State v. Downum

• Decision Date: 07 April 2020
• Docket Number: No. SD 36081,SD 36081
• Citation: 598 S.W.3d 189
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Blaine Uriah DOWNUM, Defendant-Appellant.
• Court: Missouri Court of Appeals

598 S.W.3d 189

STATE of Missouri, Plaintiff-Respondent,

v.Blaine Uriah DOWNUM, Defendant-Appellant.

No. SD 36081

Missouri Court of Appeals, Southern District, Division Two.

Filed: April 7, 2020

ELLEN H. FLOTTMAN, Columbia, Mo, for Appellant.

DANIEL N. MCPHERSON, Jefferson City, Mo, for Respondent.

DON E. BURRELL, J.

A jury found Blaine Uriah Downum ("Defendant") guilty of child molestation in the first degree, statutory rape in the first degree, resisting arrest by fleeing, and unlawful possession of a firearm. See sections 566.067, 566.032, 575.150, and 571.070.¹ In this appeal of his convictions, Defendant raises nine points of alleged trial-court error. Finding no reversible error, we affirm.

The Relevant Evidence and Procedural Background

We recite the evidence and the reasonable inferences therefrom in the light most favorable to the verdict. State v. Lammers , 479 S.W.3d 624, 630 (Mo. banc 2016). We mention other information only to provide context for Defendant's points.

Victim, eleven years old at the time of trial, is Defendant's daughter. Just one year earlier, she was visiting Defendant at his hotel room. Victim was playing on her phone when Defendant woke up and asked her if she wanted to have sex. Victim said no. Defendant asked again. When Victim again declined, Defendant took her by the wrists, threw her on the bed, and removed her clothes. Defendant licked Victim's vagina and then inserted his penis. It felt to Victim as if she was being stabbed with a knife, and she kicked until she got free of Defendant's grip. Upon freeing herself, Victim called her mother to come pick her up from the hotel. A week later, she told her mother what had happened.

Defendant, a persistent offender, had prior felony convictions in both Kansas and Missouri. When law enforcement officers were unable to make contact with him by their usual methods, they "attached an alert" for Defendant in their record management system. That alert would notify them if Defendant "c[a]me in contact with any law enforcement[.]"

On April 16, 2018, Officer Bobby Brown ("Officer Brown") was driving his patrol car by Defendant's last-known address when he saw Defendant exiting the home.

Officer Brown stopped, told Defendant that he was under arrest, and asked him to put his hands behind his back. Defendant turned and ran. Officer Brown commanded Defendant "to stop or [he] would send [his] dog and [Defendant] would be bit."

Defendant, who was wearing a backpack, kept running. Officer Brown's dog (the "K-9") chased Defendant and was able to grab ahold of his backpack. Defendant shed the backpack and continued running. The K-9 eventually apprehended Defendant and took him to the ground. Officer Brown took Defendant into custody, and when a detention officer at the jail searched Defendant's abandoned backpack, he found that it contained a loaded handgun.

Defendant was charged with four felonies in an Amended Information. Counts 1 and 2 were based upon his sexual contact with Victim in Defendant's hotel room. Count 1 charged that Defendant committed first-degree child molestation in that, between February 15 and April 16, 2018, Defendant "subjected [Victim,] who was then less than twelve years old[,] to sexual contact," and Victim was Defendant's descendant by blood or adoption. Count 2 alleged that during that same timeframe, Defendant committed first-degree statutory rape in that he knowingly had sexual intercourse with Victim, a child less than twelve years old.

Counts 3 and 4 were based upon the subsequent events that occurred during Defendant's apprehension and arrest. Count 3 charged Defendant with resisting arrest in that, on April 16, 2018, Defendant resisted arrest by fleeing from law enforcement. Count 4 alleged that Defendant – a convicted felon – unlawfully possessed a firearm on that same date.

On June 13^th and September 27^th, Defendant filed "pro se " motions for a speedy trial. His trial was initially set to begin on August 15, 2018, but defense counsel requested a continuance to have more time to prepare for trial, and the date was moved to February 5, 2019.

The day before the February 5^th trial was to begin, the State learned and disclosed that the Children's Center possessed Victim's "trauma narrative" relevant to the case. Defendant filed a "Motion to Dismiss or in the Alternative Exclude [Victim] and Associated [Children's Center] Workers as Witnesses" (the "motion to dismiss"). The motion to dismiss alleged that the State had committed a Brady² violation in failing to turn over the trauma narrative at the same time it had provided other relevant documents to Defendant during the course of discovery.

The trial court held a hearing on the motion to dismiss the next day -- the morning of the first day of trial. Defendant argued that the late production of the trauma narrative put him in the position of either: (1) asking for a continuance to allow his attorneys to prepare for trial by investigating the trauma statement and witnesses thereto, thereby forfeiting his right to a speedy trial; or (2) having a timely trial but forfeiting his right to effective assistance of counsel since his lawyers would not be prepared to address the trauma narrative at trial. The trial court denied Defendant's motion to dismiss, but it granted (at least in part) Defendant's alternative request for relief by stating that testimony from certain Children's Center witnesses that related to the trauma narrative would be excluded.

After the motion to dismiss was denied, Defendant requested that they proceed to trial on counts 3 and 4 as scheduled, with counts 1 and 2 to be severed off for trial at a later date. When the trial court said that it would not grant Defendant's request for severance, Defendant requested a continuance on all counts, which the trial court granted. The case was then reset for trial on March 5, 2019, just 28 days later.

Prior to the start of the March trial, Defendant filed "Defendant's Fifth Motion in Limine Motion [sic] to Limit Police Presence in the Courtroom" ("the no-presence motion"). The no-presence motion asserted that "[p]revious Jasper County jury trial cases have had overwhelming police presence in the courtroom" and the police come "wear[ing] the regalia of being police[.]" The motion asked that all police officers be excluded from the courtroom in order to maintain a sense of neutrality.

Also prior to trial, the State had filed its "Notice of Intent to Admit Propensity Evidence[.]" It thereby gave notice to Defendant that the State intended to introduce evidence -- pursuant to article I, section 18(c) of the Missouri Constitution ("section 18(c)") -- that Defendant had previously committed the offense of first-degree child molestation against his other biological daughter, A.D., who was also under the age of twelve at the time of that sexual contact.

At trial, the trial court denied the no-presence motion,³ noting that it could not tell who was a police officer and who was not as all of the officers present were in plainclothes and bore no visible signs of being connected to the police department.

A.D., then age thirteen, testified at trial as follows. When she was four years old, Defendant had touched her "in [her] inappropriate place like down there" when she was in his bedroom. Her entire testimony consumed seven of the 594 pages of trial transcript.

Just before the State rested its case, the prosecutor provided the following information to the trial court and Defendant:

Your honor, during the break, my victim advocate, Betsy Gunlock [ ("Ms. Gunlock") ], let me know that during the last break that one jurors [sic] [Juror Number 8], approached her, that she does know him outside of this case, and gave her a hug. They did not discuss anything to do with the case, or anything about the case itself, or the facts, or anything like that.

In discussing that revelation with counsel, the trial court noted that no one had asked potential jurors during voir dire whether they knew any members of the prosecutor's office or Ms. Gunlock. With the agreement of the parties, the trial court postponed ruling on defense counsel's request to question Ms. Gunlock until everyone had a chance to research the applicable law, believing that no harm could come from leaving Juror Number 8 on the jury to hear additional testimony while they did so.

Defendant then testified in his own defense, and he denied having committed any acts of abuse. In an attempt to cast doubt upon Victim's account, he testified that he has a tattoo around his penis (and introduced what purported to be a photograph of it) – something that Victim specifically said Defendant did not have. He also testified that he kept his pubic area shaved at the time of the charged events. Victim had testified that Defendant's pubic area was hairy.

Analysis

Point 1 – Denial of Motion (s ) for a Speedy Trial

Point 1 claims:

The trial court erred in denying [Defendant's] motion to dismiss due to the State's late disclosure of [Victim]’s "trauma narrative" in violation of [Defendant]’s constitutional rights to a speedy trial, to present a defense, and due process of law ... in that trial counsel had no choice once the motion to dismiss was denied but to ask for a continuance in order to properly investigate the late disclosed material.

We disagree.

To assess whether the constitutional right to a speedy trial has been respected or denied, the Court must balance four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. See State v. Edwards, 750 S.W.2d 438, 441 (Mo. banc 1988) ; Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

State ex rel. McKee v. Riley , 240 S.W.3d 720, 729 (Mo. banc 2007).

On appeal, Defendant asserts only that he "was denied his constitutional right to [a] speedy trial, caused directly by the State's Brady violation." His brief makes no attempt to apply the four factors...