State v. Copeland

Citation95 S.W.3d 196
Decision Date29 January 2003
Docket NumberNo. 24556.,24556.
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Randall COPELAND, Defendant-Appellant.
CourtMissouri Court of Appeals

Irene Karns, Assistant State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, for respondent.


Randall Copeland ("Defendant") appeals his conviction for first-degree sodomy in violation of § 566.062.1 He urges reversal upon the following grounds: (1) there was insufficient evidence to prove Defendant penetrated Victim's anus with his finger or penis; (2) the trial court plainly erred by allowing the jury to consider hearsay testimony; and (3) the trial court erred when it did not, sua sponte, order an in-camera videotaped deposition of Victim for use at trial. Finding the second claim was unpreserved, and the first and third claims lack merit, we affirm the judgment of conviction and sentence.


Defendant is the biological father of Victim. Victim's mother ("Melanie") fled the family home in April 2000 because Defendant had "beat her up." At the time, Defendant would not let Melanie take Victim (who was then nine years old) or their two younger children with her. When the children were returned to Melanie on May 24, 2000, they made remarks that ultimately led to a Division of Family Services ("DFS") investigation. As Victim talked with Susan Richard (a child abuse investigator) about Defendant's repeated physical abuse of him, he [Victim] "spontaneously said that [his] father touches me in bad spots[]" — his penis (which he called his "pee-pee") and his "butt." Victim believed this touching had happened "almost all the time" since he was a baby. His first actual recollection, however, of Defendant doing this was when he was five years old. Continuing, Victim told Richard that Defendant rubbed his [Victim's] "pee-pee" and "butt" with his hand "almost all the time." The last such instance was in May 2000, just before Victim was reunited with his mother. Victim stated Defendant repeatedly told him not to tell anyone. Richard concluded Victim was "very frightened" of Defendant.

Later, when Celeste Williams (a sexual assault nurse examiner and licensed SAFE care provider) interviewed Victim, he would not repeat what he told Richard regarding Defendant's conduct. Even so, after Williams asked Victim what Defendant touched him with, he held up his hand. Williams also asked Victim if it ever hurt, and Victim responded by shaking his head yes and claimed it "stung" sometimes. When Williams did a physical exam of Victim, she found that within two seconds of spreading Victim's buttocks, his anus dilated to almost an inch. Williams testified, that under normal circumstances, full dilation of the anus takes approximately thirty seconds and is no more than 20 millimeters (approximately ¾th of an inch). She also observed the rugae of Victim's anus were flattened or decreased.2 Williams opined that the abnormal dilation of Victim's anus and the flattened rugae were "highly suggestive" of chronic penetration of Victim's anus.

Elbert Bolsen, a licensed clinical psychologist, began treating Victim in August 2000. He testified that Victim spoke of the physical abuse inflicted upon him, but not the sexual abuse because it was too painful for Victim to discuss. Victim did tell Bolsen, however, that Defendant "put drugs up my butt." Bolsen testified Victim "evidenced" a great deal of pain from trauma and diagnosed Victim as having a post-traumatic stress disorder.

At trial, Defendant took the stand and denied any sexual abuse of Victim. A defense witness, Dr. Robert Paschall, disagreed with Williams' conclusion that her exam of Victim suggested penetration. He opined that her findings revealed a normal anus and testified that he saw similar results routinely on non-penetrated children.

The jury found Defendant guilty of first-degree sodomy. Defendant was sentenced as a prior offender to a term of forty years in the Department of Corrections. This appeal followed.

Point I: Sufficiency of the Evidence Question

In his first point, Defendant urges reversal because "there was insufficient evidence that [Defendant] ever penetrated his son's anus[]" with his finger or penis, which was an essential element of the crime of first degree sodomy.3 He claims Victim consistently told the DFS worker that Defendant touched him in "bad spots," i.e., on his "pee-pee" and his `butt." Relying on State v. Hahn, 35 S.W.3d 393 (Mo.App.2000), he argues that "butt" and "anus" are not synonymous terms. Id. at 395. Going further, Defendant claims that since Victim only accused him of touching Victim's "butt," this testimony was insufficient to prove he touched Victim's anus. Moreover, Defendant argues this testimony was entirely insufficient to prove he penetrated Victim's anus with his finger or penis.

When the issue is the sufficiency of evidence, appellate review is limited to deciding if there was sufficient evidence from which a reasonable finder of fact could have found the accused guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52[3] (Mo.banc 1998). In applying this standard, the reviewing court accepts all facts and inferences reasonably drawn therefrom in the light most favorable to the state, and all contrary facts and inferences are disregarded. State v. Young, 42 S.W.3d 729, 732-33[2] (Mo.App. 2001). "The determination of a witness' credibility and the effects of conflicting or inconsistent testimony are for the trier of fact." State v. Barnes, 980 S.W.2d 314, 320[15] (Mo.App.1998).

Defendant's reliance on the Hahn case is misplaced. The defendant there was charged and convicted of sexual abuse based solely upon his confession that he had rubbed the victim's "butt" after pulling her pants down.4 After discussing, via dictionary definitions, that "butt" and "anus" are not synonymous terms, the Hahn court held:

"Evidence that a defendant touched a victim's `butt' or `buttocks' is insufficient to show the defendant touched victim's `anus.' As defendant confessed he merely touched victim's `butt' and the state did not present other evidence showing defendant specifically touched victim's `anus; the conviction on the count of first-degree sexual abuse cannot stand."

Id. at 395[3] (emphasis supplied) (citation omitted). This excerpt from Hahn demonstrates reversal occurred there because the state made no effort to establish that the victim's anus was part of the anatomy to which defendant was referring when he admitted rubbing the victim's "butt." The state also failed to produce medical evidence of physical injuries to the victim consistent with sexual contact. Those are not the facts of this case.

Here, a nine-year-old victim used the term "butt," both in reference to Defendant's acts and his own acts; whereas in Hahn, it was the adult defendant who said he merely touched the victim's "butt." The significance as to the age of the person using certain terminology is explained in State v. Moore, 721 S.W.2d 141 (Mo. App.1986):

"Defendant ... argues there is no evidence his penis actually touched the child's anus, and not some other part of his `behind.' He cites us an Illinois opinion holding, testimony such as `in my butt,' and his penis was along `my cheeks,' did not establish penis to anus contact. People v. Oliver, 38 III.App.3d 166, 347 N.E.2d 865 (1976). The victim in Oliver was an adult presumably able to express herself; here, the use of the term `behind' by an eight year old child, both in reference to defendant's acts and his own acts, supports a finding that `behind' means anus."

"The child's testimony, combined with the evidence of [abnormal redness or `erythema around the anus'] supports a finding of contact `involving the genitals of one person and the ... anus of another person....'"

Id. at 143.

In this case, Victim told investigators: Defendant rubbed his "butt" with his hand "almost all the time[;]" sometimes this activity "stung[;]" Defendant "rubbed" Victim's "butt" in late May 2000, just before Victim was returned to his mother; and sometimes Defendant stuck "drugs" up Victim's butt. Victim's statement that Defendant "put drugs up [his] butt" supports a finding that "butt" meant "anus" and that "drugs" meant lubricant or other medication "up" Victim's anus. Viewed in conjunction with the abnormalities of his anus and the nurse's testimony of chronic penetration of Victim's anus, Victim's testimony supports a finding of penetration of Victim's anus with Defendant's finger or penis under § 566.062. See Id. Defendant's first point is denied.

Point II: Hearsay Evidence Issue: Request For Plain Error Review

In his second point on appeal, Defendant alleges the trial court committed plain error when it allowed the child abuse investigator (Richard), the SAFE examiner (Williams), and Victim's psychologist (Bolsen) to testify as to what Victim told them regarding the sexual abuse by Defendant.5 Defendant argues that Victim's "hearsay statements" did not contain "sufficient indicia of reliability to qualify them as an exception under [§ 491.075] to the bar against the admissibility of hearsay evidence." As such, Defendant claims his right to confront the witnesses against him has been violated.

By requesting plain error review, Defendant concedes what the record shows, i.e., that he did not contemporaneously object to the allegedly improper hearsay testimony regarding what Victim told the investigators. Failing to object to the admission of testimony waives the alleged error for appellate review. State v. Crenshaw, 59 S.W.3d 45, 48 (Mo.App.2001). An appellate court has discretion to consider unpreserved, plain errors affecting substantial rights. Rule 29.12(b).

In reviewing for plain error, Defendant must show the hearsay testimony "so substantially impacted...

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