State v. Kelley, WD 59459.

• Citation: 83 S.W.3d 36
• Decision Date: 28 June 2002
• Docket Number: No. WD 59459.,WD 59459.
• Parties: STATE of Missouri, Respondent, v. Forrest Patrick KELLEY, Appellant.
• Court: Court of Appeal of Missouri (US)

83 S.W.3d 36

STATE of Missouri, Respondent, v. Forrest Patrick KELLEY, Appellant.

No. WD 59459.

Missouri Court of Appeals, Western District.

June 28, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 22, 2002.

COPYRIGHT MATERIAL OMITTED

Richard E. McFadin, Gallatin, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., for Respondent.

Before ULRICH, P.J., BRECKENRIDGE and HARDWICK, JJ.

LISA WHITE HARDWICK, Judge.

Forrest Kelley was convicted of statutory sodomy and sentenced to fifteen years imprisonment. He raises four points on appeal: 1) the trial court erred in precluding evidence of the victim's sexual abuse allegations against other men pursuant to the rape shield statute, § 491.015 RSMo 2000¹; 2) the trial court erred in restricting Kelley's ability to rehabilitate a defense witness accused of lying under oath; 3) the trial court erred in denying Kelley's mistrial motion based on prejudicial comments of a venireperson; and 4) the trial court erred in denying the Motion for Judgment of Acquittal because the evidence was insufficient to support conviction on the sodomy charge.

We affirm.

Factual & Procedural History

In July 1991, Forrest Kelley (Kelley) and a group of people were "mudding" on three-wheeler bikes in the Bedford area. H.S., five years old at the time, sat in front of Kelley on the bike, and her four-year old sister sat behind Kelley. H.S. wore a bikini top and bottom with a pair of shorts.

While mudding, H.S. asked Kelley if she could steer the three-wheeler. Kelley responded that she could steer, if he could touch her. Although H.S. did not understand what Kelley meant by touching, she grabbed the steering wheel. H.S. operated the bike over bumpy pathways at very high speeds. During this time, Kelley took both hands off the steering bars, reached his right hand down H.S.'s shorts, and placed his fingers into her vagina. When a few of H.S.'s relatives approached the three-wheeler, Kelley removed his hand from her shorts and stopped the bike. H.S. and her sister jumped off the bike and began to play in the mud.

H.S. did not inform anyone about the incident until sometime in 1998, approximately seven years later, when Kelley visited H.S.'s aunt. H.S. told her aunt about the 1991 incident and said she was afraid that Kelley knew where she lived and would continue to visit.

Kelley was subsequently arrested and charged with statutory sodomy, a class B felony, § 566.060 RSMo 1986. The State filed a Motion in Limine pursuant to the rape shield statute, § 491.015, to prohibit Kelley from questioning any witnesses about H.S.'s allegations of sexual abuse against persons other than Kelley. Kelley opposed the motion and filed a Motion to Allow Evidence of Pattern of Conduct of Victim. After hearing, the court granted the State's motion and denied the defense motion. Kelley was convicted by a jury of statutory sodomy and sentenced to fifteen years imprisonment. He appeals.

Proper Application or Rape Shield Statute

The rape shield statute, § 491.015, creates a presumption that evidence of a victim's prior sexual conduct is irrelevant to prosecutions for sex crimes. State v. Smith, 996 S.W.2d 518, 522 (Mo.App. W.D. 1999). The statute renders evidence of prior sexual conduct inadmissible unless it falls within one of four specific exceptions, and the trial court finds the conduct relevant to a material fact or issue. State v. Sloan, 912 S.W.2d 592, 598 (Mo.App. E.D. 1995). The exceptions include:

1. Evidence of the sexual conduct of the complaining witness with the defendant to prove consent where consent is a defense to the alleged crime and the evidence is reasonably contemporaneous with the date of the alleged crime; or

2. Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease;

3. Evidence of immediate surrounding circumstances of the alleged crime; or

4. Evidence relating to the previous chastity of the complaining witness in cases, where, by statute, previously chaste character is required to be proved by the prosecution.

§ 491.015.1(1)-(4). Whether evidence is relevant is a matter for the trial court and reviewable only for an abuse of discretion. Sloan, 912 S.W.2d at 598.

Prior to trial, the State filed a Motion in Limine to preclude Kelley from questioning any witnesses about H.S.'s sexual abuse allegations against persons other than Kelley. The State argued that such questioning would elicit inadmissible evidence regarding the victim's prior sexual conduct. The court granted the motion and, at trial, allowed Kelley to make an offer of proof with H.S.'s testimony.

H.S. was fourteen years old at the time of trial in November 2000. During the offer of proof, H.S. testified that she had been sodomized by four men other than Kelley. She said her half-brother, Jeremy, had attempted to have sexual intercourse with her when she was five or six years old. Although she made a statement to the police regarding the incident, no criminal charges were filed against Jeremy. H.S. also reported to police that she was sodomized by Art Waldrep at the age of twelve. Charges were filed against Waldrep but later dismissed by the prosecutor. H.S. testified that in September 2000, two months prior to trial, she was sodomized by Kenny Yardley. Based on her complaint to police, charges were pending against Yardley at the time of Kelley's trial. H.S. further testified that she was sexually abused by another man whose name she did not know. She denied recanting any of the accusations and testified that the reported acts of sodomy had actually occurred.

The trial court rejected the offer of proof, refusing to allow the jury to hear any evidence of H.S.'s sodomy allegations against other men. On appeal, Kelley claims the evidence was admissible because it revealed a "pattern of conduct" in making sexual abuse allegations that is not precluded by the rape shield statute. Citing State v. Lampley, 859 S.W.2d 909 (Mo. App. E.D.1993), Kelley further argues that the victim's history of making such complaints is relevant evidence of her credibility, motive, and possible fabrication of the allegations against him.

In Lampley, the defendant was charged with sodomizing his nine-year old stepdaughter, A.C. Id. at 910. A.C.'s previous sexual abuse allegation against another man had resulted in that man being removed from her home. Id. at 911. During A.C.'s cross-examination, the defense sought to introduce evidence of this prior allegation to show A.C.'s motive to fabricate similar charges against Lampley in order to have him removed from her home. Id. The trial court denied the inquiry because it dealt with the victim's prior sexual encounter. Id. at 910-911.

The appeals court reversed, holding that the cross-examination did not violate the rape shield statute because it was not necessary to go into details of the prior sexual abuse allegation to prove that the victim benefited from her prior complaint. Id. at 911. The court outlined a sample cross-examination, wherein the victim was simply asked whether she made a prior complaint against the other man and whether "something happen[ed] to make [her] happy" after the complaint. Id. at 912.

The proposed cross-examination in Lampley differs distinctly from the offer of proof at Kelley's trial. H.S.'s testimony, during the offer, was replete with references to prior acts of sodomy against her. Defense counsel asked, "Are these accusations false," and H.S. replied "No." The offer included evidence that the sexual conduct actually occurred and, therefore, must be presumed inadmissible under the rape shield statute. Unlike Lampley, the evidence of H.S.'s prior sexual conduct was necessarily intertwined with her complaints, and the offer of proof was not constrained to solely elicit evidence to impugn her credibility or establish a motive for fabrication.

The trial court properly granted the State's Motion In Limine because Kelley failed to show that the evidence of H.S.'s prior sodomy complaints fell within any of the exceptions to the rape shield statute. Kelley also failed to show the relevance of these prior allegations to his defense of fabrication. H.S. testified that she had actually been sodomized by four other men, thus offering no support for Kelley's theory that she had a pattern of making false accusations. Point I is denied.

Rehabilitation of Defense Witness

Appellant asserts the trial court erred in restricting his attempt to rehabilitate a defense witness, Sarah Waldrep, after Sarah testified on cross-examination that she lied under oath in a separate proceeding. Kelley failed to preserve this claim of error, as it was not included in his Motion for New Trial. He seeks plain error review for manifest injustice pursuant to Rule 30.20.

We have discretion to grant relief for plain error only upon strong, clear demonstration of an error so substantially affecting the defendant's rights that a miscarriage of justice will result if left uncorrected. State v. Hyman, 11 S.W.3d 838, 842 (Mo.App. W.D.2000). Plain error review is to be used sparingly and does not justify consideration of every alleged trial error not preserved for review. State v. Dowell, 25 S.W.3d 594, 606 (Mo.App. W.D. 2000).

At the time of Kelley's trial, Sarah Waldrep had known H.S. for four or five years, and H.S. had been her best friend. On direct examination for the defense, Sarah testified that H.S. recently told her the sodomy allegations against Kelley were not true. The State impeached Sarah on cross-examination with her own acknowledgement that she previously lied under oath in a deposition unrelated to the Kelley case. The defense then sought to rehabilitate Sarah's credibility on re-direct by having her explain that the prior deposition involved H.S.'s sexual abuse charges against Sarah's father, Art Waldrep, and that the charges were subsequently...