State v. Helmig, s. 68241

• Decision Date: 11 June 1996
• Docket Number: 69033,Nos. 68241,s. 68241
• Citation: 924 S.W.2d 562
• Parties: STATE of Missouri, Respondent, v. James L. HELMIG, Appellant. James L. HELMIG, Respondent, v. STATE of Missouri, Appellant.
• Court: Missouri Court of Appeals

Page 562

924 S.W.2d 562

STATE of Missouri, Respondent, v.James L. HELMIG, Appellant.

James L. HELMIG, Respondent, v.STATE of Missouri, Appellant.

Nos. 68241, 69033.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 11, 1996.

Reginald P. Bodeux, St. Charles, for appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., David R. Truman, Asst. Atty. Gen., Jefferson City, for respondent.

RHODES RUSSELL, Judge.

James L. Helmig("defendant") was convicted after a non-jury trial of two counts of sodomy, in violation of § 566.060RSMoCum.Supp.1993, and one count of sexual abuse in the second degree, in violation of § 566.110RSMoCum.Supp.1993.He was sentenced to twelve years on each of the sodomy charges and one year for the sexual abuse charge, to run consecutively.Defendant appeals the judgment claiming there was insufficient evidence to support his conviction.Consolidated with defendant's direct appeal is the state's appeal of the granting of defendant's Rule 29.15 motion.We affirm both the conviction and the grant of post-conviction relief.

The charges against defendant arise out of an incident involving defendant and victim on the night of August 18, 1993 and early morning hours of the next day.At the time of the offense defendant was an assistant boy scout leader.Victim was a 13 year old boy scout in defendant's troop.On the night of August 18, victim attended a boy scout meeting at the Rolling Meadows trailer park.Once the meeting ended, defendant asked victim to spend the night with him at his home in the trailer park.Victim received permission from his mother.Victim and defendant went out for dinner and went swimming at a lake.They returned to defendant's trailer sometime after one in the morning on August 19th.At bedtime, defendant told victim that he would be sleeping in defendant's bed.Victim abided and went to the bedroom.During the night, victim was awakened as defendant grabbed his arm and pulled victim towards him.Defendant took victim's hand and placed it on defendant's penis over his shorts.Victim did not say anything to defendant for fear defendant would harm him.Victim also testified that defendant touched victim's genitals both over and under his clothes.Victim further testified that defendant forced him to touch defendant's penis under his clothes.Victim noticed that defendant's penis was erect during each touching.Victim then left to go to the bathroom.He remained there for a short time and then tried to sleep on the couch in the living room.Defendant later came out of the bedroom and ordered victim to come back to bed.Victim obeyed and went into the bedroom whereupon defendant locked the bedroom door behind them.When victim and defendant were in the bed together, defendant began touching victim again.Victim pulled away and the touching stopped.

On the morning of August 19, 1993, defendant dropped victim off at a friend's house.Later that day, once victim returned home, victim told his mother what had happened at defendant's house.Victim and his mother reported to the assistant scoutmaster of the troop what had happened.The next day, on August 20, 1993, victim and his mother went to the sheriff's department and met with Detective Roach.Victim gave a statement to the detective relaying the incident.At the detective's suggestion, victim called defendant while at the station.The phone conversation was recorded and played at trial.During the conversation, victim pretended to be at home alone.Defendant told victim to keep quiet about what had happened and that they would work things out between them.

That same day, while at the sheriff's department, victim gave a written statement explaining in general terms what transpired at defendant's trailer.Detective Roach also completed a report describing the sequence of events.The report stated that victim indicated that all of the touching occurred on the outside of the clothing.Based on the detective's investigation and the taped phone conversation, a warrant was issued for defendant's arrest.

Defendant was charged by an amended information, filed June 3, 1994, with two counts of sodomy and one count of sexual abuse in the second degree.The matter was tried on December 13, 1994, without a jury, in the Circuit Court of St. Charles County.Defendant was found guilty on all three counts.On April 21, 1995, defendant was sentenced to two twelve-year sentences on the sodomy counts and a one-year sentence on the second degree sexual abuse count, for a total of twenty-five years in the Missouri Department of Corrections, all to be served consecutively.

On July 7, 1995, defendant filed his Motion to Vacate, Set Aside, or Correct the Judgment or Sentence pursuant to Rule 29.15.Defendant argued that the sodomy statute under which defendant was convicted and sentenced had been changed after trial but before sentencing, and thereby had the effect of substantively changing the definitions of the charges and modifying the range of punishment.The motion court concluded that pursuant to § 1.160(2), RSMo 1994, defendant was entitled to the benefit of the amendatory law, which changed the conduct for which he was convicted from a class B felony to a class A misdemeanor, the latter carrying a maximum sentence of up to one year in jail.The motion court ordered defendant be resentenced under the range of punishment for a class A misdemeanor.It is that order from which the state appeals.

On direct appeal, defendant challenges the sufficiency of the evidence to support the sodomy conviction.Defendant asserts there was insufficient evidence to show that defendant touched victim's genitals under the clothing.The only evidence concerning defendant's touching the genitals of victim under the clothing came from victim during his trial testimony.Defendant claims that victim's testimony on that point was so diametrically opposed to victim's sworn testimony and written statements taken previously that it was inherently incredible and should not have been considered in determining his guilt.We disagree.

It is first necessary to clarify our standard of review.In his brief, defendant writes that because he did not mention this point in an after-trial motion, this point was not properly preserved and therefore reviewable for only plain error.The state also claims plain error is the standard for our review of the matter.However, when a case is tried without a jury, a defendant need not file a motion for new trial.Rule 29.11(e)(1).Indeed, a motion for new trial is not necessary to preserve any alleged error for appellate review in criminal cases tried without a jury.Rule 29.11(e)(2)(A).The non-filing of any after-trial motions, therefore, does not affect our review of the matter.

When judging the sufficiency of the evidence to support a conviction, we may not weigh the evidence but accept as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignore all contrary evidence and inferences.State v. Sladek, 835 S.W.2d 308, 310(Mo.banc 1992).The standard is the same regardless of whether the case is judge-tried or jury-tried.Id.We only review to determine whether or not there was sufficient evidence from which the trier of fact could have reasonably found him guilty.Id.

Defendant maintains there was insufficient evidence to support his conviction of sodomy as contained in Count I of the amended information.Count I charged defendant with sodomy under § 566.060, RSMoCum.Supp.1993, alleging that he had deviate sexual intercourse with victim by putting his hand on the victim's genitals, to whom defendant was not married and who was then less than fourteen years old.Defendant asserts there was insufficient evidence to show that he touched victim's genitals under victim's clothing.The only evidence that defendant touched victim under his clothing came from victim during victim's trial testimony.Defendant complains the trial testimony was so inherently contradictory with victim's earlier out of court statements that victim's testimony should have been disregarded on that point under the "destructive contradictions" doctrine.Defendant asserts victim's statement to Detective Roach, victim's testimony at the preliminary hearing, and victim's statements in a deposition taken within a week of trial all indicated the touching was over the clothing.

The "destructive contradictions" doctrine applies when a witness's trial testimony is so internally inconsistent or contradictory that it is without probative value.To apply, "the inconsistencies or contradictions must be so diametrically opposed to one another as to preclude reliance thereon and rob the testimony of all probative force."State v. Jones, 745 S.W.2d 748, 751(Mo.App.1987)(quotingState v. Burns, 671 S.W.2d 306, 311(Mo.App.1984)).The doctrine comes into play only as to potential contradictions during a witness's testimony at trial, not to contradictions between trial testimony and prior statements.Id. at 750-51.Any contradictions between a witness's trial testimony and any previous testimony or statements are for the court as the trier of fact to reconcile and consider when judging the witness's credibility.Id. at 751.

In the case at bar, all of the inconsistencies brought out by defendant were not contradictions within victim's trial testimony itself but were slight modifications in victim's testimony from his earlier statements to the police and his statements made in a deposition taken before trial.Victim's answers on direct and cross-examination were not contradictory and, therefore, the rule of destructive contradictions is inapplicable.We note that in cases dealing with very sensitive subjects, it is common for the testimony of a victim of tender years to contain some variations, contradictions or lapses in memory.State v. Ginnery, 617 S.W.2d 115, 117(Mo.App.1981).The court...