State v. Burroughs
| Decision Date | 30 March 2021 |
| Docket Number | ED 108518 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, Respondent, v. Timothy Dean BURROUGHS, Appellant. |
James C. Egan, 1000 W. Nifong, Bldg. 7, Suite 100, Columbia, MO 65203, for appellant.
Julia E. Rives, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102, for respondent.
Timothy Dean Burroughs (Appellant) appeals from the trial court's judgment, after a jury trial, convicting him of attempted rape in the first degree. He was sentenced to ten years of imprisonment. We affirm.
The State of Missouri (State) charged Appellant with attempted rape in the first degree, in violation of Section 566.030 RSMo.1 The information alleged that on November 16, 2017, he knowingly attempted to insert his penis into L.W.’s2 vagina for the purpose of committing rape. A jury trial was held on October 22, 2019. The parties stipulated to the fact L.W. was declared incompetent on October 10, 2018, and as a result she was unavailable to testify as a witness at trial. The parties further stipulated there was no evidence that L.W.’s incapacity was caused by the alleged incident in this case. The trial court sustained Appellant's motion in limine to prohibit the hearsay statements of L.W. because they would violate his right to confrontation. Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial showed the following facts.
Appellant met L.W. at a Conoco gas station one or two months before the incident occurred. L.W. was homeless at the time and had been sleeping in her car with her service dog, Lady Bug. Appellant offered to let L.W. stay with him and his mother. L.W. agreed and went home with him. The next day, Appellant took L.W. to Agape – a local non-profit organization where individuals living at or below poverty could seek assistance – and helped her obtain a voucher to stay at a nearby hotel for the following two nights.
Appellant did not see or hear from L.W. for the next two weeks until she called him from a hospital in Washington, Missouri. She was unable to get into a homeless or women's shelter because of Lady Bug, so she asked to stay with him. Appellant picked her up from the hospital and let her sleep on the sofa in the living room. L.W. stayed with Appellant and his mother for about a month.
On November 20, 2017, an ambulance was called because L.W. was having difficulty breathing. Officer Tyler Czarnowsky (Officer Czarnowsky) of the Warrenton Police Department responded to assist the first responders with transportation needs. When he arrived, he saw L.W. sitting on the sofa and Appellant beside her. L.W. waved to Officer Czarnowsky to gain his attention and mouthed or whispered, "help me." Officer Czarnowsky asked Appellant to go into the other room to retrieve L.W.’s medications. When Appellant left the room, L.W. repeated to Officer Czarnowsky "help me" and then said, "he raped me." Officer Czarnowsky told the first responders to take L.W. to the hospital. Officer Czarnowsky called his supervising officer en route to the hospital and relayed what L.W. had told him.
Detective Justin Unger (Detective Unger) met L.W. at the hospital and seized a red "onesie" night gown that she reported wearing when the incident occurred. A sexual assault nurse examiner (SANE), Angie Elgin (Nurse Elgin), conducted a SANE examination with L.W., which consisted of an interview and a sexual assault examination to collect and preserve forensic evidence for the purpose of prosecution. During the SANE exam, Nurse Elgin found bruising on L.W.’s inner thighs and used an ALS light to discover a laceration in her rectal area, but did not take pictures of either injury.
The next day, Detective Unger called Appellant and asked him to report to the Warrenton Police Department to answer some questions. Appellant agreed. Detective Unger video recorded his interview with Appellant (Interview Video). Appellant said L.W. sometimes took medications that resulted in her sleeping heavily. He denied having sex with L.W. He said L.W. slept on the couch. He admitted to pulling down L.W.’s pants on the first night she came home with him and was sleeping on his bed, but she woke up and pulled her pants back up. L.W. asked Appellant why he pulled her pants down; he told her he was horny. She told him she just wanted to be friends and she "drew a line." Detective Unger told Appellant that L.W. claimed he had sex with her in a chair and she woke up and saw him penetrating her. She said she woke up and found semen on her and he stopped when she told him to do so. Appellant denied all these allegations.
Appellant denied that he ever had sexual intercourse with L.W. He recalled that on the night of the incident, L.W. was medicated and was stumbling around, so he helped her get on the couch. He said she fell asleep but was still sitting upright on the couch, and he was on his knees in between her legs. He described her as wearing a red onesie matching the one seized at the hospital. The onesie had buttons starting at the collar going down until the middle of the crotch area. He said he unbuttoned her red onesie, tried to get his penis into her vagina but was unable to get an erection and did not ejaculate. Detective Unger told Appellant he was having trouble believing this given that L.W. said she woke up with semen on her. Appellant said L.W. woke up and told him that he did not have her "consent." He then retracted that statement, and said she told him she "felt that." Appellant said he then pulled his pants up. Detective Unger asked if L.W. told him to stop. Appellant replied, "not that I know of."
The jury found Appellant guilty of attempted rape in the first degree and recommended a punishment of ten years of imprisonment. The trial court sentenced him to ten years.
This appeal follows.
Appellant raises eight points on appeal. Points I and VIII argue the trial court erred in admitting Appellant's extrajudicial statements to Detective Unger because there was insufficient evidence of the corpus delicti of the offense. Points II and III challenge the admission of Officer Czarnowsky's testimony relating to L.W.’s statements because they violate the rule against hearsay and the confrontation clause. Points IV, V, and VI challenge the trial court's failure to instruct the jury that L.W.’s statements could not be considered for the truth of the matter asserted. Finally, Point VII argues there was insufficient evidence to find Appellant guilty of attempted rape in the first degree because the State did not prove L.W. was incapacitated, lacked consent, lacked the capacity to consent, or was subjected to forcible compulsion.
In Point I, Appellant argues the trial court erred in admitting his extrajudicial statements to Detective Unger, both in Detective Unger's testimony and in playing the Interview Video, as substantive evidence because there was insufficient proof of the corpus delicti of the offense of attempted rape in the first degree. In Point VIII, Appellant argues the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because the State failed to present independent proof of the corpus delicti – that Appellant tried to have sexual intercourse with L.W. without her consent and while she was incapacitated. We address these points together because they overlap on the corpus delicti issue. The State responds there was no error because it presented slight but sufficient corroborating facts demonstrating L.W. was the subject of a sexual assault.
The State asserts Appellant did not preserve his corpus delicti argument – that the trial court improperly permitted Detective Unger to testify about Appellant's extrajudicial statements – because he failed to renew his objection at the time the State asked Detective Unger about Appellant's statements. To preserve a claim of error, counsel must object with sufficient specificity to apprise the trial court of the grounds for the objection. State v. Amick , 462 S.W.3d 413, 415 (Mo. banc 2015). Where a party requests and receives a continuing objection from the trial court, the objection is properly preserved for appeal unless expressly vitiated by later statements at trial. State v. Baker , 103 S.W.3d 711, 716-17 (Mo. banc 2003).
Appellant objected to the admission of all of his statements to Detective Unger on the grounds that it would violate the rule requiring independent evidence of the corpus delicti. The trial court overruled his objection, but granted him a continuing objection. Appellant included his corpus delicti argument in his motion for new trial. The State's assertion amounts to a claim that Appellant waived this argument because he failed to renew his objection on the grounds of corpus delicti. However, the Missouri Supreme Court has held that a continuing objection preserves the issue even under circumstances where the party repeatedly said "no objection" in response to the admission of evidence. See Baker , 103 S.W.3d at 717. Appellant did not have an obligation to renew his objection by reasserting the argument for which he had already been granted a continuing objection. Accordingly, Appellant properly preserved his objection to the admission of his extrajudicial statements to Detective Unger on the basis of corpus delicti.
Having determined that Appellant properly preserved his corpus delicti argument, we review the trial court's admission of Detective Unger's testimony and the Interview Video for an abuse of discretion.
Trial courts have broad discretion to admit or exclude evidence at trial. State v. Cannafax , 344 S.W.3d 279, 285 (Mo. App. S.D. 2011). An abuse of discretion occurs where the ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful,...
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