State v. Creason

• Decision Date: 12 January 1993
• Docket Number: No. WD,WD
• Citation: 847 S.W.2d 482
• Parties: STATE of Missouri, Respondent, v. Bobby D. CREASON, Appellant. 45837.
• Court: Missouri Court of Appeals

Page 482

847 S.W.2d 482

STATE of Missouri, Respondent, v. Bobby D. CREASON, Appellant.

No. WD 45837.

Missouri Court of Appeals Western District.

Jan. 12, 1993.

James J. Wheeler, Keytesville, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before LOWENSTEIN, C.J., and SHANGLER and HANNA, JJ.

HANNA, Judge.

The defendant, Bobby D. Creason, was charged by an information with committing the crime of sodomy ¹ with his stepdaughter on February 21, 1991. At the time the victim was eight years of age. The jury trial took place in Macon County on a change of venue. The following evidence was developed at trial.

Mary K. Creason married the defendant in November of 1988. Mrs. Creason had two children from her prior marriage: the victim who was nine years old at the time of the trial, and a son who was a year older. The defendant and his wife lived in a mobile home park in Columbia, then moved in with his parents in Huntsville. The family next stayed at a farm near Higbee, Missouri and from there moved to a house inside the city limits of Higbee. Mrs. Creason's nephew was also living with them at that time.

On February 21, 1992, the victim testified that she came home from school at approximately 2:25 p.m. and went to her bedroom. Both her brother and cousin were in the house but the defendant told them to go outside. The defendant told his stepdaughter to go to the bathroom and after she entered the bathroom he pulled her pants down around her ankles and touched her "privacy" with " [h]is tongue."

Mrs. Creason's testimony was she got off work a few minutes early and when she arrived home she noticed that the two boys were in the yard playing but her daughter was not in sight. Most of the house was dark; only the kitchen and the bathroom had lights on. She saw the defendant standing inside the bathroom and holding the victim up in the air. She was wearing a skirt but her pants were pulled down to her ankles.

Mrs. Creason asked the defendant what he was doing and at first he did not answer. Later he said he was "washing her." Mrs. Creason testified that the defendant was not responsible for bathing or washing the daughter who bathed and washed herself, except for her hair.

Mrs. Creason immediately took her daughter and the boys to the car and asked her what had happened. She told her mother that the defendant "was licking her ... private area." Mrs. Creason went back into the house, called the chief of police in Higbee and then drove to his house. The police chief sent her to City Hall where she reported the incident to the police chief, a detective with the Randolph County Sheriff's Department and Kelli Heuer, a Division of Family Services investigator. The victim told the police chief, "that Bobby had her on the hamper licking her privacy." She also told Mrs. Heuer that "her Dad had licked her privacy." According to Mrs. Heuer, the victim was "very upset with what had happened and was crying."

There was testimony of a prior incident that occurred when they lived on a farm near Higbee, Missouri. Mrs. Creason found her daughter in the boys' bedroom with the lights off and the defendant sitting on one of the beds with her daughter standing by a window. When she asked the defendant what they were doing he replied that he was looking for something.

Mrs. Creason got her daughter alone and inquired as to what had taken place. She told her mother the defendant was trying to get her pants off and then related an earlier incident when the defendant "took her in [their] bedroom and made her sit on the bed, spread her legs out" and "was sticking his finger in and out of her." When confronted with this accusation by Mrs. Creason, the defendant explained that he was putting vaseline on her.

For defendant's first point, he argues that the evidence was insufficient to sustain a finding of guilt to the charge of sodomy because the nine-year-old victim's testimony was "so contradictory and in conflict with physical facts, surrounding circumstances and common experience" that the evidence needed corroboration.

The defendant summarizes these "uncorroborated contradictions" as follows: the defendant is charged with having committed a sexual act in a bathroom in a house with open and unlocked doors, with children in the yard, at the exact time his wife and the mother was expected home and while the defendant was fully clothed. He argues the inconsistency in the mother's and the victim's testimony in that the victim says she was on a wicker clothes hamper and Mrs. Creason said she was being held in the air at the bathroom entrance, by the waist, in what appeared to be intercourse. For a sexual act to be performed, or attempted, under these circumstances, he argues, is not believable because of the physical facts.

Corroboration testimony of a victim is required where the victim's testimony is so contradictory and in conflict with the physical facts, surrounding circumstances and common experience, that its validity is rendered doubtful. State v. Harris, 620 S.W.2d 349, 353 (Mo. banc 1981). The defendant is unable to point to any inconsistencies in the victim's trial testimony. He does argue that her trial testimony differed from her statements to Chief of Police Boggs and to Division of Family Services' Worker Heuer. He notes that she told Chief Boggs that the defendant "had her on the hamper licking her privacy," and that she said that the defendant "had never done this before." Chief Boggs did not recall the victim ever mentioning the fact that the defendant, some months earlier, had inserted his finger in her vagina. Mrs. Heuer's report stated that Charlotte "denied any other bad touches beside the oral sex."

All of these charged inconsistencies or contradictions refer to matters extraneous to the victim's trial testimony. The corroboration requirement is triggered only when the inconsistencies arise in the victim's trial testimony and not inconsistencies with her out-of-court statements. State v. Patterson, 806 S.W.2d 518, 519 (Mo.App.1991). Further, the requirement of corroboration does not apply where the inconsistencies are between the victim's statements and those of other witnesses. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992); State v. Davis, 824 S.W.2d 936, 941 (Mo.App.1992). At best, the defendant has only shown contradictions in the testimony between the victim's trial testimony and her out-of-court statements and some inconsistencies between the victim's statements and that of her mother's trial testimony. In all instances, they were adequately explained to the jury. When or in what manner the victim was positioned when the defendant committed the act of sodomy upon her was not a subject that was raised either on direct or cross-examination. There was a clothes hamper in the corner of the bathroom. Although she told Chief Boggs that the defendant had "never done this before" the jury was free to reason that she was referring to an act of oral sex; the prior incident where the defendant inserted his finger in her vagina, being different. There was evidence that the victim was not asked by Chief Boggs about any other incidents.

Mrs. Heuer's report that the victim had not experienced any other bad touches was explained by Mrs. Heuer in that she meant " [t]hat day besides the oral sex" and that she had not asked about, or discussed, any other sexual instances involving the defendant.

Nevertheless, the victim's testimony was corroborated by her prompt complaint, first to her mother and then to Chief Boggs and to Mrs. Heuer. Evidence of the victim's prompt complaint is corroborative evidence of a sexual assault. Harris, 620 S.W.2d at 354. Additionally, Mrs. Heuer testified that the victim "was very upset with what had happened and was crying." This corroborates and establishes that the act occurred. State v. Wickizer, 641 S.W.2d 849, 851 (Mo.App.1982).

The defendant's argument is nothing more than an assertion that the state's testimony was not credible. Such a contention was for the jury to resolve. The testimony of the victim was straightforward and did not contain contradictions or inconsistencies in her trial testimony, or for that matter, in her out-of-court statements to her mother, Chief Boggs or the social worker. We find corroboration was unnecessary as the prosecutrix's testimony was sufficient to support the verdict of guilty.

The defendant next objects to the assistant prosecutor's questions to Mr. Robinson, the defendant's character witness. On direct examination of defendant's employer, the defense attorney asked these questions and received these answers.

Q. Will you tell the jury what you know about [defendant's] reputation for being a dependable law-abiding person?

A. Bobby has always been a good worker. I could depend on him being there on time, staying until the job was done.

Q. Have you at any time heard him accused of any criminal activity of any kind or nature?

A. I never have.

Following this exchange, the assistant prosecuting attorney framed six questions with this introduction:

Q: Mr. Robinson, when you formed this opinion of [the defendant] as being law-abiding, were you aware of the fact or rumors of the fact that he had (emphasis added)

--assaulted his [ten-year-old stepson] by striking him with a belt?

--struck [another child] with a belt

--struck [ten-year-old stepson] with a piece of pipe

--struck [another child] with a wire

--some twenty years earlier inflicted punishment on his natural son ... by breaking his collar bone

--that some twenty to twenty-five years ago molested his own natural daughter

All of the above questions commenced with " ... were you aware of the fact...." Each question was answered in the negative.

The defendant objected to these questions because, among other deficiencies, they lacked a good faith basis and were prejudicial because they were offered for the...