State v. Cannafax

• Decision Date: 22 July 2011
• Docket Number: No. SD 30327.,SD 30327.
• Citation: 344 S.W.3d 279
• Parties: STATE of Missouri, Respondent,v.Leonard Leroy CANNAFAX, Appellant.
• Court: Missouri Court of Appeals

344 S.W.3d 279

STATE of Missouri, Respondent,
v.
Leonard Leroy CANNAFAX, Appellant.

No. SD 30327.

Missouri Court of Appeals, Southern District, Division Two.

July 22, 2011.

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Kent Denzel, Columbia, MO, for Appellant.Chris Koster, Attorney General and James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.WILLIAM W. FRANCIS, JR., Presiding Judge.

Following a bench trial, Leonard Leroy Cannafax (“Cannafax”) was convicted on two counts of first-degree statutory rape and four counts of first-degree statutory sodomy involving his three daughters, K.L., N.L., and V.L. Cannafax was sentenced to concurrent terms of 25 years' imprisonment on each count. This appeal followed. We affirm the judgment of the trial court.

Factual and Procedural History

An Amended Information charged Cannafax with six offenses against his three daughters:

+---------------------------------------------------------------+
                ¦COUNT ¦CHARGE ¦CONDUCT ¦VICTIM¦DATE RANGE ¦
                +---------------------------------------------------------------+
                

I First Degree Statutory Rape Intercourse V.L. 11/06/99–06/06/
                 06
                II First Degree Statutory Sodomy Hand–Vagina V.L. 11/06/99–06/06/
                 06
                III First Degree Statutory Rape Intercourse V.L. 06/07/06–11/05/
                 08
                IV First Degree Statutory Sodomy Hand–Vagina V.L. 06/07/06–11/05/
                 08
                V First Degree Statutory Sodomy Hand–Vagina N.L. 01/01/99–07/21/
                 05
                VI First Degree Statutory Sodomy Hand–Vagina K.L. 12/06/97–12/06/
                 02
                

A bench trial was held on November 2 and 3, 2009. Viewed in the light most favorable to the trial court's verdict, the evidence adduced at trial revealed the following.

K.L. was born on December 7, 1990. When K.L. was ten years old, her father—Cannafax—touched her vagina with his hands. The abuse continued for about a month, until K.L. demanded that Cannafax stop.

K.L.'s younger sister, N.L., was born on July 22, 1993. When N.L. was eight or nine years old, Cannafax used his hands to touch her breasts and vagina underneath her clothing.

V.L., the youngest of Cannafax's daughters, was born on November 6, 1994. Cannafax began sexually abusing V.L. when she was between seven and nine years old. He used his hands to rub her breasts and her vagina. Cannafax also had sexual intercourse with V.L. multiple times. Sometimes V.L. told him to stop, but he did not listen. Cannafax engaged in this conduct at each of the three houses where the family resided after the abuse began—Walnut Street, Camden Street, and Farm Road 239, all in Greene County. Cannafax

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continued this sexual abuse until V.L. was thirteen or fourteen years old.

In the winter of 2008, V.L. attended a school dance and at that time, she reported the abuse to her principal and the police. She saw a Sexual Assault Forensic Examiner who discovered transections to V.L.'s hymen consistent with sexual abuse. At that time, the family was living on North Farm Road 239.

During the subsequent investigation, Cannafax voluntarily agreed to speak with the police. He admitted he had engaged in sexual conduct with each of his daughters, including having sexual intercourse with V.L., three to four times. Cannafax claimed he had done it not for his own enjoyment, but to educate his daughters about love and sex. Although Cannafax admitted he touched the genitals of K.L. and N.L. with his fingers, he denied he actually penetrated either of them. However, Cannafax also said that if they started getting wet, he “pulled [his] finger out of there.” He told investigators he was relieved that he had not gotten any of his daughters pregnant. Cannafax admitted continuing to sexually abuse V.L. while living on Camden Street, and for about a year while living on Farm Road 239.

On November 3, 2009, after hearing all the evidence, the trial court found Cannafax guilty on all counts and sentenced Cannafax to six concurrent terms of 25 years' imprisonment.

In this appeal, Cannafax challenges the sufficiency of the evidence to support three of his six convictions—the statutory sodomy conviction involving K.L., and one statutory rape and one statutory sodomy conviction involving V.L. Additionally, Cannafax argues the change in the definition of “dangerous felony” subjected him to more extensive and collateral effects than was supported by the evidence.

The primary issues necessary for resolution of this appeal are:

1. Was there sufficient evidence to support the conclusion Cannafax engaged in deviate sexual intercourse with K.L.?

2. Did the trial court abuse its discretion in finding sufficient evidence showed that the corpus delicti was proven with regard to Count VI and admitting Cannafax's out-of-court statements?

3. Was it necessary for the State to prove the offenses in Counts III and IV occurred during the period alleged in the Amended Information?

4. Was there sufficient evidence to support the conclusion that the offenses in Counts III and IV were committed against V.L. before her fourteenth birthday?

5. In order for Cannafax's offenses to be subject to the eighty-five percent rule under section 558.019.3, RSMo Cum.Supp.2005,¹ must sufficient evidence be adduced to show the offenses occurred after the 2003 amendment to the definition of “dangerous felony” became effective?

Point I: Sufficiency of Evidence—Count VI

First, Cannafax alleges the evidence was insufficient to sustain his conviction on Count VI of first-degree statutory sodomy of K.L., between December 6, 1997 and December 6, 2002. Cannafax contends the evidence was insufficient to prove either: (1) Cannafax touched K.L.'s vagina after August 28, 2000, when the amendment to the definition of “deviate sexual intercourse” became effective; or (2) Cannafax's

[344 S.W.3d 284]

finger penetrated K.L.'s vagina when he touched it. We are not persuaded by Cannafax's argument.Standard of Review

“ ‘The standard of review in a court-tried case is the same as in a jury-tried case.’ ” State v. Craig, 287 S.W.3d 676, 681 (Mo. banc 2009) (quoting State v. McKinney, 253 S.W.3d 110, 113 (Mo.App. W.D.2008)). “When considering the sufficiency of the evidence on appeal, this Court must determine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt.” State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). “ ‘[T]his Court accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the finding.’ ” Craig, 287 S.W.3d at 681 (quoting McKinney, 253 S.W.3d at 113). Even if the evidence would support two equally valid inferences, only the inference that supports the finding of guilt can be considered. State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998). “ ‘The function of the reviewing court is not to reweigh the evidence, but to determine if the conviction is supported by sufficient evidence.’ ” State v. McCleod, 186 S.W.3d 439, 443 (Mo.App. W.D.2006) (quoting State v. Mann, 129 S.W.3d 462, 467 (Mo.App. S.D.2004)).

The reliability, credibility, and weight of witness testimony are for the fact-finder to determine. State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990). It is within the fact-finder's province to believe all, some, or none of the witness' testimony in arriving at its decision. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).

Analysis

The definition of “deviate sexual intercourse,” a necessary element of first-degree statutory sodomy, was amended in August 2000. Prior to the 2000 amendment, hand-to-genital contact qualified as “deviate sexual intercourse” only if it involved penetration, however slight. § 566.010(1), RSMo 1994. ² The definition was amended to also include contact between a person's hand and another's genitals, effective August 2000.³ Cannafax is correct that the amendment to the definition of “deviate sexual intercourse” changed what conduct constituted the crime of sodomy under section 566.062, and expanded it to include contact between a person's hand and another's genitals. Nevertheless, sufficient evidence was presented at trial from which the trial court could reasonably conclude Cannafax touched K.L.'s vagina when K.L. was ten years old—after the 2000 amendment became effective—and that there was evidence from which the trial court could infer Cannafax had penetrated K.L.'s vagina when he touched her.

First, there was sufficient evidence from which the trial court could have reasonably concluded Cannafax touched

[344 S.W.3d 285]

K.L.'s genitals after August 26, 2000, when penetration was no longer required to qualify “touching” as “deviate sexual intercourse.” At trial, K.L. testified she was in “third or fourth [grade]” “when something happened.” In response to the prosecutor's question of how old she was, K.L. answered, “I don't remember. Like ten or something.” K.L. turned ten years old on December 7, 2000. Again, “[t]he credibility and weight to be given to testimony is a matter for the fact-finder to determine.” State v. Hollins, 331 S.W.3d 342, 344 (Mo.App. E.D.2011). Appellate courts accord the fact-finder deference because the fact-finder is in a superior position “not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” Essex Contracting, Inc. v. Jefferson County, 277 S.W.3d 647, 652 (Mo. banc 2009). Here, it was within the trial court's discretion to find K.L.'s testimony credible that she was ten years old when the abuse occurred. As such, any touching that occurred when K.L. was ten years old (or older) had to have happened following the August 28, 2000 amendment, when proof of penetration was unnecessary to establish “deviate sexual intercourse.”

Additionally, there was sufficient evidence from which the trial court could have concluded penetration occurred when Cannafax touched K.L.'s vagina, which would qualify the touching as “deviate sexual intercourse” whether it took place before or after the August 2000...