State Of Mo. v. Cobb
| Decision Date | 24 March 2011 |
| Docket Number | No. SD30067,SD30067 |
| Parties | STATE OF MISSOURI, Plaintiff-Respondent, v. SAMUEL E. COBB, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY
AFFIRMED
Samuel E. Cobb ("Defendant") appeals his convictions, following a jury trial, on ten counts of statutory sodomy in the first degree. See § 566.062, RSMo Cum.Supp. 2006. Defendant presents two claims of error, alleging that the trial court abused its discretion in (1) denying Defendant an opportunity to cross-examine a complaining witness, and (2) sustaining the State's motion to exclude expert testimony of a witness for the defense. Finding that Defendant is not entitled to any relief under either point, we affirm.
As Defendant does not challenge the sufficiency of the evidence, we recite only those facts pertinent to the issues raised on appeal.
H.A., born in March 1989, and D.A., born in June 1991, are brothers. Their parents, G.A. and S.A., separated in 1994. Afterward, H.A. and D.A. lived with their father in Buffalo, while their mother moved into Defendant's home in Mount Vernon. Following their father's death on April 18, 1995, H.A. and D.A. went to live with their mother and Defendant. The four of them later moved to rural Lawrence County.
In November 1997, H.A. was removed from the home amid allegations he had been physically abused by Defendant. During the ensuing investigation, D.A. was removed from the home in January 1998. Within five months thereafter, both boys went to live with their paternal grandparents, who were later granted their legal guardianship.
Soon after they moved in with their grandparents, difficulties arose. Both boys exhibited behavioral problems and were observed sexually acting out with each other. Individual therapy was provided to each boy, as well as family counseling. For a period of two or three years, each boy had bi-weekly counseling at the Forest Institute. The issues counseling was intended to address included their lying, stealing, and the sexual activity between the brothers. While both apparently related instances of physical abuse by their mother and Defendant, neither alleged that they had been sexually abused while living in their mother's home.
In February 2005, D.A. was removed from his grandparents' home after he was caught "sexually playing" with his five-year-old cousin. Soon after D.A. was removed, the grandparents relinquished custody of H.A., who "had a lot of anger issues that [the grandparents] couldn't reach[.]" D.A. was placed with a foster family for a short time before he was moved to Boys and Girls Town. H.A. was first placed in a foster home, and he later lived at the Boys Home in Verona. Counseling and therapy continued for each boy.
On March 16, 2005, a hotline call reported that D.A. was claiming he had been sexually abused by his mother and Defendant while he lived in their home. After D.A.'s disclosure, H.A. was angry at D.A. because of his allegations. He was also angry at D.A. for molesting their young cousin.1 At one point, D.A. told his therapist that most of his allegations regarding sexual abuse were not true, but he later recanted, claiming he denied the behavior had occurred so that H.A. would no longer be angry with him and because H.A.'s hostility toward him was hurtful, and he wanted to make things better between H.A. and him.
D.A. and H.A. were brought together for counseling sessions during which they discussed D.A.'s allegations and the events that D.A. remembered. A few days after one such session with his brother, H.A. awoke one morning and told the director of the group home that he remembered he "was in a corner and that [Defendant] had put [him] in [his mother's] underwear and [Defendant] masturbated [him] with that[.]" This was the first incident of sexual abuse he related to his counselor, Richard Jenkins. H.A. made other disclosures of his sexual abuse by Defendant to Jenkins only after Jenkins arranged for H.A. to be interviewed by a police officer at the Aurora police department on August 16, 2005.
Eventually, Defendant was tried before a jury on ten counts of statutory sodomy in the first degree. Three of the counts charged that Defendant had deviate sexual intercourse with D.A., who was less than fourteen years old, between January 1, 1997, and September 30, 1997. Seven counts charged Defendant with the same offense againstH.A., also less than fourteen years old, committed on various dates between November 1996 and October 1997.
At Defendant's trial, H.A. testified that it was usually Defendant who disciplined him and his brother. Defendant beat them with belts and "anything he could grab[,]"; they were kicked, made to assume a squatting or push-up position for hours, were not allowed to go to bed, and at least once, Defendant pointed an unloaded gun at H.A.'s head, pulled the trigger, and told H.A. that he would kill them if H.A. told anyone. H.A. testified that he was afraid of Defendant and that Defendant told H.A. he had killed H.A.'s father by shoving him off a ladder while he worked.
H.A. also testified that he and his brother were sexually abused by both Defendant and their mother "two to four times a week." H.A. related that they would lead him to their bedroom at night and force him to watch them have sex. They would dress him in his mother's underpants and masturbate him. H.A. also stated that they forced him to put his mouth on their genitalia, and both his mother and Defendant did the same to him and forced him and D.A. to do the same to each other while they watched.
D.A. testified that he was subjected to similar abuse and also testified that Defendant had anal intercourse with him, placed his fingers in his anus, and forced D.A. to "give him oral sex." D.A. stated that "[p]retty much everything you could think of[,] we would have to do to one another."
H.A. and D.A. were questioned regarding the reasons they delayed reporting the sexual abuse for so many years in light of the length of time they had received counseling and therapy with various professionals and continuously denied being sexually abused. D.A. stated he didn't tell anyone about the sexual abuse earlier because he was afraid ofDefendant; Defendant told him and H.A. that he would kill their grandparents or him and H.A. if they told anyone the things that he had done to them, and D.A. believed him. After they moved to live with their grandparents, D.A. still did not tell anyone because Defendant knew where his grandparents lived. Once he was moved to Boys Town, Defendant did not know where D.A. lived, and there were gates and doors that were locked, so D.A. did not have to worry about Defendant finding him.
H.A. testified that he did not report being sexually abused by Defendant to anyone, nor did he report that his brother was sexually abused, because he was too embarrassed to talk about it, and it was too difficult to open up to his counselors or even friends; he "didn't want it to be in [his] head."
The jury found Defendant guilty on all ten counts, and the trial court sentenced him as a prior offender to consecutive terms of twenty years' imprisonment on each count. Defendant timely appealed.
Defendant raises two points on appeal, and we address them in the order presented.
In his first point, Defendant claims that "[t]he trial court abused its discretion in denying [him] the opportunity to cross-examine [H.A.] about the circumstances of the interview that took place at the Aurora Police Department" on August 16, 2005. This claim was not properly preserved for appellate review.
"[T]o properly preserve an evidentiary issue for appellate review, an objection must be made upon introduction of the evidence; that objection must be reasserted aserror in a motion for new trial; and the issue must be briefed on appeal." State v. Robinson, 194 S.W.3d 379, 380 (Mo.App. 2006). "An allegation of error in a motion for new trial may not be changed or broadened on appeal." State v. Johnson, 943 S.W.2d 285, 291 (Mo.App. 1997). Rule 29.11 distinctions regarding preservation of allegations of error during trial and post-trial serve to provide the trial court with an opportunity to correct its own decisions, narrow the issues on appeal, and ensure that a new or different theory is not advanced on appeal.2 State v. Pennington, 24 S.W.3d 185, 187 (Mo.App. 2000).
On cross-examination, defense counsel attempted to question H.A. regarding his interview at the Aurora police department. Defendant contends that his trial counsel aimed "to bring out evidence that [H.A.] made his first allegation of sexual abuse after his most recent counselor, Richard Jenkins, took him to the police department to talk to an officer and accused [H.A.] of lying when he denied that any sexual abuse had occurred." The facts that Jenkins took H.A. to the police department and later accused H.A. of lying to a police officer, Defendant contends, would demonstrate that Jenkins "used questionable measures to get [H.A.] to say that he had been sexually abused[,]" in that H.A. first alleged he had been sexually abused "only after he was accused of lying to a police officer."
Defense counsel asked H.A. if he remembered Jenkins taking him to the Aurora police department where he was placed in a room with a detective. At that point, the State objected, arguing that H.A.'s visit to the police department involved the administration of a voice stress test on H.A., and counsel's reference to the interview without any explanation as to the purpose behind it was "opening a door" for admissionof the fact that H.A. had taken and failed a voice stress test.3 The State was concerned that testimony of a visit to the police department without any explanation would lead the jury to...
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