State v. Davidson
| Decision Date | 05 February 2020 |
| Docket Number | No. SD 35760,SD 35760 |
| Citation | 599 S.W.3d 257 |
| Parties | STATE of Missouri, Respondent, v. Herbert Glen DAVIDSON, Appellant. |
| Court | Missouri Court of Appeals |
Appellant's Attorney: Katharine P. Curry, of Columbia, Missouri.
Respondent's Attorneys: Eric S. Schmitt, Attorney General, and Evan J. Buchheim, Assistant Attorney General, of Jefferson City, Missouri.
Herbert Glen Davidson ("Davidson") appeals his conviction, following a jury trial, of one count of child molestation in the first degree. Davidson challenges his conviction in three points on appeal. Finding no merit to Davidson's points, we deny the same and affirm the judgment of the trial court.
Davidson does not challenge the sufficiency of the evidence to support the conviction. We recite the evidence and the reasonable available inferences therefrom in the light most favorable to the verdict. State v. Lammers , 479 S.W.3d 624, 630 (Mo. banc. 2016). We recite other information as necessary for context.
Following Davidson's marriage to Victim's mother in April 2014, Davidson began sexually abusing Victim. Victim was eight years old at the time. Most of the abuse took place in the master bedroom Davidson shared with Victim's mother, with one incident occurring in the master bathroom. Victim and her siblings were not allowed in the master bedroom or bathroom without permission.
Davidson warned Victim that if she told anyone it would not be good for Mother or Victim's brothers. Victim was afraid of Davidson because she had seen him hit her brothers. Davidson "burned" all of the children's toys as punishment for not cleaning their rooms. Victim reported Davidson's abuse of her brothers to her mother, but mother did nothing. There was usually very little food in the home, and Victim and her siblings relied on meals provided at school.
On July 14, 2014, Victim's aunt and uncle observed Victim and her two brothers to be "skinny, really, really skinny" with "sores all over their bodies." They "looked tired." One of the boys had a big knot on his head. The following Monday, a report was made at the "Children's Center in Joplin."
On July 21, 2014, Victim and her brothers were taken into custody by the Children's Division due to allegations of physical abuse of Victim's brothers by Davidson. The children were also found to have scabies. At that time, Victim underwent a CAC interview and was asked about any physical or sexual abuse she may have sustained at the hands of Davidson. Victim feared that she and her brothers might be returned to live with Davidson, and for that reason, Victim denied any abuse.
A Complaint was filed on September 15, 2014, charging Davidson with physical abuse of Victim's brother and half-sister. On September 25, 2014, Davidson turned himself in on these pending charges, but before any allegation of sexual abuse involving Victim had been made.
On October 17, 2014, Davidson sent text messages to Mother stating, "[S]he could give a hair description, size, or anything." Mother reported the text messages to a Children's Division caseworker because she was alarmed by Davidson's text messages. A meeting was set up with Mother, the caseworker, and a law enforcement officer where the text messages were reviewed on Mother's cellphone.
On October 21, 2014, Victim underwent a second CAC interview in which she still did not divulge the sexual abuse by Davidson, due to continuing fear she would be returned home.
In early 2015, Victim and brothers were placed with their aunt and uncle. Victim then disclosed the sexual abuse in a third CAC interview on March 25, 2015.
In her visitation with the children, Mother would confront Victim and her brothers with their allegations and would either blame them, diminish the severity of the abuse, or deny any such abuse took place. Upon the children's request, all visitation and contact with Mother was finally stopped. Mother's parental rights were terminated on May 3, 2016,2 in large part due to her continuing relationship with Davidson, and her continued belief that Davidson did nothing wrong. Thereafter, Victim's aunt and uncle adopted Victim and her two brothers.
On November 30, 2016, Davidson was charged by Information with one count of first-degree child molestation of Victim, pursuant to section 566.067,3 occurring on or about "Spring 2014 to July 2014."
On January 11, 2017, Davidson filed a motion to dismiss asserting double jeopardy in that he had already been charged and acquitted after a jury trial of child molestation in the first degree against Victim occurring "on or about June 20, 2013." After hearing argument, the trial court took the matter under advisement pending the submission of briefs. The trial court overruled the motion to dismiss on March 22, 2017. On August 14, 2017, Davidson filed a "Petition for Writ of Prohibition" with this Court, which was denied on September 13, 2017.
A jury trial commenced on August 23, 2018.4 On the morning of the second day of trial, defense counsel tendered an oral motion in limine regarding the testimony of two witnesses as to their knowledge of text messages received by Victim's mother from Davidson and actions taken thereafter. After hearing argument, the trial court overruled the motion, but did restrict the testimony of the two witnesses.
Davidson testified in his own defense and denied inappropriately touching Victim. Davidson admitted he sent the text messages to Victim's mother.
In her testimony, Victim's mother identified photos representing the text messages she had received from Davidson. She also identified Davidson's number as the number she had programmed into her cellphone for Davidson and it was the number she associated with him. She recalled receiving the text messages from Davidson sometime after he bonded out of jail.
At the jury instruction conference, defense counsel advised the trial court he had "[n]o objections, no corrections from defense[,]" to any of the tendered jury instructions.
The jury found Davidson guilty as charged. After Davidson waived jury sentencing, the trial court sentenced Davidson to 12 years’ imprisonment.
Davidson filed a motion for new trial asserting the trial court erred in allowing the text messages between Davidson and Victim's mother, and not dismissing the case with prejudice based on double jeopardy. After hearing argument, the trial court overruled the motion. This appeal followed.
In three points on appeal, Davidson asserts: (1) the trial court erred in rejecting his double jeopardy argument; (2) the trial court plainly erred in submitting Instruction No. 5—the verdict director for Davidson's charge of child molestation in the first degree—in that evidence was adduced of multiple acts which could each individually serve as the basis for conviction of the crime charged, and Instruction No. 5 did not sufficiently specify between them such as to assure jury unanimity; and (3) the trial court abused its discretion in admitting evidence of text messages Mother received from Davidson, in that the texts were not properly authenticated.5
"We will uphold the court's ruling on the admissibility of evidence if it is sustainable under any theory." State v. Townsel , 564 S.W.3d 731, 736 (Mo.App. S.D. 2018). "The exclusion of evidence is harmless beyond a reasonable doubt where the excluded evidence is cumulative of other evidence which was admitted at trial." State v. Ellis , 512 S.W.3d 816, 825 (Mo.App. W.D. 2016) (internal quotation and citation omitted). We review questions of law de novo. State v. Daggett , 575 S.W.3d 799, 802 (Mo.App. W.D. 2019).
In his first point, Davidson argues that the trial court erred in rejecting his motion to dismiss because Davidson "was previously tried and acquitted of the offense of first degree child molestation in Case No. 15NW-CR00584-01, where he was already put at jeopardy for all incidences of abuse alleged by [Victim] that met the elements of that offense[.]"
We are not persuaded. While it is said "the time the offense occurred is not a fact necessary to constitute the offense" in sex offense cases—i.e. , "that time is not of the essence"6 —this does not vitiate the principle that (generally) multiple acts of molestation do not cumulatively reflect "a continuing offense, but each act of [molestation] constitutes a distinct and separate offense." State v. Jackson , 410 S.W.3d 204, 216 (Mo.App. W.D. 2013) (internal quotation and citation omitted).7
In Jackson , our Western District recently summarized these principles as applicable to double jeopardy:
The facts of each case will determine whether there has been a single assault or multiple [assaults], including the factors of time, place and defendant's intent. If the defendant has an opportunity to reconsider his actions, each assault separated by time is considered a separate offense.
Jackson , 410 S.W.3d at 216 (internal quotations and citations omitted).
In Case No. 15NW-CR00584-01, Davidson was charged with molesting Victim "on or about the fall of 2013," and acquitted.8 In the instant matter, Davidson was charged with molesting Victim "on or about Spring of 2014 to July of 2014," and convicted. Based on the controlling principles described in Jackson , an alleged act of child molestation by Davidson against Victim in the fall of 2013 would reflect a separate crime from one committed on or about Spring 2014 to July 2014. The trial court did not err in rejecting Davidson's motion to dismiss on...
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