State Of Mo. v. Perdue

• Decision Date: 03 August 2010
• Docket Number: No. 29759.,29759.
• Citation: State v. Perdue, 317 S.W.3d 645 (Mo. App. 2010)
• Parties: STATE of Missouri, Respondent,v.Bruce Wayne PERDUE, Appellant.
• Court: Missouri Court of Appeals

317 S.W.3d 645

STATE of Missouri, Respondent,v.Bruce Wayne PERDUE, Appellant.

No. 29759.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 3, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kent Denzel, Columbia, for appellant.

Chris Koster, Atty. Gen. and Jayne T. Woods, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT S. BARNEY, Presiding Judge.

Bruce Wayne Perdue (“Appellant”) appeals his conviction by a jury for one count of the class B felony of child molestation in the first degree, a violation of section 566.067, for subjecting a female child, R.B. (“Victim”), “to sexual contact.” ¹ Appellant was sentenced by the trial court to five years in the Missouri Department of Corrections. In his two points on appeal, Appellant challenges the sufficiency of the evidence to support his conviction as well as the trial court's ruling on an evidentiary issue. We affirm the judgment and sentence of the trial court.

Viewing the evidence in the light most favorable to the jury's verdict State v. Tolen, 295 S.W.3d 883, 884 (Mo.App.2009), the evidence adduced at trial showed that Appellant began dating A.R. (“Mother”) in May of 2004. Mother had two daughters from a previous relationship: A.Y., who was born in October of 1993, and Victim, who was born in April of 1999. Appellant and Mother became engaged in December of 2004 and they resided in a home with Victim.² Appellant's brother and his wife lived nearby with their children, including their daughter E.M., who was born in September of 2000, and their daughter A.M., who was born in September of 2002.³ E.M. would often spend the night with Victim.

One evening Mother left E.M. and Victim alone with Appellant when she went to McDonald's restaurant. Before she left, Mother gave Victim and E.M. permission to write on the bedroom door with chalk; however, when Appellant discovered what they were doing he told them to stop. When Victim tried to explain to Appellant that Mother had given them permission, Appellant pulled her pants and underwear down and stuck his finger in her vagina. Victim recounted that Appellant said to her, “I told you to stop [writing on the door]” when he had his finger inside her vagina. Victim then asked him to stop but he only removed his finger when Mother entered the room after returning home.⁴ Victim immediately reported the incident to Mother. According to Victim, she thought this incident happened when she was “five or two,” but she was unable to testify as to an exact date of the incident. Mother did not report this incident to authorities at that time.

In addition to her testimony about the incident in question, Victim also related that Appellant had also put his “pee-pee” or penis in her vagina, but she was unable to remember how many times that had occurred. Likewise, she testified that she had talked to Mother “a lot” about the incident in question, that Mother had “been telling [her] a lot about what happened,” and that she did not really remember much about the incident such that Mother “kind of told [her] what happened....”

At some point in time after the incident in question, Victim began having problems with her teeth and she began developing wart-like sores in her mouth. ⁵ Victim was treated for gingivitis, but by August of 2007 the growths were developing rapidly and to such an extent that oral surgery was necessary to remove them. At that time Victim was diagnosed with the sexually transmitted disease of HPV Type 6 and 7 which is also referred to commonly as genital warts. The oral surgeon treating Victim contacted the Children's Division of the Department of Social Services and an investigation was opened.

On June 13, 2008, Appellant was charged by Information with nine criminal counts. In addition to Count I upon which he was convicted, Appellant was initially charged with the following additional criminal counts: Counts II and III for the class B felony of child molestation in the first degree, violations of section 566.067, for subjecting A.Y. “to sexual contact;” Count IV for the class B felony of child molestation in the first degree, a violation of section 566.067, for subjecting A.M. “to sexual contact;” and Counts V, VI, VII, VIII and IX for the class B felony of child molestation in the first degree, violations of section 566.067, for subjecting E.M. “to sexual contact.” ⁶

At trial, Mother testified that she had never contracted genital warts from Appellant despite the fact that she had engaged in sexual contact with him on numerous occasions. She indicated that Victim had genital warts and that “they're not passed to every person.” Counsel for Appellant objected to this testimony and the trial court ordered Mother's comment be stricken. Then, on re-cross, Mother testified that genital warts were a sexually transmitted disease. Following a side bar with the trial court, Mother then related that “[n]ot everyone will contract [genital warts]. Some people carry it, some people will never have it.” Appellant's counsel did not object to this testimony.

Appellant testified on his own behalf that he did not commit the crimes with which he was charged. He also related that he had been tested for sexually transmitted diseases on two occasions since his incarceration and “both times [the test results] c[a]me back negative.” ⁷

At the close of the State's evidence, the trial court granted Appellant's motion for judgment of acquittal on Counts IV, V, and IX.⁸ The remaining counts were submitted to the jury. Following deliberations, the jury convicted Appellant on Count I as stated above; acquitted him of Count VIII; and was unable to reach a verdict on the remaining Counts II, III, VI and VII such that the trial court declared a mistrial on those counts. As already stated, following his conviction for Count I, Appellant was sentenced by the trial court to five years imprisonment. This appeal followed.

In his first point relied on, Appellant maintains the trial court erred in denying his motion for judgment of acquittal as to Count I and in entering judgment on Count I “because the rulings violated [Appellant's] right to due process of law....” He maintains there was insufficient evidence to prove his guilt beyond a reasonable doubt

in light of [Victim's] testimony that she did not really remember what happened, and she was basing her testimony on her talks with [Mother], and [Mother] told her what happened, her testimony was so inherently incredible or self-destructive that its validity was thereby rendered doubtful and left the mind clouded with doubt.

(internal quotations omitted).

“We review the denial of a motion for acquittal to determine if the State adduced sufficient evidence to make a submissible case.” State v. Davis, 219 S.W.3d 863, 866 (Mo.App.2007). In our review, we determine whether sufficient evidence existed from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id.; State v. Benwire, 98 S.W.3d 618, 623 (Mo.App.2003). “In applying this standard, the reviewing court must consider the record in the light most favorable to the verdict, taking as true the evidence and all logical inferences that support a finding of guilt and ignoring the evidence and inferences that do not support a finding of guilt.” State v. Tolen, 295 S.W.3d 883, 886 (Mo.App.2009). “We view the evidence in the light most favorable to the verdict and defer to the jury's assessment of the credibility of witnesses.” State v. Willis, 239 S.W.3d 198, 199 (Mo.App.2007).

Section 566.067.1 provides: “[a] person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact.” Section 566.010(3) defines “sexual contact” as “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person....”

Appellant argues that the doctrine of destructive contradictions and the corroboration rule apply to Victim's testimony because her testimony alone lacked such probative value that it “was not sufficient to support [Appellant's] conviction....” Specifically he points to the following alleged contradictions: (1) that Victim testified the incident at issue was the only time “this ever happened” and then also testified that Appellant put his “pee-pee” in her vagina; and (2) that Victim admitted she spoke with Mother “a lot” about the incident, that she did not really remember the details of the incident, and that Mother “kind of told [her] what happened.”

“It has long been held that “ ‘the uncorroborated testimony of the victim in a case of sexual assault is sufficient to sustain a conviction.’ ” State v. Paulson, 220 S.W.3d 828, 833 (Mo.App.2007) (quoting State v. Waddell, 164 S.W.3d 550, 553 (Mo.App.2005)). Yet, the Supreme Court of Missouri recognizes an exception to this rule referred to as the “ ‘destructive contradictions' doctrine. The doctrine is properly invoked only when the testimony is so inherently incredible, self-destructive or opposed to known physical facts on a vital point or element that reliance on the testimony is necessarily precluded.” State v. Wright, 998 S.W.2d 78, 81 (Mo.App.1999) (quoting T.L.C. v. T.L.C., 950 S.W.2d 293, 295 (Mo.App.1997)). “The doctrine specifically does not apply to contradictions between the victim's trial testimony and prior out-of-court statements, to contradictions as to collateral matters, or to inconsistencies not sufficient to make the testimony inherently self-destructive.” Id. “Further, it does not apply where the inconsistencies are between the victim's statements and those of other witnesses; the latter types of inconsistencies in testimony simply create questions of credibility for jury resolution.” Id.

Appellant asserts the doctrine of destructive contradictions...