State v. Culkin
| Decision Date | 09 May 1990 |
| Docket Number | Nos. 54444,57607,s. 54444 |
| Citation | 791 S.W.2d 803 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. William CULKIN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Richard H. Sindel, Larry Darnell Hale, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Jared R. Cone, Breck K. Burgess, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
Defendant was charged by indictment with two counts of sodomy and one count of rape, all charged as class B felonies. A jury found him guilty on all three counts. The trial court sentenced defendant to twelve years on Count I (sodomy), twelve years on Count II (sodomy) to run concurrently with the sentence imposed in Count I, and twelve years on Count III (rape) to run consecutively to the sentences imposed in Counts I and II, for a total of twenty-four years.
The victim, ten year old B.J.B., lived with her aunt and uncle, the defendant. On the morning of March 30 or 31, 1987, defendant had B.J.B. pull her pants down and get on her hands and knees on the bed. He inserted his penis into her vagina and anus. On the evening of April 3, 1987 defendant came into B.J.B.'s bedroom, and put his fingers underneath her pants and touched her vaginal area.
The next day B.J.B. told her friend S.G. that she was supposed to go to the country with defendant. She said she did not want to go because during the trip defendant would have her sit close to him and he would stick his hand between her legs. S.G. repeated this to her mother, who called the Child Abuse Hotline.
B.J.B. was examined at St. Louis Children's Hospital by Dr. Isabella Rosenbloom on April 4, 1987 at approximately 10:00 p.m. The doctor did not observe any scars or bruising on the outer part of the rectum, but noted that this does not mean penetration did not occur. The vaginal examination showed B.J.B.'s posterior fourchette (the area immediately below and to the rear of the vaginal opening) had a lot of scarring and irregularly shaped lacerations. The doctor stated that this type of injury was consistent with penile and digital penetration. B.J.B. also had abrasions and hyperemia (redness and swelling lateral to the vagina) which indicated that her vaginal area had been exposed to trauma within the previous seventy-two hours. Dr. Rosenbloom also testified that, because of the position of the scarring around the hymen ring, the victim's condition was consistent with penile penetration rather than masturbation.
Defendant relied on an alibi defense. He claimed that, at the time the offenses were committed, he was at work. The state introduced a rebuttal witness, however, who refuted defendant's claim that he worked for twelve hours straight at the times the offenses occurred.
Defendant raises twelve points on appeal. In reviewing the points we will discuss other facts as they become necessary.
In his first point, defendant claims that the trial court erred in sustaining part of the state's motion in limine which precluded the introduction of evidence regarding the alleged prior sexual activity of the victim pursuant to § 491.015, RSMo 1986, which reads as follows:
1. In prosecutions under chapter 566, RSMo, or prosecutions related to sexual conduct under chapter 568, RSMo, opinion and reputation evidence of the complaining witness' prior sexual conduct is inadmissible; evidence of specific instances of the complaining witness' prior sexual conduct or the absence of such instances or conduct is inadmissible, except where such specific instances are:
(1) Evidence of the sexual conduct of the complaining witness with the defendant to prove consent where consent is a defense to the alleged crime and the evidence is reasonably contemporaneous with the date of the alleged crime; or
(2) Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease;
(3) Evidence of immediate surrounding circumstances of the alleged crime; or
(4) Evidence relating to the previous chastity of the complaining witness in cases, where, by statute, previously chaste character is required to be proved by the prosecution.
2. Evidence of the sexual conduct of the complaining witness offered under this section is admissible to the extent that the court finds the evidence relevant to a material fact or issue.
3. If the defendant proposes to offer evidence of the sexual conduct of the complaining witness under this section, he shall file with the court a written motion accompanied by an offer of proof or make an offer of proof on the record outside the hearing of the jury. The court shall hold an in camera hearing to determine the sufficiency of the offer of proof and may at that hearing hear evidence if the court deems it necessary to determine the sufficiency of the offer of proof....
This statute creates only a presumption of irrelevance which may be overcome. State v. Gibson, 636 S.W.2d 956, 958 (Mo. banc 1982). The statute enumerates exceptions to the general rule through which a defendant may introduce evidence of the prior sexual conduct of the victim. Evidence offered under these exceptions, however, is admissible only to the extent that the court finds it relevant and material. State v. Jones, 716 S.W.2d 799, 800 (Mo. banc 1986). Whether evidence is relevant is a matter for the trial court to determine, and its decision will not be reversed absent an abuse of discretion. Gibson, 636 S.W.2d at 958.
Defendant argues that he should have been able to admit evidence that B.J.B. told her cousin Bonnie Kalal, that one of her other "fathers" may have abused her. This statement was introduced into evidence. He also sought to introduce evidence that a superintendant at the Gateway School, where B.J.B. had previously been a student, was accused of child molestation. Defendant made no offer of proof regarding the Gateway School or what this evidence might have shown. Next, defendant argued that J.C., a thirteen year old boy who was friends with B.J.B., could have been responsible for her injuries. Once again, there was no offer of proof that J.C. and B.J.B. were guilty of any sexual indiscretions.
Defendant also wanted to introduce evidence that Joe Culkin, defendant's son, had molested other family members and had severely punished B.J.B. in the past. The offer of proof here was that Joe Culkin touched Bonnie Kalal's breast about a year before the trial and that he had touched the vaginal area of Shannon Kalal, Bonnie's sister and another cousin of B.J.B., eleven years before. There was no offer of proof regarding Joe Culkin's punishment of B.J.B. The trial court correctly found that defendant's offer of proof was deficient because the testimony of Bonnie and Shannon Kalal was neither material nor relevant since the episodes were remote in time to the present incidents. See, State v. Hassler, 690 S.W.2d 178, 180 (Mo.App.1985). Moreover, evidence was presented that Joe Culkin was not in town on April 3, 1987.
Lastly, defendant argues that tampons or other physical injuries could have caused B.J.B.'s injuries. Dr. Rosenbloom testified, before the jury, that a tampon could have caused the injuries to B.J.B.'s hymen ring. Since defendant's offers of proof were deficient, Point I is denied in its entirety.
Defendant's second point alleges that the trial court erred in failing to strike venireperson Larry McBride for cause because McBride's answers during voir dire indicated he would give more weight to the testimony of a police officer than he would give to other witnesses.
The trial court has wide discretion in determining the qualifications of a prospective juror and the court's ruling will not be disturbed unless there is a clear abuse of discretion. State v. Stewart, 692 S.W.2d 295, 298 (Mo. banc 1985). Although refusal to sustain a valid challenge for cause will result in reversible error, the trial judge is in a better position to make this determination than we are from the cold record before us, therefore, any doubts regarding the trial court's findings will be resolved in its favor. State v. Smith, 649 S.W.2d 417, 422 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).
An accused must be afforded a full panel of qualified jurors before he is required to use his peremptory challenges. Stewart, 692 S.W.2d at 298. In determining when a challenge for cause should be sustained each case must be judged on its own facts. Id. A venireperson who expresses partiality toward police officer testimony per se is generally not qualified to serve on the jury. State v. Draper, 675 S.W.2d 863, 865 (Mo. banc 1984). In establishing qualifications, however, prospective jurors' responses must be examined in light of the entire voir dire and not from an isolated response. State v. Scott, 699 S.W.2d 760, 766 (Mo.App.1985).
There was ample support for the trial court's finding that Mr. McBride could be a fair and impartial juror. Although he indicated that his friendly relationships with police officers might cause him to credit their testimony more than that of others, further questioning elicited from him the response that he would not automatically accept an officer's testimony and that he would want to hear all the testimony before making a decision. At the close of voir dire, the trial judge addressed Mr. McBride directly: To this query, Mr. McBride responded, "Yes, sir." Thereafter, defense counsel's challenge of Mr. McBride for cause was denied. Based on the record and the trial court's superior vantage in viewing Mr. McBride's demeanor, we find no abuse of discretion. Point II is denied.
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