State v. Graham

• Citation: 906 S.W.2d 771
• Decision Date: 25 July 1995
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Mark E. GRAHAM, Appellant. 46829.
• Court: Missouri Court of Appeals

Page 771

906 S.W.2d 771

STATE of Missouri, Respondent, v. Mark E. GRAHAM, Appellant.

No. WD 46829.

Missouri Court of Appeals Western District.

July 25, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 29, 1995.

Application to Transfer Denied

Oct. 24, 1995.

James R. Wyrsch, Kansas City, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SPINDEN, P.J., and ULRICH and SMART, JJ.

SMART, Judge.

Mark Graham appeals from the trial court's judgment finding him guilty of three counts of sodomy, in violation of § 566.060, RSMo 1986. Defendant Graham was sentenced to twenty years imprisonment on each count, to be served consecutively, for a total of sixty years imprisonment. Defendant Graham also appeals from the denial of his Rule 29.15 motion.

Defendant Mark Graham was an adult leader for a youth group which was associated with a church in Clay County. The group members consisted of young boys. In August of 1991, the church operated an overnight summer camp for children. Adam, a teenage boy, and Nick, Adam's 10-year-old brother, attended the camp. ¹ The boys had previously moved from Missouri out of state. The boys spent two nights with defendant at his apartment before camp began. They also spent the night with defendant for at least one night when camp ended. Several other young boys stayed at defendant's apartment with Adam and Nick on the same three nights.

Defendant and the young boys slept in the living room together. Some of the boys slept on couches. On all three of the nights in question, Nick slept on the floor and defendant slept on the floor. Nick wore underwear and pajamas to bed and slept in a sleeping bag. According to the prosecution evidence, Nick was awakened the first night when he became aware of someone's hand touching his penis. The hand was under Nick's pajamas and underwear and on his penis. The hand stayed on the boy's penis for ten to twenty minutes. During this time, Nick heard heavy breathing. Nick did not look, he said, because he was afraid. He detected that the hand was a large hand--the hand of an adult. Nick concluded it was defendant who touched him, since defendant was lying next to him and the hand was large. The same scenario occurred the next night and also the night after camp had ended. Defendant drove Adam and Nick back home after camp ended.

Defendant was charged with violating the sodomy statute on three occasions as to Nick, and on one occasion as to another boy named Timothy. Following a trial, defendant was found guilty on July 14, 1992, of the three counts of sodomy involving Nick. The count involving Timothy was dismissed by the court on defendant's motion before the case was submitted. On December 24, 1992, defendant filed his Rule 29.15 motion. After an evidentiary hearing, defendant's motion was denied. He now appeals from the trial court's judgment and the motion court's judgment.

Sufficiency of the Evidence

Defendant Graham first complains that the trial court erred in denying his motion for judgment of acquittal in that insufficient evidence existed to support the convictions of sodomy. He contends that the evidence was insufficient to support his sodomy convictions because (1) the evidence failed to support a finding that defendant committed the offenses for the purpose of sexual gratification; (2) the victim's identification of defendant as the perpetrator was not credible; and (3) the victim's testimony was so contradictory and conflicting as to require corroboration, which was not provided by the State.

In reviewing a sufficiency of the evidence claim, the evidence together with all reasonable inferences to be drawn therefrom is viewed in the light most favorable to the verdict. State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc 1991), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). The reviewing court must determine whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993).

Nick testified that he remembered three nights around the time of the summer camp when he and others spent the night at defendant's apartment. He testified that those spending the night there were defendant, his brother Adam, and "another kid." He said that he was sleeping on the floor with Mark, while his brother and his "brother's friend" were sleeping on couches. On cross-examination, Nick said it was possible that the night before camp started that some other boys named C.J. and Daniel were also present at the apartment. He said it was possible that he stayed for five nights instead of three. Nick said that he never saw who touched him. He testified at one point in his testimony that he was not certain who touched him. On re-direct, he stated that there was no doubt in his mind that defendant was the one who touched him. Nick's brother, Adam, remembered staying at the apartment for three nights. He remembered C.J. and a boy named Josh being there in addition to Nick and to defendant. Adam believed that defendant slept next to Nick on the floor all three nights, although he said it was possible that Daniel slept between defendant and Nick the night before summer camp. Detective Barbara Baker testified concerning her investigative interview with Nick, in which Nick related his allegations about having been touched by Mr. Graham. The allegations which she testified he made to her corresponded very closely with the testimony given at trial by Nick.

Testimony was also presented by Timothy, another boy who the defendant was charged with molesting on another occasion. Timothy testified that he stayed at Mr. Graham's apartment several times in 1991. He testified that the second to the last time he was there, C.J. was also spending the night. He testified that he slept on the floor with Mark Graham, and that C.J. slept on the couch. He testified that C.J. went to sleep while defendant and he were watching a movie. He testified that when the movie was over they turned the lights out. Before he fell asleep, Defendant Graham touched him. He said that Defendant Graham put his hand on top of the blanket over his penis. He said that he thought Defendant Graham held his hand there about 30 seconds. He stated that then Defendant Graham took his hand and reached over and placed his (Timothy's) hand on Defendant Graham's penis, again through the blankets. He said this also lasted for about 30 seconds until Mr. Graham let go and he pulled his hand away. He stated that he then rolled over to the other side away from Mr. Graham. He testified nothing else happened that evening. He testified that on December 5, 1991, which was "a month or more" after the incident, he went to the police and reported the incident. He testified that he was acquainted with Nick, but never talked to Nick about the incident. On cross-examination, Timothy was very unclear about the time frame of the incident. He stated that it could have been August of 1991. He stated that he did not know when it occurred. He stated that he was certain that it was Mark Graham touching him. He stated that he went back to Mark Graham's house one other time because he felt pressured into it because Mark Graham kept calling his house and asking him to go over there.

Timothy's mother testified that after Timothy had gone to the police, Mr. Graham called her at her work. He was upset. She testified that he asked if anything happened the night that Timothy had stayed there that was upsetting to Timothy. Timothy's mother told Mr. Graham she could not discuss it. Mr. Graham then offered an explanation to the effect that sometimes when Timothy spends the night, Timothy ends up rolling over on top of him, and his hands end up going over on top of Timothy in bed. He told her that he knew that Saturday morning Timothy had had to take Mr. Graham's arm off of him in order to get out of bed. She stated that when she informed him that Timothy was going to counseling, Mr. Graham offered to go to counseling with Timothy.

A witness presented by the defense, C.J., testified that he was present at Mark's apartment overnight before summer camp. He said that others who were present were Nick, Adam, Defendant Graham, and Daniel. He testified that according to his recollection, Defendant Graham slept on the floor next to Nick and that Daniel slept on the other side of Mark. Daniel testified that he spent the night there before summer camp also. He remembered those present as including C.J., Nick, Adam and Defendant Graham. He stated that Nick has been a friend of his for a long time. His recollection of the location of the parties as they slept was that defendant was next to the wall, then Daniel was next to him, and then Nick was next to Daniel. He stated that he remembered being between Mark Graham and Nick.

Defendant first asserts that the evidence was insufficient to show that he committed the acts charged for the purpose of sexual gratification. Section 566.060.3, RSMo 1986 provides: "A person commits the crime of sodomy if he has deviate sexual intercourse with another person to whom he is not married who is less than fourteen years old." The phrase "deviate sexual intercourse" implies an intent to arouse or gratify sexual desire, and does not contemplate an innocent touching. State v. Fields, 739 S.W.2d 700, 704 (Mo. banc 1987). Thus, the State must prove that defendant committed the acts with the intent to arouse or gratify sexual desire.

Viewing the evidence in the light most favorable to the verdict, the evidence supports a jury finding that on three different nights defendant placed his hand inside Nick's pajamas and underwear and grasped the boy's bare penis for a period of between 10 and 20 minutes. During each incident, according to Nick, he heard fast and heavy breathing....