State v. Boone

• Decision Date: 02 November 1993
• Docket Number: Nos. WD,s. WD
• Citation: 869 S.W.2d 70
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. Leslie V. BOONE, Appellant. Leslie V. BOONE, Appellant, v. STATE of Missouri, Respondent. 45082, WD 47007.

Page 70

869 S.W.2d 70

STATE of Missouri, Respondent, v. Leslie V. BOONE, Appellant.

Leslie V. BOONE, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 45082, WD 47007.

Missouri Court of Appeals,

Western District.

Nov. 2, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 28, 1993.

Application to Transfer Denied Feb. 22, 1994.

Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., F. Martin Dajani, Asst. Atty. Gen., Jefferson City, for respondent.

Before Ulrich, P.J., and BERREY and SMART, JJ.

SMART, Judge.

Leslie V. Boone appeals from the trial court's judgment finding him guilty of three counts of sodomy, in violation of § 566.060 RSMo 1986, and one count of forcible rape, in violation of § 566.030, RSMo 1986. Defendant Boone was sentenced as a prior and persistent offender to thirty years imprisonment on each sodomy conviction and life imprisonment on the rape conviction. The sentences were ordered to run consecutively. Defendant also appeals the denial of his Rule 29.15 motion for post-conviction relief after an evidentiary hearing.

The judgment of conviction is affirmed in part, and vacated in part. The judgment denying the motion for post-conviction relief is affirmed.

Defendant Boone was originally charged with six counts of sexual abuse in the second degree, four counts of sodomy and one count of forcible rape. The state entered a nolle prosequi to all six counts of sexual abuse in the second degree and to one count of sodomy. The cause proceeded to trial on three counts of sodomy and one count of forcible rape.

In the summers of 1987 and 1989, defendant worked for his sister, Debra Carter, ¹ in her day care service located in her home in Gladstone, Missouri. Ms. Carter and defendant took care of a large number of children, including Ms. Carter's children, Amy, Lisa and Shawna, and another child, Fara Smith.

On January 9, 1990, Fara Smith, who was thirteen years old at the time of trial, made a police report alleging that she had been sexually assaulted by defendant. Fara alleged that defendant touched her in her "private parts" while she was under his care. Fara made a statement to the police, which included a drawing made by Fara showing the body parts which were touched by defendant and identifying the locations where defendant assaulted her in the Carter home.

Amy Carter, who was five years old at the time of trial, told Gina Saunders, a therapist working with the Carter family, that defendant had touched her "private parts." Amy did not elaborate further on defendant's sexual abuse.

Lisa Carter, age 13 at the time of trial, also alleged that she was sexually assaulted by defendant. In August, 1989, Lisa alleged that defendant grabbed her, laid her on the bed, pulled down her shorts and started touching her "private parts." Defendant inserted his finger into Lisa's vagina. He also threatened Lisa not to tell anyone and that if she did he would kill her mother. Defendant attacked Lisa for a second time in August, 1989 while Lisa's parents were away. Defendant came into the bedroom and locked the door behind him and proceeded to rape Lisa. During this attack, Lisa yelled for help and her sister, Shawna, began pounding on the bedroom door, but was unable to get through the locked door. Defendant stopped assaulting Lisa when he heard Shawna at the door.

After defendant's arrest, he gave several voluntary statements to the police on separate occasions. In the first interview, he denied molesting the children in question. He then made the remark, "I guess I will be going back to the pen." In a later written statement, he admitted that he sexually abused children, and acknowledged that he had been molesting children for nineteen years. In a subsequent oral statement, he explained that his touching of the children was his way of saying he loved them. He further stated that most of the girls he touched wanted him to touch them, and that he did not force or coerce them. He made other statements which amounted to admissions that he touched the children for purposes of sexual gratification.

During trial, defendant denied all the allegations of sexual misconduct. Defendant claimed that he lied to police when he admitted that he had sexually abused the children. On cross-examination, when asked about his acknowledgment of having been a child molester for nineteen years, he stated that he could not recall that discussion. He was then impeached with a document he identified as a written statement he had signed, which contained this acknowledgement. At the conclusion of the trial, the jury returned guilty verdicts on all four counts charged against defendant. The trial court entered judgment against defendant, from which he now appeals.

Verdict Directing Instruction No. 13

First, defendant contends that the trial court clearly erred in submitting verdict directing instruction No. 13, patterned after MAI-CR3d 320.08.2 to the jury. Defendant alleges that the instruction was defective and that its submission violated his rights to due process of law, as guaranteed by the fifth, sixth and fourteenth amendments to the United States Constitution, and by Article I, § 10 of the Missouri Constitution, resulting in a manifest injustice. The State concedes that the verdict directing instruction was defective in that the actions of defendant submitted to the jury (the alleged touching of the anus of Fara Smith by defendant) did not violate § 566.060, RSMo 1986. Thus, the conviction and sentence as to Count III is reversed and the case is remanded with instructions to the trial court to correct the judgment and sentence accordingly.

Defendant's Statements

Defendant alleges that the trial court erred in allowing the State to introduce statements made by defendant during the trial, alluding to defendant's prior incarceration, and statements made by defendant indicating uncharged sexual acts. Defendant claims the testimony was irrelevant, inadmissible and so prejudicial as to violate defendant's rights to be tried only for the charged offenses and to a fair trial, as guaranteed by the fifth, sixth and fourteenth amendments to the United States Constitution and Article I, §§ 10 and 18(a) of the Missouri Constitution. Defendant alleges that the testimony was inadmissible under any exception to the rule prohibiting evidence of other crimes, was not legally relevant because any probative value was outweighed by its highly prejudicial effect, and the evidence was introduced solely for the improper purpose of attempting to show defendant's bad character and propensity to commit the charged offenses.

A trial court has broad discretion in ruling on questions of relevance and its decision will be overturned only upon a finding of a clear abuse of that discretion. State v. Driscoll, 711 S.W.2d 512, 516 (Mo. banc 1986), cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986). Generally, evidence of prior crimes is inadmissible, unless it has a legitimate tendency to prove the crimes charged. State v. Shaw, 636 S.W.2d 667, 671-72 (Mo. banc 1982); cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982). Evidence of other crimes has a legitimate tendency to prove the crime or crimes charged when it tends to establish: motive, intent, absence of mistake or accident, a common scheme or plan, or identity. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). However, such evidence may still be admissible if it is logically relevant (the evidence has some legitimate tendency to establish directly the defendant's guilt of the charged offenses) and legally relevant (its probative value outweighs its prejudicial effect). Id. The test utilized to determine whether evidence is logically relevant is whether "it logically tends to prove or disprove a fact in issue or to corroborate evidence which itself is relevant and bears on the principal issue." Id. Evidence may be excluded as irrelevant only if it is shown to be so beyond doubt. State v. O'Neal, 718 S.W.2d 498, 503 (Mo. banc 1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 702 (1987).

Defendant argues that evidence of his prior incarceration and evidence of other sexual acts fails to fit into any exception to the general prohibition of presenting evidence of other crimes. The evidence of the prior incarceration and other sexual acts was legally and logically relevant and its probative value outweighed its prejudicial effect. Thus, the evidence of prior incarceration, elicited through testimony, and evidence of alleged prior sexual offenses, elicited through testimony and mentioned during closing arguments, was properly admitted as discussed below.

Evidence of Prior Incarceration

After defendant had been given his "miranda warning," he agreed to talk to Officer Viles. Officer Viles explained to defendant what allegations had been lodged against him and defendant denied any allegations of molestation. He made an additional unsolicited comment to Officer Viles, "I guess I'll be going back to the pen." Defense counsel objected to the testimony as improper evidence of prior crimes. In seeking to overcome the objection, the prosecution first suggested that the statement was "an admission as to his past record." Then, in a further effort to justify admission of this remark, the prosecutor stated, "It's an admission of guilt on his part." The trial court overruled defendant's objection.

Defendant is correct in his assertion that evidence of prior incarceration is evidence of other crimes. State v. Johnson, 753 S.W.2d 576, 579 (Mo.App.1988). However, defendant's statement to Officer Viles had a legitimate tendency to directly establish defendant's guilt of the charged crimes by showing consciousness of guilt and expectation of conviction. Additionally, because the comment was an admission of consciousness of guilt of the present crimes, the evidence was highly probative, which...