State v. Cook

• Decision Date: 05 April 2011
• Docket Number: No. ED 93066–01.,ED 93066–01.
• Parties: STATE of Missouri, Respondent,v.Billy COOK, Appellant.
• Court: Missouri Court of Appeals

339 S.W.3d 523

STATE of Missouri, Respondent,

v.Billy COOK, Appellant.

No. ED 93066–01.

Missouri Court of Appeals, Eastern District, Division Two.

April 5, 2011.

Leah Garabedian, Susan K. Roach, Melissa A. Featherston, Clayton, MO, for Appellant.Chris Koster, Attorney General, Shaun J. Mackelprang, James B. Farnsworth, Jefferson City, MO, for Respondent.ROBERT G. DOWD, JR., Judge.

Billy Cook (“Defendant”) appeals from the judgment of conviction by a jury of one count of child molestation in the first degree, Section 566.067, RMSo 2000,¹ two counts of statutory sodomy in the first degree, Section 566.062, and one count of statutory sodomy in the second degree, Section 566.064, for which he was sentenced to a total of thirty-two years of imprisonment. We affirm.

Defendant challenges the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the verdicts, the following evidence was presented at the trial. From August 23, 2001 to August 23, 2002, the victim, then eleven years old, lived in Imperial, Missouri with her mother, her three younger half-siblings, and Defendant, her step-father. While they were living at the residence in Imperial, Defendant sexually abused the victim for the first time. While victim's mother was at work and her younger half-siblings were outside playing, Defendant called the victim into his bedroom. Defendant told the victim to sit down on the bed. She sat down, and Defendant stood beside her. Defendant took off his pants. Defendant took the victim's hand and placed it on his erect penis. Defendant said, “This is what I want you to do,” and moved her hand up and down on his penis. After a few minutes, the victim stopped.

In the summer of 2003, the victim, then thirteen years old, and her family moved to Arnold, Missouri. While living in Arnold, Defendant continued to force the victim to masturbate him. In addition, when Defendant had the victim alone in his bedroom, he touched her vagina with his hands. Defendant told the victim not to tell anyone what was happening.

In September of 2005, the Defendant told the victim, then fifteen years old, that he needed to talk to her in his bedroom. When the victim entered the bedroom, Defendant told her to remove her pants and underwear and lie down on the bed. The victim complied, and Defendant told her to “be quiet” and he inserted his fingers into her vagina.

At the trial, Defendant argued the victim was a liar and had fabricated the allegations so she could live with her biological father. Defendant testified that he had never had any sexual contact with the victim. Defendant further testified that in the seventeen years that he had known the victim, he had never been alone in the house with her.

The jury subsequently found Defendant guilty of one count of child molestation, two counts of fist-degree statutory sodomy, and one count of second-degree statutory sodomy. The trial court sentenced Defendant to fifteen years' imprisonment for the child molestation count, twenty-five years' imprisonment for each of the first-degree statutory sodomy counts, to run concurrent with each another, and seven years' imprisonment for the second-degree statutory sodomy count, to run consecutive to the other sentences, for a total of thirty-two years of imprisonment.

Defendant did not file a motion for new trial. Defendant subsequently filed a direct appeal. While the appeal was pending, Cook filed a motion to remand to the trial court for the purpose of hearing a motion for a new trial based on newly discovered evidence. Cook attached an affidavit of the victim recanting her testimony against Cook.² We granted Cook's motion in light of State v. Terry, 304 S.W.3d 105 (Mo. banc 2010), and State v. Mooney, 670 S.W.2d 510, 515–16 (Mo.App. E.D.1984), and remanded to the trial court to determine whether the recanting occurred under circumstances reasonably free from suspicion of undue influence or pressure from any source. State v. Cook, 307 S.W.3d 189, 192–93 (Mo.App. E.D.2010). In the interim, all proceedings on Defendant's appeal were stayed. Id. at 193.

Upon remand, the trial court held a hearing on the motion for a new trial. The trial court denied Defendant's motion for a new trial. We now address the pending claims on appeal and the supplemental claim of error alleged against the trial court for denying the motion for a new trial.

In his first point, Defendant contends the trial court erred “in permitting the State to violate the Missouri Supreme Court Rules of discovery and the constitutional right to due process in that the State failed to provide [Defendant] with a video taped interview of the [victim] and the court, upon learning of this fact, made no remedy.” We disagree.

After the case was submitted to the jury for deliberation, the following exchange took place:

[DEFENSE COUNSEL]: Yesterday while we were in chambers—I think it was yesterday. It could have been Monday. But I was notified that there was a video tape of the interview with [the victim], at some point. I don't know if it was DFS or the prosecutor.

[THE PROSECUTOR]: Your Honor, I would note for the record that he was provided with the Child Advocacy report.

[DEFENSE COUNSEL]: I did get that; which was a report, which was a summary of the interview. But I did not get an opportunity to see the actual—

THE COURT: Well, that was mentioned during the course of the trial. Right?

[THE PROSECUTOR]: That was mentioned in chambers.

THE COURT: In chambers. All right.

[DEFENSE COUNSEL]: So, whether that would have had any value I don't know since I never saw it.

THE COURT: Your comment is noted. Put it that way. Your [ ] jury is deliberating now.

Defense counsel did not make any objection, request, or motion regarding the videotape. The videotape was not played or produced at the trial or made part of the record. In addition, Defendant did not file a motion for a new trial asserting grounds of error regarding the videotape.

Defendant asserts the failure of the State to provide the video tape of the victim's interview was in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Rule 25.03 and asserts the trial court failed “to provide a remedy.”

Defendant's claim was not preserved for review. To preserve a claim for appellate review, the appellant is required to make an objection at the trial, and raise the same objection in his motion for new trial. State v. Chambers, 234 S.W.3d 501, 512 (Mo.App. E.D.2007). Defendant did not make an objection at the trial claiming a Brady violation or violation of the discovery rules. In addition, Defendant did not file a motion for new trial on those grounds. Thus, Defendant's claim is not preserved for appellate review. We may, however, review for plain error pursuant to Rule 30.20. To be entitled to reversal on a claim of plain error, a defendant bears the burden of demonstrating that the action of the trial court was not only erroneous, but that the error so substantially impacted upon his rights that manifest injustice or a miscarriage of justice will result if the error is left uncorrected. State v. Broom, 281 S.W.3d 353, 358–59 (Mo.App. E.D.2009).

Here, there is no plain error. First, there is no Brady violation. According to Brady, due process requires the prosecution to disclose evidence in its possession that is favorable to the accused and material to guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. 1194. More importantly, Brady applies only to those situations where the defense discovers information after the trial that the prosecution knew at the trial. State v. Bynum, 299 S.W.3d 52, 62 (Mo.App. E.D.2009). Here, Defendant knew of the interview with the victim prior to the trial when he was provided the Child Advocacy report and learned of the videotape while the jury was deliberating. Furthermore, the videotape was not made part of the record. Defendant did not request production of the videotape on the record or ask for a continuance to view the videotape to determine whether its content was material, exculpatory, or useful for impeachment purposes.

Defendant also asserts a violation of Rule 25.03, which provides, in pertinent part:

(A) Except as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel such part or all of the following material and information within its possession or control designated in said request:

(1) The names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements;

Defendant did not request sanctions for a violation of the discovery rule. Moreover, once “surprise” has occurred upon discovery of undisclosed evidence “the proper remedy is to request a continuance or postponement.” Bynum, 299 S.W.3d at 62.

To the extent Defendant asserts the trial court should have sua sponte provided a remedy, we cannot say these were exceptional circumstances in which such action was required. Trial judges are not expected to assist counsel in trying cases and should act sua sponte only in exceptional circumstances. State v. Francis, 60 S.W.3d 662, 671 (Mo.App. W.D.2001). “A trial court will not be faulted for failing to take corrective action, when that action is not requested.” Id. We cannot convict the trial court of error under the circumstances where no relief was requested at the trial. Point denied.

In his second point, Defendant claims the trial court erred in denying his motion for judgment of acquittal at the close of the State's case and at the close of all the evidence because there was insufficient evidence to support his convictions. We disagree.

In reviewing a challenge to the sufficiency of the evidence, our review is limited to a determination...