State v. Gannan
| Decision Date | 25 October 2022 |
| Docket Number | WD84655 |
| Parties | STATE OF MISSOURI, Respondent, v. RODGER L. GANNAN, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Sullivan County, Missouri The Honorable Terry Alan Tschannen, Judge
Before Karen King Mitchell, Presiding Judge, Cynthia L. Martin Judge, Anthony Rex Gabbert, Judge
Rodger L. Gannan ("Gannan") appeals from a judgment convicting him of one count of statutory rape in the first degree and one count of patronizing prostitution as a prior offender. Gannan argues on appeal that the trial court plainly erred in submitting verdict directors that failed to sufficiently specify a particular incident of statutory rape in the first degree and a particular incident of patronizing prostitution, depriving him of his constitutional right to a unanimous verdict. Finding no error, we affirm.
The State charged Gannan as a prior offender with first-degree statutory rape in violation of section 566.032 and patronizing prostitution in violation of section 567.030.[1]Viewed in the light most favorable to the jury's verdicts,[2] the evidence at trial established the following:
E.H ("Victim"), a female, was born in 2005, to S.B ("Mother") and J.H. ("Father"). Mother and Father separated in 2006 and divorced in 2012. Mother and Father shared custody of Victim and her older sister ("Sister").
In 2010 or 2011, Mother began dating Gannan. Mother married Gannan in 2012. During their relationship, Mother and Gannan lived in three houses located in Brookfield, Missouri. The first house was on Smith Street ("Smith Street house"); the second house was on Sanford Street ("Sanford Street house"); and the third house was on Courtland Street ("Courtland Street house").
In September 2018, Mother and Gannan were in the process of moving from the Sanford Street house to the Courtland Street house. The Courtland Street house was close to the house where T.B. ("Aunt") lived. Aunt is Gannan's niece but Victim referred to her as "aunt."
On September 15, 2018, Victim spent the night at Aunt's house. Early on September 16, Victim confided in Aunt that Gannan had been touching Victim inappropriately since they lived in the Smith Street house. Victim told Aunt that Gannan "makes me touch his" while motioning to the genital area, and made references to performing oral sex on Gannan. Aunt told Victim that they needed to tell Mother or Father. Victim decided to tell Father.
Aunt called Father during the morning of September 16, 2018, and asked him to come to her house. Victim, with the help of Aunt, told Father what she had relayed to Aunt. Aunt then asked Mother to come to her house without Gannan. Victim told Mother that Gannan "had been touching her[,] making her do stuff with him[,] had been hurting her, and having sex with her." Victim described sex as "putting his thingy in me, and . . . [he] tried to in my butt."
Mother and Father took Victim to the Brookfield Police Department. Victim spoke to Officer Zachary Bunton ("Officer Bunton"). Victim told Officer Bunton that Gannan had been molesting her since 2012, and that he had done so in each of the houses she and Mother had lived in with Gannan. Victim told Officer Bunton that Gannan "inappropriately touch[ed] her" and showed her pornographic videos when she was eight or nine years old. Victim reported that the most recent time that Gannan inappropriately touched her was on September 14, 2018. Victim described that instance as one in which Gannan placed his hand on her inner thigh near her vagina while the two were in a vehicle together. Victim told Officer Bunton that the last time she had "sex" with Gannan was approximately three weeks ago, and that Gannan would wear a condom when they had sex.
Victim also gave a written statement at the police statement. In her written statement, Victim said that Gannan began touching her in the vagina and in the "but[t] area" when she was eight years old. According to Victim's written statement Gannan would "stick his dick inside of [her] when [Mother] was asleep or when she had to go somewhere." Victim's statement generally indicated that Gannan bribed her with money, cigarettes, and time with her friends, and that Gannan threatened that she would "never see anyone ever again" if she told anyone about the sexual abuse.
On September 21, 2018, Victim participated in an interview with Tammy Nickell ("Nickell"), a forensic interviewer employed by the Children's Advocacy Center ("CAC") in Trenton, Missouri. Victim told Nickell that Gannan had touched her more than one time in places that should not be touched, particularly her breasts, genitals, and buttocks.[3]During the course of the CAC interview, Victim said that Gannan had forced her to suck his penis more than once, including one time three weeks prior in the Courtland Street house, and that Gannan had put his penis in her vagina "a lot of times."[4] Victim told Nickell that Gannan offered her money, cigarettes, and time with her friends in order to get her to perform oral sex on him or to have sex with him. Victim also revealed that there was an instance when she was in the sixth or seventh grade during which Gannan sucked her genitals.
Victim said that, the first time Gannan touched her inappropriately, she was in the purple bedroom that she shared with her sister at their old house in Brookfield. Gannan came into their bedroom, lied on Victim's bed, and touched her genitals, buttocks, and chest. Victim said that Gannan touched her under her clothes and inside her body. Victim told Gannan to stop, but he did not and instead told Victim that, if she told anyone what happened, she would never be able to see anyone ever again.
In response to Nickell's question about the last time something happened, Victim said that "last Friday" while they were in the car together, Gannan put his hand on her leg close to her genitals. Gannan drove to Aunt's house. When they arrived, Gannan took his hand off Victim's leg and began yelling at Sister, who was walking to Aunt's house, and drove off toward the Courtland Street house so that Victim could gather clothes in order to spend the night at Aunt's house. Victim explained that there was not yet a bed set up in her room at the Courtland Street house. Victim said that Gannan came into her bedroom and pulled his penis out of his pants. Victim said that Gannan would not let her leave the room until she either performed oral sex on him or allowed him to put his penis in her vagina. Victim did not want to perform oral sex on Gannan, so they had vaginal intercourse while Gannan put his hand over her mouth. Victim said that, when Gannan pulled his penis out of her vagina, "stuff" came out of his penis, falling onto the bedroom's wood floor. Gannan cleaned up the mess with a red towel that he put in the laundry. Gannan then took Victim to Aunt's house.
During a two-day jury trial in March 2021, Victim, among others, testified, and a video of Victim's CAC interview with Nickell was admitted into evidence and viewed by the jury. During her trial testimony, Victim summarized the years of sexual contact Gannan had subjected her to. Victim told the jury that, when they lived in the Smith Street house, Gannan had touched her breasts and her genitals under her clothes, asked her to touch his penis, and told her not to talk about how he touched her.
Victim further testified that the sexual contact with Gannan continued when they moved to the Sanford Street house. Victim generally testified about performing oral sex on Gannan, about Gannan showing her pornography, and about Gannan placing his penis in her vagina. Victim specifically testified about an incident in the hallway outside her bedroom where Gannan placed his penis in her anus.
Victim testified that she was thirteen years old and in seventh grade when they moved to the Courtland Street house. Victim testified about the specific incident where she had sexual intercourse with Gannan in the Courtland Street house, and how, for the first time, sex with Gannan did not hurt and instead "felt good." Victim described how Gannan then took Victim to an appointment and to Aunt's house, where Victim later confided in Aunt about the sexual abuse.
Victim generally testified that Gannan would periodically give her cigarettes or money after their sexual encounters. In a sworn statement, Victim said that Gannan gave her ten dollars after having sexual intercourse with her at the Courtland Street house, though at trial, Victim did not recall if Gannan gave her money on that occasion.
Gannan testified in his own defense during trial. He denied ever touching Victim inappropriately, denied having sexual relations with her, and denied paying her with money or cigarettes for sexual activity.
During the jury instruction conference, Gannan's counsel affirmatively indicated that he agreed to the verdict directing instructions the court intended to submit. Instruction No. 5 submitted the statutory rape in the first-degree charge, and directed the jury as follows:
Instruction No. 6 submitted the patronizing prostitution...
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