State v. Collins

• Decision Date: 08 December 2004
• Docket Number: No. 25951.,25951.
• Citation: 150 S.W.3d 340
• Parties: STATE of Missouri, Respondent, v. Joseph M. COLLINS, Appellant.
• Court: Missouri Court of Appeals

150 S.W.3d 340

STATE of Missouri, Respondent, v. Joseph M. COLLINS, Appellant.

No. 25951.

Missouri Court of Appeals, Southern District, Division Two.

December 8, 2004.

Melinda K. Pendergraph, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT S. BARNEY, Judge.

Joseph M. Collins ("Appellant") appeals his conviction for one count of statutory sodomy in the first degree, a violation of section 566.062, and two counts of using a child in a sexual performance, violations of section 568.080.¹ Following his conviction by a jury, the trial court sentenced Appellant to life in prison on the charge of statutory sodomy in the first degree, and fifteen years on each of the remaining counts of using of a child in a sexual performance, with the sentences running consecutively. Appellant brings three points of trial court error discussed more fully below.

Viewing the facts in a light most favorable to the jury's verdict, State v. Crawford, 32 S.W.3d 201, 204 (Mo.App.2000), the record reveals that from May of 2002 until January of 2003, Appellant resided in Taney County, Missouri, with his then-girlfriend, M.H.² Also residing with the couple, were Appellant's ten-year-old son, J.C., and M.H.'s two daughters, ten-year-old A.H. and eleven-year-old J.H. During that period of time, Appellant cared for the three children on the weekends when M.H. was at work.

According to the children, Appellant would take "bad pictures" of them with a Polaroid camera. Appellant would pose the children for pictures; request that they touch and take pictures of each other; touch the children inappropriately; take naked pictures of them; and, take pictures of them while they were in the bathroom. All three children testified there were more pictures taken than those ultimately located by the police and entered into evidence at trial. Further, the children stated that it was difficult to remember who had taken the various pictures.

J.H. testified at trial that in some of the pictures the children were wearing "lingerie or teddies, whatever you want to call them, and [in] some of them [they] didn't have any clothes on." She went on to state that Appellant "would tell [them] to pose" and "to do certain moves" when he was taking pictures of them. She testified that "sometimes" Appellant would make them watch "[n]aked women and naked guys ... having sex or giving oral sex" on television. J.H. admitted that she had sexual intercourse with J.C. on numerous occasions, although she was unable to recall how many times it had occurred. She also testified that she saw Appellant cut up some of the photographs and throw them in the trash can.

J.C. testified that not only did Appellant make him take pictures of J.H. and A.H. without their clothes on, but Appellant also told him "he was going to kill [him]" if he told anyone about the photographs. J.C. stated that his father often beat him with "a metal belt and sometimes with a spoon, a wooden spoon... on [his] legs and sometimes on [his] butt." After these beatings, Appellant would tell J.C. what kind of clothes to wear to school "[t]o cover up the bruises." He further related that Appellant discussed with him a character named "Captain Underpants." J.C. stated that he often dressed up as "Captain Underpants" and wore only a cape and underwear.

A.H. confirmed Appellant often made them "watch[ ] porno movies." On one particular occasion when J.C. and J.H. were having sexual intercourse, J.C. asked A.H. to take pictures of them; she complied. A.H. stated that Appellant came into the room while the children were having sex, but that he left soon thereafter. According to A.H., on at least two occasions in May of 2002, Appellant "touched [her] under [her] clothes and over [her] clothes" and inserted his finger "[a] little bit" into her vagina.³

The record reveals that in January of 2003, A.H. and J.H. told their grandmother, D.B. ("Grandmother"), about the incidents involving Appellant. According to Grandmother, A.H. told her that Appellant "had his son ... have intercourse with [J.H.]"; that Appellant "lifted her nightie and poked her from the back with his penis out of his pants"; that Appellant took pictures of them and "had them pose in different ways"; and, that "he also fondled her and put his finger inside of her partially, not all of the way." Thereafter, Grandmother reported the allegations to authorities.

M.H. gave authorities permission to search the residence she shared with Appellant. The search revealed various pornographic magazines, but no photographs of the children were discovered at that time. Although both Appellant and M.H. were arrested, M.H. was later released and was not charged with any crime.

Following her release from jail, M.H. moved to another residence while Appellant was still incarcerated. In preparation for her move, M.H. gave some of Appellant's belongings, including several tools, cans of paint, and a motorcycle, to her brother-in-law, J.N. Several months later, when J.N. opened one of the cans of paint, he discovered numerous cut-up photographs of J.H., J.C., and A.H. inside of the can. J.N. contacted the authorities and the police pieced the photographs back together. The recovered photographs met the descriptions given by the children.

Following a trial on October 6 and 7, 2003, Appellant was convicted on all counts. This appeal followed.

Appellant asserts three points of trial court error. For ease of analysis and consideration, we shall address Appellant's points out of order commencing with his second point on appeal.

In his second point, Appellant maintains there was insufficient evidence upon which to find beyond a reasonable doubt that he induced J.H. and J.C. to engage in a sexual performance. See § 568.080.1.⁴ He argues certain prior statements made by the children⁵ and introduced at trial were inconsistent with the children's actual trial testimony and, as these prior statements were the sole evidence of his guilt, corroboration of their stories was required to support his conviction. Specifically, Appellant points to J.H.'s prior statement that Appellant "made [her] and his son have intercourse ... and he would make us pose with our clothes on or our clothes off...." This statement differed from J.H.'s trial testimony, where she related she was not sure if anyone told her to have sex.

"In determining whether the evidence is sufficient to support a conviction, we view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict and we disregard all contradictory evidence and inferences." State v. Brock, 113 S.W.3d 227, 231 (Mo.App.2003). "We look only to whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged." Id. It is not this Court's function to reweigh the evidence. State v. Agee, 37 S.W.3d 834, 836 (Mo.App.2001).

We disagree with Appellant's assertion that application of the corroboration rule is necessary to the matter at hand. "Generally, in sexual offense cases the victim's testimony alone is sufficient to sustain a conviction, even if uncorroborated." State v. Sprinkle, 122 S.W.3d 652, 666 (Mo.App.2003); see also State v. Griggs, 999 S.W.2d 235, 241 (Mo.App.1998); State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). Corroboration is not required unless the victim's testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is thereby rendered doubtful. Sprinkle, 122 S.W.3d at 666. Conflict between the testimony of the victim and other witnesses does not require application of the corroboration rule. State v. Baker, 23 S.W.3d 702, 709 (Mo.App.2000). "Conflicts of nonessential nature and issues regarding the credibility of witnesses are matters for the jury to determine." Id.; State v. Paxton, 140 S.W.3d 226, 230 (Mo.App.2004). "Missouri courts have recognized that statements of children are inherently more likely to seem contradictory, simply because children are less skilled in articulation." Griggs, 999 S.W.2d at 242.

Here, the thrust of Appellant's argument is that there was insufficient evidence in the children's trial testimony to prove that Appellant induced J.C. and J.H. to have sex and, instead, Appellant asserts they engaged in the behavior on their own. In our review we determine, based on the children's trial testimony, there was sufficient evidence to find that Appellant induced both J.H. and J.C. to engage in sexual intercourse.

The children all related that Appellant took pictures of them; that he told them to take pictures of each other; that he told them how to pose for the pictures; and, that he made them watch pornography. As for the specific incident charged in Counts II and III, both A.H. and J.H. testified that A.H. took a picture of J.H. and J.C. having sex. A.H. stated she took the pictures of J.H. and J.C. because she thought Appellant would want her to take the photographs, although he never specifically asked her to take these particular photographs. A.H. also related that at one time while J.H. and J.C. were having sex, Appellant "stuck his head in [the room]", but did not stop what was going on. J.H. stated that she could not recall if anyone told her to have sex, but that Appellant definitely told her on numerous occasions to pose for pictures. While the children had a difficult time remembering who actually took certain photographs, and who was in the room when certain pictures were taken, their stories were consistent with their respective testimony at trial and with each other's testimony at trial.

While the term "induce" is not defined in section 568.080.1, it has been described as meaning "to move by persuasion or influence" and "to call forth or bring about by influence or stimulation." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY, ELEVENTH EDITION 637 (20...