State v. Gateley

• Citation: 907 S.W.2d 212
• Decision Date: 12 September 1995
• Docket Number: Nos. 18236,19783,s. 18236
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John L. GATELEY, Defendant-Appellant. John L. GATELEY, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 212

907 S.W.2d 212

STATE of Missouri, Plaintiff-Respondent, v. John L. GATELEY, Defendant-Appellant.

John L. GATELEY, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 18236, 19783.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 12, 1995.

Motion for Rehearing or

Transfer to Supreme Court Denied

Sept. 29, 1995.

Robert D. Lewis, Lewis & Aiken, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for respondent.

GARRISON, Presiding Judge.

After being convicted by a jury of sexual abuse in the first degree, § 566.100, RSMo 1978, ¹ Defendant was sentenced to five years' imprisonment. His direct appeal from that conviction is Case No. 18236. Following his conviction, he filed a motion, which was later amended, to have his conviction and sentence set aside pursuant to Rule 29.15. ² His appeal from the denial of that motion, after an evidentiary hearing, is Case No. 19783. The appeals have been duly consolidated.

Defendant was charged with committing sexual abuse in the first degree by subjecting M.N., a person less than twelve years old, to sexual contact between September 1, 1985 and December 31, 1988. M.N. was Defendant's stepdaughter who was thirteen years old at the time of trial in April, 1992.

M.N. testified that from the time she was six years old until she was ten or eleven, Defendant periodically touched her "where [she] went to the bathroom" and that he had also touched her breasts. According to M.N., about once each week, when Defendant arrived home from work around midnight, he would enter her room while she was asleep and touch her inside her underwear. She testified that Defendant usually said nothing during these incidents and would stop when she told him to. On one occasion, she said that Defendant told her he was touching her because she "wanted it."

The evidence indicated that a female friend of the family, who had been living with them, told M.N.'s mother of her suspicion that something sexual was going on between Defendant and M.N. M.N. then revealed the incidents after being questioned by her mother in December, 1990. A Springfield, Missouri police officer was then called to the home to investigate.

According to the officer, M.N. told him of the incidents during an interview outside the presence of her mother, and she also showed him magazines with nude photographs and a vibrator which Defendant had shown her. The officer also testified that when Defendant arrived home, M.N.'s mother tried to tell him that she was sorry that she had to call the police. Defendant then told the officer, "I think I know why you're here." When the officer told him he was investigating an "allegation that possibly happened between him and [M.N.]," Defendant said, "I think I understand." The officer also said that Defendant looked at M.N. and told her "he wasn't mad at her," that she had done the right thing by telling the police, and that, "Now maybe we all can get the help we need."

CASE NO. 18236

VOLUNTARY INTOXICATION INSTRUCTION

Two of Defendant's six points of alleged error on his direct appeal relate to a voluntary intoxication instruction given at the request of the State. In his first point, Defendant contends that the trial court erred in instructing the jury on voluntary intoxication, because it was not supported by the evidence and was unduly prejudicial by emphasizing his drinking and implying that he was trying to use it as an excuse for his conduct.

The instruction in question was patterned after the version of MAI-CR3d 310.50 approved for use at the time of trial and read:

You are instructed that an intoxicated condition from alcohol will not relieve a person of responsibility for his conduct.

Defendant argues that this instruction was given in violation of the Notes on Use which stated:

4. If there is no evidence of involuntary intoxication, and it may fairly be inferred from the evidence that the defendant was intoxicated or drugged to such an extent that his judgment and actions were substantially affected thereby, or that his capacity to know or appreciate the nature, quality, or wrongfulness of his conduct was significantly impaired by reason of intoxication, this instruction may be given by the Court on its own motion and must be given upon written request in proper form by the state or by the defendant. Even though there is evidence of consumption of alcohol or drugs, if there is no evidence from which such impairment could be inferred, this instruction may not be given over the objection of the defendant.

A jury instruction must be supported by substantial evidence. State v. Coats, 835 S.W.2d 430, 435 (Mo.App.E.D.1992). In the instant case, Defendant acknowledges that M.N. testified that she sometimes smelled alcohol on his breath when he would touch her; that he was a recovering alcoholic who drank during the time of the allegations for which he was tried; that he had discussed the possibility of alcoholic blackouts ³ with a psychologist who treated him for alcoholism; and that it was possible to have alcoholic blackouts and not recall them. He also points out, however, that he testified that he could not have suffered alcoholic blackouts during the period in question because he did not drink excessively around the children; that he never had an alcoholic blackout while married to M.N.'s mother; and that he had never touched M.N. in the genital area. Defendant, therefore, argues that the instruction was given contrary to the Notes on Use because there was no evidence of intoxication at the time of the acts described by M.N., let alone evidence sufficient to show that he was intoxicated to such an extent that his judgment and actions were substantially affected, or that his capacity to appreciate the nature, quality, or wrongfulness of his conduct was significantly impaired.

One of Defendant's witnesses was Phillip Klingensmith, a psychologist, who testified that beginning in January, 1991, he treated Defendant for anxiety and depression secondary to the effects of alcoholism. His testimony included the following concerning his treatment notes:

"The patient states that he cannot say for sure that he has never touched her," her being his stepdaughter, "because he has had a number of different blackouts from drinking," meaning alcohol, "but he can't believe that he has touched her either. The only reason that he would think he might have is because he can't imagine his stepdaughter [M.N.], with whom he felt rather close, ever making up such a story, but he's totally flabbergasted by it."

On cross-examination by the State, he gave the following testimony:

Q. But the initial statement that the defendant made to you regarding the abuse on January 6 of 1991 is that he could not remember or say for certain whether or not he had touched [M.N.] because of alcohol blackouts he was having at the time, is that correct?

A. Yes, that's absolutely true.

Evidence of impairment sufficient to authorize the intoxication instruction was found lacking in State v. James, 869 S.W.2d 276, 278 (Mo.App.E.D.1994) (there was evidence that defendant's wife complained of his drinking shortly before the incident, defendant had been drinking and smelled of alcohol after the incident, and when he was arrested it was found that defendant had defecated on himself); State v. Kehner, 886 S.W.2d 130, 133-34 (Mo.App.E.D.1994) (there was evidence that defendant had consumed beer on the day of the incident and he smelled of and had a container of liquor in his vehicle when arrested); and State v In the instant case, the only evidence concerning Defendant's condition at the time of any of the alleged occurrences came from M.N., who testified that she would occasionally smell alcohol on his breath, but that he would stop touching her when she told him to. The other evidence concerning the occurrence of alcoholic blackouts during the years in question was no more certain concerning impairment from intoxication during the incidents in question than would have been evidence that Defendant drank heavily during the years M.N. said these events occurred.

Shields, 862 S.W.2d 503, 505 (Mo.App.E.D.1993) (there was evidence that defendant was acting unusual and sporadic three hours before the incident in question).

Pursuant to the Notes on Use, the intoxication instruction was not to be given unless the defendant was intoxicated to such an extent that his judgment and actions were substantially affected or his capacity to know and appreciate the nature, quality, or wrongfulness of his conduct was significantly impaired. The Notes specifically prohibited the instruction if the defendant objected ⁴ and there was "no evidence from which such impairment could be inferred." In the instant case, the evidence was insufficient to authorize the instruction. The giving of an instruction in violation of the Notes on Use constitutes error. State v. Livingston, 801 S.W.2d 344, 348 (Mo. banc 1990); State v. James, 869 S.W.2d at 278.

However, both error in the giving of the instruction and prejudice to the defendant are required before an appellate court may reverse based on an error in the jury instructions. State v. James, 869 S.W.2d at 278. Defendant, in his point relied on, alleges that the instruction "unduly prejudiced the jury by emphasizing Defendant's drinking of intoxicants and inferring that he was trying to use this as an excuse for his conduct."

In both James and Kehner, the appellate court found that the defendants were prejudiced by the giving of intoxication instructions which were submitted without sufficient evidentiary support. State v. James, 869 S.W.2d at 278; State v. Kehner, 886 S.W.2d at 134. In neither case, however, did the defendant attempt to defend the case on the basis of his intoxication. In each case, the court held that because the defendant "did not raise the issue of intoxication or impairment,...