State v. Carney

• Decision Date: 14 July 2006
• Docket Number: No. 27012.,27012.
• Citation: 195 S.W.3d 567
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joseph Glen CARNEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

195 S.W.3d 567

STATE of Missouri, Plaintiff-Respondent, v. Joseph Glen CARNEY, Defendant-Appellant.

No. 27012.

Missouri Court of Appeals, Southern District, Division Two.

July 14, 2006.

Jacob Y. Garrett of West Plains, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen.; Robert J. (Jeff) Bartholomew, Asst. Atty. Gen. of Jefferson City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

Joseph Carney (Defendant) was charged by amended information with two counts of child molestation in the first degree (Counts I-II) and one count of statutory sodomy in the first degree (Count III). See § 566.067; § 566.062.¹ After a jury trial, Defendant was found guilty on all charges. He was sentenced to serve concurrent terms of five years, eight years and fifteen years in prison, respectively, for committing these offenses.

On appeal, Defendant challenges only his conviction for statutory sodomy. First, he contends the trial court erred in giving Instruction No. 12, the statutory sodomy verdict-directing instruction, because it was not supported by the evidence. Second, he contends the trial court erred in overruling Defendant's post-trial motion for judgment of acquittal on the statutory sodomy offense because the State failed to prove an element of the crime. Defendant argues that both rulings were erroneous for the same reason: there was no evidence that the act of sodomy occurred within the two-month time period which was submitted in Instruction No. 12 and alleged in the amended information. Finding no merit in either point, we affirm.

Count III of the amended information alleged, in pertinent part, that Defendant had "committed the class [sic] felony of statutory sodomy in the first degree ... in that on or about or between November 01, 2002 and December 31, 2002 ... the defendant had deviate sexual intercourse with C.A.C. (d/o/b November 9, 1995), who was less than twelve years old."² Since Defendant challenges the sufficiency of the evidence to prove this charge, we must determine whether there was sufficient evidence to permit a reasonable juror to find guilt beyond a reasonable doubt. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). We view the evidence and all reasonable inferences derived therefrom in a light most favorable to the verdict and disregard any contrary evidence and inferences. Viewed in that light, the pertinent facts may be succinctly summarized.

C.A.C. (Victim) was born on November 9, 1995, and was nine years old at the time of trial. Defendant is Victim's uncle, and she referred to him as "Uncle Joey." Defendant often spent time alone with Victim and was her baby-sitter on over fifty occasions. When Victim was about five years old, Defendant touched her "butt" with his penis while she was at Defendant's house.³ Defendant did the same thing to Victim at her aunt Tanya's house, but Victim could not recall how old she was when this second incident took place. On another occasion, Defendant put his penis in Victim's mouth while they were in a shed on Defendant's premises:

Q: [W]ere there any other incidences? Not at Tanya's, any — anywhere?

A. Uh-huh.

Q. Okay. And what was that?

A. There was one in the shed where —

Q. Okay. Now you say shed. Do you remember whose house that was at?

A. [Defendant's] house.

Q. Okay. And what happened at the shed?

A. He put his penis in my mouth.

Q. Okay. And did he — did you touch it with any part of your body? Did you touch it with your mouth, or your tongue, or how was — how was that?

A. Tongue.

Victim did not specify in her testimony when this last incident occurred.

As a result of a hotline call that was made to the Division of Family Services, Deputy Lynn Rhoads (Deputy Rhoads) of the Howell County Sheriff's Department met with Defendant to interview him on August 11, 2003. After Defendant was given his Miranda warnings, he gave Deputy Rhoads a videotaped confession.⁴ This videotaped confession, which was approximately eight to ten minutes in length, was admitted in evidence as State's Exhibit 3. After the State rested, Defendant opted not to present any evidence on his own behalf.

At the instruction conference, the State tendered the following verdict-directing instruction for the statutory sodomy offense:

Instruction No. 12

As to Count III, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or between November 1, 2002 and December 31, 2002, in the County of Howell, State of Missouri, C.A.C. (d/o/b November 9, 1995) placed her tongue to defendant's penis, and

Second, that such conduct constituted deviate sexual intercourse, and

Third, that at that time C.A.C. (d/o/b November 9, 1995) was less than twelve years old,

then you will find the defendant guilty under Count III of statutory sodomy in the first degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

As used in this instruction, the term "deviate sexual intercourse" means any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.

Defense counsel stated that he had no objection to this instruction.

After the jury found Defendant guilty of statutory sodomy, Defendant filed a timely motion for judgment of acquittal or new trial. In this motion, Defendant argued that he should be discharged as to Count III because "the evidence submitted was not sufficient to establish the essential element of time as charged by the State." Defendant also alleged that, for the same reason, Instruction No. 12 was not supported by the evidence. This was the first time Defendant challenged the sufficiency of the evidence to support the submission of this instruction to the jury.

The trial court denied the motion for judgment of acquittal or new trial because "there's only one act of sodomy in evidence, the alibi defense was not raised, and there was no issue as to the statute of limitations, and that the date of the offense is not a necessary element of the offense. . . ." This appeal followed. Additional facts necessary to the disposition of the case are included below as we address Defendant's two points of error.

Point I

In Defendant's first point, he contends the trial court erred in giving Instruction No. 12 because it was not supported by the evidence. Specifically, Defendant contends there was insufficient evidence for the jury to find beyond a reasonable doubt that Defendant committed an act of statutory sodomy between November 1st and December 31st, 2002, as submitted in the instruction.

The first issue we must address is the applicable standard of review. The State argues that Defendant failed to preserve this alleged error, and we are constrained to agree. A party is prohibited from assigning as error the giving of an instruction "unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objections." Rule 28.03; see State v. Edwards, 116 S.W.3d 511, 545 (Mo. banc 2003).⁵ At the instruction conference, defense counsel said he had no objection to Instruction No. 12. Since Defendant did not assert his evidentiary insufficiency objection to Instruction No. 12 prior to the time the jury retired to consider its verdict, he failed to preserve this issue for appellate review. State v. Biggs, 170 S.W.3d 498, 503 (Mo.App.2005). Accordingly, Defendant is not entitled to any relief on appeal unless the giving of Instruction No. 12 constituted plain error. State v. Grice, 914 S.W.2d 360, 369 (Mo. App.1995).

An appellate court is authorized, in its discretion, to review for plain error affecting a defendant's substantial rights "when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20; see State v. Wurtzberger, 40 S.W.3d 893, 897 (Mo. banc 2001). To show that a trial court committed plain error in submitting a jury instruction, a defendant must demonstrate more than mere prejudice. State v. Cates, 3 S.W.3d 369, 372 (Mo.App.1999). "In the context of instructional error, plain error results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury's verdict." State v. Nolan, 872 S.W.2d 99, 103 (Mo. banc 1994); see State v. Doolittle, 896 S.W.2d 27, 29 (Mo. banc 1995). Consequently, we seldom conclude that an erroneous instruction caused plain error. State v. Thurston, 104 S.W.3d 839, 842 (Mo.App.2003); State v. O'Toole, 83 S.W.3d 622, 630 (Mo.App.2002).

In the respects relevant here, there are two essential elements of the crime of statutory sodomy in the first degree: (1) Defendant had deviate sexual intercourse with Victim; and (2) she was less than 12 years old at that time. § 566.062.⁶ Both of these essential elements were hypothesized in Instruction No. 12. The instruction also properly defined for the jury what specific acts constitute deviate sexual intercourse. See 566.010(1) RSMo Cum. Supp. (2005). Victim testified that Defendant put his penis in her mouth, and she touched his sexual organ with her tongue. The State also proved that Victim was less than 12 years old when this act occurred. Therefore, there was sufficient evidence from which a reasonable juror could have found beyond a reasonable doubt that Defendant was guilty of the crime of statutory sodomy in the first degree. See State v. Brown, 97 S.W.3d 97, 102 (Mo.App.2002).

Defendant does not contest the sufficiency of the evidence to support these essential elements of Instruction No. 12. Instead, Defendant asseverates that the inclusion in Instruction No. 12 of a...