State v. Crawford

• Decision Date: 29 November 2000
• Docket Number: No. 23530,23530
• Citation: 32 S.W.3d 201
• Parties: (Mo.App. S.D. 2000) State of Missouri, Respondent v. Robert E. Crawford, Appellant
• Court: Missouri Court of Appeals

32 S.W.3d 201 (Mo.App. S.D. 2000)

State of Missouri, Respondent v. Robert E. Crawford, Appellant.

No. 23530

Missouri Court of Appeals Southern District

11/29/2000

Appeal From: Circuit Court of Jasper County, Hon. David C. Dally

Counsel for Appellant: Ellen H. Flottman

Counsel for Respondent: Breck K. Burgess

Opinion Summary: None

Prewitt and Crow, J.J., concur.

Robert S. Barney, Chief Judge

Appellant, Robert E. Crawford, ("Appellant") was convicted of the Class C felony of statutory rape in the second degree, section 566.034, RSMo 1994, following a jury trial in the Circuit Court of Jasper County, Missouri.¹ He was sentenced to four years imprisonment. Appellant now raises two points of trial court error, discussed below. We affirm.

Viewed in the light most favorable to the verdict, State v. Culbertson, 999 S.W.2d 732, 733 (Mo.App. 1999), the record shows that the victim, K.R., a 15-year-old girl and neighbor of Appellant, visited Appellant's home in February of 1999. She was asked by Appellant to join him in his bedroom where Appellant then disrobed. K.R. proceeded to disrobe also and the two engaged in oral and vaginal sexual intercourse. K.R. also testified that she and Appellant engaged in sexual intercourse a second time in February of 1999. On May 24, 1999, K.R. contacted the department of Family Services to report the incidents of sexual intercourse involving Appellant. A social worker contacted Detective Darren Gallup of the Joplin Police Department regarding K.R.'s allegations. Detective Gallup contacted K.R.'s father discussing a plan whereby K.R.'s father would arrange a taped telephone conversation with Appellant, hoping Appellant would make incriminating statements. However, K.R.'s father declined to participate in the scheme. Detective Gallup went to Appellant's home to speak with Appellant regarding his purported involvement with K.R. Detective Gallup then arrested Appellant and took him to the police department where Appellant informed Detective Gallup that Appellant had been born on August 24, 1949, and during a videotaped interview he confessed to having sexual intercourse with K.R.²

At trial, Appellant did not take the stand. Detective Gallup testified as to Appellant's confession at the police station regarding having sexual intercourse with K.R., and testified that Appellant had given him a statement as to his age, i.e., 49 years. The jury was then allowed to watch a videotape of Appellant's confession.

In his first point of trial court error, Appellant contends that the state had failed to prove him guilty of the crime of statutory rape in the second degree beyond a reasonable doubt because the state failed to prove Appellant's age "without reference to [Appellant's pre-trial videotaped] statement as to his age, which was inadmissible for this purpose, since the corpus delicti . . . had not been established." Appellant argues that absent independent proof, circumstantial or direct, of the essential elements of the corpus delicti, no extrajudicial admissions or confessions made by him, were admissible in evidence at trial. State v. Summers, 362 S.W.2d 537, 542 (Mo. 1962). He reasons that since statements as to his age were improperly admitted at trial there was insufficient evidence presented at trial to sustain his conviction.

As support for the foregoing proposition, Appellant also refers this Court to City of Albany v. Crawford, 979 S.W.2d 574 (Mo.App. 1998), involving a 19-year-old man who was charged and found guilty of violating a city ordinance prohibiting persons under the age of 21 from possessing intoxicating liquor. In reversing Crawford's conviction, a panel of the Western District of this Court determined that "[p]roof of age is an essential element of an offense of possession of beer by a person under the age of 21." Id. at 575. The Court reasoned that the city had not presented independent, corroborating proof of defendant Crawford's date of birth, since the only evidence of defendant Crawford's age was the arresting officer's testimony that defendant Crawford had told him that he was 19 years of age. Id. The Court determined that this statement was insufficient to demonstrate the age of the defendant. Id.

We note that an issue as to the corpus delicti rule is distinguishable from an issue as to the sufficiency of the evidence, although they may overlap.³ The corpus delicti rule deals specifically with whether a defendant's confession of guilt may be considered substantive evidence of guilt. Culbertson, 999 S.W.2d at 736. "Generally, the State must prove the commission of a crime with evidence independent of a confession of the accused." Id. "The corpus delicti of a crime is established by proving that the crime charged was committed by someone." Id. "Once evidence other than the defendant's confession shows that a crime was committed by someone, then defendant's confession is admissible." State v. Hankins, 599 S.W.2d 950, 953 (Mo.App. 1980)(affirming a judgment of conviction for the statutory rape of a 12-year-old girl). Furthermore, "[e]stablishment of the identity of the defendant as the guilty party is not required before a confession is admitted in evidence." Id. While the corpus delicti may not be presumed, and the burden is upon the state to prove the corpus delicti, the state may provide the corpus delicti of a crime through direct or circumstantial evidence. Culbertson, 999 S.W.2d at 736. Proof of the corpus delicti and an admission can be considered together and the sum of the two can go to prove the essential elements of the crime. Evans, 992 S.W.2d at 285. "Only slight corroborating facts are sufficient to establish the corpus delicti." Id.

In the instant matter, unlike City of Albany v. Crawford, supra, there was ample evidence corroborating Appellant's confession. The victim called the "hotline" at the Division of Family Services and factually reported incidents of sexual intercourse with Appellant during the month of February 1999, the same month her mother had died. She repeated these same facts at trial. The state also expressly proved that the victim was 15-years-old at the time of the sexual intercourse, having been born on July 5, 1983.

Appellant's videotaped confession, which was shown to the jury, also corroborates Appellant's confession that he was over 21 years of age. Unlike the factual scenario found in City of Albany--involving a 19-year-old man, an age very close to his age of majority--the fact that the jury could view Appellant's appearance on the videotape and observe that he was at least 21 years of age corroborates Appellant's confession of his age.⁴ The foregoing, in conjunction with his statement admitting his age as 49 and his confession made to Detective Gallup of having sexual intercourse with K.R., supports the proposition that the corpus delicti was established. "If the evidence shows corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in the confession, both the circumstances and the confession are considered in determining whether the corpus delicti is proven." Hankins, 599 S.W.2d at 953-54. Based on the foregoing, Appellant's statement of his age was properly admitted and sufficient evidence was presented from which a reasonable jury could find Appellant guilty beyond a reasonable doubt. State v. Smith, 944 S.W.2d 901, 916 (Mo. banc 1997); see also Culbertson, 999 S.W.2d at 736. Point denied.

In his second point, citing State v. Seiter, 949 S.W.2d 218 (Mo.App. 1997), Appellant maintains that the trial court erred when--in the course of Appellant's closing argument--the trial court sustained the state's objection when Appellant sought to draw an adverse inference from the state's failure to call K.R.'s father.⁵ Appellant maintains where a witness at trial could reasonably be expected to testify in the State's favor, the defendant may comment on the state's failure to do so. While we agree that this is generally a correct statement of the law, we find no merit in Appellant's point.

Trial courts have broad discretion in the control of closing arguments. State v. Barton, 936 S.W.2d 781, 783 (Mo. banc 1996); State v. Anderson, 867 S.W.2d 571, 576 (Mo.App. 1993). Unless it clearly appears that the trial court abused its discretion its rulings will not be disturbed on appeal. State v. Walton, 920 S.W.2d 585, 587 (Mo.App. 1996). This discretion is abused when a ruling is "clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997)(quoting Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448 (Mo. banc 1976)). "[I]f reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Id. at 883-84.

"Where a witness is equally available to both parties or unavailable to either party, the trial court should not permit counsel to argue to the jury during closing argument that an adverse inference arises from the state's failure to call the witness." Anderson, 867 S.W.2d at 576. "Only when the missing witness is 'peculiarly available' to one party should the court consider whether the party's failure to call the witness supports the inference that the witness could have testified adversely to that party if called." Id.⁶ "'Equally available' means more than merely being susceptible to service of process and is determined by consideration of the following three factors: (1) one party's superior ability to know or identify the witness; (2) the nature of the testimony expected to be given by the witness; and (3) a relationship between a party and the witness which indicates a likelihood that the witness would testify more favorably for one party than the other." Id.

Here, we fail to discern how K.R.'s fat...