State v. Nelson

• Citation: 334 S.W.3d 189
• Decision Date: 22 March 2011
• Docket Number: No. WD 71762.,WD 71762.
• Parties: STATE of Missouri, Respondent,v.Demetrius C. NELSON, Appellant.
• Court: Court of Appeal of Missouri (US)

334 S.W.3d 189

STATE of Missouri, Respondent,
v.
Demetrius C. NELSON, Appellant.

No. WD 71762.

Missouri Court of Appeals, Western District.

March 22, 2011.

[334 S.W.3d 190]

Laura G. Martin, Kansas City, MO, for appellant.Shaun J. Mackelprang and Richard A. Starnes, Jefferson City, MO, for respondent.

[334 S.W.3d 191]

Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JAMES E. WELSH, Judge and GARY D. WITT, Judge.CYNTHIA L. MARTIN, Judge.

Demetrius Nelson appeals from the trial court's judgment convicting him of attempted forcible sodomy, assault in the first degree, burglary in the first degree, and attempted robbery in the second degree after a bench trial. Nelson contends that the trial court erred: (1) in denying Nelson's motion to suppress the victim's out-of-court and in-court identifications of Nelson; and (2) in denying Nelson's motions for judgment of acquittal as to the count of attempted forcible sodomy. We affirm.

Factual and Procedural History¹

On September 6, 2008, just prior to 3:00 a.m., K.B. arrived home via taxi after a night out with friends. After paying the taxi driver, K.B. went inside and locked the door. Shortly thereafter, K.B.'s doorbell rang. When K.B. looked out through the window in the door she saw a black male wearing a black hat and all black clothes. K.B. later identified the man as Nelson. Nelson asked for “Crystal.” K.B. responded that there was no one there by that name. Nelson turned, walked down the driveway, and headed down the street. At 2:54 a.m., K.B. called her fiancé at work and told him about the man at the door. K.B.'s fiancé told her to check all the doors and to get their gun. K.B. went and checked the other doors to make sure they were locked but as she was coming back toward the front door, Nelson kicked in K.B.'s front door. K.B. recognized Nelson as the man that had previously been on her front porch. K.B., still on the phone with her fiancé, screamed, “I have a gun” and turned to run up the stairs. As K.B. ran upstairs, Nelson chased her. K.B. yelled that she was on her period. Nelson caught up to K.B. upstairs and knocked her phone out of her hand. Nelson grabbed K.B. from behind placing one arm around her neck and one hand over her mouth. During the struggle, K.B.'s dress slid down. K.B. was barely able to breathe. Nelson demanded money and threatened to kill K.B. Nelson touched K.B.'s breast and then, while maintaining a grip on K.B.'s face, Nelson “felt around [her] privates.” In doing so, Nelson penetrated K.B.'s outer genitals but not her vagina.

Nelson continued to choke K.B. harder while rummaging through her dresser drawers. K.B. gasped for air. K.B. attempted to direct Nelson to another room where there was money. Nelson released K.B.'s neck and then punched her in the side of the head with his fist fifteen times. Nelson got up and ran out of the house. K.B. called 911 at 3:00 a.m.

K.B.'s fiancé arrived home and found their front door kicked in. He saw K.B. at the top of the stairs on the phone with 911, nose bleeding, and face swelling. Police Officer Ryan Swope responded to K.B.'s residence. K.B. described her attacker as a black male, approximately six feet tall, medium build, and in all black clothing. A call went out to other police officers in the area with the description of the attacker.

Police Officer Jeremy Dummit was in the area on a different call when he and two other officers saw a man matching the description running down the street a few blocks from K.B.'s residence. They

[334 S.W.3d 192]

chased the man by vehicle and then on foot when the man ran between houses. The officers yelled, “Police,” but the man kept running and jumped three fences before Officer Dummit lost sight of him. Officer Dummit radioed the other officers in the area regarding his whereabouts and the last location he had seen the man. In less than a minute, Officer Dummit heard over the radio that the suspect was in custody.

Police Officer Jennifer Crump and her partner also responded to the area and proceeded to set up a perimeter to do an area canvas for the suspect. Officer Crump and her partner continued to get calls from the dispatcher with more information. They approached a privacy fence a few blocks from K.B.'s residence. When they opened the gate, they found Nelson, out of breath and sweating and in all black clothing. Nelson was taken into custody. Once handcuffed and on the ground, Nelson closed his eyes. Nelson refused to walk or answer any questions. An ambulance was called for Nelson as the officers could not determine if Nelson had a medical problem or if he was faking.

In approximately five to ten minutes from when the broadcast of the suspect's description went out, the police officers at K.B.'s residence were notified that Nelson had been apprehended. Less than a half an hour after the police arrived at K.B.'s residence, K.B. was taken by ambulance to the location where Nelson had been found. K.B. identified Nelson as her attacker. K.B. was transported to the hospital for treatment of her injuries which included swelling and abrasions to the right side of her face; a cut lip requiring three stitches; a contusion to the left side of her head; several contusions to her scalp; and bruising to the back of her neck, knee and arm. After the incident, K.B. had bad headaches and missed a couple weeks of work.

Nelson was taken to the hospital where he remained unresponsive to the medical personnel. The medical staff decided to use a catheter to extract urine to determine Nelson's medical situation. Before they could do so, Nelson sat straight up in the bed and said, “Don't put that thing in my dick.” Nelson refused any further treatment and was transported to police headquarters. When the police interviewed Nelson, Nelson claimed he had no recollection of the attack because he had smoked a PCP-laced cigarette earlier that day. Nelson admitted he had no reason to be in the area of the crime. Clothing seized from Nelson included black pants, a black t-shirt, black tennis shoes, and a black coat.

Nelson was charged as a prior offender with attempted forcible sodomy, assault in the first degree, burglary in the first degree, and attempted robbery in the second degree. After a bench trial, Nelson was convicted on all counts and sentenced to a total of eighteen years imprisonment.² Nelson appeals.

Point I

In Point One, Nelson contends that the trial court erred in denying Nelson's motion to suppress K.B.'s out-of-court and in-court identifications of Nelson. Nelson claims that the identifications violated his rights to due process and a fair trial because: (1) the identification was the result of an unnecessarily suggestive police procedure which created a substantial risk of misidentification; and (2) the reliability of the identification was highly questionable

[334 S.W.3d 193]

in that K.B. only had a brief opportunity to view the man, that she was fixated on escape, scared and hysterical, and that her description was not a complete match to Nelson.

Standard of Review

In reviewing the trial court's denial of a motion to suppress, we consider the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling. State v. Brand, 309 S.W.3d 887, 892 (Mo.App. W.D.2010) (citing State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005)). “[W]e review the facts and inferences therefrom in the light most favorable to the trial court's ruling, and disregard all contrary inferences.” State v. Chambers, 234 S.W.3d 501, 512 (Mo.App. E.D.2007). Our review is limited to a determination of whether there was sufficient evidence to support the trial court's findings. Id. “We will not disturb the trial court's decision to admit or exclude evidence unless there has been an abuse of discretion.” Id. We defer to the trial court's superior opportunity to judge the credibility of the witnesses at the suppression motion hearing. Id.

Analysis

Prior to trial, Nelson filed a motion to suppress the in-court and the out-of-court identifications of Nelson by K.B. The trial court took the motion with the case. Nelson claims that the trial court erred in denying his motion to suppress K.B.'s identification of him as her attacker because the identification was the result of a suggestive “show-up” and that it was unreliable.

The law regarding the admission of pretrial and in-court identification testimony is guided by standards set forth in State v. Higgins, 592 S.W.2d 151, 158–160 (Mo. banc 1979) (overruled on other grounds). Where pretrial identifications have been made, this court will first look to see whether the procedures employed during those identifications were impermissibly suggestive. If they were, then we will consider whether those suggestive pretrial procedures affected the reliability of the identifications that were made at trial. Reliability, not suggestiveness, determines the admissibility of identification testimony.

State v. Robinson, 849 S.W.2d 693, 696 (Mo.App. E.D.1993) (emphasis added). Nelson must establish the first prong of the test, that the pre-trial procedures were impermissibly suggestive, before a review of the reliability of the identification is even necessary or appropriate. Chambers, 234 S.W.3d at 513.

Nelson claims that the suggestive elements to the procedure used here include: that Nelson was in handcuffs on a stretcher, that Nelson was pointed out by the police officers, there was a flurry of activity, and that K.B. knew that the police were tracking a suspect in her neighborhood. However, Nelson asserts that the one element that singularly makes the procedure unduly suggestive is that the police told K.B. that the man who broke into her home was in...