State v. Heckenlively

• Decision Date: 25 June 2002
• Docket Number: No. WD 59159.,WD 59159.
• Citation: 83 S.W.3d 560
• Parties: STATE of Missouri, Respondent, v. Richard W. HECKENLIVELY, Appellant.
• Court: Missouri Court of Appeals

Page 560

83 S.W.3d 560

STATE of Missouri, Respondent, v.Richard W. HECKENLIVELY, Appellant.

No. WD 59159.

Missouri Court of Appeals, Western District.

Submitted April 3, 2002.

June 25, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 25, 2002.

Application for Transfer Denied September 24, 2002.

COPYRIGHT MATERIAL OMITTED

Jeannie M. Willibey, Asst. Public Defender, Kansas City, for Appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Attorney General, Kansas City, for Respondent.

Before PATRICIA BRECKENRIDGE, P.J., HAROLD L. LOWENSTEIN and JAMES M. SMART, JR., JJ.

JAMES M. SMART, JR., Judge.

Richard W. Heckenlively appeals his conviction of first degree statutory sodomy, pursuant to § 566.062, RSMo 1994, and first degree child molestation, § 566.067, RSMo 1994.For the sodomy conviction, the trial court sentenced Heckenlively, as a persistent and predatory sexual offender pursuant to § 558.018, to life imprisonment, without the possibility of parole for thirty years.The court also sentenced Heckenlively to a concurrent term of seven years imprisonment for first degree child molestation.

For the reasons set forth below, the judgment is affirmed in part.Because the statute authorizing sentencing as a predatory sexual offender did not become effective until after the commencement of the period of time during which Heckenlively committed the offenses in question, the sentence as a predatory sexual offender for first degree statutory sodomy is vacated, and the case is remanded for resentencing on that count.

Statement of Facts

Richard Heckenlively was charged with one count of statutory sodomy in the first degree, as a persistent and predatory sexual offender, and with one count of child molestation in the first degree.The acts were alleged to have occurred between the dates of May 1, 1996, and January 14, 1997.The alleged victim of count I was Heckenlively's stepdaughter, B.S., whose birth date is September 10, 1990, and the alleged victim of count II was Heckenlively's daughter, B.H., whose birth date is March 2, 1993.

At trial, the State presented the following evidence.Mrs. Ira Heckenlively testified that in 1996, she and the appellant were married and the two of them were living with her three young children, including Heckenlively's stepdaughter, B.S., and his biological daughter, B.H., at 9th and Monroe in Kansas City, Missouri.She separated from Heckenlively on March 8, 1997.

On January 14, 1998, she discovered the two girls acting out sexually.Mrs. Heckenlively questioned the girls about what they were doing.The girls told her that, sometime in 1996, while they were all still living together, Heckenlively had taken the girls' clothes off and touched both of them in their vaginal area.After being made aware of the incident, Mrs. Heckenlively called the police.

Kansas City Police OfficerBrian Ruch testified at trial that on January 14, 1998, he was dispatched to interview Mrs. Heckenlively and the two girls.After speaking with Mrs. Heckenlively, Officer Ruch interviewed B.S. in the presence of B.S.'s mother, B.H., and the girls' little brother, Matthew.B.S. told him "that daddy had used his fingers" and penetrated their vaginas, referring to herself and her sister, B.H. B.S. said that it occurred in their parents' bedroom at their old address at 9th and Monroe.He tried to talk with B.H., but she refused to make a statement.Officer Ruch then instructed Mrs. Heckenlively to take the two girls to the Child Protection Center.

On January 21, 1998, Mrs. Heckenlively took the girls to the Child Protection Center.There a pediatric nurse practitioner conducted a "sexual assault forensic examination"("SAFE") on the two girls.The results of the SAFE examination were presented at trial.Although this examination revealed no abnormalities in the genital or rectal areas of either girl, the nurse practitioner explained that this finding could be consistent with either the presence or absence of sexual abuse.

At the Child Protection Center, the girls and their mother met with social worker Julie Donelon.After first speaking with Mrs. Heckenlively, Ms. Donelon videotaped her interviews with B.S. and B.H.Ms. Donelon testified at the trial, and her videotaped interviews with the girls were played for the jury.In the videotaped interview, B.S. said Heckenlively had touched her "private," i.e., her genital area, in her mother's bedroom while they were living at her "old house" on 9th Street in Kansas City when she was six years old and in kindergarten.The incident, B.S. said, had occurred around lunchtime while B.S. was home sick from school and her mother was working at Shoney's.She, B.H., and their younger brother were taking a nap when Heckenlively called B.S. and B.H. into their parents' bedroom.Heckenlively was in the middle of the bed, and the two girls were on each side of him.B.S. said that he pulled down her pants and underwear while she was lying down on the bed.He touched the inside of her vagina with his hand or finger.She said she was watching as he put his hand inside her.She said Heckenlively did this twice; she told him to "stop" and he told her to go back to her room.She stated that she went back to her room and fell asleep.B.S. also told Ms. Donelon that after the appellant touched her vagina, he pulled B.H.'s pants down and did "the same thing" to her.B.H. protested that she was "gonna tell mama," but he warned her that if they told, they would be in "big trouble," according to B.S. B.S. said that she and B.H. told their mother what had happened after they moved.

B.H. also gave a videotaped statement to Ms. Donelon.It, too, was introduced at trial.After initially saying "no," when asked if she had been touched around her buttocks or vagina in a way that she"didn't like,"she later stated that her dad had pulled her pants down and touched her with a finger on the "outside" of her vagina.She said the incident had occurred at their "old house" when she was three years old and that her dad was "sitting on the couch" and she was standing while he was touching her.B.H. said that Heckenlively had instructed B.S. to go to her bedroom when the touching occurred, that her brother was in the room with her, and that her mother was at work.B.H. told Ms. Donelon that Heckenlively had touched her "two times," indicating on a diagram that the touching had occurred on her buttocks.The appellant had removed her clothes and touched her with his hands on the "outside of her buttocks."B.H. recalled that the second incident had occurred in the same room and under the same circumstances as the first incident, that her mother was at work, B.S. was in her bedroom, and her little brother was present.She said she did not tell her mother until they were no longer living with the appellant, but she did not testify that Heckenlively told her not to tell.

At trial, B.S. again testified that Heckenlively gave her a "bad touch" in her vagina with his finger.She stated that he did it "two times."B.H. also testified, stating that Heckenlively gave her a bad touch on the outside of her private part with his hand.

Prior to the jury's verdict, a hearing was conducted, after which the court determined that Heckenlively was a persistent and predatory sexual offender and subject to the extended sentencing provisions in § 558.018, RSMo.After approximately six and one-half hours of deliberations, the jury returned verdicts of guilty of statutory sodomy in the first degree and child molestation in the first degree.

On October 6, 2000, the court denied defense counsel's motion for judgment of acquittal or, in the alternative, for a new trial.The court sentenced Heckenlively as a persistent and predatory sexual offender to life imprisonment without the possibility of parole for thirty years for the statutory sodomy conviction, and to a concurrent term of seven years imprisonment for the child molestation conviction.

Point I: The Batson Challenge

At jury selection, the State challenged several of Heckenlively's peremptory challenges pursuant to Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), which prohibits the use of peremptory challenges so as to discriminate on the basis of race or gender.The trial court sustained the State's Batson challenge only as to Michael Smith, who is African American, and placed Mr. Smith on the jury.¹

In his first point on appeal, Heckenlively (who is Caucasian) claims that the trial court"clearly erred" in sustaining the State's Batson challenge as to venireperson Michael Smith.Heckenlively contends that the defense articulated a race-neutral reason for its use of a peremptory challenge against Mr. Smith — that Heckenlively saw Mr. Smith give him hostile looks during voir dire — and that the trial court failed to adequately consider the totality of the circumstances and rejected the explanation simply because the defense had used five of its six peremptory challenges to remove African Americans from the panel.

Our review of the trial court's ruling on a Batson challenge is limited to determining whether it is clearly erroneous.State v. Pullen,843 S.W.2d 360, 362-63(Mo. banc 1992).The court's determination of whether there was discrimination is a finding of fact.State v. Antwine,743 S.W.2d 51, 66(Mo. banc 1987)."[F]indings of fact shall not be set aside unless clearly erroneous ...."Id.(quotingAnderson v. Bessemer City,470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518(1985))."[A] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."Antwine,743 S.W.2d at 66;State v. Thurman,887 S.W.2d 411, 412(Mo.App.1994).Because the trial court's determination of whether a peremptory strike was based on racially neutral...