State v. Deason
| Decision Date | 17 December 2007 |
| Docket Number | No. 28028.,28028. |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gary L. DEASON, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Kent Denzel, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Victor Joseph Melenbrink, Asst. Atty. Gen., Jefferson City, MO, for respondent.
Gary Deason (Defendant) appeals from his conviction for second-degree sodomy. See § 566.064.1 He contends that the trial court erred by denying Defendant's request for a continuance and by admitting certain evidence offered by the State during rebuttal. This Court affirms.
Defendant does not challenge the sufficiency of the evidence to sustain his conviction. This Court considers the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict. State v. Woodmansee, 203 S.W.3d 287, 289 (Mo.App.2006); State v. Dillard, 158 S.W.3d 291, 294 (Mo.App.2005). All contrary evidence and inferences are disregarded. State v. Lawrence, 64 S.W.3d 346, 348-49 (Mo.App.2002). Viewed from that perspective, the favorable evidence and inferences supporting the State's case against Defendant are summarized below.
In 2004, Defendant was married to Tamra Deason (Mother). The couple resided in a home in Dallas County, Missouri, with their eight children. One of them was M.D. (Victim), who was then 15 years old. Mother worked the night shift at a Village Inn restaurant in Springfield, Missouri. Defendant was not employed and took care of the kids.
Barbara Baczek (Baczek) worked part-time at Village Inn in October 2004 and became friends with Mother. During their conversations, they learned that each of their husbands were suffering from erectile dysfunction (ED). Baczek also worked at a doctor's office and had obtained samples of prescription medications used to treat ED such as Levitra, Cialis or Viagra for her husband. When Defendant found out about this, he asked Mother to get him some of the samples from Baczek. She gave the samples to Mother, who in turn gave them to Defendant in October and November of 2004. Mother never observed Defendant using any of the samples when they engaged in intercourse.
During that same time period, Defendant had a conversation with Victim about some medicine he had received from his doctor. Defendant needed to test it with another person and then write a report to the doctor. Defendant said he needed Victim's help because Mother had refused to participate in the test. Defendant told Victim that she would not be permitted to engage in various activities, such as going to cheerleading or to a friend's house, unless she agreed to assist Defendant with the "medicine test." The first time Defendant asked Victim to perform the medicine test, she declined. Thereafter, Defendant asked Victim to perform the medicine test again when she wanted to go to a friend's house. Because Defendant would not let Victim go unless she performed the test, she complied with his request.
To perform the medicine test, Defendant would disrobe below the waist. Victim would remove her pants and underwear, lie on her back with her legs up and permit Defendant to place his penis on Victim's vagina for approximately ten minutes. During these tests, Defendant also sometimes attempted to kiss Victim on the lips and touch her breasts. On one occasion, Defendant inserted his finger into Victim's vagina before performing the test. During the month of December 2004, Defendant performed the medicine test on Victim four times. The last incident occurred around December 22, 2004. Defendant would not let Victim attend her boyfriend's birthday party unless she performed the test. Initially, Victim did not report what was happening. She was afraid that Mother would not believe her and would think the incidents were Victim's fault.
On November 28, 2005, Victim became involved in an argument with her older brother, Arthur Deason (Arthur).2 Defendant became involved in the argument and told Victim "if she didn't shut up and quit screaming that he was going to tell her secret." Defendant knew that Victim was secretly dating a boy against Mother's wishes and was pregnant with his child. Victim responded by saying, Upon hearing this, Defendant appeared "panicked" and told Victim to "[s]hut up right now," and that "[y]ou're not going to tell your mom nothing." Victim began crying and told Mother that Defendant had "been making her do sex stuff with him." Defendant threatened to take the children to Texas or give them to the State if Mother reported the abuse. Defendant called his son from a previous marriage and asked him to talk Mother out of doing anything. The son, however, told Mother to "take [Victim] to the sheriff and put a stop to it." As Mother attempted to leave, she "had to physically fight [Defendant] off." Defendant then took the keys and locked the car. After a 911 call was made to the Dallas County Sheriff's Office, however, Defendant allowed Mother and Victim to leave. When Victim arrived at the sheriff's office, she told a deputy sheriff about being sexually abused by Defendant.
In February 2006, Defendant was charged by information with three counts of sexual abuse and one count of second-degree sodomy involving Victim. See §§ 566.100, 566.064. On the day of trial, the State filed an amended information which charged only a single count of second-degree sodomy. The three counts of sexual abuse were dismissed. Following a jury trial, Defendant was convicted of second-degree sodomy. He was sentenced to serve seven years in prison and fined $5,000. Additional facts necessary to the disposition of the case are included below as we address Defendant's three points on appeal.
In Defendant's first point, he contends the trial court abused its discretion by denying Defendant's motion for a continuance after the State filed an amended information on the first day of trial. The following facts are relevant to the discussion of this point.
On the morning of trial, the State requested leave to file a first amended felony information. The amended information only charged Defendant with committing second-degree sodomy, as originally alleged in Count III. Counts I, II and IV, which had charged Defendant with sexual abuse, were dismissed. Defense counsel moved for a continuance on the ground that the amendment to the information drastically altered Defendant's trial strategy. According to defense counsel, the allegations relating to the dismissed charges were part of a continuous course of conduct reported by Victim. Counsel had hoped to exploit certain perceived inconsistencies in Victim's testimony regarding the prior allegations and considered this potential impeachment to be of paramount importance to the defense. Because of the dismissal of the sexual abuse charges, however, Defendant and his counsel had to decide whether the proposed impeachment was sufficiently valuable to outweigh the introduction of prior uncharged misconduct by Defendant that such a tactic would entail. Counsel requested a continuance to decide this issue of trial strategy. The prosecutor noted that, in light of the dismissal of the sexual abuse charges, the length of the trial would be shortened. She suggested that the trial be suspended after jury selection and that the parties begin presenting evidence the next morning, which would give Defendant and his counsel the rest of the day to decide what strategy to follow. The court granted the motion and decided to delay the presentation of evidence until the following morning.3 Jury selection concluded at around noon, and the court stood in recess until 9:00 a.m. the next day.
The next morning, defense counsel renewed her motion for a continuance. She argued that a delay was necessary to conduct a "substantial investigation" of the events that occurred on November 28, 2005 by interviewing all of the children present in the home that evening. The court denied the request because: (1) the allegations in the amended information were identical to those contained in Count III of the original information which was filed in February 2006; (2) counsel could have conducted this type of investigation during the 196 days the case had been pending; (3) counsel conceded that she had been "prepared to try the overall case" before the amended information was filed; and (4) during the trial recess, defense counsel had taken no steps to contact any of these potential witnesses.
Because Defendant was only charged with committing one act of statutory sodomy, defense counsel also moved to exclude any testimony relating to the medicine tests that Defendant performed with Victim. The court denied that motion because it constituted "grooming evidence, which the courts have already ruled is admissible to show the progression of the molestation." At trial, the State elicited testimony from Victim concerning the medicine tests during her direct examination. Defense counsel then vigorously cross-examined Victim about allegedly inconsistent statements she had made regarding those incidents. In addition, defense counsel elicited evidence from the investigating officers and forensic interviewer concerning the alleged inconsistencies in Victim's account of events.
"The decision to grant or deny a continuance is within the sound discretion of the trial court." State v. Taylor, 944 S.W.2d 925, 930 (Mo. banc 1997). "A court abuses its discretion when its ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Wolf, 91 S.W.3d 636, 645 (Mo.App.2002). As the party seeking the continuance, Defendant bears the burden of demonstrating how he was...
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