State v. Mackey, 57831

• Decision Date: 17 December 1991
• Docket Number: No. 57831,57831
• Citation: 822 S.W.2d 933
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Carl Douglas MACKEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 933

822 S.W.2d 933

STATE of Missouri, Plaintiff-Respondent, v. Carl Douglas MACKEY, Defendant-Appellant.

No. 57831.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 17, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 14, 1992.

Application to Transfer Denied Feb. 25, 1992.

John A. Klosterman, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

Defendant, Carl Douglas Mackey, appeals from a judgment finding him guilty of sodomy § 566.060 RSMo (1986) pursuant to a jury trial. He was sentenced to ten years imprisonment. We affirm.

Defendant does not challenge the sufficiency of the State's evidence to sustain his conviction. Four of defendant's five assignments of error on appeal, however, focus on the out-of-court statements made by the victim impinging defendant's constitutional rights. Accordingly, consideration of the state's testimony is essential, and will be viewed in the light most favorable to the verdict. State v. Schaal, 806 S.W.2d 659, 661 (Mo. banc 1991); State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983).

The state intended to use § 491.075 RSMo (1986) ¹ in order to introduce the out-of-court statements made by the victim, A.M., age three years, to Annette Mayfield (her mother), Malisa Darland (a neighbor), Julie Patterson (a social worker with the Division of Family Services), and Tish LaRock (a registered nurse specializing in child sexual abuse, at the Cardinal Glennon Children's Hospital). Therefor, prior to trial, the court conducted a hearing outside the jury's presence to ascertain the admissibility of the out-of-court statements made by A.M. regarding the sexual abuse. State v. Potter, 747 S.W.2d 300, 302 (Mo.App.1988). The court's findings were:

THE COURT: At this time I am finding based on the statements of the State that they intend to produce the child as a witness here today and based on the testimony that has been offered here today I am finding that the statements of the child to Annette Mayfield, Malisa Darland, Julie Patterson, and Tish LaRock were of sufficient reliability based on the time, content, and circumstances of the making of the statement as to make them admissible under Section 491.075. (Emphasis added).

The evidence produced at trial reveals that on November 9, 1988, A.M., the child victim, informed Ms. Mayfield that defendant had asked her to pull her pants down and when she refused defendant pulled them down himself. In A.M.'s words, defendant touched her with his hand "where I go to the bathroom" and "kissed her on the pee pee". A.M. pointed to her vaginal area when telling her mother what transpired.

A panic stricken Ms. Mayfield went to her neighbor Malisa Darland's trailer home. Ms. Darland took A.M. aside while Ms. Mayfield waited in another room. A.M. told Ms. Darland that defendant took her panties off, kissed her and tickled her pee pee with his finger, pointing to her groin area when describing the incident. A.M. also informed Ms. Darland that her mother was in the shower and that S.M., her brother was at school when the incident occurred.

Ms. Darland called the child abuse hotline. The following day police officer Tieman and Julie Patterson came to Ms. Mayfield's trailer. Ms. Patterson interviewed A.M. who informed her that defendant had touched, licked and kissed her in the pee pee area. Ms. Patterson made arrangements for A.M. to go to the sex abuse management clinic at Cardinal Glennon Hospital. In addition, Ms. Patterson suggested that A.M. receive counseling.

The day after Ms. Patterson's visit, Ms. Mayfield took A.M. to Cardinal Glennon Hospital Emergency Room where Dr. Albert Nakanishi examined A.M. This examination included a culture series for various sexually transmitted diseases, which all returned negative results. During the examination, A.M. informed Dr. Nakanishi that "Carl, kissed her down below."

After attending weekly sessions at the Bridgeway Counseling for approximately two months, A.M. was taken to the sex abuse clinic at Cardinal Glennon Hospital. Tish LaRock interviewed A.M. on January 4, 1989. A.M. informed Ms. LaRock that defendant had kissed and tickled her "pee pee"; that at the time, her mother was in the shower and her brother was at school. Ms. LaRock used anatomically correct dolls at the interview and stated that A.M. identified her own genital area as "pee pee." A.M. also informed Ms. LaRock that the incident occurred with her pants and panties down.

Defendant's first point on appeal asserts plain error by the trial court in submitting Instruction No. 5 (patterned after MAI-CR 3d 320.08.2) to the jury. The disputed portion of the Instruction reads as follows:

If you find and believe from the evidence beyond a reasonable doubt:

First that on or about November 4, 1988, in the County of St. Charles, State of Missouri, the defendant placed his mouth or hand on the genitals of A.M. Mayfield, and

. . . . .

Defendant contends that the above instruction permitted the individual jurors to find that he committed either of two distinct acts, resulting in the return of a non-unanimous verdict. Before examining the root of defendant's argument, this court notes that under the plain error rule, relief will be afforded solely when the alleged error so substantially affects the rights of the accused that a manifest injustice or miscarriage of injustice inexorably results if left uncorrected. State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc 1988). In addition, instructional error will constitute plain error only if the trial court so misdirected or failed to instruct the jury on the law of the case as to result in manifest injustice. State v. Ware, 770 S.W.2d 249, 251 (Mo.App.1989). ²

The record demonstrates that at the close of the evidence, the state elected to proceed only on one count of sodomy. Based upon the state's election, defendant consented to the verdict director alleging under paragraph 1, supra, that defendant placed his hand or mouth on the genitals of A.M. The record also reveals that defense counsel voiced no objection to the italicized phrasing. There appears to be an unclear discussion on the record whether the parties would "white out" a portion of Instruction No. 5 or whether it needed to be retyped. Subsequently, the court asked defense counsel if he had any objection to Instruction No. 5 after it was retyped. Defense counsel replied in the negative. ³

There was sufficient evidence presented at trial from which a jury could find that the defendant did commit the two distinct acts constituting deviate sexual intercourse. In addition, the sexual abuse took place simultaneously on a single day i.e. November 4, 1989, and within the time frame when the victim's mother was in the shower and S.M. was at school. The cumulative effect of this, together with the absence of any demonstrable prejudice to the defendant, leaves us with a firm belief that there has been no "miscarriage of justice".

Defendant cites to State v. Oswald, 306 S.W.2d 559 (Mo.1957) and vociferously states that the state may not convict a person of sodomy by enabling the jury to find either of two specific acts of sodomy. We are aware that "the disjunctive submission of an element of an offense in a single instruction can present an issue of unanimity." State v. Brigham, 709 S.W.2d 917, 922 (Mo.App.1986). (Citing to State v. Oswald, supra ). See also, State v. Murry, 580 S.W.2d 555 (Mo.App.1979), State v. Hook, 433 S.W.2d 41 (Mo.App.1968).

In Oswald the court reversed the conviction because the trial court charged the jury that the defendant could be convicted if he had inserted his genital organ into "the mouth and rectum" of the victim or "committed either of such aforesaid acts". State v. Marks, 721 S.W.2d 51, 54 (Mo.App.1986); Oswald, supra, at 563.

To overcome the problem of the jury returning a non-unanimous verdict, disjunctive submissions of acts, especially those which constitute the gravamen of the offense, should be curtailed. In the case at bar, the disjunctive submission of the Instruction was improper, however, under the facts of this case manifest injustice did not result under the plain error rule. State v. Sidebottom, supra. Defendant's point is denied.

In his second point defendant asserts trial court error in permitting Tish LaRock to testify to hearsay statements of the victim because they did not possess the requisite indicia of reliability warranted by § 491.075. He further alleges violation of his constitutional right to confront the witness, because the statements were made to LaRock more than sixty days after the incident occurred and after the victim received counseling during the interval which caused distortion of the victim's memory through constant reinforcement.

The issues raised in defendant's second point were recently addressed by the Southern District in State v. Phelps, 816 S.W.2d 227 (Mo.App.1991). In Phelps, the court dismissed as unconvincing defendant's claim that the out-of-court statements made at least two and one-half months after the alleged incident, lacked any indicia of reliability. Further, examination of recent cases in Missouri suggest that the mere passage of time between the acts and the making of the out-of-court statements do not render the statements inadmissible. State v. Whittle, 813 S.W.2d 336, 340 (Mo.App.1991) (two year lapse between the crime and the declarant's statements were held admissible and not result in an abuse of discretion); State v. O'Dell, 787 S.W.2d 838, 840 (Mo.App.1990) (statements made more than thirteen months after the incident occurred were introduced into evidence); State v. Boyer, 803 S.W.2d 132, 138 (Mo.App.1991) (statements made eight weeks after the crime were held admissible).

Notwithstanding the above, defendant contends that the facts of the case at bar are distinguishable...