Bullard v. State

• Court: Missouri Court of Appeals
• Writing for the Court: Lisa P. Page, Judge
• Citation: Bullard v. State, 627 S.W.3d 458 (Mo. App. 2021)
• Decision Date: 06 July 2021
• Docket Number: ED 108907
• Parties: Andrew BULLARD, Appellant, v. STATE of Missouri, Respondent.

627 S.W.3d 458

Andrew BULLARD, Appellant,

v.STATE of Missouri, Respondent.

ED 108907

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: July 6, 2021

Kevin L. Schriener, Law & Schriener, LLC, 141 N. Meramec Ave., Suite 314, Clayton, MO 63105, for appellant.

Daniel N. McPherson, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102, for respondent.

Lisa P. Page, Judge

Andrew Bullard (Movant) appeals from the motion court's judgment denying his Rule 29.15¹ motion for post-conviction relief without an evidentiary hearing. A jury convicted Movant of one count of child molestation in the first degree, in violation of Section 566.067.² He was sentenced to ten years of imprisonment in the Missouri Department of Corrections. We affirm.

BACKGROUND

The State of Missouri (State) charged Movant with one count of child molestation in the first degree, in violation of Section 566.067, by grand jury indictment. A jury trial took place from February 27 to March 3, 2017. The details adduced at trial can be found in this Court's opinion affirming Movant's conviction and sentence on direct appeal in State v. Bullard , 553 S.W.3d 901, 909 (Mo. App. E.D. 2018). For ease of understanding the issues on appeal, the facts are repeated here.

Victim's father (Father) and Movant were best friends in high school. Movant lived with him, Victim's mother (Mother), and their two children for less than a year, until Father started a job as an over-the-road truck driver in February 2010. In June 2011, after Father began employment with a local company, Movant resumed spending time with the family when Victim was four years old. Movant visited frequently in 2012, spending the night or entire weekend. Generally, Movant slept in the living room with a pull-out couch, and Victim sometimes slept there with him.

In October 2012, Movant went on an outdoor trip with Father and Victim's older brother (Brother). When Movant and Brother went riding, Father looked through Movant's cell phone because it was the only phone that received service. Father found photos that made him decide that Victim and Brother would no longer be left unattended around Movant.

The next month, Father was at a bonfire at a friend's house without Movant. Conversation began about "a different kind of guy," who "was a little weird," but was not Movant. Victim responded, "I know somebody who's weirder than that." When Father asked her who, Victim reluctantly leaned into Father's ear and said Movant. Father took Victim aside and asked why Movant was weird. Victim described one night when Movant slept at their house and Victim slept on the couch next to him. Victim explained that Movant pulled her panties down and tried to put his penis in her vagina. Father told Victim to tell Mother what she had just told him, then got into his car and started driving toward Movant's house. Victim went to Mother and said that she knew someone who was weird. Mother asked who and Victim responded Movant. Victim explained, "We were sleeping in the bed and he tried to pull my underwear down and he tried to touch my potty with his wiener."

On his way to Movant's house, Father called and asked him for an explanation as to why his daughter would tell him "that a man that she's looked at like a second father, she loves, would tell me that she was sexually assaulted by you." Movant initially denied the accusation but Father said he did not believe him, and that Movant needed to tell the truth. Movant then said, "I'm sorry." Father asked if he admitted that he did this to his daughter, and Movant repeated, "I'm sorry."³ Father replied he needed to turn himself into the police and elected to return to the bonfire rather than confront Movant in person.

Movant sent Father a text message the next afternoon saying, "I'm going in ... I know you're still mad at me. I just hope you can find it in your heart to forgive me some day." Father interpreted the apologies as an admission of guilt. After sending the text, Movant performed a Google search on his phone for a criminal defense lawyer in Crestwood.

Mother brought Victim to Children's Hospital on December 1, 2012, the day after she disclosed the sexual assault. Social Worker Andrea Bagaglio (Bagaglio) was working then and testified that Victim referred to both the penis and vagina on the anatomical diagram as the "potty." When asked if there were body parts that it was not okay for other people to touch, Victim said the potty and the butt. Bagaglio asked whether anyone had ever touched those parts of Victim's body, and Victim held up one finger and said that one person had – Movant. Victim pointed to the vaginal area on the drawing. She said it felt "weird because his potty was inside my potty." Victim said it happened on the pullout couch in the living room at home.

Forensic interviewer Diarra Cross-Davis (Cross-Davis) interviewed Victim in December 2012. Victim explained that the penis and vagina are body parts that are not supposed to be touched. When asked if anyone had touched her vagina, Victim said Movant had. Victim explained that she and Movant had been sleeping on the couch when Movant put his penis in her vagina. Movant was holding his penis when he did so.

Evidence of Google Search

The procedural matter at issue here in Movant's post-conviction relief appeal was not discussed in State v. Bullard because it was not alleged as error in Movant's direct appeal. Specifically, Movant filed a motion to suppress all the evidence seized from his person, residence, or property by the St. Louis County Police. Movant's defense attorney (Trial Counsel) argued the court should exclude a Google search that Movant conducted on his phone for a criminal defense attorney. The State argued that the search showed Movant's consciousness of guilt. The trial court overruled the motion, finding the fact that a search was conducted for a criminal defense lawyer was relevant and admissible in the case.

During opening statement, the State told the jury there would be evidence that Movant sent a text to Father asking for forgiveness, and he then did a Google search for a criminal defense attorney on his phone. Trial Counsel told the jury that Father had called Movant the day before, threatening to kill him and harm his family. Trial Counsel then made the following statement:

At this point [Movant] is scared to death. He's scared for his life, and he's scared for his family. He knows that [Father] is a hothead. He knows that [Father] owns several guns. And so he jumps out of bed. He puts on his clothes and he leaves his house and he doesn't return until the following morning. And when he returns to his house he gets on his computer and begins frantically searching the internet so that he can get a restraining order against [Father].

Trial Counsel renewed the motion to suppress when the State called James Karase (Karase), Supervisor of the Digital Forensics Unit for the St. Louis County Police Department. The trial court overruled the objection and granted counsel's request for a continuing objection. Karase examined Movant's phone and prepared an extraction report on data found on the phone. He testified that Movant sent a text message to Father on December 1, 2012, stating he was going to turn himself in to police and that he hoped Father would find it in his heart to forgive Movant someday. Appellant performed a Google search for the term "criminal defense lawyer in Crestwood" immediately following that text message. Karase said the search was entered as a deleted text message.

On direct examination, Movant testified that Father told him over the phone that he was coming to shoot him with a gun. Movant said he had known Father since high school and believed he was capable of that kind of violence. Movant further testified that Father owned multiple rifles and pistols and would typically keep a pistol in his truck. He said he saw Father hit someone at a bar once, and "saw him knock him out." Movant said based on his phone conversation with Father, he left his brother's house where he was staying and returned the following morning. Movant claimed that he never apologized over the phone to Father for touching Victim inappropriately. He did admit that he texted Father, apologizing and saying that he was going to turn himself in to the police. However, Movant acknowledged he did not turn himself in, nor did he call 9-1-1 when he believed Father was coming to his house to kill him.

When Movant returned home the following morning, he "started looking on the internet on what I needed to do, someone I needed to talk to, possibly get a restraining order, talking to a lawyer." Movant said that he wanted to get some advice on the situation he was in and see what kind of action he needed to take. Movant said when he made contact with a law office, he was advised that he should talk to a criminal defense attorney. He then expanded his search for a lawyer in the Crestwood area.

The State's closing argument included the following statement:

Now let's talk about the statement that [Movant] made. [Father] called him and ... told him that his daughter had just told him that [Movant] touched her vagina with his penis. As she said, touched my potty with his potty. And his response was not sorry, or I didn't do it – I'm sorry, his response was not I didn't do it. His response was sorry, sorry.

And then [Father] said to him, turn yourself in or I'm calling the police. And the very next text that was sent by [Movant] to [Father] was, I'm going in. I hope you can find it in your heart to forgive me. And after that the defendant did a Google search for criminal defense attorneys.

You're instructed to make your decision based upon the evidence and reasonable inferences. The defense wants you to believe that [Movant] was so afraid of [Father] that he said forgive me instead of it didn't happen. That doesn't make sense. He wants you – the defendant wants you to think that he thought [Father] was

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