State v. Gorman

• Decision Date: 18 August 2015
• Citation: 468 S.W.3d 428
• Parties: State of Missouri, Respondent, v. Alan John Gorman, Appellant.
• Court: Missouri Court of Appeals

468 S.W.3d 428

State of Missouri, Respondent,

v.Alan John Gorman, Appellant.

Missouri Court of Appeals, Western District.

WD 77684

Opinion filed: August 18, 2015

APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY, MISSOURI, The Honorable William B. Collins, Judge

Karen L. Kramer, for Respondent

Samuel E. Buffaloe, for Appellant

Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and James E. Welsh, Judge

Joseph M. Ellis, Judge

Appellant Alan Gorman appeals from his convictions for one count of statutory sodomy in the first degree, § 566.062,¹ and one count of child molestation in the first degree, § 566.067. Appellant contends that the trial court abused its discretion when it excluded evidence that the victim had been molested by her biological father. For the following reasons, the judgment of conviction is affirmed.

In 2014, Appellant was charged by superseding indictment with one count of first-degree statutory sodomy, one count of first-degree child molestation, and one count of second-degree child molestation. The charges arose in 2012 after Appellant's stepdaughter, T.B., told her grandparents that Appellant had molested her.

At trial, T.B. testified that Appellant first touched her when she was seven or eight years old while she was sleeping in her bunk bed. She explained that she woke up to Appellant touching her vagina with his hand followed by him grabbing her hand and making her touch his penis. T.B. testified that the second incident occurred when she was twelve years old. She explained that she was sleeping in her mother and Appellant's bed when Appellant rolled over, put his hand down her shorts, and touched her vagina over her underwear. When T.B. turned to face Appellant, Appellant stopped touching her and said, “Oh, sorry.” T.B. further testified to a third incident that occurred the day before she told her grandparents about the molestation. She explained that Appellant touched her breast over her clothing while she was sleeping on the couch.

Following T.B.'s direct examination, Appellant requested he be allowed to make an offer of proof. Counsel for Appellant indicated that he believed the proffered testimony “would be admissible and necessary relating to a potential diagnosis for false projection and other issues regarding prior sexual abuse.” During the proffer, T.B. testified that, in 2011, she was told by her mother and Appellant that Appellant was not her biological father. At the same time, T.B. was told that she had been molested by her biological father. T.B. further testified that she had no conscious recollection of the molestation by her biological father but has had one or two “flashes.”

Following the proffer, Appellant explained that he believed the testimony was relevant to his defense that T.B. was falsely projecting the abuse by her biological father onto Appellant. The State objected to the admission of such evidence as hearsay and further objected that the evidence was inadmissible under the rape shield statute. The trial court concluded that the evidence was inadmissible.

Appellant also testified at the trial. He denied having ever touched T.B.'s vagina. He further testified that he may have accidentally touched T.B.'s breast while waking her up that day she was sleeping on the couch.

The jury subsequently convicted Appellant of the first-degree statutory sodomy and the first-degree child molestation charges but acquitted Appellant of the second-degree child molestation charge.² The trial court sentenced Appellant to ten years in the Missouri Department of Corrections on each of the two charges and ordered the sentences to run concurrently. Appellant now raises two points of error on appeal.

In his first point, Appellant contends that the trial court abused its discretion by relying on the rape shield statute to exclude evidence that T.B. had previously been molested by her biological father. Appellant asserts that he did not intend to use such evidence to impugn Appellant's character but rather to demonstrate that T.B. was falsely projecting the molestation by her biological father onto Appellant. Thus, Appellant avers that the evidence was relevant to his defense.

“Trial courts retain broad discretion over issues of relevancy and admissibility of evidence, and we will not interfere with those decisions unless there is a clear showing of abuse of discretion.” State v. Smith, 314 S.W.3d 802, 807 (Mo.App.E.D.2010) (internal quotation omitted). “A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id.

Appellant contends that the trial court erroneously used the rape shield statute to exclude evidence that T.B. had been molested by her biological father. However, the record does not definitively establish that the trial court excluded such evidence on the basis of the rape shield statute.

Following the direct examination of T.B., Appellant requested he be allowed to make an offer of proof. Appellant's counsel explained that “the testimony this witness [T.B.] would offer would be admissible and necessary relating to a potential diagnosis for false projection and other issues regarding prior sexual abuse.” During the offer of proof, the defense elicited testimony from T.B. that, in November of 2011, she was told that Appellant was not her biological father and that she had been molested by her biological father. Further testimony from T.B. indicated that she has “no conscious recollection of the molestation by [her] biological father” but has had one or two “flashes” that are incomplete and “don't reference one specific instance.”

At the offer's conclusion, the trial court asked “what [the evidence] was being offered for.” Appellant explained that it was the defense's belief that issues regarding false projection existed due to T.B. being made aware of the molestation by her biological father. Defense counsel further argued that, although such evidence “is subject to the Rape Shield,” the defense believed “it's relevant to the credibility of the witness, especially towards influences on her testimony.” The State then argued that the evidence should be excluded under the rape shield statute and as inadmissible hearsay.

Following counsel's argument, the trial court stated it was “trying to come up with how [the offer of proof] moves this case forward.” Appellant argued that the evidence went to T.B.'s credibility and that “the jury knowing that [T.B.] had learned recently about some other incident of sexual allegation of touching is directly relevant.” The trial court then ruled:

[W]e're not getting into this. It's not admissible. This has no relationship to it, it's not—I am loathe [sic] to even come up with an idea of how this comes even close when we're talking about something that nobody even knows if it really happened. I mean, that's the problem I am having here is I don't know that anything ever really happened. It doesn't make any sense.... [Y]ou have talked about projection and things like that, and I am not even sure that there has been any false projection which is one of the things you indicated this is to indicate[.] ... And [T.B.'s] own testimony is she doesn't even know, A, if it happened; and B, she hasn't talked to any professional person about it or knows no indication of that.

After a discussion regarding T.B.'s memory of the molestation and the origin of the allegations against her biological father, the trial court stated it had made its ruling.

Therefore, although the parties discussed the rape shield statute during the offer of proof, the trial court did not expressly exclude the evidence on that basis. Rather, the trial court's comments suggest the evidence was excluded on relevancy grounds. “To be admissible, evidence must be logically and legally relevant.” State v. Baker, 422 S.W.3d 508, 513 (Mo.App.E.D.2014). “Evidence is logically relevant if it tends to make the existence of a material fact more or less probable.” Id. at 513–14 (internal quotation omitted). “Legal relevance weighs the probative value of the evidence against its costs—unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.” Id. at 514 (internal quotation omitted).

Appellant argued that the offer was relevant to establish that T.B. was falsely projecting acts of molestation to him. However, as the trial court's comments suggest, the fact that T.B. had been told she was molested by her biological father did little to establish whether such a projection had occurred. There was most certainly no testimony from anyone that a single statement to T.B. of an undescribed act of molestation by her biological father would have prompted her to describe, in detail, specific acts of sexual abuse by Appellant occurring in specific rooms of the house. Thus, the fact that T.B. had been molested by her biological father, in and of itself, does not make it any more or less probable that Appellant committed the charged offenses.³

Moreover, to the extent the trial court's exclusion of the evidence could be attributed to the rape shield statute, it is not erroneous. In order to establish his theorized defense, Appellant would necessarily have to elicit testimony that T.B. had previously been molested. “Section 491.015, commonly referred to as the ‘rape shield’ statute, creates a presumption that evidence of a victim's prior sexual conduct is irrelevant.” McIntosh v. State, 413 S.W.3d 320, 331 (Mo. banc 2013). Section 491.015.1 provides:

In prosecutions under chapter 566[,] ... evidence of specific instances of the complaining witness' prior sexual conduct or the absence of such instances or conduct is inadmissible, except where such specific instances are:

(1) Evidence of the sexual conduct of the complaining witness with the defendant to prove...