State v. Coker

• Decision Date: 09 November 2006
• Docket Number: No. 27353.,27353.
• Citation: 210 S.W.3d 374
• Parties: STATE of Missouri, Respondent, v. Jason L. COKER, Appellant.
• Court: Missouri Court of Appeals

210 S.W.3d 374

STATE of Missouri, Respondent, v. Jason L. COKER, Appellant.

No. 27353.

Missouri Court of Appeals, Southern District, Division Two.

November 9, 2006.

Motion for Rehearing or Transfer Denied December 4, 2006.

Application for Transfer Denied January 30, 2007.

COPYRIGHT MATERIAL OMITTED

Kent Denzel, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT S. BARNEY, Judge.

Jason L. Coker ("Appellant") appeals his conviction following a jury trial for two counts of statutory sodomy in the first degree, violations of section 566.062.¹ Appellant was sentenced by the trial court to fifteen years in the Department of Corrections on each count with the sentences to run concurrently. Appellant now brings four points on appeal.

"Viewing the evidence in the light most favorable to the jury's verdict," State v. Smith, 185 S.W.3d 747, 751 (Mo.App.2006), trial testimony reveals that in June of 2002 J.W., a six year old boy, resided with his father, W.W. ("Father"), and brother, A.W.² During the weekend of June 22, 2002, J.W. visited Mother at her apartment.³ On the morning of June 22, 2002, while Mother was outside, J.W. was inside the apartment in Mother's bedroom watching television on her bed when Appellant came into the room. J.W. testified that Appellant "reached his hands up [his] shorts;" that Appellant "took his hand and put it up underneath [his] shorts" and underwear; that Appellant touched his "thing . . . [he] go[es] pee out of ...;" and that Appellant "wiggl[ed] [his penis] around."

At trial, J.W. initially testified that Appellant only touched his penis; however, when the State reminded J.W. that he had reported to the Child Advocacy Center ("CAC") forensic interviewer, Mitzi Huffman ("Ms.Huffman"), that he had been "touched in the butt by [Appellant]," J.W. testified that Appellant had, in fact, touched him "[i]n the butt."⁴ When asked what he meant by "[i]n the butt," J.W. stated "[a]round the crack" and also stated that "poop" comes out of that part of the body. J.W. also related these were the only times Appellant had touched him.⁵

The record also reveals that ten days after the aforementioned incident, J.W. told Father's girlfriend, A.C., that "he had been molested by [Appellant]."⁶ A.C. informed Father that J.W. reported to her that Appellant had "forced [J.W.] to perform oral sex on him" and Father talked to J.W. about his allegations. J.W. informed Father that he had been forced to have oral sex with Appellant. Father then took J.W. to the police station. At the police station, Officer Cooper wrote the initial police report relating to the incident. Officer Cooper spoke with Father at that time, but did not interview J.W. Then Officer Cooper discussed the matter with his detective and placed a hotline call to the Department of Family Services, which arranged for J.W. to visit the CAC.

J.W. was interviewed at the CAC by Ms. Huffman on August 12, 2002.⁷ J.W. told Ms. Huffman that Appellant "raped" him one night in Mother's bedroom while J.W. was watching television. He stated to Ms. Huffman that Appellant "just walked in and turned off the [TV] and then started in doing it." J.W. also stated that Appellant walked into the room and "held his one hand on [J.W.'s] stomach down on the bed" and "wouldn't let [him] up." J.W. related that Appellant reached underneath his shorts and "started rubbing [his penis]." J.W. also stated Appellant used his hands to touch him underneath his clothes and that Appellant touched his "butt" with "[h]is hand and a belt." In explaining how Appellant touched him, Ms. Huffman asked J.W. to demonstrate:

Ms. Huffman: Show me how he took his hand . . . Okay, here it is over here on this. Okay, he went underneath your shorts with his hand? Did he touch you underneath or on top of your clothing on your butt?

J.W.: Underneath.

Ms. Huffman: Underneath. And what did he do? If this is your butt, show me what he did with his hand.

J.W.: He just stuck his finger in it.

Ms. Huffman: Okay, he took his finger and stuck it in your butt? How many times did he do that?

J.W.: Once.

When Ms. Huffman asked J.W. "[h]ow did it feel when he touched you back here on your butt?" J.W. stated it "felt bad."

At trial, Ms. Huffman testified that when she asked J.W. to put a red dot on an anatomical drawing to show where he was touched, J.W. put a red dot on the "butt cheek," but that she felt like when she asked him to demonstrate where he was touched, he indicated his anus was actually penetrated.

Following her interview with J.W., Ms. Huffman performed a Sexual Assault Forensic Exam ("SAFE") on J.W.

Ms. Huffman, a registered nurse and a sexual assault nurse examiner, testified at trial that she did not notice anything unusual about J.W.'s penis. Regarding J.W.'s rectal area, she testified that J.W.'s "anal verge ... is very non-symmetric — it's irregular. We notice that in most six year olds . . . ." She also related that one area of J.W.'s rectum had a "decrease of ... subcutaneous [tissue in a certain] area . . . ;" that it was "white and scarred;" that it was "very distorted;" and that "it [wa]s also very shiny." She stated that such findings are a "representation of stretching and not having the normal amount of subcutaneous tissue" in the rectal area. Ms. Huffman went on to state that there was a "gap" in the tissue around J.W.'s anus and that when he would try to "tighten the rectal area to close [it] ..." the area around the anus would not close all of the way. She stated that "[n]ormally the rectal area seals" and "the fact that this was opened and with [her] physically seeing that [J.W.] had a small amount of stool in his panties, was consistent with this child having an inability to keep the stool in the lower rectal area ...." Ms. Huffman also acknowledged that when she spoke with A.C., A.C. reported to her that J.W. "poops his pants all the time and he never wipes properly."

Ms. Huffman speculated that the injuries observed in J.W.'s anus "could be [from] a fingernail that caused trauma to that area going in" and that such an injury was consistent with what J.W. reported to her. She did note, however, that there were alternate explanations for the injuries she saw in J.W. She stated the injuries could have been from J.W. passing a hard stool or could have been from "irritation of the rectal area from soft stools."

She also related that because the skin in the rectum heals very rapidly, she and the doctor who treated J.W. had wanted to see J.W. again in two weeks so that they could examine him again. Ms. Huffman stated that, despite her repeated efforts, Father never brought J.W. back to be re-examined. Ms. Huffman explained that "[i]t would have been awfully helpful to [have seen] [J.W.] again." Furthermore, Ms. Huffman testified that while there "could have been any number of explanations ...," her exam revealed J.W. did not have "a normal healthy looking child's rectum," and a re-examination might have revealed the cause of the abnormalities. She explained that her concern was whether "this [was] some type of medical manifestation, or was this an injury ... from . . . a forceful penetration in the rectum . . . ." She stated that without a re-examination, she could not state the cause of the injuries to J.W.'s rectum. Ultimately, Ms. Huffman felt J.W.'s injuries were "consistent with [his] disclosure."

Lieutenant Bobby Siegrist ("Lieutenant Siegrist") of the Aurora Police Department testified that while he observed Ms. Huffman's interview with J.W. at the CAC from behind the one-way glass, he did not interview J.W. Lieutenant Siegrist stated that, as best he recalled, J.W. had disclosed that Appellant "had fondled" him; that Appellant "had him perform oral sex on him;" and that Appellant "had stuck his finger up [J.W.'s] anus." Lieutenant Siegrist stated, however, that he was never able to interview Mother, Father, or A.C. in connection with his investigation, but that he had spoken briefly with Mother by phone on one occasion.

Appellant was charged with two counts of statutory sodomy in the first degree, proscribed by section 566.062. In the First Amended Information, Count I recited that "between the 23rd day of June, 2002 and July 8, 2002, . . . [Appellant] had deviate sexual intercourse with [J.W.], ... who was less than twelve years old, to wit: 6 years old, by touching the genitals of [J.W.] with [Appellant's] hand." Count II charged that "between the 23rd day of June and 30th day of June, 2002 and the 8th day of July, 2002, . . . [Appellant] had deviate sexual intercourse with [J.W.], . . . who was less than twelve years old, to wit: 6 years old, by [Appellant] inserting his finger into the anus of [J.W.]."

Appellant did not testify on his own behalf at trial. Following deliberations, the jury convicted him of two counts of statutory sodomy in the first degree, and, as previously set out, he was sentenced to concurrent fifteen-year sentences in the Missouri Department of Corrections. This appeal followed. For ease of clarity and analysis, we take Appellant's points out of order and commence our discussion with an analysis of Appellant's second point.

In his second point on appeal, Appellant alleges the trial court erred when it refused to submit to the jury his proffered jury instruction for the lesser included offense of child molestation in the first degree, section 566.067, in conjunction with the State's submission of its Count II instruction for statutory sodomy in the first degree, section 566.062.⁸ Appellant argues there was evidence that would support a conviction of child molestation in the first degree and acquittal of statutory sodomy in the first degree. We agree.

At trial, Appellant proffered to the trial court a lesser included offense instruction of child molestation in the first degree relative to the Count II instruction for sodomy in the first...