State v. Harvey

• Decision Date: 21 September 1982
• Docket Number: No. WD,WD
• Citation: 641 S.W.2d 792
• Parties: STATE of Missouri, Respondent, v. Larry HARVEY, Appellant. 32147.
• Court: Missouri Court of Appeals

Page 792

641 S.W.2d 792

STATE of Missouri, Respondent, v. Larry HARVEY, Appellant.

No. WD 32147.

Missouri Court of Appeals Western District.

Sept. 21, 1982.

Motion for Rehearing and/or Transfer to

the Supreme Court Overruled and Denied Nov. 2, 1982.

Application to Transfer Denied

Dec. 13, 1982.

L.D. Mayo, Jr. (argued), Kansas City, for appellant.

Kelly S. Klopfenstein (argued), Asst. Atty. Gen., and John Ashcroft, Atty. Gen., Jefferson City, for respondent.

Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.

NUGENT, Presiding Judge.

Larry Harvey appeals his conviction of attempted rape following a jury trial. The trial judge sentenced him to three years imprisonment. We affirm.

Defendant was charged in two counts with sodomy of his eleven-year-old stepdaughter, Rachelle, in violation of § 566.060, ¹ and in a third count with attempted rape of Rachelle in violation of § 566.060. ² All of the counts related to acts alleged to have been performed on or about June 16, 1979. A mistrial was declared as to the sodomy counts.

Trial commenced on July 28, 1980. The state made an oral motion in limine that any reference, either direct or indirect, to Rachelle's having been the victim of a prior unrelated sexual assault be prohibited. The defense argued against the motion:

MR. MAYO: Your Honor, the defendant would seek to introduce this evidence for the limited purpose of showing the prior knowledge of sexual matters of this little girl. She will introduce a very explicit statement with regard to Mr. Harvey. I think the fact that she does have prior sexual knowledge is relevant in this case to assess her credibility in that regard. We would not introduce this evidence to impeach her character in any way. Certainly, it is not impeachable to have been the victim of a rape, and we intend to make no argument to that end. We do feel that it is also relevant that the outcome of this particular reported incident of rape was inconsequential, insofar as the alleged perpetrator is concerned, and that that might have a bearing on the attitude of this girl in reports of sexual abuse, which is also relevant in this case.

The trial judge sustained the state's motion.

Sherita Bates, a social worker, began to work with the Harvey family in March, 1979, when Mrs. Harvey's five children were placed in foster care because Debra Harvey, Harvey's former wife, had abused them. Mrs. Bates took Rachelle and defendant's daughter, Belinda, for a weekend visit with Harvey on June 15. She picked them up on June 18 to return to their foster home. After a hearing the next day, the juvenile court placed the four younger children in Mrs. Harvey's custody and placed Rachelle in the custody of defendant, her stepfather. On June 21, however, the juvenile court directed Mrs. Bates' supervisor, Ms. Patricia Brown, to take protective custody of Rachelle because Mrs. Harvey and Belinda had accused defendant Harvey of sexual abuse of Rachelle on the weekend of June 15. The two social workers and Detective Elaine Dalton met defendant at his home, explained the allegations to him and took Rachelle into custody, placing her in Children's Mercy Hospital. There Officer Steven Clark made a police report.

Mrs. Bates testified that Rachelle and Belinda had made no mention of any sexual impropriety on June 18 or 19. Her recommendation that Rachelle be placed in Harvey's custody ³ was based on Rachelle's hostile feeling toward her mother, Rachelle and Belinda's wish to be placed there, Harvey's interest in both girls, and the favorable evaluation Harvey received from a psychologist.

Detective Dalton took Rachelle's statement on June 21 and another statement on September 11. In both statements Rachelle reported previous sexual impropriety with Harvey beginning, according to one statement, when she was seven, or, according to the other, when she was nine or ten. In the first statement she first gave June 18 and then June 16 as the date of the abuse. Of the first statement, Detective Dalton testified, "I think she was tired and nervous, and I think at that particular time she probably would have said anything that she thought we wanted to hear just to get it over with, because she wanted to just get it over with." Both statements described acts of cunnilingus and masturbation by Harvey.

Officer Clarence Gibson took Rachelle's and Belinda's statements on October 4. In this statement Rachelle related acts of fellatio and attempted intercourse in addition to the cunnilingus she had previously reported. She did not recall Belinda observing them but said that Harvey had slept with Belinda on June 16. In her statement, Belinda said that on June 16 she saw her father on top of Rachelle doing "the hoochie-koochie". She had seen him do that twice before with Rachelle but defendant had not done it with her. Harvey had seen her watching them and had told her to "get out".

Reginald Williams, Mrs. Harvey's sixteen-year-old brother, testified that after the court hearing on June 19 Belinda told him of the sexual improprieties of the June 15 weekend. He reported the conversation to Mrs. Harvey.

Belinda Harvey, nine years old at the time of trial, testified that on the night in question she saw Rachelle and Harvey in bed doing the "hoochie-koochie". Rachelle had her nightgown on. She stated that Harvey did not see her watching them. On cross-examination she said the incident occurred on June 16. She recalled that in an earlier statement (taken on September 11), she had said that Rachelle only wore her panties. She defined "hoochie-koochie" as "you get in another person". She admitted describing in a deposition acts of intercourse between Harvey and Rachelle.

Although Rachelle Harvey, twelve years old at the time of trial, did not remember the date of the assault, she testified that Harvey called her into his bedroom to watch television after dinner. When Harvey went downstairs, she went to sleep on his bed. Harvey awakened her by taking off her clothes. She further stated that Harvey, himself nude, "started licking me between my legs", "tried to get his penis in" and put his penis in her mouth. She repeated that Harvey had done these things when she was seven years old and at other times.

Jacqueline Harvey, the defendant's aunt as well as his former mother-in-law, testified that in April, 1980 she had said to Harvey, "Now you can't say that they're lying on you about Belinda and Rachelle, can you?" According to this Mrs. Harvey, the defendant replied, "No, I guess not." Jacqueline had asked for custody of the children when Harvey received custody of Rachelle the previous June.

Defendant's motion for judgment of acquittal at the close of the state's evidence was overruled.

Mrs. Bates, called as a defense witness, stated that on June 21, both Harvey and Rachelle denied any sexual relations. Rachelle told her that she thought their mother "had put Belinda up to saying things."

Ruby Cothran, Rachelle's foster mother from June 21 to October 11, testified that Rachelle's reputation among the people with whom she lives was "not very good for speaking the truth".

Defendant's mother, Betty Haycox, testified that Rachelle had lived with her from the time Rachelle was two months old until she was seven years old. When Rachelle was seven, Harvey was an inmate of an Oklahoma penitentiary. Contrary to Rachelle's testimony, Mrs. Haycox said that Rachelle had never reported any sexual contact with Harvey.

Ernestine Wright, custodian of the medical records at Children's Mercy Hospital, read the following paragraph from a form entitled "Suspected Sexual Assault" dated June 21, 1979, concerning Rachelle.

On questioning patient she denied ever being in bed with Mr. Harvey or ever having Mr. Harvey touch her breasts or genitals or ever seeing Mr. Harvey without his clothes.

The state moved that the rest of the report not be admitted on the basis that the omitted portion contained statements of the doctor which were impossible for a lay person to interpret or read. The court sustained the motion.

Larry Harvey, testifying in his own behalf, stated that he was in the Oklahoma State Penitentiary from 1973 to 1978. He returned to Kansas City in June, 1978. He The jury began its deliberations at 10:40 a.m. Subsequently, it sent the following request to the court: "We, the jury, feel it is necessary to view all evidence submitted in this case." The court proposed permitting the jury to see Defendant's Exhibits 1 through 5, the written statements of Rachelle and Belinda. Defendant's objection that "these documents ... would overshadow that testimony [of the witnesses] and unduly weight the contents of the exhibits in the jury's mind" was overruled.

                lived with Debra, from whom he was divorced in 1974, until December, 1978.  In January, 1979, he reported to the Child Abuse Hotline that Debra and her boyfriend had been abusing the children.  The Division of Family Services took the children on January 19.  Harvey received custody of Rachelle on June 19.  Except for problems when putting Belinda to bed, the weekend visit in June was uneventful.  He testified that nothing of a sexual nature had ever taken place between Rachelle and him:  "She is my daughter, why would I?"   He denied acknowledging to Jackie Harvey sexual misconduct with his daughters
                

Later the jury asked, "Do the sentences run at the same time or one added to another, and who decides?" The court answered, "The jury must follow the instructions. The Court cannot answer your questions.

After more deliberations, the jury sent the following message: "Does the jury have to come to a unanimous decision on the term of imprisonment?" The trial judge announced to counsel, "I will call the jury in and inquire as to whether or not they have agreed on guilt but haven't agreed on punishment. If that be the case, I will at that time read 4.50 ⁴ and the appropriate forms of verdict."

Thereafter, the record reveals the following...