State v. Butler

• Decision Date: 21 March 2000
• Citation: 24 S.W.3d 21
• Parties: (Mo.App. W.D. 2000) State of Missouri, Respondent, v. Ivron Butler, Appellant. WD53344 0
• Court: Missouri Court of Appeals

24 S.W.3d 21 (Mo.App. W.D. 2000)

State of Missouri, Respondent, v. Ivron Butler, Appellant.

WD53344

Missouri Court of Appeals Western District

03/21/2000

Appeal From: Circuit Court of Clay County, Hon. Victor Howard

Counsel for Appellant: Kevin L. Jamison

Counsel for Respondent: John M. Morris and Cheryl A. Caponegro

Opinion Summary: The defendant having been convicted by a jury for the forcible sodomy of a sixteen year-old victim, as well as the felonious restraint of that victim and a companion, and two counts of armed criminal action, raised three points: 1) insufficient evidence of the sodomy; 2) evidence of uncharged crimes; and 3) insufficient evidence of armed criminal action.

Lowenstein, J. would affirm holding: 1)a) The unobjected to testimony of the state's expert on hair comparison on her examination of the areas of similarity between the head and pubic hairs found on the victim and those of the defendant, were sufficient to support the judgment; and b) the expert's opinion that "within a reasonable degree of certainty," that the hairs found in the victim's clothing were from the defendant. Both amounted to the quantum of sufficient evidence to support the sodomy conviction. The opinion also held: 2) the evidence of other crimes did not warrant the granting of a mistrial and, 3) there was sufficient evidence that the victims believed the defendant was brandishing a real gun.

Concurring Opinion Summary by Judge Breckenridge:

The expert witness's testimony that, to a reasonable degree of certainty, the hairs found on one of the victim's clothing were from the defendant and that a match of hair from two body parts was "like double significance of evidence" was inadmissible because it was not based upon scientific principles that are generally accepted in the relevant scientific community. This deficiency is an issue of lack of scientific foundation, however, and this court is precluded from considering any lack of scientific foundation for the improper testimony when ruling on the issue of submissibility, as the defendant failed to preserve the issue of its admissibility by not objecting to it at trial. Moreover, this court is precluded from conducting plain error review of its admissibility because the defendant's reason for not objecting to it at trial was a matter of his counsel's trial strategy. When the entirety of the expert witness's testimony is considered with the other evidence in this case, it is sufficient to provide a reasonable juror with proof of the defendant's guilt beyond a reasonable doubt.

Dissenting Opinion Summary by Judge Stith:

The dissenting judges disagree with the judges concurring in the per curiam affirmance because we would hold that the evidence was not sufficient to support a verdict that defendant was guilty beyond a reasonable doubt. The expert witness' testimony on which the State relied to make a submissible case -- that the two hairs found on the victim were very probably defendant's hair, that they were his hair to a reasonable degree of certainty, and that the fact that hair from two parts of the body matched was "like double significance of evidence" -- was inadmissible because it was not based on scientific principles generally accepted in the relevant scientific community. We agree that defense counsel failed to preserve this error by failing to object to it, instead erroneously determining that the proper strategy was to object to the testimony at the time the case was submitted. Nonetheless, because the expert's own testimony at trial established that the state of scientific knowledge did not permit her to come to the conclusions she testified to that defendant was the source of the hair, she effectively negated her own opinion, and under the Missouri Supreme Court's opinion in Callahan it was entitled to no weight in determining whether a submissible case was made. Absent this evidence, as Judge Breck-en-ridge also notes in her concurring opinion, the evidence was insufficient to make a submissible case on the issue whether defendant was the perpetrator. Accordingly, we would reverse the conviction.

Before Breckenridge, Chief Judge, Lowenstein, Ulrich, Spinden, Smart, Ellis, Stith, Smith, Riederer,¹ Judges, and Kennedy and Hanna, Senior Judges

PER CURIAM

Seven judges concur in affirming the judgment of the circuit court. Accordingly, the judgment of the circuit court is affirmed.

Lowenstein, J., concurs in separate opinion filed, in which Hanna, Sr.J., concurs.

Spinden, J., concurs in separate opinion filed, in which Smart, J., concurs.

Breckenridge, C.J., concurs in separate opinion filed, in which Ulrich and Smith, JJ., concur.

Stith, J., dissents in separate opinion filed, in which Ellis, J., and Kennedy, Sr.J., concur.

Ellis, J., dissents in separate opinion filed, in which Stith, J., concurs.

Note:

Concurring Opinion by Judge Lowenstein:

A jury convicted Ivron Butler of forcible sodomy, section 566.060, RSMo Cum. Supp. 1993, felonious restraint, section 565.120, RSMo 1994, and two counts of armed criminal action, section 571.015, RSMo 1994. Mr. Butler was found to be a prior and persistent offender under sections 558.016 and 557.036, RSMo 1994, and was sentenced accordingly to consecutive terms of life imprisonment for forcible sodomy, section 566.060.2, RSMo Cum. Supp. 1993, seven years for felonious restraint, section 558.011.1(3), RSMo Cum. Supp. 1993, and 100 years each for the two counts of armed criminal action, section 571.015.1, RSMo 1994. On appeal, the defendant claims that the court erred in denying his motion for a mistrial because the court allowed evidence of uncharged crimes, in submitting the jury instruction on armed criminal action, and finally, "in denying [his] motion for judgment of acquittal on the grounds of insufficient evidence."

Factual and Procedural Background

On August 31, 1993, at approximately 9:30 p.m., two boys, sixteen-year-old J.L. and thirteen-year-old N.E., were sitting idly by a lake and boat storage area at the Lakeview Terrace Mobile Home Court in Clay County, where they both lived. An individual, dressed in a T-shirt and shorts, walked by the boat storage area several times and asked the boys if they had seen someone waiting around who was supposed to help him take his boat out of storage. When the boys told him they had not seen anyone, he offered them some money to help him get his boat ready to take to the lake. The boys agreed. The man, who was the perpetrator of the crimes, said that he had to go home to get the combination to unlock the boat storage gate. The perpetrator returned within a short period of time. On return, the perpetrator told the boys that he could not find the combination to the lock, but that he knew a spot where they could climb over the fence. The location where the fence was supposedly down was in the back of the boat storage area. It was a secluded area of the mobile home park. The perpetrator then directed the boys to that place, explaining that it would hide them so that no one would think they were breaking in.

The man followed J.L. and N.E. through a wooded area around the chain link fence which secured the boats stored there. As they were walking, he said, "Who is going to be the hero?" or "Don't be a hero." J.L. and N.E. turned around and saw a gun in the man's hand. He told the boys if they cooperated, they would be all right. He ordered J.L. to lie on top of N.E. He tied J.L.'s hands behind his back with a rope, moved him over on his stomach next to N.E., and then tied N.E.'s hands behind his back. J.L. asked what he was going to do, and the man explained in harsh, crude language what he intended to do. The man pulled down J.L.'s shorts and underwear and had anal intercourse with J.L.

Neither boy got a good look at the assailant.¹ N.E. tried twice to look at the man's face, however, the man pushed N.E.'s head down and told him to turn his head. While the man was still sodomizing J.L., N.E. jumped to his feet and ran. N.E. ran even though the assailant grabbed his shirt and threatened to shoot him if he did not stop. After a brief chase, the man came back, untied J.L., and ran in the opposite direction.

N.E. ran into a street where he saw another friend whose father was a police officer. His friend's father called the police. J.L. ran to his own home and the police arrived there approximately ten minutes later. A crime scene technician collected his clothing and underwear, which had recently been purchased and never worn before that day. The technician recovered what was later determined to be a head hair from J.L.'s T-shirt and a pubic hair from his underwear.

At trial, both N.E. and J.L. described the events surrounding the crime and the assailant's appearance. N.E. testified that the assailant was a man of average weight, roughly five feet ten inches tall, with a couple of days' growth of beard. He said that the assailant was wearing a ball cap with black letters on the front, and a Jack Daniels T-shirt. J.L. testified that the assailant was five foot seven or eight inches tall, wearing dark clothing and a baseball hat. In a statement given to the police right after the incident, J.L. described him as a white male, 20 to 30 years old, five feet seven inches tall, weighing approximately 170 pounds. J.L. also described the man with a couple of days' growth of beard stubble on his face, and wearing a Jack Daniels T-shirt. Neither N.E. nor J.L. could identify the defendant as the individual who assaulted them. The defendant was five feet nine inches tall, and at the time of trial, weighed 185 to 190 pounds and was 32 years old. His age at the time of the assault would have been 29 years.

Ms. Darvine Duvenci, who was employed by the Regional Crime Lab in Kansas City, compared the hairs taken from J.L.'s underwear and T-shirt to the hairs taken from the defendant. Ms. Duvenci's qualifications, education, and experience were described for the jury....