State v. Bewley

Decision Date27 February 2002
Docket NumberSD24159
Citation68 S.W.3d 613
PartiesState of Missouri, Respondent v. Tommy R. Bewley, Appellant. SD24159 Missouri Court of Appeals Southern District 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Mississippi County, Hon. T. Lynn Brown

Counsel for Appellant: Emmett D. Queener

Counsel for Respondent: Richard B. Hicks

Opinion Summary: None

Shrum, P.J. and Montgomery, J., concur.

Robert S. Barney, Chief Judge

Following a bench trial in the Circuit Court of Mississippi County, Tommy R. Bewley ("Defendant") was convicted of two counts of statutory sodomy in the first degree, section 566.062, one count of statutory rape in the first degree, section 566.032, one count of statutory rape in the second degree, section 566.034, one count of statutory sodomy in the second degree, section 566.064, one count of child molestation in the first degree, section 566.067, two counts of endangering the welfare of a child in the first degree, section 568.045, RSMo Cum. Supp. 1998, and two counts of sexual misconduct in the first degree, section 566.090.1

The trial court sentenced Defendant to three consecutive life sentences in the Missouri Department of Corrections for one count of statutory rape in the first degree and two counts of statutory sodomy in the first degree and imposed a consecutive sentence of ten years for child molestation in the first degree. On the remaining counts, the trial court sentenced Defendant to concurrent terms of four years for each count of sexual misconduct in the first degree and endangering the welfare of a child in the first degree, and six years for statutory rape in the second degree and statutory sodomy in the second degree. Defendant appeals, alleging four points of error, discussed below. We affirm.

A review of the facts is set out in a light most favorable to the verdict. State v. Crawford, 32 S.W.3d 201, 204 (Mo.App. 2000). The record reveals several incidents of sexual abuse that appear to be unrelated, save for the fact that all the incidents involved Defendant. In regard to the first incident, on November 5, 1997, fourteen-year-old C.H. ran away from the Missouri Children's Baptist Home in East Prairie, Missouri.2 As C.H. was walking down the road, a van driven by Defendant approached her, stopped, and offered her a ride, which she accepted. Defendant drove C.H. to his house and, after speaking with his wife ("Dee"), invited C.H. into their home.

Once inside, Defendant and Dee offered C.H. some beer and what C.H. believed was marijuana. After drinking and smoking with Defendant and Dee, C.H. began to feel ill. Defendant and Dee directed C.H. into their bedroom. Once there, Dee began kissing C.H. on her mouth and breasts while Defendant touched her breasts and vagina. Defendant then had sexual intercourse with C.H. until she asked him to stop. At that point, C.H. went out and slept on the couch.

The next morning, C.H. accompanied Defendant and Dee to work and helped them in their dry-wall business throughout the day. C.H. returned home with Defendant and Dee that evening and they again drank beer and smoked what C.H. described as marijuana. C.H. eventually passed out and awoke the next morning to find her pants undone. Defendant and Dee took C.H. to East Prairie and dropped her off at the Dollar General Store. C.H. walked over to the police station and advised them that she had run away. She was returned to the Missouri Children's Baptist Home.

Soon after returning, C.H. informed the director of the Baptist Home what Defendant and Dee had done to her the previous two evenings. The director notified police authorities and took C.H. to the hospital for an examination.

Regarding the other incidents, Judy Douglas ("Ms. Douglas"), an employee with the Division of Family Services ("D.F.S."), received a report on September 14, 1999, concerning other incidents of sexual abuse implicating Defendant. The information revealed that Defendant and Dee were "respite providers" for two young children, E.T, a young girl under the age of twelve, and A.T., a young boy under the age of ten.3 Ms. Douglas spoke with E.T. on September 29, 1999, and E.T. informed her that Defendant and Dee had been touching her "[e]verywhere" and that this had occurred "lots of times." E.T. also related to Ms. Douglas that she and her younger brother, A.T., had "do[ne] it" while Defendant and Dee watched, and that "[Defendant] and Dee [did] it and me and [A.T.] watch[ed]."4 E.T. further related to Ms. Douglas that Defendant was "doing it to [A.D.], and her mom and dad don't know it."5

On December 6, 1999, Ms. Douglas interviewed another minor, A.D., who was eight years old at the time, to follow up E.T.'s remark that Defendant had possibly molested A.D. Ms. Douglas coordinated the interview of A.D. with Deputy Roy Moore ("Deputy Moore") of the Mississippi County Sheriff's Department. A.D. informed Ms. Douglas and Deputy Moore that Defendant had "touched her" and when asked where he had touched her, "[s]he simply pointed to her chest area and between her legs . . . ." A.D. was able to recall two specific dates when Defendant had touched her as she had recorded the first incident in her diary and could recall that Defendant had touched her two days prior to her interview, December 4, 1999. When asked if she had seen Defendant touch any other children, A.D. responded that she had seen Defendant touching E.T. A.D. also reported that Defendant had showed her movies where the people "all got in a bed together and they were touching each other" and that Defendant "had magazines there that had naked people in them."

In response to a request by Mississippi County authorities, on December 7, 1999, Karen Henry of the Polk County D.F.S. conducted an interview of A.T., who was then staying in community alternative housing in Bolivar, Missouri. Also, on January 13, 2000, Kathy Carr, a child forensic interviewer for the Child Advocacy Center, conducted an interview of A.T. During both of these interviews, A.T. confirmed that Defendant and Dee had forced him to watch the two having sex. A.T. further related that Defendant had forced him to engage in sexual relations with E.T. and forced him to kiss and lick the private parts of both Defendant and Dee. He also related that Defendant had put his penis in A.T.'s "butt." A.T. stated that when Defendant had A.T. kiss Defendant's penis that "white stuff" would come out. A.T. further recounted that Defendant threatened to kill A.T. if he refused to do these things or ever told anyone.

Based on the information he had gathered, Deputy Moore applied for and received an arrest warrant for Defendant and a search warrant for the home of Defendant. Deputy Moore executed each of the warrants and seized various items from Defendant's residence, including several pornographic videos and a pistol. Defendant was charged with the aforementioned counts involving his activities with C.H., E.T., A.T., and A.D. He was tried before the trial court and was found guilty on all counts charged.

In his first point, Defendant alleges the trial court erred in overruling his motion for acquittal on the count of statutory rape in the second degree involving C.H. because the State failed to present sufficient evidence that Defendant "inserted his penis" into C.H.'s vagina. Defendant avers that C.H. was not able to testify affirmatively that Defendant inserted his penis into her. Further, Defendant contends that C.H. was not a credible witness due to her intoxication at the time of the event and her testimony was not supported by physical evidence presented at trial.6

"In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable finder of fact might have found the defendant guilty beyond a reasonable doubt." State v. Pasteur, 9 S.W.3d 689, 697 (Mo.App. 1999). The standard of review for a court-tried criminal case is the same standard used for a jury-tried criminal case. State v. Daniels, 18 S.W.3d 66, 67-68 (Mo.App. 2000). "Substantial [or sufficient] evidence is that from which the trier of fact could reasonably find the issue in conformity with the verdict." Pasteur, 9 S.W.3d at 697. This Court accepts as true all evidence tending to prove guilt along with all reasonable inferences that support the guilty finding while all contrary evidence and inferences are disregarded. State v. McCarty, 956 S.W.2d 365, 368 (Mo.App. 1997).

We first observe that under section 566.034, "[a] person commits the crime of statutory rape in the second degree if being twenty-one years of age or older, he has sexual intercourse with another person who is less than seventeen years of age." Sexual intercourse is defined as "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." Section 566.010(4).

At trial, C.H. testified that "[Defendant] had sexual intercourse with me." When asked by the State what she meant by sexual intercourse, C.H. responded, "[w]here they put their penis in my vagina." While C.H. did testify that she did not ever see Defendant's penis, when asked on cross-examination how she knew that Defendant had put his penis inside her, C.H. replied, "[b]ecause I felt it go in." Further, C.H. related that she had knowledge and experience regarding sexual intercourse as she testified that previously another person had forced her to engage in sexual intercourse.

The testimony provided by C.H. was direct evidence of the charge of statutory rape in the second degree against Defendant. "Direct evidence is testimony as to the existence or nonexistence of an element of the crime concerning which the witness claims personal knowledge." State v. Butler, 951 S.W.2d 600, 604 (Mo. banc 1997). When confronted with direct evidence, the only function of the trier of fact is to weigh the credibility of the witness. State v. Grim, 854 S.W.2d 403, 418 (Mo. banc 1993). "Witness credibility is a matter...

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