State v. Dickson

• Decision Date: 11 April 2011
• Docket Number: No. SD 30159.,SD 30159.
• Citation: 337 S.W.3d 733
• Parties: STATE of Missouri, Plaintiff–Respondent,v.Jeffery Allen DICKSON, aka Jeffrey Allen Dickson, Defendant–Appellant.
• Court: Missouri Court of Appeals

337 S.W.3d 733

STATE of Missouri, Plaintiff–Respondent,

v.Jeffery Allen DICKSON, aka Jeffrey Allen Dickson, Defendant–Appellant.

No. SD 30159.

Missouri Court of Appeals, Southern District, Division One.

March 22, 2011.Rehearing Denied April 11, 2011.Application for Transfer Denied

May 31, 2011.

Janet M. Thompson, Columbia, MO, for Appellant.Chris Koster, Attorney General, and Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.DON E. BURRELL, Judge.

Jeffery Allen Dickson (“Defendant”) was convicted after a jury trial of child kidnapping, forcible rape, and two counts of forcible sodomy, all committed against Q.U.J., a minor (“Victim”). See sections 565.115, 566.030, and 566.060.¹ After waiving jury sentencing, Defendant was sentenced by the trial court to serve consecutive life sentences on each count. Defendant now timely appeals his convictions, alleging in three points relied on that the trial court committed reversible error by: 1) preventing Defendant from arguing to the jury that the crimes had been committed by his brother; 2) allowing Victim to hold a teddy bear while testifying; and 3) allowing Victim's mother to testify about statements Victim made at the hospital. Finding no merit in any of these contentions, we affirm.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to sustain his convictions. The facts set forth herein are detailed only as necessary to address Defendant's specific points of alleged error and are viewed in the light most favorable to the judgment.

On the evening of April 5th, 2008 (a Saturday), seven-year-old Victim accompanied her grandmother (“Grandmother”) to an all-night card game held at the residence of Defendant's second-cousin, Gary McElroy, and McElroy's girlfriend, Keeona Stewart (“the residence”). For most of the evening, Victim watched television and played on-line computer games in a bedroom of the residence. Defendant had been living in the garage of the residence. Stewart testified that Defendant had braids in his hair that night, was wearing a black “do-rag,” and that his braids were visible outside the do-rag. McElroy and Stewart testified that Defendant was the only person wearing a do-rag that evening. McElroy testified that Defendant was wearing white shoes. Defendant was “in and out” that evening and participated in the card game at various times.

Defendant had contact with Victim at the residence on two occasions that evening; coming to the bedroom occupied by Victim on one occasion to assist her with the computer, and once to bring her something to drink. In her trial testimony, Victim stated that a girl at the residence called him “Jeff.”

McElroy testified that on the evening of the card game he took Defendant (at Defendant's request) to what was later identified as the house where the sexual assaults occurred (hereinafter “the burnt house”—the moniker given it by Victim) to get a television. Although the television was on the home's front porch, Defendant went inside while McElroy opened the trunk of his car. After Defendant came out of the home, the men loaded the television into McElroy's trunk.² Stewart testified that after Defendant and McElroy returned with the television, Defendant left again. Stewart estimated that Defendant left around 1:00 a.m. and returned around 6:15 a.m., before Victim was discovered missing.

Sometime that Saturday night or during the early hours of the next morning, Defendant came to the bedroom window and lured Victim outside with a promise that she would receive a Barbie doll if she came with him. Victim testified at trial that the person who took her away had braids in his hair and wore a do-rag. Defendant took Victim to the burnt house, where he raped and sodomized her. Defendant then began choking Victim until she feigned death. Victim lost consciousness. When she awoke, there was smoke in the house. Victim quickly dressed and left the house, wearing only one shoe. During the police investigation of the incident, Victim was shown a photographic line-up and picked out a photograph of Defendant as the person who had hurt her. That photographic line-up was admitted into evidence at trial.

Around 3:30 a.m. Sunday morning, Fire Marshal Ben Basham was dispatched to investigate a report of a fire at the burnt house. Basham testified about his specific observations within the house and his conclusion that the fire was intentionally set in the northeast corner bedroom. After completing his investigation inside the house, Basham encountered Victim, who was wandering in the street, wearing just one shoe. Alarmed by Victim's appearance, Basham asked her if she was alright. Victim responded, “Somebody choked me.” Basham tried to get additional information from Victim but couldn't really make out what she was saying, describing Victim's speech as “just kind of incoherent a little bit. Meek is, I guess, a good way to describe it, not very loud.” Concerned about Victim's condition, Marshal Basham radioed for police officers and medical responders to be dispatched to his location.

Springfield police officer Daryl Ferris was one of the first persons to arrive. Ferris described Victim as “in and out of consciousness. She would talk to me for a moment and then kind of stare off at the dashboard or whatever.” When asked to recount what Victim said when he asked her to tell him what had happened, Ferris testified: “The first thing she told me was that she had been choked by a black man. Then she told me that it had happened in the car, and then later she told me that it had happened at her grandmother's home.” When asked if she said anything else that he remembered, Ferris said, “she also told me that she did not know who it was at that point.”

A paramedic, Mattie Mabon, arrived and examined Victim. When asked to describe Victim's demeanor, Mabon testified: “she was still very lethargic, unable—it was hard for me to understand some of the things that she was saying ... it was hard to understand because she wasn't getting the words out. They were garbled sometimes.” Victim told Mabon “her neck hurt because she had been choked.” Among other things, Mabon observed markings on Victim's neck that were consistent with choking and that Victim had lost control of her bladder and bowels and soiled herself.

In performing a forensic examination approximately 24 hours after Victim was found, nurse practitioner Kim Chapman observed that petechia, or redness from broken blood vessels, was present on the outside of Victim's face, as well as inside her mouth and ears. Likewise, Victim's genital and anal areas were swollen from very recent injury, tender, and leaking urine and stool. Chapman testified that “[i]t would take a significant amount of force [ ]” to cause those type of injuries to a child.

Around 6:00 a.m. Sunday morning, before the guests realized Victim was missing, Defendant returned to the residence, wearing different clothing than he had worn earlier, including a mustard-colored top, but still wearing the black head covering. The guests at the residence described Defendant as behaving nervously and said that he retired to a bedroom shortly after arriving.

At approximately 7:00 a.m., one of the guests realized Victim was missing, and a search for her ensued. The window to the bedroom Victim had occupied was open and the screen had been removed. The guests continued their search, spreading out into the surrounding neighborhood. Defendant—who did not participate in the search—was instructed to prepare for the anticipated arrival of the police by cleaning the residence. In addition to tidying up the residence, Defendant replaced the screen on the bedroom window and moved the chairs that had previously been around the card tables to the front porch. When McElroy got into his car to help search for Victim, Defendant asked if McElroy could drop him off at work. McElroy had never previously known Defendant to work on a Sunday, but he drove Defendant to a location a couple of minutes away.

After Victim had been found, McElroy returned to the residence and discovered on top of his washing machine a little chrome pipe with the shirt Defendant had been wearing when he returned to the residence earlier that morning. Later that day, Defendant called McElroy. McElroy told him that that he (Defendant) had been implicated in the crimes. McElroy also found Defendant's do-rag in one of his kitchen drawers. When Defendant reported to his probation officer the next day, she notified the police of his presence. An officer then contacted Defendant at the probation office and collected forensic samples from Defendant's body.

Physicians who treated Victim at the hospital recovered organic material from Victim's right thigh and abdomen. Missouri State Highway Patrol DNA Analyst Malena Jimenez testified that she did not find semen in the swab samples taken from Victim, but she did find “allelic activity” in the DNA profile developed from the swab taken from Victim's thigh, meaning that the DNA found in that area did not belong solely to Victim. The analyst “did not feel there was enough there for [her] to do a [full DNA] comparison.” So, she performed “Y–STR testing” on this sample in order to focus on male individuals. She explained that because “[t]he Y chromosome is passed directly from father to child[,]” the same profile for it would be shared by “anyone of a common paternal lineage.” Analyst Jimenez compared the Y–STR profile developed from Defendant's samples with the Y–STR profile developed from the sample from Victim's thigh and determined that they were the same. McElroy and Stewart testified that Defendant and Terry Dickson (“Brother”) shared the same father.

Victim informed Charity Muttert, a nurse who treated Victim in the emergency room at the hospital, that she had been choked. After Victim's mother (“Mother”) arrived, Victim began to recount more...