State v. Costa
| Decision Date | 30 November 1999 |
| Citation | 11 S.W.3d 670 |
| Parties | (Mo.App. W.D. 1999) State of Missouri, Respondent, v. Bernardo Costa, Appellant. WD56095 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Carroll County, Hon. Werner A. Moentmann
Counsel for Appellant: Gary Brotherton
Counsel for Respondent: Krista Boston
Opinion Summary: Bernardo O. Costa appeals from his conviction and sentence for statutory rape of his six-year-old daughter.
Division holds: (1) The trial court's action in directing the jury panel to disregard the remark made by the state to the venire panel (that the judge determined it would be too traumatizing for the child victim to testify) was sufficient to remove any prejudice.
(2) Costa was not prejudiced by a witness's remark about domestic violence. The trial court's instruction to the jury to disregard the testimony was reasonable.
(3) There was no abuse of discretion in admitting the hearsay statements made by the child victim to the six witnesses allowed to testify as to her out of court statements.
Appellant Bernardo O. Costa appeals from his conviction for statutory rape, Section 566.032.1 Appellant was sentenced as a persistent sexual offender, Section 558.018, to life imprisonment. Appellant asserts three points of error: (1) That the trial court erred and abused its discretion by failing to declare a mistrial during voir dire because of a remark made by the State to the venire panel; (2) That the trial court erred and abused its discretion in not declaring a mistrial when Melissa Welpman testified that Appellant has hit his wife; and (3) That the trial court erred and abused its discretion in admitting as evidence Jennifer's hearsay statements to Melissa Welpman, Ashley Curry, Lea Rear, Linda Brock, Loletta Combs and Dr. Lori Frasier.
Because we find that: (1) The trial court's action in directing the jury panel to disregard the remark made by the State to the venire panel was sufficient to remove any prejudice; (2) Appellant was not prejudiced by the testimony of Melissa Welpman and that the trial court's instruction to the jury to disregard the testimony was reasonable; and (3) There was no abuse of discretion in admitting the hearsay statements made by Jennifer to the six witnesses allowed to testify as to her out of court statements. We affirm.
On February 26, 1997, Jennifer Costa, Appellant's six-year-old daughter, was scratching between her legs during kindergarten class. Jennifer's teacher, Linda Brock, sent her to the school nurse. Lyla Ramirez, the school nurse, initially checked Jennifer's head for head lice. Finding none, she sent Jennifer back to class with a note stating that she checked her head and did not find any signs of lice. A teacher's aide brought Jennifer back to the nurse and told her she was looking in the wrong place. The nurse asked Jennifer where she itched and Jennifer pointed between her legs. The nurse asked Jennifer to take her pants down and show her. She pointed to a spot on the inside of her labia. The nurse extracted what appeared to be a pubic louse, and sent Jennifer back to class. Given the location and nature of the louse, the nurse made a hotline call to the Division of Family Services ("DFS"). DFS dispatched Melissa Welpman, a social worker with DFS to the school to investigate the hotline call. Ashley Curry, an intern with DFS, accompanied Welpman to the school. Welpman and Curry arranged to meet Jennifer in an office at the school. Welpman testified at trial that the following questions and answers occurred during the interview. Welpman asked Jennifer if she had an itch and asked her to show her where. Jennifer pointed between her legs. Welpman asked Jennifer if she knew the difference between good touch and bad touch. Jennifer responded that she knew the difference. Welpman asked Jennifer if anyone had ever touched her in a bad way. Jennifer avoided answering the question and became "antsy." After repeated questioning by Welpman, Jennifer said that she had been touched in a bad way. Welpman then asked Jennifer who had touched her in a bad way and Jennifer replied, "my daddy." Welpman asked Jennifer what her daddy did and Jennifer said that "he takes me downstairs; takes my panties off; takes his panties off, and gets on top of me." Welpman asked Jennifer what it felt like when he got on top of her and she replied that "it hurts." Jennifer described Appellant's genitalia as his "thing" and said that "it was wet and it was hard." Welpman asked if her daddy had done this to anyone else and she said, "just mommy." After Welpman finished questioning Jennifer, she spoke with Jennifer's mother, Kathy Costa. Welpman talked to Mrs. Costa about Jennifer's revelations concerning what her father had done. Welpman told Mrs. Costa not to discuss anything with Jennifer. Welpman also explained to Mrs. Costa that she would be setting up a videotaped interview with Jennifer for the next day and would schedule a SAFE exam. Welpman allowed Mrs. Costa to take Jennifer home that evening since Appellant would not be home until the weekend.
Mrs. Costa took Jennifer home and asked her if she was harmed in any way by Appellant. Mrs. Costa testified that Jennifer told her no. Mrs. Costa also testified that she told Jennifer that her daddy would go to jail if she lied, and told her to tell the truth. Mrs. Costa discussed the situation with her sister Beth and Appellant's brother Benjamin, who also lived at the residence. They decided to take Jennifer to a doctor that evening. Mrs. Costa took Jennifer to the emergency room at Fitzgibbon Memorial Hospital. Jennifer was examined by Dr. Barnum. He diagnosed Jennifer with vaginal itching and inflammation and recommended the use of cream for the irritation.
The next day, February 27, 1997, at 11:00 a.m., a police officer arrived at the Costa residence and took all three of Mrs. Costa's and Appellant's children, Jennifer, Layla and Bernard, Jr., into protective custody with DFS. All three of the children were placed with Chris and Lea Rear. That same day, in the early evening, Welpman and Cindy Williams, a social worker, questioned Jennifer in a videotaped interview.
On March 3, 1997, Welpman took Jennifer to see Dr. Scott for a SAFE examination. Dr. Scott determined that the dimensions of Jennifer's hymenal opening were double the size for a child of Jennifer's age, that Jennifer's hymenal ring was intact, though rough and thickened, and that her vaginal vault had chronic irritation and lacked vascularity, signaling that something had penetrated past the hymen. Based on these findings, it was Dr. Scott's opinion that Jennifer was sexually molested. Jennifer and her siblings were placed with Christopher and Lea Rear. Mr. Rear testified that Jennifer was affectionate, but would do a humping motion on him when he hugged her. Mr. Rear testified that when Jennifer first arrived at their home he would bathe her, but that he quit doing so because Jennifer would masturbate while she was in the tub. Mr. Rear also testified that Jennifer had terrible nightmares. Mrs. Rear testified that Jennifer has masturbated in front of the other children and in the bathtub, and that Jennifer has masturbated on occasion until she bled. Mrs. Rear also testified that Jennifer acted aggressively towards the other children in the house by punching, shoving, hitting and spitting at them. On one occasion, when the children were talking about the rules they had in the Costa household, Jennifer told Mrs. Rear that her father had hurt her. Mrs. Rear testified that Jennifer told her that Appellant had gotten on top of her and went up and down, that he hurt her and she cried, and that he told her to shut up and not tell anyone. Mrs. Rear shared this information with Welpman, who subsequently put Jennifer into counseling with Loletta Combs. On March 24, 1997, Jennifer began counseling sessions with Combs.
On May 19, 1997, Dr. Lori Frasier examined Jennifer. She testified that Jennifer's hymenal ring was intact and very thin, and that the opening of the hymen appeared to be large. Dr. Frasier also testified that it is possible for there to have been penile penetration of Jennifer without any physical evidence. Dr. Frasier also interviewed Jennifer. When Dr. Frasier asked her if she knew the difference between the truth and a lie and if she knew the difference between good touch and bad touch, Jennifer told her that she did. Dr. Frasier asked Jennifer if she had been touched and Jennifer shook her head no, and then began shaking her head yes. Dr. Frasier asked Jennifer where she was touched and she pointed to her genital area. Dr. Frasier asked Jennifer who touched her and Jennifer said, "her daddy." When Dr. Frasier asked Jennifer what Appellant had touched her with she said, "his privates." Jennifer would not tell Dr. Frasier anything further, so she resumed the physical exam. Based on her entire examination of Jennifer, it was Dr. Frasier's opinion that Jennifer had been sexually abused.
Peggy Carroll, Jennifer's first grade teacher, testified that on occasion Jennifer would slide underneath her desk and get into a fetal position and "drift off." She also testified that Jennifer would cut herself with scissors and put glue on herself and pick it off. She further testified that Jennifer was a "loner," but on the school playground she acted aggressively, especially pursuing one particular boy whom she routinely jumped on and wrapped herself around.
On May 22, 1997, Appellant was charged by information, as a prior offender, Section 558.016, and as a predatory sexual offender, Section 558.018, with statutory rape in the first degree, Section 566.032. On September 15, 1997, the State filed a motion to order a video recording of Jennifer, excluding Appellant from the proceeding, claiming that Jennifer would suffer significant emotional or...
To continue reading
Request your trial
-
State v. Sanders
...facts and the reasonable inferences of those facts in [the] light most favorable to the trial court's ruling."); State v. Costa, 11 S.W.3d 670, 678-79, 684-85 (Mo.App.1999). Thus, we first consider whether the trial court abused its discretion in finding that R.S. was legally unavailable as......
-
State v. Vickers
...855 (Mo. banc 1996) )."A mistrial is a drastic remedy that should be granted in only extraordinary circumstances." State v. Costa , 11 S.W.3d 670, 677 (Mo. App. W.D. 1999). "The trial court is in the best position to determine whether the incident caused prejudice." Id.In response to Vicker......
-
Decker v. Bowersox
...not be disturbed unless there is a clear abuse of discretion. State v. Thompson, 985 S.W.2d 779, 789 (Mo. banc 1999); State v. Costa, 11 S.W.3d 670, 675 (Mo. App. Ct. 1999). However, if the jury panel is prejudiced against a criminal defendant so that a fair and impartial jury cannot be imp......
-
State v. Minner
...hearsay testimony ... is limited to a determination of whether such admission amounted to an abuse of discretion." State v. Costa, 11 S.W.3d 670, 678 (Mo.App. W.D.1999). A trial court abuses its discretion when its ruling is "`clearly against the logic of the circumstances then before the c......