State v. Dixon

• Decision Date: 22 January 2002
• Docket Number: No. WD 58749.,WD 58749.
• Citation: State v. Dixon, 70 S.W.3d 540 (Mo. App. 2002)
• Parties: STATE of Missouri, Respondent, v. Michael DIXON, Appellant.
• Court: Missouri Court of Appeals

70 S.W.3d 540

STATE of Missouri, Respondent, v. Michael DIXON, Appellant.

No. WD 58749.

Missouri Court of Appeals, Western District.

January 22, 2002.

As Modified March 5, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 5, 2002.

Application for Transfer Denied April 23, 2002.

Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for respondent.

Before ULRICH, P.J., BRECKENRIDGE and ELLIS, JJ.

PATRICIA BRECKENRIDGE, Judge.

A jury convicted Michael Dixon of first degree statutory rape, § 566.032, RSMo 2000;¹ first degree statutory sodomy, § 566.062; abuse of a child, § 568.060; incest, § 568.020; and first degree endangering the welfare of a child, § 568.045. The trial court sentenced Mr. Dixon to life imprisonment for first degree statutory rape, life imprisonment for first degree statutory sodomy, seven years imprisonment for abuse of a child, five years imprisonment for incest, and five years imprisonment for first degree endangering the welfare of a child, and ordered that the sentences were to be served consecutively. On appeal, Mr. Dixon challenges the sufficiency of the evidence to support his convictions for first degree statutory rape and first degree statutory sodomy, arguing that the State did not prove that the victim ("B.D.") was under the age of fourteen at the time the crimes occurred. Mr. Dixon also claims that the trial court committed plain error in not excluding, sua sponte, testimony by the sheriff that he determined that B.D. had been sexually abused. Mr. Dixon further claims that the trial court committed plain error by not ordering the jury to disregard a portion of the State's closing argument in which the prosecutor asked the jury to send Mr. Dixon to jail for the rest of his life "so he's not out raping any other little girls." This court finds that Mr. Dixon's convictions of first degree statutory rape and first degree statutory sodomy are not supported by sufficient evidence. The court further finds that the trial court did not plainly err when it did not, sua sponte, exclude Sheriff Hughes' testimony or order the jury to disregard a portion of the State's closing argument. The judgment of the trial court pertaining to the convictions for first degree statutory rape and first degree statutory sodomy is reversed and the cause is remanded for a new trial on charges of second degree statutory rape and second degree statutory sodomy. All other portions of the judgment are affirmed.

Factual and Procedural Background

On appeal from a criminal conviction, this court reviews the facts and any inferences therefrom in the light most favorable to the jury's verdict. State v. Mann, 23 S.W.3d 824, 827 (Mo.App.2000). Applying this standard, the evidence is that between July 1, 1998, and June 1, 1999, Mr. Dixon sodomized and had sexual intercourse with his stepdaughter, B.D. Mr. Dixon also physically abused B.D. by hitting her, choking her, and throwing her against a wall. This abuse came to the State's attention when "another agency" contacted Chris Hughes, sheriff of Chariton County, on June 1, 1999, and informed him that he should investigate Mr. Dixon. Sheriff Hughes called B.D. and had her come to his office, where B.D. provided a statement that Mr. Dixon sexually and physically abused her. A nurse practitioner then performed a sexual assault forensic examination (SAFE exam) on B.D. The results of the exam showed that B.D. did not have a hymen. The nurse practitioner opined that this did not conclusively prove sexual abuse, but it was consistent with abuse. After this examination, Sheriff Hughes determined that B.D. was sexually and physically abused. Mr. Dixon was arrested later in the day on June 1, 1999.

The State charged Mr. Dixon with first degree statutory rape, § 566.032; first degree statutory sodomy, § 566.062; abuse of a child, § 568.060; incest, § 568.020; and first degree endangering the welfare of a child, § 568.045. A trial was held on April 13, 2000. At the time of the trial, B.D. testified that she was fifteen years old. B.D. also testified about an incident that occurred on her fifteenth birthday. She testified that a seventeen year-old male acquaintance showed up at her house in Keytesville, where she lived with Mr. Dixon and her mother. After Mr. Dixon's arrest on June 1, 1999, B.D. moved to Tennessee to live with her grandmother. Mr. Dixon testified that, at the time of trial, he was thirty-nine years old.

At trial, Sheriff Hughes testified that he took a statement from B.D. in which she stated that Mr. Dixon sexually and physically abused her. Sheriff Hughes further testified that Mr. Dixon's wife gave a statement alleging that Mr. Dixon sexually and physically abused B.D. After that testimony, the State inquired what Sheriff Hughes determined had happened. Sheriff Hughes responded that, based upon B.D.'s statement and the results of the SAFE exam, he "determined" that statutory rape, sodomy and physical abuse had occurred. The sheriff testified that he then arrested Mr. Dixon.

At the end of the rebuttal portion of its closing argument, the State, in urging the jury to convict Mr. Dixon, commented, "It's okay to convict him because he is guilty. Convict him. Send him to prison for the rest of his life so he's not out raping any other little girls."

The jury returned a verdict of guilty on all counts. The jury recommended sentences of life imprisonment for first degree statutory rape, life imprisonment for first degree statutory sodomy, seven years imprisonment for abuse of a child, five years imprisonment for incest, and five years imprisonment for first degree endangering the welfare of a child. The court imposed the sentences recommended by the jury, and ordered that the sentences were to be served consecutively. Mr. Dixon appeals.

Insufficient Evidence of First Degree Statutory Rape and First Degree Statutory Sodomy

Mr. Dixon claims in his first point that the trial court erred in overruling his motion for a judgment of acquittal on the count of first degree statutory rape because the evidence was insufficient to prove all elements of that offense. He asserts an identical claim in his second point, which relates to the count of first degree statutory sodomy. Specifically, he claims that there was insufficient evidence for a reasonable juror to find beyond a reasonable doubt that the victim, B.D., was under fourteen years of age at the time the offense was allegedly committed, an element of both first degree statutory rape and first degree statutory sodomy. Because the issues raised in Mr. Dixon's first and second points are identical, they will be addressed together.

Mr. Dixon raises these claims of insufficiency of the evidence for the first time on appeal. His oral motion for judgment of acquittal at the close of the State's evidence was based on a general claim that "[t]here is reasonable doubt." No motion for judgment of acquittal was made at the close of all the evidence, and the insufficiency of the evidence was not raised in Mr. Dixon's motion for new trial. Nevertheless, "if the evidence is not sufficient to sustain the conviction, plain error affecting a substantial right is involved from which manifest injustice must have resulted." State v. McClunie, 438 S.W.2d 267, 268 (Mo.1969). Therefore, we will review the sufficiency of the evidence to determine if manifest injustice occurred.

When considering a challenge to the sufficiency of the evidence to support a criminal conviction, this court's review is limited to determining whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). The evidence and all reasonable inferences drawn therefrom are viewed in the light most favorable to the jury's verdict. Id. All contrary inferences are disregarded. Id. Reasonable inferences may be drawn from both direct and circumstantial evidence. See id. at 412-13. However, the inferences must be logical, reasonable and drawn from established fact. State v. Friend, 936 S.W.2d 824, 828 (Mo.App. 1996).

In considering the sufficiency of the evidence, there must be sufficient evidence of each element of the offense. The elements of an offense are derived from the statute establishing the offense or, when relevant, common law definitions. See State v. McTush, 827 S.W.2d 184, 188 (Mo. banc 1992). The elements of first degree statutory rape and first degree statutory sodomy are derived from the statutes establishing those offenses, §§ 556.032 and 556.062, respectively. Section 566.032 provides that "[a] person commits the crime of statutory rape in the first degree if he has sexual intercourse with another person who is less than fourteen years old." Under § 566.062, "[a] person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old." As statutorily defined, both first degree statutory rape and first degree statutory sodomy contain the element that the victim must be "under fourteen years old" at the time of the alleged criminal conduct. Consistent with these statutory definitions, the charges of first degree statutory rape and sodomy against Mr. Dixon alleged that B.D. was "then less than fourteen years old." When the case was submitted to the jury, the jury was instructed on each first degree offense that, to return a guilty verdict, it must find beyond a reasonable doubt, that "on or between July 1, 1998 and May 14, 1999," B.D. was less than fourteen years old.

The focus of our review of whether there was sufficient evidence to support the jury's finding is upon the evidence at trial concerning B.D.'s age. There was no evidence as to B.D.'s date of birth. Instead, B.D. testified that on the date of the trial, April 13, 2000,...