State v. Collins

• Decision Date: 29 August 2017
• Docket Number: WD 78993.
• Citation: 527 S.W.3d 176
• Parties: STATE of Missouri, Respondent, v. Tommie L. COLLINS, Appellant.
• Court: Missouri Court of Appeals

527 S.W.3d 176

STATE of Missouri, Respondent,

v.Tommie L. COLLINS, Appellant.

WD 78993.

Missouri Court of Appeals, Western District.

OPINION FILED: August 29, 2017

Joshua D. Hawley, Attorney General, and Mary H. Moore, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Susan L. Hogan, Appellate Defender, Kansas City, MO, Attorney for Appellant.

Before Division Two: Edward R. Ardini, Jr., Presiding Judge, and Karen King Mitchell and Anthony Rex Gabbert, Judges

Karen King Mitchell, Judge

Tommie Collins appeals, following a jury trial, convictions of four counts of first-degree statutory sodomy, § 566.062,¹ and one count of possession of a controlled substance, § 195.202, for which he was sentenced, as a persistent offender, to concurrent fifteen-year terms of imprisonment for each statutory sodomy count and a consecutive term of ten years imprisonment for the possession count. Before trial, Collins unsuccessfully sought to sever the possession charge from the sodomy charges. He now appeals the trial court's refusal to sever. Finding no error, we affirm.

Background

On February 29, 2012, Victim J.M.—who was then six years old—was referred to her school counselor after her teacher overheard J.M. telling some classmates that they could not come over to her house because her stepdad might touch them in their private parts. In speaking with the school counselor, J.M. indicated that her stepdad (whom she identified as Collins—her mother's boyfriend at the time) "call[ed] his ... private part his stomach and asks her to suck on his stomach and he makes her do it even when she doesn't want to and that he puts white stuff on it to make it taste better. And when she does suck on it, white stuff comes out, and he tells her to swallow it." J.M. told the school counselor that the last time it happened had been that morning before school.

In response to J.M.'s disclosures, the school counselor placed a call to the Children's Division child abuse hotline. The Division worker receiving the call labeled it a Priority 1 Emergency, meaning that it needed to be investigated immediately. The Division worker went to J.M.'s home with two law enforcement officers. They arrived at J.M.'s home, which she shared with Collins, around 5:00 p.m.

When they arrived, Collins answered the door. The Division worker introduced herself and advised Collins that she was there to ensure the children's² safety and asked if she could enter. Collins allowed her inside and she asked to first speak with him privately. She then advised Collins that the Division's purpose was to ensure the safety of children; Collins indicated that he knew this because he had been investigated before. When the worker advised Collins that the Division had received a new hotline report concerning sexual abuse of J.M. with Collins listed as the alleged perpetrator, Collins threw his arms up in the air, said "what?" and walked out of the room. The officers then took Collins outside while the worker spoke with J.M.

J.M. told the worker that she knew the worker was there because of what J.M. had told her school counselor but indicated that she was afraid to repeat the information because she was told not to say anything or she would get a spanking and Collins spanked really hard. After receiving reassurance from the worker, J.M. reiterated the information she had provided to her school counselor. J.M. further detailed that Collins had put his "stomach" in her bottom, and it made her bleed, and that he had put his hand down her pants and touched "it," pointing to her private area. J.M. indicated that the last incident of abuse had happened that morning before school, but she also stated that it happened "all the time." J.M. reiterated that Collins told her not to tell her mother or she would get a spanking.

As a result of J.M.'s statements, Collins was arrested for an investigative hold. Collins was searched incident to his arrest, but before the search began, the officer asked Collins if he had anything in his pockets the officer needed to know about before conducting the search. Collins responded, "I smoke a little." The officer then conducted the search and located a plastic baggy containing a beige rock-like substance in Collins's pocket. Subsequently, when questioned at the police station, Collins admitted that what the officers found was "$20 worth of rock in his left pant pocket." Subsequent testing revealed that the substance found contained cocaine base, more commonly known as crack cocaine.

J.M. was later interviewed by the Child Protection Center, where she revealed further acts of sexual abuse, all leading to the State charging Collins, in a single charging document, with four counts of first-degree statutory sodomy against J.M., along with a single count for possession of a controlled substance based upon the cocaine base found in Collins's pocket upon his arrest.³

Before trial, Collins filed a motion to sever the possession count from the sodomy counts, arguing that joinder of the counts was improper and that a single trial on all of them would result in substantial prejudice to Collins insofar as "the jury would likely consider evidence of guilt on one charge as evidence of guilt on another charge." He specifically alleged, "Because the jury will likely be inflamed by evidence regarding Defendant's alleged sexual contact with the child complainants, it will also likely conclude that Defendant should be punished for drug abuse even though they may not believe he is guilty of doing so beyond a reasonable doubt."

The trial court denied Collins's request, and he was tried on all counts charged in the indictment. The jury found Collins guilty as charged, and the trial court sentenced him, as a persistent offender, to concurrent fifteen-year terms on the statutory sodomy counts and a consecutive ten-year term on the possession count. Collins appeals.

Analysis

In his sole claim on appeal, Collins argues that the trial court abused its discretion in overruling his motion to sever the possession count from the sodomy counts because they were improperly joined in the first place. We disagree.

A. Standard of Review

"Appellate review of claims of improper joinder and failure to sever involves a two-step analysis." State v. Holliday , 231 S.W.3d 287, 292 (Mo. App. W.D. 2007). First, if the issue is properly preserved, we "determine whether joinder was proper as a matter of law." Id. ; State v. Simmons , 158 S.W.3d 901, 909 (Mo. App. S.D. 2005) (holding that, before an appellant may challenge the propriety of joinder on appeal, that issue must have been challenged at the trial level, and, if not so challenged, it would not be addressed on appeal). "If not, then prejudice is presumed and severance is mandatory." Holliday , 231 S.W.3d at 292. "If joinder was proper, we then must determine whether the court abused its discretion in denying the defendant's motion to sever," again, assuming the issue of severance has been properly raised. Id. at 292-93 (refusing to analyze the propriety of severance where the appellant did not challenge severance in his brief). "Severance assumes that joinder is proper, but gives discretion to the trial court to decide whether trying the charges together would result in substantial prejudice." Id. at 292.⁴

B. Count 7 was properly joined with the remaining counts, as they were "connected."

Joinder of two or more offenses within a single charging document is authorized by § 545.140.2 "if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." See also Rule 23.05.⁵ Thus, there are four different bases for when multiple offenses may be joined in a single charging document, "and joinder is appropriate where any of the authorized bases for joinder exists." State v. Smith , 389 S.W.3d 194, 209 (Mo. App. S.D. 2012) (emphasis added).

In his point relied on, Collins argues that joinder was improper because "the sex offenses charged in counts 1 through 6 were not of a same or similar character as count 7, nor were they part of a common scheme or plan with count 7." But, even accepting the accuracy of this assertion, we are not bound to conclude that joinder was improper, as Collins has identified only two of four possible bases for proper joinder. The State argues that joinder was proper on the basis that all of the acts were "connected"—the third of the four bases identified in § 545.140.2 for proper joinder. We agree.

"The propriety of joinder is fact dependent." Holliday , 231 S.W.3d at 293 (quoting State v. McQuary , 173 S.W.3d 663, 670 (Mo. App. W.D. 2005) ). "Liberal joinder of offenses is favored to achieve judicial economy, and the trial court's decision should be based solely on the State's evidence." State v. Langston , 889 S.W.2d 93, 96 (Mo. App. E.D. 1994). " ‘Connected’ has its ordinary meaning and includes ‘united ... by dependence or relation, or by order in a series' and ‘joined or linked together [in] a series, having the parts or elements logically related.’ " Smith , 389 S.W.3d at 209 (quoting State v. McKinney , 314 S.W.3d 339, 341-42 (Mo. banc 2010) ); see also State v. Morrow , 968 S.W.2d 100, 109 (Mo. banc 1998) (" ‘Connected’ is defined as: ‘[j]oined; united by junction, by an intervening substance or medium, by dependence or relation, or by order in a series.’ " (quoting Black's Law Dictionary 302 (6th ed. 1990)); State v. McDonald , 321 S.W.3d 313, 318 (Mo. App. S.D. 2010) (holding that "connected" includes "things that are joined or linked together in a series or that have logically related parts or elements").

Here, Collins's possession offense was "connected" to the sodomy offenses insofar as the cocaine he possessed was discovered upon his arrest for the sodomy offenses, thus it was part of a series of events leading to the charges themselves. And looking at the State's...