State v. Benwire

• Decision Date: 28 January 2003
• Docket Number: No. WD 60333.,WD 60333.
• Citation: 98 S.W.3d 618
• Parties: STATE of Missouri, Respondent, v. Michael BENWIRE, Appellant.
• Court: Missouri Court of Appeals

98 S.W.3d 618

STATE of Missouri, Respondent, v. Michael BENWIRE, Appellant.

No. WD 60333.

Missouri Court of Appeals, Western District.

January 28, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 27, 2003.

Application for Transfer Denied April 1, 2003.

COPYRIGHT MATERIAL OMITTED

Kent Denzel, Asst. State Public Defender, Columbia, Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Nicole E. Gorovsky, Asst. Attorney General, Jefferson City, Respondent.

Before EDWIN H. SMITH, P.J., JAMES M. SMART, JR., and LISA WHITE HARDWICK, JJ.

JAMES M. SMART, JR., Judge.

Michael D. Benwire appeals his conviction by a jury of first degree child molestation, for which he was sentenced to six years imprisonment. Benwire contests the sufficiency of the evidence to support his conviction and contends that the trial court abused its discretion in admitting certain evidence at trial.

Factual Background

Michael Benwire was charged with statutory sodomy in the first degree, § 566.062, RSMo 2000. The charge asserted that on or about March 23, 2000, the defendant had deviate sexual intercourse with a child less than fourteen years old. Benwire, denied the allegations. At a pre-trial § 491.075 hearing, the court determined that out-of-court statements made by the seven-year-old victim could be introduced at trial because they contained sufficient indicia of reliability to qualify for admission under the statute.

Benwire's jury trial was held in the Dekalb County Circuit Court on May 21, 2001. The jury convicted Benwire of the lesser offense of first degree child molestation, § 566.067, RSMo 2000, and recommended a six-year sentence. On August 9, 2001, the court sentenced Benwire in accordance with that recommendation. Benwire now contests the sufficiency of the evidence to support that conviction on appeal.

The facts are presented in the light most favorable to the verdict. See State v. Driscoll, 55 S.W.3d 350, 351-52 (Mo. banc 2001). In late March of 2000, Michael Benwire was living with a family that included seven-year-old K.T., the victim of the molestation. Seventeen-year-old Benwire was unrelated to the family but evidently had been living with them since around Christmas of 1999. Also living in the home were K.T.'s mother, her younger sister, her mother's boyfriend, and the boyfriend's daughter.

The allegation that Benwire had sexually abused K.T. came to light when K.T. was at a friend's house sometime in late March 2000 and she kissed a little boy on the mouth. Her older friend told her that she needed to wait until she was older to do that, and K.T. replied that she "already knew about sex because Michael had been teaching her." When K.T.'s father learned what K.T. had said, he took her to the Cameron Police Station on March 26, 2000.

At the police station, K.T. was interviewed by two officers, Judy Becker and Terry Lewis. The interview was both videotaped and audiotaped (evidently because the videotape contained no audio). K.T. told the officers that the last time this happened "must have been on Thursday, because I don't spend Friday nights at Mommy's when I go to see my dad." Asked about the difference between a good touch and a bad touch, K.T. explained that a bad touch was touching what she called her "forbidden soul area." When asked what her "forbidden soul area" was, K.T. gestured to between her legs and said that it was "where you go to the bathroom." K.T. told the officers that appellant had touched her forbidden soul area with his mouth, his hands, and his forbidden soul area. K.T. described appellant's forbidden soul as "long, round at the end of it, and [it] had hair around it." K.T. told the officers that this had happened "many times" and that after her mother went to bed, Benwire would come into her bedroom. K.T. said that the abuse happened when she was asleep, but she also stated that by "fall asleep" she meant that she was "staying in my bedroom, watching a movie."

A few days later, K.T. was interviewed by Lieutenant Carol Cummings, a forensic interviewer at the Northwest Missouri Children's Advocacy Center. At that videotaped interview, K.T. indicated to Lieutenant Cummings by way of a diagram that Benwire had touched her vaginal area. She gave the interviewer essentially the same information she had given the officers and used the same terminology for her genital area. She also indicated that Benwire's "forbidden soul" area was his penis. K.T. told Lieutenant Cummings that Benwire touched her at night and that she was asleep when he did it. She said Benwire told her he had done these things to her, and every night before she went to bed he would ask her if he could do these things to her.

K.T. was counseled at the child advocacy center by Joyce Estes. She told Ms. Estes that she knew she was there "because Michael did bad stuff." K.T. also told Ms. Estes that Benwire had rubbed her "forbidden soul" with his hand and with his mouth. K.T. indicated to Ms. Estes that her forbidden soul was her vaginal area by pointing to her own crotch area. In their first session, K.T. told Ms. Estes:

[T]hat it happened in her room; that Michael had showed her about sex; told her to take her clothes off, so she did; and that he rubbed her while they were watching "Casper the Ghost." I asked her if it felt good or bad, and she said, "It felt good."

K.T. told Ms. Estes that the incidents happened in her room at the family home, but that once the appellant rubbed her vaginal area with his mouth and hand when they were in her sister's room in the daytime.

At trial, K.T. took the stand to testify, but her testimony was very difficult to follow. On direct examination, she twice failed to identify the appellant in the courtroom; and, although Benwire had lived with K.T.'s family for over three months, K.T. said that he "almost never" came over to her house. Finally, after stating that she remembered telling Corporal Becker that Benwire did some "awful things" to her, she was able to identify him in the courtroom.

On cross-examination, K.T. agreed that she did not remember anything happening; that she was asleep when it happened; that she did not feel anything; that she did not hear anything; and that she did not think Benwire did anything. She also testified, however, that when she told the officers that Benwire did some awful things to her, she was telling the officers the truth. K.T. testified that she told the officers Benwire did "lots of things" but could not say what they were because, she said, "I don't like saying those words. I'm not allowed to." On recross, K.T. told defense counsel that she had told the three officers and Ms. Estes the "truth about everything." She stated, "I told them all the truth."

Benwire took the witness stand in his own defense and denied that he had touched K.T.'s vagina. He also denied asking to do so while she was asleep or telling her that he had done so.

The jury convicted Benwire of first degree child molestation, and the court sentenced him to six-years imprisonment. Benwire appeals his conviction to this court.

Need for Corroboration

Benwire asserts that the evidence was not sufficient to prove beyond a reasonable doubt that he touched K.T.'s genitals. Benwire argues that because K.T. denied at trial that anything happened, the testimony of her prior out-of-court statements, presented under § 491.075, must be corroborated because that evidence was so inconsistent and contradictory as to deprive it of any probative force. Benwire cites State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995), for the proposition that, in cases of sexual offenses, where the evidence is so contradictory that it is deprived of probative force, the testimony must be corroborated.

In considering the sufficiency of the evidence in a criminal case, this court views the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the verdict and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). "[R]eview is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." Silvey, 894 S.W.2d at 673 (quoting State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989)).

In this point, Benwire appears to be arguing: (1) that K.T. completely denied on the witness stand that anything happened, and therefore this case, like State v. Pierce, 906 S.W.2d 729 (Mo.App. 1996), should be reversed;¹ (2) that K.T.'s in-court testimony was so contradictory and inconsistent that the corroboration rule is triggered;² and (3) that testimony concerning K.T.'s out-of-court statements presented pursuant to § 491.075 cannot alone support the conviction without those statements themselves being corroborated.

It is not necessary to address all of Benwire's somewhat conflicting theories, because the evidence of K.T.'s out-of-court statements alone was enough to support the conviction. Here, where K.T.'s out-of-court statements were admitted pursuant to § 491.075 after a hearing to determine their reliability,³ corroboration was not necessary. Out-of-court statements by a child under the age of twelve admitted under the provisions of § 491.075 are considered substantive evidence of the truth of the matter asserted. § 491.075.1. Such statements, and any reasonable inferences that may be drawn from those statements, "may alone constitute substantial evidence of an element of the offense charged." State v. Goad, 926 S.W.2d 152, 156 (Mo. App.1996).

K.T.'s out-of-court statements were admitted under the provisions of § 491.075 after a hearing and could properly be considered by the jury as substantive evidence of the truth of her claim that the appellant touched her genitals. Goad, 926 S.W.2d at 156. K.T.'s descriptions of the abuse, including her statements that Benwire touched her "forbidden soul" (vaginal...