court clouded with doubts, that [the witness] must be corroborated or a judgment cannot be sustained." State v. Baldwin, 571 S.W.2d 236, 239 (Mo. banc 1978). Corroboration is not required with "inconsistencies not sufficient to make the testimony inherently self-destructive." State v. Wright, 998 S.W.2d 78, 81 (Mo. App. 1999). B.A.J.'s testimony is neither contradictory nor inconsistent. Most of her testimony in fact coincides with [petitioner]'s testimony. [Petitioner] suggests that B.A.J's testimony is contradictory and emits a "cloud of doubt" because she testified to being scared and worried that the abuse might happen again, contradicting his own testimony that the child did not act any different at family functions. B.A.J.'s testimony was not intrinsically contradictory or contrary to admitted facts in the case, but rather her testimony was

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