State v. Newman

• Decision Date: 01 July 2008
• Docket Number: No. WD 68435.,WD 68435.
• Citation: 256 S.W.3d 210
• Parties: STATE of Missouri, Respondent, v. Michael A. NEWMAN, Appellant.
• Court: Missouri Court of Appeals

256 S.W.3d 210

STATE of Missouri, Respondent, v. Michael A. NEWMAN, Appellant.

No. WD 68435.

Missouri Court of Appeals, Western District.

July 1, 2008.

Craig Allan Johnston, Columbia, MO, for Appellant.

Shaun J. Mackelprang and Evan J. Buchheim, Jefferson City, MO, for Respondent.

Before: JOSEPH E. ELLIS, P.J., LISA W. HARDWICK and JOSEPH P. DANDURAND, JJ.

JOSEPH P. DANDURAND, Judge.

Michael Newman appeals his conviction for first degree statutory rape. In his first point on appeal, Mr. Newman claims the trial court erred in admitting three photographs. In his second point on appeal, Mr. Newman claims he was denied his constitutional right to a speedy trial. The points are denied, and the judgment of conviction is affirmed.

Facts

M.B. (Mother) lived with her boyfriend Michael Newman at various times from 1995 to October 1999. Mother has three daughters and one son, including: (1) R.B. (Daughter-1), a daughter born March 1987; (2) K.B. (Daughter-2), a daughter born February 1988; and (3) J.B. (Daughter-3) a daughter born June 1990. In October 1999, Daughter-1 told her school guidance counselor that Mr. Newman had been sexually abusing her. Upon questioning, Daughter-2 and Daughter-3 also alleged sexual abuse.

On May 1, 2001, a felony complaint was filed charging Mr. Newman with statutory rape and statutory sodomy. On August 30, 2001, information was filed charging Mr. Newman with four counts of statutory rape of Daughter-1, one count of statutory rape of Daughter-3, and one count of statutory sodomy of Daughter-2. Arraignment was held on September 19, 2001, and Mr. Newman pled not guilty.

On March 6, 2007, Mr. Newman filed a motion to dismiss asserting that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. The trial court denied the motion to dismiss.

A jury trial was held on March 6, 2007. Daughter-1 testified that Mr. Newman began sexually abusing her when she was eight years old. During Mother's testimony, the prosecutor had her identify three school photographs of her three daughters. Mr. Newman objected that the photographs were not relevant but were being offered for undue emotional appeal. The trial court overruled the objection and allowed the photographs into evidence.

Mr. Newman was found guilty of the first degree statutory rape count pertaining to Daughter-1, but the jury was unable to reach a verdict as to the counts pertaining to Daughter-2 and Daughter-3.¹ The jury recommended a sentence of life imprisonment.

Mr. Newman filed a motion for new trial alleging, inter alia, that the trial court erred in admitting the school photographs of the three girls. It also alleged the trial court erred in denying his motion to dismiss.

On May 16, 2007, the trial court denied Mr. Newman's motion for new trial and sentenced him to life imprisonment. This timely appeal followed. Additional facts will be set forth as necessary.

Point I

In his first point on appeal, Mr. Newman claims the trial court erred in admitting a school photograph of Daughter-1 at about age nine or ten. He claims the photograph was irrelevant because its prejudicial effect outweighed its probative value and that it was calculated to unduly arouse the sympathies and emotions of the jury. Mr. Newman states that what Daughter-1 looked like near the time of the charged crime was not relevant during the guilt phase as it did not tend to prove or disprove any elements of the charged offense. He claims the photograph is not relevant because there was testimony pertaining to Daughter-1's age and, thus, her age was established through other evidence. The point is denied.

"A trial court has broad discretion in the admission of photographs, and its decision will not be overturned absent an abuse of discretion." State v. Johnson, 244 S.W.3d 144, 161 (Mo. banc 2008). "A trial court abuses its discretion when a ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Davis, 107 S.W.3d 410, 422 (Mo.App. W.D.2003) (quote marks and citation omitted). "Photographs are admissible if they accurately and fairly represent what they purport to depict and tend to prove or disprove any elements of the charged offense." State v. Jaco, 156 S.W.3d 775, 778 (Mo. banc 2005). "A relevant photograph should not be excluded from evidence unless its prejudicial effect is greater than its probative value." State v. Rios, 234 S.W.3d 412, 427 (Mo. App. W.D.2007) (quote marks and citation omitted). "A photograph is not inadmissible just because other evidence described what is shown in the photograph." Johnson, 244 S.W.3d at 161.

The State alleged that Mr. Newman's sexual activity began with Daughter-1 when she was eight years old and ended when she was eleven years old. To convict Mr. Newman of first degree statutory rape or first degree statutory sodomy and subject him to the enhanced minimum sentence of ten years imprisonment, the State needed to prove that Daughter-1 was less than twelve years old. §§ 566.032, 566.062, RSMo 2000. The verdict directors given to the jury in this case required it to find that Daughter-1 was less than twelve years old when Mr. Newman had either sexual intercourse or deviate sexual intercourse with her. At the time of trial, Daughter-1 was almost twenty years old.

The photograph at issue is a school photograph. It is not graphic, gruesome, or otherwise offensive. See, e.g., State v. Floyd, 360 S.W.2d 630, 633 (Mo.1962). The photograph tended to show that Daughter-1 was less than twelve years old when the events in question occurred. It corroborated Mother's testimony and birth certificate records regarding Daughter-1's birthdate. The photograph was helpful to the jury since Daughter-1 was several years older at the time of trial and had matured in appearance since the events in question occurred.

The school picture of Daughter-1 was relevant to establish her age at the time of the alleged statutory rape. See State v. Reynolds, 837 S.W.2d 542, 546 (Mo.App. W.D.1992) (upholding the admission of a high school graduation photo because it was relevant as identification of the victim even though the defendant was willing to stipulate to the victim's identity). Mr. Newman's argument that Daughter-1's age was established through other evidence is without merit. "A photograph will not be found inadmissible because a defendant is willing to stipulate to some of the issues involved or because other evidence could have described what is depicted in the photo." Id. The trial court did not abuse its discretion in allowing the photograph to be admitted as evidence.

The point is denied.

Point II

In his second point on appeal, Mr. Newman claims the trial court erred in denying his motion to dismiss. He claims this deprived him of his right to a speedy trial as guaranteed by the United States and Missouri Constitutions. He was arrested in May 2001, but trial was not held until March 2007. Mr. Newman asserts: (1) the delay was due to neglect, inertia, and failure to actively move the case forward; (2) prejudice should be presumed because of the inordinate delay; and (3) he suffered prejudice from the delay because some of his potential witnesses were no longer available to testify, depriving him of an opportunity to fully prepare and defend himself.

"The United States and Missouri Constitutions provide equivalent protection for a defendant's right to a speedy trial." State ex rel. McKee v. Riley, 240 S.W.3d 720, 729 (Mo. banc 2007). "The right to a speedy trial guarantees to a criminal defendant that the state will move fast enough to assure the defendant of the early and proper disposition of the charges against him." State v. Bell, 66 S.W.3d 157, 164 (Mo.App. S.D.2001) (quote marks and citation omitted). "[T]he speedy trial right exists primarily to protect an individual's liberty interest, to minimize the possibility of lengthy incarceration prior to trial ... and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." McKee, 240 S.W.3d at 728 (quote marks and citation omitted). "Orderly expedition of the case, and not mere speed, is the essential requirement behind a speedy trial." Bell, 66 S.W.3d at 164. "To assess whether the constitutional right to a speedy trial has been respected or denied, the Court must balance four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant." McKee, 240 S.W.3d at 729.

The first factor is the length of the delay. "Until there is some delay that is presumptively prejudicial, [reviewing authority] need not inquire into the other three factors used to determine if the defendant has been deprived of his right to a speedy trial." State v. Buchli, 152 S.W.3d 289, 307 (Mo.App. W.D.2004) (quote marks and citation omitted). "[T]he delay attributable to the defendant's continuances, motion or other actions must be first subtracted from the total delay." Id. at 308 (quote marks and citation omitted). "Missouri courts have held that delays longer than eight months are presumptively prejudicial to the defendant." McKee, 240 S.W.3d at 729. Mr. Newman was arrested and a complaint was filed in May 2001. His case went to trial in March 2007. This delay is presumptively prejudicial.

The second factor is the reason for the delay. Reviewing authority determines whether the trial court could have reasonably decided the delay was or was not justified. "Different weight is given to different justifications." State v. Fleer, 851 S.W.2d 582, 596 (Mo.App. E.D.1993). "A deliberate attempt to delay the trial in order to hamper the defense should be weighted against the government." Id. "A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but...