State v. Ellis
| Decision Date | 07 April 1986 |
| Docket Number | No. 13991,13991 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Richard James ELLIS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
C.R. Rhodes, Neosho, and Robert P. Warden, Joplin, for defendant-appellant.
William L. Webster, Atty. Gen., and Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
A jury found the defendant guilty of two counts of sodomy upon an eleven-year-old girl. He was sentenced to imprisonment for ten years upon each count. The sentences are to run consecutively. He presents six points of alleged error.
For the disposition of those points, it is necessary to state the evidence supporting the verdict. In considering and recounting the evidence, this court is to accept as true the evidence, and reasonable inferences to be drawn therefrom, favorable to the verdict, and to reject the evidence and inferences to the contrary. State v. Cooper, 673 S.W.2d 848 (Mo.App.1984).
During the period in question, the victim and her seven-year-old brother lived in a house with their mother. The mother was a registered nurse who worked at the same hospital as the defendant's sister. In the summer of 1983, the defendant became the mother's "boy friend." He was unemployed. He spent three to five nights per week in the victim's home. He participated in activities of the victim's family. The victim stated she liked the defendant. She did not mind him living in the home. She thought she had to mind him.
The victim testified the first offense submitted to the jury occurred shortly before Christmas, 1983. Some of the details of her testimony concerning this date will hereafter be stated in detail. The defendant and the victim's mother had been out for the evening. When they returned, the mother left to take the baby sitter home. The victim was in bed in a downstairs bedroom. This bedroom was next to a bath in which there was a shower. She said the shower was working. She heard the defendant turn it on and it was running. The defendant then walked by the bedroom, naked, into the kitchen. He called to the victim to get him an ashtray. She left the bedroom, went into the kitchen and got him an ashtray. She started to return to the bedroom. The defendant called her back. In the doorway to the kitchen, the defendant committed an act of sodomy upon the child. He told her to tell no one.
The victim testified the second offense took place on January 2, 1984. She said the water pipes in the house were frozen. The defendant and one Don Tracy were attempting to thaw them. In the afternoon, her mother went to the hardware store. The victim declined to go with her. She watched television and then played the piano. She then went upstairs to play with her "Leggos." The defendant came upstairs. He placed her on the bed and committed an act of sodomy upon her. He again told her not to tell anyone. After that day, the defendant did not again live in the house. She saw him only one or two times after that.
The victim told no one until June, 1984. At that time, her mother had started to go with one Leon. The victim admitted she liked Leon. In that month she told her brother of the incidents. She said that she did so because she was afraid that the defendant might do the same thing to her brother.
The defendant did not testify. In an interview with an investigator, he denied the two acts. However, the investigator related that defendant made the following statements:
The defendant questions the sufficiency of the evidence by citing a rule requiring corroboration. He contends the judgment must be reversed under a rule restated in a decision of the Supreme Court of Missouri. "It is only in those cases where the evidence of the prosecutrix is of a contradictory nature or, when applied to the admitted facts in the case, her testimony is not convincing and leaves the mind of the court clouded with doubts, that she must be corroborated or a judgment cannot be sustained." State v. Baldwin, 571 S.W.2d 236, 239 (Mo. banc 1978). Also stated in State v. Bursley, 548 S.W.2d 586 (Mo.App.1976).
The rule has been criticized.
Indeed our courts have demonstrated a decided inclination to recede from this special rule even in the specific instances of rape and incest, where the exception found its origin. Although the cases relied upon by defendant continue to be cited in court opinions, they are generally quickly distinguished and passed over. On the other hand, sharp criticism of those cases are also to be found.
State v. Platt, 496 S.W.2d 878, 880 (Mo.App.1973). It is clear "[t]hat principle does not appertain, however, where the inconsistency or even contradiction bears on a proof not essential to the case." State v. Salkil, 659 S.W.2d 330, 333 (Mo.App.1983). Also see State v. Johnson, 595 S.W.2d 774 (Mo.App.1980).
To demonstrate that the cited rule requires reversal, the defendant emphasizes the victim's prior inconsistent statements concerning the dates of the offenses. Until two weeks before trial, she had stated the first offense occurred in October, 1983. At trial, she said she testified to the contrary because "we decided it had to happen in December." The "we" referred to were her mother and a Dr. Snider. He argues that she was not sure it occurred on December 23, 1983. To support his position, he refers to testimony such as the following:
Q. Today, in front of this jury, you're absolutely certain, are you not, that it happened during your Christmas vacation?
A. Right.
Q. Is that correct?
A. Right.
Q. Can you tell the jury whether it happened before or after Christmas?
A. It happened, I think, before.
Q. I'm having a hard time hearing you [victim]. I'm sorry.
A. I thought, I think it is before.
Q. Okay. When you were out of school?
A. Right.
Q. Wasn't your last day of school December 22, a Thursday?
A. Right.
Q. So you were out of school on Friday?
A. Right.
Q. The 23rd. Saturday was Christmas Eve, the 24th. Is that right?
A. Right.
Q. And Sunday was Christmas Day?
A. Right.
Q. You know it didn't happen on Christmas Day?
A. (Nods head.)
He also cites the fact the victim first reported that the second offense occurred in December. At trial she testified it occurred on January 2, 1984.
The evidence does establish the prior inconsistent statements by the victim concerning the dates of the offenses. However, there is no such inconsistency in her testimony at trial. As demonstrated by the testimony quoted above, she was firm in her testimony concerning when those offenses occurred.
Assuming, without deciding however, that her prior inconsistent statements can be considered in determining the applicability of the cited rule, it is not every inconsistent statement that makes that rule applicable. For example, it is held not applicable when a prosecutrix orally and in writing made a statement that her testimony concerning the commission of the offense given at a preliminary hearing was not true. State v. Palmer, 306 S.W.2d 441 (Mo.1957). Nor was the cited rule applicable because a prosecutrix at trial testified a defendant had perpetrated three separate rapes when at the preliminary hearing she testified he perpetrated five separate rapes. State v. Salkil, supra. Further, the cited rule has been held not to be applicable where the testimony of a prosecutrix was contradictory concerning who of four different men committed the offense and who helped her escape. State v. Johnson, supra.
These prior inconsistent statements of the victim concerning the dates are clearly distinguishable from the totally contradictory in-trial testimonial statements of victims going to the heart of offenses in State v. Bursley, 548 S.W.2d 586 (Mo.App.1976), cited by the defendant. Incidentally, neither State v. Neal, 484 S.W.2d 270 (Mo.1972), nor State v. Gray, 423 S.W.2d 776 (Mo.1968), also cited by the defendant, support the defendant's point. The victim explained her prior inconsistent statements concerning the dates. Such inconsistent statements do not call for the application of the cited rule. State v. Salkil, supra.
The defendant also cites numerous other prior inconsistent statements. For example, statements about where the first offense occurred and whether or not an offense occurred on the floor or in a bed. The evidence established that before trial the victim had talked with or been interviewed by numerous people. They included her mother, an investigator, the prosecuting attorney, and a Dr. Snider. She was interviewed in private by Mason Dikeman, a clinical psychologist employed by the defendant. In addition, defendant's counsel took her deposition. From the sketchy statement in the record, it could be concluded the victim was confused as to which incident was being referred to in the question to her at trial or in her statement. The questions switched first from one offense to the other. In view of her age, and the numerous prior statements she gave, the fact such inconsistencies were developed does not cause her trial testimony to be less than substantial evidence. State v. Presley, 694 S.W.2d 867 (Mo.App.1985). Her trial testimony concerning the matters referred to in those prior inconsistent statements was clear. For example,
Q. Is that what you told, uh, your mother originally?
A. I told her it happened on the bed.
Q. On the bed?
A. Right.
Q. Okay. So, you first said it happened on the bed?
A. Right.
Q. And then later you changed that and said, "No, it happened on the floor by the bed," is that right?
A. No.
Q. You never...
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