State v. Flores

• Decision Date: 19 August 2014
• Docket Number: No. WD 75627.,WD 75627.
• Citation: 437 S.W.3d 779
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. Jose F. FLORES, Appellant.

437 S.W.3d 779

STATE of Missouri, Respondent,

v.Jose F. FLORES, Appellant.

No. WD 75627.

Missouri Court of Appeals,

Western District.

May 13, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 24, 2014.

Application for Transfer Denied Aug. 19, 2014.

S. Kate Webber, Kansas City, MO, for Appellant.

Daniel McPherson, Jefferson City, MO, for Respondent.

Before Division Four: JAMES EDWARD WELSH, C.J., LISA WHITE HARDWICK, J., and GERALD D. McBETH, SP. J.

JAMES EDWARD WELSH, Chief Judge.

Jose F. Flores appeals the circuit court's judgment convicting him, following a jury trial, of first-degree statutory sodomy, first-degree child molestation, and first-degree statutory rape. Flores raises seven claims of circuit court error on appeal. We affirm the judgment.

Background

Flores was charged with ten counts of first-degree statutory sodomy (§ 566.062, RSMo 2000¹), six counts of first-degree child molestation (§ 566.067), and one count of first-degree statutory rape (§ 566.032). The State alleged that between January 1, 2005, and April 4, 2006, Flores and his girlfriend (“Mother”) had sexually abused Mother's two daughters, K.J. and C.J., who were around ages eight and six at the time.² Flores's jury trial was conducted over five days in July 2012.³

The evidence presented at trial revealed that during the time period charged, K.J. and C.J. lived with Mother and her mother (“Grandmother”) at a house in Saline County. Flores, who was romantically involved with Mother, also stayed at the house during this time period. The State's involvement with the children began on March 29, 2006, when Misty Allen, an investigator with the Saline County Children's Division, received a “hotline” call reporting that C.J. had been physically abused by Mother. C.J. and K.J. were removed from the home on April 4, 2006. The girls eventually were placed in the foster home of Joe and Patricia.⁴

The girls' caseworker, Stephanie Dierker, scheduled the first visit between the children and their mother for June 7th at the Children's Division office. After that meeting, both girls became extremely upset and afraid upon learning that Flores, who had driven Mother to the visit, was on the premises. When the girls met with their therapist, Ellen Walls, over a week later, she found that the presence of Flores at their visit with Mother was still on the girls' minds. C.J. told Walls that she had nightmares about a man coming into her room.

Later that day, C.J. disclosed to her foster mother, Patricia, that Flores and Mother had put handcuffs on them, taken them either to the bedroom or the “cold room,” ⁵ and had touched their private parts. K.J. confirmed her sister's account. K.J. told Patricia that C.J. bled from her front private after being touched there. The girls told Patricia that Flores would take each of them in handcuffs out to a shed. Both girls also told Patricia about an incident when Flores and Mother came into the bathroom, took K.J. out of the tub, and began touching her all over. Later that weekend, K.J. pointed out the breast, vaginal area, and buttocks on a doll as the places where they were being touched and kissed. The girls told Patricia that Flores and Mother threatened to hurt them and to send Grandmother to jail if they told anyone about what had happened.

The next day, the Children's Division received a hotline call reporting the children's disclosure of sexual abuse. When Investigator Allen learned of the new hotline report, she contacted the police. Allen arranged for a forensic interview of the girls at the ChildSafe child advocacy center and a Sexual Assault Forensic Exam (“SAFE” exam).

Both girls were interviewed at ChildSafe by Maria Mittlehauser. Those videotaped interviews were admitted into evidence and played for the jury. Both girls demonstrated to Mittlehauser how they had been handcuffed. C.J. indicated that she had been handcuffed above her head and hung on the wall and could not reach the floor. K.J. said that the first time she was touched on her private areas was when she was lying on the bed in Mother's bedroom. She also described being touched in the cold room and in the bathroom. She pointed to her vaginal area to show where she had been touched by Mother and Flores. She stated that on one occasion when she was standing in the shower and C.J. was in the bathtub, Flores and Mother shut off the water and touched both girls in their private areas. C.J. discussed being touched in the bedroom, bathroom, and cold room. C.J. pointed to the vaginal area and breast area on a drawing to show where both she and K.J. had been touched by Mother and Flores. C.J. described an incident when Flores and Mother took her and K.J. from their bedroom into Mother's bedroom, cuffed them to hooks on the wall, and touched them “everywhere.”

A few days later, Walls and Dierker went to the foster home and spoke with each girl separately. C.J. told Dierker that Flores and Mother had touched her lower privates in both the front and the back. C.J. said that she was touched with something that looked like a hand and was the same color as a hand but was not a hand. She said that it was soft and then got hard. K.J. talked about Flores and Mother separating her and C.J. and handcuffing them. She described being touched by Flores and Mother while she was chained to a wall. K.J. again related the incident when Flores and Mother took both girls out of the bathtub and touched their private parts. She also described an incident where she was lying on her stomach on the bed while Flores and Mother touched her “hiney.”

When Police Detective Todd Reeter met with the girls, he showed K.J. photographs of the house where the alleged abuse occurred. K.J. identified the back porch as the “cold room,” and she identified the photograph of her mother's bedroom where she had been handcuffed. Reeter showed K.J. a website that displayed various styles of handcuffs. K.J. identified a pair as similar to the ones Mother and Flores had used on her. K.J. also identified a clasp as similar to one Mother and Flores used to attach the handcuffs to a type of coat hook in the wall. As K.J. and the detective were talking, C.J. demonstrated to Investigator Allen how she and K.J. had been handcuffed by lying on the floor and putting her wrists to her ankles.

By the time the police searched the house, the family no longer lived there. An officer testified that the wall inside the master bedroom closet had a large metal hook in it. The new resident told the officer that she had not removed anything from or put anything in the walls. The officer testified that the back porch had no heating or air conditioning and that the windows were covered. The officer also testified that there was a shed located in back of the house.

Nurse Practitioner Lachelle Williams performed the SAFE exams on both girls. Patricia testified that K.J. was very quiet during the examination and seemed to be disassociating herself from what was happening. C.J. screamed uncontrollably during her examination and begged for it to stop. The nurse was unable to perform a rectal examination due to C.J.'s resistance. Nurse Williams testified that K.J.'s exam showed an attenuation, or thinning, on the right side of her hymen, but she could not pinpoint the cause of the thinning nor conclude that it was abnormal. C.J.'s exam showed an absence of hymen in some areas, which indicated that she had suffered a penetrating trauma to her vaginal area.

The girls' testimony at trial was presented via videotaped deposition. At the time of the depositions, K.J. was nine years old and C.J. was seven. K.J. testified that Flores and Mother touched her in her private places on multiple occasions. She identified her private places on an anatomical drawing by circling the vaginal area, buttocks, and chest. The first touching occurred in the back room of the house, which K.J. called the “cold room.” Flores and Mother touched all three private areas with their hands, both over and underneath her clothes. Flores removed K.J.'s blue jeans, but not her panties. K.J. testified that the second incident of touching occurred that same day in Mother's bedroom. After Mother removed K.J.'s clothes, she and Flores handcuffed K.J.'s hands and feet and hung her by the handcuffs on the wall. Flores and Mother then touched K.J. in all three of her private places. In another incident, K.J. and C.J. were taking a shower when Flores and Mother came into the bathroom. Flores and Mother took both girls to the cold room where they touched both girls in all three of their private places.

C.J. testified that the first time Flores and Mother touched her occurred by the bed in Mother's bedroom. C.J. said that Mother took C.J.'s shirt and pants off and that Mother and Flores touched her front privates. She pointed to her vaginal area to show where she had been touched. On another occasion, Flores and Mother touched C.J. on her front “privacies” and on her “butt.” She again pointed to her vaginal area to indicate what she meant by “privacies.” C.J. said that she saw both Flores and Mother touch K.J. on her front private area and on her “boobs” and saw Flores touch K.J.'s “butt.” C.J. testified that Flores put handcuffs on her and K.J. and touched both of them. She said that they were hung from a hook inside the closet of Mother's bedroom. C.J. also said that she was taken to a shed where Mother touched her front privacies and her boobs, while Flores touched K.J.

Flores testified in his own defense. He denied physically or sexually abusing the girls or threatening them. Grandmother testified that she never saw Flores or Mother abuse the girls.

The jury found Flores guilty on all seventeen counts. Flores waived jury sentencing prior to trial. The circuit court sentenced him to life imprisonment on each count of statutory sodomy (counts 1–10), fifteen years' imprisonment on each count of child molestation (counts 11–16), and...