State v. Herndon

• Decision Date: 27 March 2007
• Docket Number: No. WD 66610.,WD 66610.
• Citation: 224 S.W.3d 97
• Parties: STATE of Missouri, Respondent, v. Raymond L. HERNDON, Appellant.
• Court: Missouri Court of Appeals

224 S.W.3d 97

STATE of Missouri, Respondent, v. Raymond L. HERNDON, Appellant.

No. WD 66610.

Missouri Court of Appeals, Western District.

March 27, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 2007.

Application for Transfer Denied June 26, 2007.

Frederick Joseph Ernst, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Shaun Mackelprang and Karen Kramer, Office of Attorney General, Jefferson City, for Respondent.

PAUL M. SPINDEN, Judge.

Raymond L. Herndon appeals the circuit court's judgment convicting him of five counts of child molestation in the first degree, two counts of sexual misconduct in the first degree, four counts of statutory sodomy in the first degree, two counts of statutory sodomy in the second degree, and one count of statutory rape in the second degree. Herndon asserts that the prosecuting attorney did not present sufficient evidence for the jury to find him guilty beyond a reasonable doubt of one of the counts of statutory sodomy in the first degree. He also asserts that the circuit court erred by denying his motion for new trial and by entering its judgment of conviction because jurors engaged in misconduct and were subjected to outside influences during deliberations and because the circuit court erred in refusing to allow the victim's diary to be sent in its entirety to the jury during deliberations. We reverse and remand in part and affirm in part.

Although a jury convicted Herndon of 14 counts, Herndon complains about the sufficiency of the evidence pertaining to Count VI charging him with statutory sodomy in the first degree. Herndon asserts that the evidence was insufficient to support a finding of guilt because the evidence established that, although he placed his penis only on the victim's vagina, his penis did not penetrate the victim's vagina. He correctly contends that, in the absence of evidence that his penis penetrated the victim's vagina, his conduct does not fall within the statutory definition of deviate sexual intercourse.

Under Count VI, the state charged Herndon with statutory sodomy in the first degree, in violation of Section 566.062, RSMo 2000, for having "placed his penis on [the victim's] vagina." At trial, the circuit court instructed the jury:

As to Count 6, if you find and believe from the evidence beyond a reasonable doubt:

First, that between and including April 13, 2001 and April 13, 2003, in the County of Jackson, State of Missouri, the defendant placed his penis on [the victim's] vagina, and

Second, that such conduct constituted deviate sexual intercourse, and

Third, that at that time [the victim] was less than fourteen years old,

then you will find the defendant guilty under Count 6 of statutory sodomy in the first degree.

The General Assembly defined statutory sodomy in the first degree as "deviate sexual intercourse with another person who is less than fourteen years old." Section 566.062.1. It defined deviate sexual intercourse as:

[A]ny act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person[.]

Section 566.010(1), RSMo Supp.2002.

The state concedes that Herndon's putting his penis on the victim's vagina without penetrating the vagina did not satisfy the definition of deviate sexual intercourse. It asserts, however, that the evidence established that Herndon, in fact, penetrated the victim's vagina with his penis, and, therefore, such evidence meets the definition of deviate sexual intercourse in that it was a "sexual act involving the penetration, however slight, of ... female sex organ ... by [an] object done for the purpose of arousing or gratifying the sexual desire of any person[.]" Section 566.010(1).

We reject the state's position. In its instruction, the circuit court did not hypothesize that Herndon penetrated the victim's vagina. Indeed, the prosecuting attorney specifically told the jury during closing argument that it did not have to find that Herndon penetrated the victim's vagina to convict him. Thus, even if penetration of the female sex organ by a penis constitutes deviate sexual intercourse, no finding by the jury that penetration occurred supports the state's contention. The facts as alleged and submitted to the jury by the state, therefore, were insufficient to sustain a conviction for statutory sodomy.

Child molestation in the first degree, however, is a lesser-included offense of statutory sodomy in the first degree. State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004). According to the Supreme Court, when we overturn a conviction of a greater offense for insufficient evidence, we may enter a conviction for the lesser offense "`if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements to enter the ill-fated conviction on the greater offense.'" State v. Whalen, 49 S.W.3d 181, 187-88 (Mo. banc), cert. denied, 534 U.S. 1030, 122 S.Ct. 567, 151 L.Ed.2d 440 (2001) (citation omitted).

"A person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact." Section 566.067.1, RSMo 2000. Section 566.010(3) defines "sexual contact" as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person[.]" By finding that Herndon put his penis on the victim's vagina and that the victim was less than 14 years old, the jury found all of the requisite elements to convict Herndon of child molestation in the first degree. We, therefore, reverse the circuit court's judgment convicting Herndon of statutory sodomy in the first degree and remand for the circuit court to enter judgment convicting Herndon of child molestation in the first degree and to sentence accordingly.

Herndon also contends that the circuit court erred in denying his motion for new trial and in entering its judgment of conviction because jurors engaged in misconduct and were subjected to outside influences during deliberations. In particular, the evidence established that during deliberations some jurors used their cellular telephones to make personal or business calls and that one juror spoke to an alternate juror, who, although not participating in the jury's deliberation, expressed her opinion that Herndon was innocent.

"[T]he primary if not exclusive purpose of jury privacy and secrecy is to protect the jury's deliberations from improper influence." U.S. v. Olano, 507 U.S. 725, 737-38, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). "`Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.'" State v. Quinn, 405 S.W.2d 895, 896 (Mo.1966) (quoting Mattox v. U.S., 146 U.S. 140, 150, 13 S.Ct. 50, 36 L.Ed. 917 (1892)).

The courts presume prejudice when a non-juror has unauthorized communication with jurors. State v. Babb, 680 S.W.2d 150, 152 (Mo. banc 1984). When the improper communication intrudes on the jury's deliberations, the state can avoid a new trial only by establishing that the defendant was not prejudiced by the communication. State v. Hayes, 637 S.W.2d 33, 38 (Mo.App.1982); State v. White, 138 S.W.3d 783, 786 (Mo.App.2004). In the face of prima facie evidence of improper communication between jurors and third persons, the state's burden is to show that the communication did not influence the jurors. Quinn, 405 S.W.2d at 896; White, 138 S.W.3d at 786.

The circuit court may grant a new trial for juror misconduct when such misconduct tends to prevent "a fair and due consideration of the case[.]" Section Section 547.020(2), RSMo 2000. The circuit court has broad discretion in determining whether or not the state has met its burden of establishing that the communication was harmless. State v. Klaus, 730 S.W.2d 571, 580 (Mo.App.1987). Our standard in reviewing the circuit court's ruling is an abuse of discretion standard. State v. Carr, 610 S.W.2d 296, 300 (Mo.App.1980). The circuit court abuses its discretion when its ruling "is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Rutter, 93 S.W.3d 714, 729 (Mo. banc 2002), cert. denied, 540 U.S. 812, 124 S.Ct. 61, 157 L.Ed.2d 26 (2003).

In seeking to rebut the presumption of prejudice, the state presented the testimony of all 12 jurors and the two alternates at the hearing on Herndon's motion for new trial. Juror Carmen Lopez-Palacio testified that she used her cellular telephone during deliberations to telephone a member of her family to inform him or her that the jury "would be [deliberating] longer." She also said that Bobbi Andujar, an alternate juror, called her during deliberations to ask what the jury was doing.¹ Lopez-Palacio responded that she could not discuss anything with her. According to Lopez-Palacio, Andujar replied that she wished the jury "luck" but opined that Herndon was not guilty and that she did not believe the evidence regarding an incident involving the victim's using a vibrator on Herndon. Lopez-Palacio said that Andujar told her that the victim appeared to be lying about the vibrator because Herndon had testified that he had hemorrhoids and the victim never mentioned anything about using a lubricant when she testified that Herndon had her stick a vibrator in his anus. Lopez-Palacio said that she did not share Andujar's conversation with...