State v. Atkeson

• Decision Date: 16 April 2008
• Docket Number: No. 28082.,28082.
• Citation: 255 S.W.3d 8
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Sharon ATKESON, Defendant-Appellant.
• Court: Missouri Court of Appeals

255 S.W.3d 8 STATE of Missouri, Plaintiff-Respondent,
v.
Sharon ATKESON, Defendant-Appellant. No. 28082. Missouri Court of Appeals, Southern District, Division Two. April 16, 2008. Rehearing Denied May 2, 2008.

[255 S.W.3d 9]

Ellen H. Flottman, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Lisa M. Kennedy, Assistant Attorney General, Jefferson City MO, for Respondent.

DON E. BURRELL, J.

In April of 2006, Sharon Sue Atkeson ("Defendant") was charged with fourteen counts of statutory sodomy in the first degree, violations of section 566.062,¹ and one count of incest, a violation of section 568.020. After a jury trial,² Defendant was found guilty on all counts.

Defendant's two sons, H.A., born March 18, 1989, and D.A., born June 27, 1991 ("the boys"), lived with Defendant and her boyfriend from April of 1995 until November of 1997. Both H.A. and D.A. testified that Defendant made them touch her vagina and that she touched their penises. The boys also testified that Defendant would place her mouth on their penises and would force them to also place their mouth on her vagina. H.A. was six years old and D.A. was about four when Defendant started engaging in sexual activity with them.³ The boys also claimed that

255 S.W.3d 10

Defendant would force them to masturbate her and that she would also masturbate them. Taken in the light most favorable to the jury's verdict, Defendant sexually abused her sons on a weekly basis for a year-and-a-half period ending in November of 1997 when the boys moved out of Defendant's home. D.A. and H.A. first reported the sexual abuse in 2005.

After the boys disclosed the sexual abuse, H.A. received counseling from Richard Jenkins ("Jenkins"), a licensed professional counselor. At trial, Jenkins (without objection) testified about various things H.A. had told him during their counseling sessions.

During the penalty phase of the trial, the jury sent the judge a note which read "[w]ill they run together or seperate [sic][?]" The judge interpreted the note to be a question about whether any sentences given on the separate counts would run concurrently or consecutively. After receiving input from counsel, the judge responded with a written note to the jury (without objection) which read "you must be guided by the written instructions of the Court given to you."

On appeal, Defendant alleges the trial court erred by not, sua sponte, excluding Jenkins' testimony about the various statements H.A. made to him and for failing to answer the jury's question about whether any sentences would run "together or seperate [sic]." As counsel for Defendant did not object at trial to either the testimony of Jenkins or to the trial judge's response to the jury's question and did not file a motion for new trial, Defendant acknowledges that the only review available is for plain error.

Standard of Review

Under Rule 30.20,⁴ an appellate court may consider plain errors affecting substantial rights when the court determines that a manifest injustice or miscarriage of justice has occurred. Rule 30.20; State v. Galbreath, 244 S.W.3d 239, 246 (Mo.App. S.D.2008). Plain error review involves a two step process. State v. Ward, 235 S.W.3d 71, 75-76 (Mo.App. S.D. 2007). Initially, the court determines whether the asserted claim of error facially establishes substantial grounds for believing that a manifest injustice or miscarriage of justice has occurred. Id. at 76. If those grounds are found to exist, then the court proceeds to the second step of the analysis in which the court determines whether a miscarriage of justice or manifest injustice has actually occurred. Id. Where facially substantial grounds are not found to exist, the appellate court will...