State v. Love

• Decision Date: 22 April 2004
• Docket Number: No. 25655.,25655.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald C. LOVE, Defendant-Appellant.
• Court: Missouri Court of Appeals

134 S.W.3d 719

STATE of Missouri, Plaintiff-Respondent, v. Donald C. LOVE, Defendant-Appellant.

No. 25655.

Missouri Court of Appeals, Southern District, Division Two.

April 22, 2004.

Motion for Rehearing or Transfer to Supreme Court Denied May 17, 2004.

Timothy R. Cisar, Bridges, Cisar & Mizell, L.L.C., Lake Ozark, Elizabeth Unger Carlyle, Lee's Summit, for appellant.

W. James Icenogle, Pros. Atty., Brian Keedy, Asst. Pros. Atty., for respondent.

Before PARRISH, SHRUM and BATES, JJ.

PER CURIAM.

Donald C. Love (defendant) appeals convictions for four counts¹ of sexual misconduct in the first degree, class A misdemeanors. § 566.090.² Defendant waived trial by jury. This court affirms the judgment of conviction for the offenses charged in Counts I, IV and V, and reverses the conviction for the offense charged in Count III.

Defendant was tried by the circuit court without a jury.

When a defendant waives trial by jury, the trial court's findings have the force and effect of a jury verdict. State v. Marshell, 825 S.W.2d 341, 342 (Mo.App. 1992); Rule 27.01(b). "[A]ppellate review is as though a verdict of guilty has been returned by a jury. If there is substantial evidence to support the findings of the trial court, its judgment is to be affirmed." State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982). In its review the appellate court accepts as true the evidence that tends to prove the defendant's guilt and all inferences favorable to the state. Contrary evidence and inferences are disregarded. Id.

State v. Bigsby, 891 S.W.2d 160, 161-62 (Mo.App.1995).

Defendant is a 75-year old retiree who professionally portrayed Santa Claus. He was working in that capacity during the Christmas season in 2001. A young girl, T.K., became upset after sitting on defendant's lap. She called for her mother. T.K.'s mother went to her daughter while she was still with defendant. T.K. hugged her mother. When T.K.'s mother asked what was wrong, defendant replied, "Oh, she just misses you and loves you very much, Mommy." T.K. asked her mother if they could go.

As they were leaving the mall, T.K.'s mother again asked what was wrong. T.K. said, "Nothing." As they approached the door to the mall, T.K.'s mother again asked what was wrong. T.K. put her head down and said, "Santa Claus was being nasty." When asked what she meant, T.K. said, "He was rubbing my privates." T.K.'s mother reported the incident to the police.

A police officer interviewed T.K. and her mother. The officer went to the mall. She observed that a professional videographer had videotaped defendant and children who visited with him about the time of T.K.'s visit.

The police officer viewed the videotape recordings. She observed the videotape recording of T.K. during the time she sat on defendant's lap. The officer took the videotape in order to have an opportunity to view it in its entirety. She also requested assistance from a branch of the Missouri Department of Social Services that assists with investigations of crimes involving child victims, the State Technical Assistance Team (STAT). Arrangements were made for a member of the STAT group, Larry Wyrick, to participate in the investigation. Mr. Wyrick interviewed four children, A.C., M.S., N.P., and P.P. Videotape recordings were made of those interviews. T.K., who the police officer had interviewed, was not subjected to a second interview.

The state's evidence at trial included testimony of the police officer who investigated the case, deposition testimony of T.K.'s mother, and testimony of Larry Wyrick. Mr. Wyrick identified the videotape recordings of his interviews with the four children. The videotape recordings of Mr. Wyrick's interviews with the children were admitted in evidence. A handwritten statement T.K. had given the police officer was admitted in evidence.

Defendant's first point on appeal contends the trial court erred in finding defendant guilty because the evidence did not show defendant "had the requisite intent"; that "[n]o evidence of intent was presented at trial." Section 566.090.1, as that statute existed on the dates of the alleged offenses, provided:

A person commits the crime of sexual misconduct in the first degree if he has deviate sexual intercourse with another person of the same sex or he purposely subjects another person to sexual contact or engages in conduct which would constitute sexual contact except that the touching occurs through the clothing without the person's consent.

Section 566.010(3) defined 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, for the purpose of arousing or gratifying sexual desire of any person."³ (Emphasis added.)

"The state has the burden and must prove each and every element of a criminal case." State v. Smith, 33 S.W.3d 648, 652 (Mo.App.2000). An element of sexual misconduct in the first degree is that a prohibited touching must have been "for the purpose of arousing or gratifying sexual desire" of a person. A perpetrator's purpose is ascertained by his or her mental state. "Direct proof of a required mental state is seldom available, and such intent is usually inferred from circumstantial evidence." State v. Alul, 948 S.W.2d 215, 218 (Mo.App.1997), citing State v. Martin, 882 S.W.2d 768, 770 (Mo.App. 1994). In viewing evidence to determine its sufficiency, the same principles apply regardless of whether the evidence reviewed is direct or circumstantial. State v. Martin, supra.

The posture of this case is unusual in that possibly the most significant evidence in the case is before this court in the same form as it was before the trial court. The exhibits filed with this court include the videotape recordings of the interactions between defendant and the four children who are deemed the victims in the offenses for which he was found guilty. The exhibits also include the videotape recordings of the interviews Mr. Wyrick conducted. With respect to that evidence, as observed in similar circumstances in Mid-Continent Nat'l. Bank v. Bank of Independence, 523 S.W.2d 569, 573 (Mo.App.1975), "we enjoy the same coign of vantage to assess credibility as did the trial court, thus the principle of deference does not apply."

Having viewed the evidence that was presented via videotape recordings and having reviewed the record of the testimony adduced before the trial court, this court concludes the trial court, as the trier of fact, had sufficient evidence to find defendant guilty of the offenses charged in Counts I, IV and V beyond a reasonable doubt. This court finds there was not sufficient evidence to convict defendant of the offense charged in Count III.

Count I charged defendant with having purposely subjected T.K. to sexual contact through her clothing without her consent. On the date of the charged offense, T.K was seven years old. The videotape recording of T.K.'s visit with defendant clearly reveals defendant rubbed his hand against the child's crotch area. T.K.'s handwritten statement says she went with her mother and two of her friends "to see Santa." It states that one of her friends went "to take a picture"; that "then [T.K.] went up to take a picture with Santa then my other friend went up to see Santa then [T.K.] went up to tok [sic] to Santa he tusnt [sic] me in the privit [sic]."

T.K.'s mother testified at trial by deposition. She recited that as she was taking T.K. from the mall where the events occurred, T.K. told her Santa Claus was being nasty; that he was rubbing her privates.

Count III charged defendant with having purposely subjected A.C. to sexual contact through her clothing without her consent. The videotape recording of A.C.'s visit with defendant does not reveal sexual contact. The videotape that was admitted in evidence showed A.C. with defendant very briefly. A.C.'s interview with Mr. Wyrick disclosed that she was four years old. She was responsive to questions asked during the interview. When asked about places where she did not want to be touched, she included her bottom, pigtails, foot, and hair. She included her hair and foot as places defendant had touched her. The cumulative evidence with respect to Count III was not sufficient for defendant to be found guilty of that offense beyond a reasonable doubt.

Count IV charged defendant with having purposely subjected M.S. to sexual contact through her clothing without her consent. The videotape recording of M.S. with defendant revealed defendant rubbing his palm across her breast. Her interview was consistent with the depiction on the videotape recording.

Count V charged defendant with the same offense with respect to N.P., having purposely subjected N.P. to sexual contact through her clothing without her consent. N.P. stated in her interview with Mr. Wyrick that defendant had her face him; that while facing him he rubbed her breasts with his thumbs. The videotape recording revealed that defendant had N.P. turn so her back was to the camera; that his hands were placed under her arms so his thumbs would be to her front. The depiction in the videotape recording was consistent with N.P.'s description of what occurred.

The issue raised by Point I is whether the contact defendant had with each child was for the purpose of arousing or gratifying sexual desire. Having found insufficient evidence that there was contact between defendant and A.C. violative of § 566.090.1, it follows that the requirement that a touching occurred for sexual arousal or gratification was not established with respect to A.C. Point I is well taken with respect to the offense charged in Count III. This court holds otherwise with respect to the offenses charged by Counts I, IV and V.

State v. Gibson, 623 S.W.2d 93, 100 (Mo.App.1981), explains that the language "for the purpose of arousing or gratifying sexual desire" as it appears in Missouri's criminal code is derived from the Model Penal...