State Of Mo. v. W. Mort

• Decision Date: 09 September 2010
• Docket Number: No. SD 30147.,SD 30147.
• Citation: State v. Mort, 321 S.W.3d 471 (Mo. App. 2010)
• Parties: STATE of Missouri, Respondent, v. Joseph W. MORT, Appellant.
• Court: Missouri Court of Appeals

321 S.W.3d 471

STATE of Missouri, Respondent,

v.Joseph W. MORT, Appellant.

No. SD 30147.

Missouri Court of Appeals,Southern District,Division Two.

Sept. 9, 2010.

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Daniel A. Juengel and Julie L. Brothers, Clayton, for Appellant.

Chris Koster, Attorney General and Daniel N. McPherson, Assistant Attorney General, Jefferson City, for Respondent.

WILLIAM W. FRANCIS, JR., Judge.

Joseph Mort (“Appellant”) was convicted by a jury on two counts of first degree statutory sodomy in violation of section 566.062 ¹ . Appellant was sentenced to consecutive terms of life imprisonment. This appeal followed. We affirm the trial court's judgment.

Factual and Procedural History

Appellant was charged by information with two counts of first degree statutory sodomy. ² Appellant was the victim's step-father at the time charges were filed and began abusing her when she was nine years old.

We review the facts in the light most favorable to the verdict and recite them with that standard in mind. See State v. McDonald, 321 S.W.3d 313, 315-16 (Mo.App. S.D.2010).

Appellant, the victim, the victim's mother, and Appellant's two children, lived at Appellant's home in Webb City. The victim's mother moved out and left the victim behind with Appellant. After a few months, the victim moved out of Appellant's house and began living with her mother. She would sometimes stay with Appellant on the weekends. Appellant came into the victim's room at night and licked her vagina during those weekend visits. He abused the victim at least one time during every weekend visit. On one occasion, the victim's best friend was spending the night, and the two girls were playing in the computer room of the house. Appellant and a friend of his, Chad Elliott (“Elliott”), came into the room and made both girls lift up their nightgowns and pull down their shorts. ³ Appellant touched the victim's vagina with his hand and inserted his finger into her vagina.

On May 2, 2006, forensic interviewer Jeannie Stewart (“Ms. Stewart”), interviewed the victim. Dr. Fredric Wheeler (“Dr. Wheeler”) then performed a SAFE exam at the Children's Center of Southwest Missouri. The Children's Center is a not-for-profit child advocacy center that is a distinct agency from the Missouri Children's Division. ⁴ The victim told Ms. Stewart and Dr. Wheeler that Appellant had licked her vagina. The victim did not disclose any other sexual abuse at that time.

On September 29, 2006, the victim underwent a second forensic interview at the Children's Center where she further disclosed Appellant had inserted his finger into her vagina. Both forensic interviews were videotaped. The victim again described the incident in the computer room. In the second interview, the victim said Appellant touched her vagina with his hand and inserted his finger into her vagina.

On July 1, 2008, a two-count information was filed by the State against Appellant.

On July 22, 2008, Appellant filed a motion for a bill of particulars. On August 6, 2008, the State filed a bill of particulars. ⁵

On August 6, 2009, Appellant filed a “Motion in Limine to Exclude Admission of Testimony of Dr. Fredric Wheeler” alleging his finding of sexual abuse was prejudicial and irrelevant because Dr. Wheeler could not identify the perpetrator. On August 7, 2009, Appellant and the State filed a stipulation, pursuant to section 491.075, agreeing to the admission of the videotaped statements of the victim into evidence as long as the victim also testified at trial.

At a pre-trial hearing on August 28, 2009, defense counsel argued that Dr. Wheeler's testimony concerning the victim's attenuated hymen was prejudicial and lacking in probative value since it was not indicative of the mouth-to-genital-contact charge included in the bill of particulars. The prosecutor responded that defense counsel had received the victim's interviews where the victim also alleged Appellant placed his finger in her vagina. The trial court noted the charges had not been changed and the probable cause statement, which was incorporated into the original complaint, included the victim's statement that Appellant inserted his finger into her vagina. The trial court overruled Appellant's motion in limine. Appellant's counsel then renewed the request for a bill of particulars stating specifics regarding the digital penetration. The same day the State filed a second bill of particulars. ⁶

Appellant's counsel also made an oral motion to exclude any photographs of the victim's hymen taken during the SAFE exam performed by Dr. Wheeler. He argued that the photographs “freaked [him] out” and did not establish that Appellant was responsible for the damage to the victim's hymen. The trial court overruled the motion finding the probative value of the photographs outweighed any prejudicial effect.

Also at the pre-trial conference, the prosecutor expressed doubt regarding the ability of the defense to call a potential witness, Shawn Boyd (“Ms. Boyd”) because she had not been disclosed as an expert witness. Defense counsel noted that Ms. Boyd was the area director for the Missouri Children's Division and she would testify to the policies and procedures followed in the present case. The trial court deferred its decision until the State had an opportunity to conduct a voir dire examination of the witness.

During trial, the victim testified that when her mother moved out of the home, she continued to live with Appellant for a few months. During that time, he touched and licked her vagina. She also testified that after she began living with her mother again, during weekend visits to Appellant's house he touched and licked her vagina at least one day of every weekend. She testified that on one occasion when her best friend was spending the night with her at Appellant's residence, Appellant and his friend, Elliott, came in the computer room and Appellant touched her in the private area with his fingers. The victim's testimony was presented without objection.

When Dr. Wheeler was called to testify, the defense made no objection regarding his testimony. During Dr. Wheeler's trial testimony, the prosecutor offered Exhibit 6, a close-up photograph of the victim's attenuated hymen. Defense counsel objected that the photograph was not probative, was offensive, and highly prejudicial. This was the only objection by defense counsel during Dr. Wheeler's direct examination. Dr. Wheeler testified he did not know if the jury needed to see the photograph, but he thought it would “help[ ] explain some of what's going on.” The trial court overruled the objection. Dr. Wheeler pointed out the anatomy of the vagina and used the picture to show his findings from the SAFE exam. He explained that the victim had an attenuated hymen and this condition in a girl of the victim's age meant there had been some sort of penetration.

The State also played, without objection, the two videotaped interviews from the Children's Center where the victim reported that Appellant placed his finger into her vagina and licked her vagina. Ms. Stewart, the forensic interviewer also testified at trial. The State did not present any evidence relating to the investigations conducted by the Missouri Children's Division.

After the State rested its case, but before the defense called any witnesses, the prosecutor conducted a voir dire examination of Ms. Boyd outside the jury's presence. Ms. Boyd testified she conducted a review in September, 2006, of an investigation conducted by two Children's Division employees regarding allegations that Elliott abused the victim's friend, mentioned in the Children's Center interview, and the friend's sister. During this review, she was not evaluating whether Ms. Stewart did anything inappropriate while conducting the interviews with the victim at the Children's Center. Ms. Boyd was unable to say there was anything improper about the victim being interviewed a second time at the Children's Center except she noted a second interview can sometimes give the impression of possible coaching. Specifically, she pointed to a comment allegedly made by a sheriff to the victim's mother after the first interview, stating that there was not enough evidence to go forward with the charges as an indication of possible coaching between interviews. She testified she had some training in conducting forensic interviews, and that she did not have any actual evidence that someone actually coached the victim. The trial court sustained the State's motion to exclude Ms. Boyd's testimony because she had not been endorsed as an expert witness and her testimony was irrelevant since there were no issues in the case regarding proper Children's Division protocol. Defense counsel then made an offer of proof by questioning Ms. Boyd under oath. Following Ms. Boyd's testimony, the prosecutor renewed her objection to the testimony and it was sustained by the trial court. The defense did not put on any evidence.

The State submitted instructions to the jury on Count I, alleging Appellant knowingly touched the victim's vagina with his fingers, and Count II, alleging Appellant knowingly placed his tongue on the victim's vagina. The defense made no objection to the jury instructions. The jury found Appellant guilty on both counts and recommended a sentence of life imprisonment on each count. The trial court ordered a Sentencing Assessment Report (“SAR”) and investigation by the Missouri Department of Corrections Board of Probation and Parole.

During the sentencing proceedings on October 16, 2009, the trial court explained it had reviewed the SAR recommending a presumptive sentence of ten years in prison and an aggravating sentence of fifteen years. The trial court also found that the jury's assessment was within the statutory range of punishment and not excessive, and imposed a life sentence on each count. The trial court then ordered...