State v. Bynum

• Decision Date: 24 November 2009
• Docket Number: No. ED 92157.,ED 92157.
• Citation: 299 S.W.3d 52
• Parties: STATE of Missouri, Respondent, v. Fred L. BYNUM, Appellant.
• Court: Missouri Court of Appeals

299 S.W.3d 52

STATE of Missouri, Respondent, v. Fred L. BYNUM, Appellant.

No. ED 92157.

Missouri Court of Appeals, Eastern District, Division Four.

November 24, 2009.

Alexandra E. Johnson, St. Louis, MO, for Appellant.

Christopher Koster, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.

ROY L. RICHTER, Judge.

Fred Bynum ("Defendant") appeals the judgment and sentence entered upon a jury verdict finding him guilty of three counts of statutory sodomy in the first degree, three counts of attempted statutory sodomy in the first degree, and two counts of sexual misconduct involving a child. The trial court found Defendant to be a prior and persistent offender and sentenced him to two consecutive life terms imprisonment on Counts I and II for statutory sodomy in the first degree, and one concurrent life term for Count VII, sexual misconduct involving a child. The court sentenced Defendant to five concurrent terms of fifteen years imprisonment for the remaining five charges, Counts III, IV, VI, VIII and IX. We affirm in part and remand in part for resentencing on the two convictions for sexual misconduct involving a child.

I. BACKGROUND

The State charged Defendant with three counts of statutory sodomy in the first degree (Counts I, II, and VIII), in violation of section 566.062 RSMo 2000¹, three counts of attempted statutory sodomy in the first degree (Counts III, IV, and IX), in violation of section 566.062, and two counts of sexual misconduct involving a child (Counts VI and VII), in violation of section 566.083.

Defendant does not challenge the sufficiency of the evidence to sustain his convictions.

Defendant testified at trial and stated that in March 2004 he moved in with his niece, N.B. ("Mother"), and her two daughters, W.B. and K.B., then ages eight and seven, because Mother needed help paying her bills and because she lived near Defendant's work. Defendant moved out of Mother's residence in August 2004 when he was arrested for violating his parole.

At trial the State presented evidence that Defendant had perpetrated a series of sexually abusive acts against W.B. and K.B., his two grandnieces, between March and August of 2004 during the time he lived at Mother's home.

Defendant denied sexually abusing the girls and argued that their allegations had been inconsistent. Citing information contained in a Children's Division hotline report, Defendant argued that Mother and the girls had initially named Walter Bynum Jr. ("Walter"), Defendant's nephew and Mother's brother, as the actual perpetrator.

In support of his position Defendant first offered the testimony of Dr. Manohara Munimuddappa ("Dr. Munimuddappa"), the pediatrician who examined W.B. on February 23, 2005. As a physician, Dr. Munimuddappa is a mandated reporter and required to report allegations of abuse or neglect to the Children's Division. According to Dr. Munimuddappa, Mother brought in W.B. due to "suspected molestation by child's uncle." Dr. Munimuddappa testified that W.B. identified the alleged perpetrator, though he could not remember if she provided the perpetrator's name. When asked whether he relayed W.B.'s identification to Children's Division in his hotline report, Dr. Munimuddappa replied:

That is what I think I did, because I didn't write the name here; but according to the child and also the mother, it was child's uncle. And I might have told the name of the person to this lady by name of Miss Snow [sic]. She is from Department of Family Services.

Defendant then offered testimony from Leslie Brown ("Ms. Brown"), a representative from Children's Division, concerning the hotline report that Dr. Munimuddappa's call generated. The Children's Division's record of the doctor's hotline call identifies Walter, not Defendant, as the alleged perpetrator of the abuse. The record also contains Walter's birth date and social security number.

The State, however, elicited testimony from Ms. Brown on cross-examination regarding a Children's Division process called "matching," wherein the person receiving a hotline call attempts to fill in as much information as possible about a potential perpetrator. Using the Children's Division's database, the operator may record information regarding a particular hotline call that does not come from the caller, but rather from information that has previously been entered into the system. The State, in essence, argued that the hotline operator, rather than Dr. Munimuddappa, had identified Walter as the potential perpetrator based on a "match" that surfaced in the system. Ms. Brown acknowledged that the database-generated "matches" are not always correct; that sometimes the hotline operator initially identifies the wrong potential perpetrator based on an erroneous "match."

Ms. Brown also acknowledged, after examining the hotline report, that Dr. Munimuddappa — the reporter — had not provided any information about the alleged perpetrator other than to state that it was W.B.'s uncle.

Dr. Munimuddappa's cross-examination testimony corroborated Ms. Brown's statements. He testified that he could not recall what information he had given the hotline operator, but noted that he had not included the alleged perpetrator's name, birth date, or social security number in his notes. Dr. Munimuddappa reaffirmed that the name "Uncle Walter" did not appear anywhere in his notes.

W.B. and K.B. both testified at trial and identified Defendant, whom they referred to as "Uncle Fred²," as the man who had sexually abused them.

On cross-examination the defense attempted to show that the girls had many uncles and consequently were confused about which one had perpetrated the abuse. Defense counsel's questions insinuated that Walter, not Defendant, had abused them. In cross-examining W.B., the defense asked if she had an Uncle Walter to which she replied, "yes." When counsel asked W.B. whether Uncle Walter had been to her house she said she was not sure. Finally, when asked if she had ever stayed at Uncle Walter's house, W.B. answered "no."

Similarly, defense counsel asked K.B. if she had other uncles besides Defendant who came to her house and she answered "yes." When asked if Uncle Walter in particular came to her house K.B. also replied "yes." Defense counsel finally asked K.B. if she remembered W.B. telling their parents that Uncle Walter was the person who did bad things to her. K.B. answered "no."

On redirect, the State asked K.B. which uncle did bad things to her and she said "[Defendant]."

The jury returned a guilty verdict on all eight counts. The trial court found Defendant to be a prior and persistent offender and sentenced him to two consecutive life terms imprisonment on Counts I and II for statutory sodomy in the first degree, and one concurrent life term for Count VII, sexual misconduct involving a child. The court sentenced Defendant to five concurrent terms of fifteen years imprisonment for the remaining five charges, Counts III, IV, VI, VIII and IX.³

Defendant appeals.

II. DISCUSSION

In his first two points on appeal Defendant argues that the trial court plainly erred and exceeded its jurisdiction in sentencing him to fifteen years and life in prison on Counts VI and VII, respectively, for sexual misconduct involving a child. Defendant claims that the maximum penalty constituted seven years' imprisonment on each count. The State concedes Defendant's points, and we agree.

Defendant acknowledges that he is entitled to plain error review only because he did not present his objections to the trial court: Defendant did not object at sentencing or in his motion for a new trial. See State v. Johnson, 220 S.W.3d 377, 383 (Mo.App. E.D.2007). Plain error review "requires this Court to find that manifest injustice or a miscarriage of justice resulted from the trial court error." State v. Holden, 278 S.W.3d 674, 680-81 (Mo. banc 2009) (citing Rule 30.20). "Where it appears that a defendant has been improperly sentenced as a prior or persistent offender, plain error review is appropriate." State v. Manley, 223 S.W.3d 887, 892 (Mo. App. W.D.2007). We will therefore review points one and two for plain error.

Defendant was charged with two counts of sexual misconduct involving a child in violation of section 566.083. Sexual misconduct involving a child constitutes a class D felony for which the maximum prison term remains four years' imprisonment. See section 566.083.3 RSMo 2000 (defining sexual misconduct involving a child as a class D felony "except that the second or any subsequent violation of this section is a class C felony")⁴; see also section 558.011.1(4) (stating that prison term for class D felony is not to exceed four years). The trial court sentenced Defendant as a prior and persistent offender and therefore his punishment could have been enhanced from four years to seven under section 558.016.7(4). The trial court, however, inexplicably sentenced Defendant to fifteen years and life in prison on Counts VI and VII, respectively.

A sentence which is in excess of that authorized by law is beyond the authority of the sentencing court. State v. Kimes, 234 S.W.3d 584, 590 (Mo.App. S.D. 2007) (quoting Manley, 223 S.W.3d at 892-93); State v. Young, 230 S.W.3d 30, 34-35 (Mo.App. E.D.2007). Defendant will suffer a manifest injustice as result of a sentence that exceeds the statutory maximum. Kimes, 234 S.W.3d at 590; State v. Hooper, 801 S.W.2d 717, 721 (Mo.App. S.D. 1990).

The trial court exceeded its jurisdiction and committed plain error when it sentenced Defendant to fifteen years and life in prison on Counts VI and VII, respectively. The sentences on these two counts are remanded for resentencing only.

In his third point on appeal, Defendant argues that the trial court plainly erred and abused its discretion in admitting Mother's 911 call into evidence. We disagree.

The following additional facts are relevant to this point. The State called police officer John...