Borst v. State , WD 71321.

• Decision Date: 22 February 2011
• Docket Number: No. WD 71321.,WD 71321.
• Citation: 337 S.W.3d 95
• Parties: Christopher P. BORST, Respondent,v.STATE of Missouri, Appellant.
• Court: Missouri Court of Appeals

337 S.W.3d 95

Christopher P. BORST, Respondent,

v.STATE of Missouri, Appellant.

No. WD 71321.

Missouri Court of Appeals, Western District.

Feb. 22, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied March 29, 2011.

Application for Transfer Denied

May 31, 2011.

Shaun J. Mackelprang, and Terrence M. Messonnier, Jefferson City, MO, for appellant.John P. O'Connor and Michael L. Belancio, Kansas City, MO, for respondent.Before Division Four: LISA WHITE HARDWICK, C.J., Presiding, GARY D. WITT, J. and KEITH MARQUART, Sp.J.LISA WHITE HARDWICK, Chief Judge.

The State of Missouri appeals the circuit court's judgment granting Rule 29.15 post-conviction relief to Christopher Borst based on a finding of ineffective assistance of counsel. The court set aside Borst's convictions on two counts of first-degree statutory sodomy and two counts of incest and ordered a new trial on those charges. On appeal, the State contends the circuit court clearly erred in granting such relief because the evidence did not establish that Borst's trial counsel was ineffective in failing to present the victim's school and medical records and in failing to cross examine the victim's mother about prior false accusations. For reasons explained herein, we reverse the circuit court's judgment.

FACTUAL AND PROCEDURAL HISTORY

Christopher Borst and Shelby Whitehouse (“Shelby”) were married in April 1997. Their daughter, K.B., was born on October 7, 1998. Borst and Shelby separated in July 1999. Shelby moved into the home of her friend Michelle Miller (“Michelle”) ¹ and began a relationship with Michael Magnuson, an old college acquaintance. Borst had joint legal custody of K.B. with Shelby and enjoyed liberal visitation, providing sole care for K.B. on Fridays and every other weekend. Shelby moved out of Miller's home in February 2000 and moved in with her parents. The divorce was finalized in March 2001, and Shelby and K.B. moved in with Magnuson six months later.

On March 1 and 2, 2002, K.B. spent the night in Borst's apartment. On March 3, Shelby observed K.B. playing with Barbie dolls in a sexually suggestive manner. When questioned, K.B. stated she had learned what she was doing from seeing “movies with naked people” at Borst's apartment. K.B. told Shelby she sat on Borst's lap and stuff came out of his “pee-pee.” K.B. said Borst touched her “po-po” and “it's to make you feel good.”

Later when Shelby was sitting on her bed and talking on the phone, K.B. lay on the bed and put her legs around Shelby's back and pelvis and “started humping.” When Shelby asked K.B. what she was doing, K.B. told her, “Just sit there and do what dad does.”

Shelby took K.B. to Children's Mercy Hospital for an evaluation. Mary Hegenbarth, an emergency pediatrician,² performed a sexual assault forensic examination (SAFE) on K.B. The examination revealed vaginal irritation, discharge, and a small tear in K.B.'s perineum (area between genitals and anus). Because these types of conditions can be caused by hygiene factors, genital abnormality, or sexual abuse, Hegenbarth could not determine to a reasonable degree of medical certainty whether K.B. had been sexually abused.

On March 4, 2002, Jill Hazel of the Division of Family Services (“DFS”) separately interviewed Shelby and K.B. at Shelby's residence. K.B. told Hazel that “she sucked on her daddy's pee-pee and white stuff came out” and “they wiped it up real quick.” K.B. told Hazel she and her father had “watched movies with adults that had no clothes on.” Hazel arranged for an additional interview with K.B. at the Child Protection Center.

On March 7, 2002, Julie Donelon of the Child Protection Center conducted a recorded interview with K.B. K.B. identified various parts of the human anatomy using male and female dolls. She identified the vaginal area as “po-po,” and the penis as “pee-pee” or “potty.” K.B. indicated that Borst had touched her “po-po” and bottom with his finger. She stated she had once watched a movie in Borst's apartment where she saw a bottom, a “po-po,” and naked people. K.B. initially denied ever touching Borst, stating she didn't want to talk about it, but later stated she had seen Borst's “potty.” She stated she had sucked on Borst's “potty” and white stuff, which felt like juice, came out and went on a washcloth. K.B. said Borst had touched inside her “po-po” and put his “potty” inside of her “po-po” to make her feel good.

On March 8, 2002, Borst voluntarily met with Tom Bajt, a DFS investigator, for an interview. Hazel was also present during the interview. Borst told the DFS officials that he had masturbated in the living room of his apartment while K.B. was present. When he finished masturbating, K.B. placed her hands and mouth on his penis and he had not stopped her. He ejaculated and then cleaned up with toilet paper or a washcloth. Borst admitted that what K.B. had said was true, and he asked for “help” in the form of “counseling or some therapeutic recommendations.” Borst said he hoped K.B. would not have to testify and would be safe from further harm. Borst said he understood Shelby wanted to move to Joplin, and he had no problems with the move.

On March 11, 2002, K.B. was visiting the home of Melinda Houdyshell for a play date with Houdyshell's five-year old daughter. Houdyshell walked into a room where the girls were playing and discovered both girls naked from the waist down. Houdyshell's daughter was on top of K.B. When Houdyshell questioned the girls, K.B. said she was showing Houdyshell's daughter what Borst had taught her.

On March 22, 2002, Borst called Detective Janna Eikel, a Kansas City police officer who was investigating the allegations of sexual abuse. Borst was concerned about not being able to visit K.B. Eikel told Borst that he should not be speaking with K.B. Borst told Eikel he “was thinking he was a sexual offender, so that he had made an appointment with a doctor for a forensic assessment.” Borst said he was “out of it” when the incident happened and did not intend for it to happen, but he “just flipped out.” Borst said he was upset about having to move out of his apartment and was “in never-never land that day.” He acknowledged that if he did what he was accused of doing, then he deserved punishment. Borst said he was “beginning to believe that he was a sick and dangerous person.”

The State charged Borst with one count of first-degree statutory rape, Section 566.032, three counts of first-degree statutory sodomy, Section 566.062, four counts of incest, Section 568.020, and one count of furnishing pornographic material to minors, Section 573.040.³ At the jury trial held in August 2004, Borst was represented by his defense co-counsel, Richard Carney and Marilyn Keller.

During trial, K.B. testified that Borst had touched her “po-po” and she had touched his penis with her finger. K.B.'s previous statements about sexual abuse were admitted into evidence through the testimony of Shelby, Hazel, Donelon, and Houdyshell, pursuant to Section 491.075. The State also presented testimony from Hegenbarth, Bajt, and Eikel as related above.

During cross-examination, defense counsel asked Shelby if she had ever made a complaint to DFS about anyone else besides Borst. The State objected and, outside the hearing of the jury, explained that Shelby had once threatened to make a false report of child abuse against Miller to DFS.⁴ The State argued that questioning about a threat of a complaint to DFS about someone other than Borst was irrelevant and highly prejudicial. Defense counsel responded that Borst was entitled to show that Shelby was aware that a report to DFS would end contact between the alleged victim and the accused.

The trial court ruled that the specific allegations of threats to make false reports to DFS were not relevant. However, the court allowed defense counsel to ask whether Shelby knew what happened when an allegation of sexual abuse was made to DFS. The trial court also stated that defense counsel could later make a record regarding the matter outside the hearing of the jury. Defense counsel then cross-examined Shelby as follows:

[Defense counsel:] [Shelby], you are aware, are you not, that once you make a sexual abuse allegation to DFS, that in all probability contact with the alleged perpetrator and the child will be severed; is that correct?

[Shelby:] My understanding is, is once you make an allegation to DFS, they investigate it, and if they find probable cause or find after they do the interview, if they find that the information is correct or reliable, whatever their terms are, that, yes, visitation or whatever would be stopped.

[Defense counsel:] And you knew that at the time you made the allegation in this case, didn't you?

[Shelby:] Yes.

When given the later opportunity to make a record outside the hearing of the jury, defense counsel explained to the trial court:

We have developed a theory of defense, and the Court is well aware of the fact, because we've had several discussions, that [Shelby] manipulated her daughter, and the motive for doing that was to get the kid away from the father because he's a problem for her move to Joplin.

....

Approximately a year, year and a half before this, I want to say there was a fight between [Shelby and Miller] who grew up as best friends. And this is what the evidence would show. And that when [Miller] discovered that [Shelby] had been lying to her about certain things, including some things involving [Borst], there was a confrontation.

Not only did [Shelby] say, I'm going to DFS and make allegations that you abused your son, but you abused my daughter.... And then ... I believe it was May of 2001. May of 2000—what she gets is a call with threats that I have reported you to DFS, you've abused your son and you've abused [K.B.]. And that's two threats.

And when you couple that with a threat with what happened with [Borst] a year and a half or so later, then you're getting a pattern that...