State v. Moore

• Decision Date: 29 May 2012
• Docket Number: No. ED 96039.,ED 96039.
• Citation: 366 S.W.3d 647
• Parties: STATE of Missouri, Respondent, v. Curtiss L. MOORE, Appellant.
• Court: Missouri Court of Appeals

366 S.W.3d 647

STATE of Missouri, Respondent,
v.
Curtiss L. MOORE, Appellant.

No. ED 96039.

Missouri Court of Appeals,
Eastern District,
Division One.

May 29, 2012.

[366 S.W.3d 649]

Richard H. Sindel, Clayton, MO, for appellant.

Chris Koster, Atty. Gen., Timothy A. Blackwell, Jefferson City, MO, for respondent.

OPINION
CLIFFORD H. AHRENS, Presiding Judge.

Curtiss Moore (Defendant) appeals from the judgment of the trial court entered after a jury convicted him of first-degree child molestation involving his then 6 year-old granddaughter. We affirm.

Background

For the anonymity of the minor victim and her family, we refer to the principal parties by relationship, to wit: Victim, her Mother, her Father, his Girlfriend, Victim's paternal Grandmother, and Defendant, who is Victim's paternal grandfather. Victim was born in January 2002. Her Mother and Father separated in November of that year and later divorced.

[366 S.W.3d 650]

In the summer of 2008, Victim disclosed to Mother that Defendant had been kissing her inappropriately, “in a way that he would kiss his wife.” Mother called the police, who investigated but determined that no crime had been committed. In December of that year, while Defendant was babysitting Victim alone at the residence he shares with Grandmother, Defendant placed his hand on Victim's stomach, slid his hand down beneath her underwear, and touched Victim's genitals. Victim diverted him by asking for a sandwich. He made her give him a kiss on the mouth and then went into the bathroom, smoked a cigarette, and then made a sandwich. Victim disclosed the incident to Mother and also disclosed an earlier incident that occurred at Great–Grandmother's home while sharing a bedroom with Grandmother and Defendant. That time, while Victim was sleeping between her grandparents, Defendant rolled over and, using his hand, placed his penis in Victim's hand. Victim removed herself by getting up and going into the bathroom.

Mother promptly obtained an order of protection against Defendant on Victim's behalf and later took Victim to a child advocacy center for a forensic interview, the videotape of which was played at trial. Concurrently, Defendant was interviewed by Detective Duryea of the Lincoln County Sheriff's Department. Defendant denied any inappropriate touching but conceded that some accidental touching might have occurred during wrestling or tickling. He also claimed that Victim had initiated the contact, and he didn't see a problem with long kisses on the mouth. Grandmother would later testify that Victim placed her hand on Defendant's penis over the sheets and pulled Defendant's hand under her pajama pants, and that Victim often requested belly rubs due to stomach aches, necessitating that they unbutton her pants.

The State charged Defendant with first-degree child molestation for the December incident where he touched Victim's genitals. The jury rendered a verdict of guilty, and the trial court sentenced Defendant to five years in prison. Additional facts are provided below as relevant to the issues on appeal.

Issues and Analysis I. Exclusion of Witnesses/Public Trial

Before the jury was seated, defense counsel invoked the rights of Father and Grandmother, as family members of a minor victim, to be present during the trial despite their status as witnesses for the defense. The State objected and moved that they be excluded from the courtroom as were all other witnesses. The trial court denied counsel's request and excluded Father and Grandmother from the courtroom but made arrangements for them to hear proceedings via sound system in a conference room. Given the animosity between the two sides of Victim's family, the court made similar arrangements for Mother and her mother to listen to proceedings from a separate room. Victim was the first witness called to testify, and Father and Grandmother missed much of her testimony due to a technical oversight with the audio equipment. Defense counsel complained and moved for a mistrial. The trial court denied the motion but ensured that the equipment was functioning properly going forward.

Defendant contends that the trial court erred by excluding Father and Grandmother from the courtroom because, as members of the victim's family, they had a right to be present, and their absence resulted in a violation of Defendant's right to a public trial. Whether a defendant's right to a public trial has been violated is a question of law that this court reviews de

[366 S.W.3d 651]

novo. State v. Williams, 328 S.W.3d 366, 369 (Mo.App.2010).

Defendant's argument, while creative, conflates two separate rights, of which only one inures to him. Article I, section 32, of the Missouri Constitution entitles crime victims (including family members of a minor victim, § 595.200(6) RSMo) to be present at all proceedings where the defendant is also entitled to be present. But Defendant provides no authority for the premise that he has standing to assert Father's and Grandmother's right to be present at trial. Our research suggests the contrary. In State ex rel Goldesberry v. Taylor, 233 S.W.3d 796 (Mo.App.2007), the defendant sought, under Rule 29.07(d), to withdraw his guilty plea and have his conviction set aside based on a “manifest injustice” consisting of a violation of the victim's right to be present. The appellate court rejected this strategy, observing that “the ‘manifest injustice’ considered in the calculus is with regard to the defendant's rights.” Id. at 799. (emphasis added). Moreover, the plain language of...