State v. Norris

• Citation: 237 S.W.3d 640
• Decision Date: 19 November 2007
• Docket Number: No. 27751.,27751.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kenneth Edward NORRIS, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

237 S.W.3d 640

STATE of Missouri, Plaintiff-Respondent, v. Kenneth Edward NORRIS, Defendant-Appellant.

No. 27751.

Missouri Court of Appeals, Southern District, Division Two.

November 19, 2007.

James L. Thomas, Waynesville, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen. and Victor J. Melenbrink, Assistant Attorney General, Jefferson City, for Respondent.

PAUL McGHEE, Senior Judge.

Kenneth Edward Norris ("Defendant") was tried by jury on one count of statutory rape in the first degree, and on two counts of child molestation in the first degree. The jury acquitted him of statutory rape, but convicted him on both child molestation counts. The jury assessed his punishment at fifteen years on each count, and the trial court subsequently sentenced him to consecutive terms of fifteen years on each count. Defendant appeals. We affirm.

For the first of his four points, Defendant challenges the sufficiency of the evidence to support the convictions by asserting that the trial court erred in denying his motion for judgment of acquittal at the close of all of the evidence. He contends that the only testimony supporting the convictions was the contradictory testimony of the nine-year-old victim, which he argues was insufficient to support the convictions.

Defendant was convicted under Section 566.067.1,¹ which provides:

A person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact.

"Sexual contact" is defined by Section 566.010(3), RSMo, Cum.Supp.2002, 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, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person[.]" "Purpose" is ascertained by the mental state of the perpetrator, and direct proof of the required mental state is seldom available, and it is usually inferred from circumstantial evidence. State v. McMeans, 201 S.W.3d 117, 121 (Mo.App. S.D. 2006). The State had the burden of proving each and every element of the case. Id. at 120.

We review the evidence in the light most favorable to the judgment, disregarding any contrary evidence, and granting the State all reasonable inferences from the evidence. State v. Baumann, 217 S.W.3d 914, 917 (Mo.App. S.D. 2007); State v. Agnew, 214 S.W.3d 398, 400 (Mo.App. E.D.2007). "It is not our function to resolve conflicts in the evidence and decide the credibility of witnesses to determine whether the defendant is guilty beyond a reasonable doubt; in the case at bar, that role belonged to the jury." State v. Still, 216 S.W.3d 261, 263 (Mo.App. S.D. 2007). "We defer to the superior position of the jury to assess the credibility of witnesses and the weight and value of their testimony." State v. St. George, 215 S.W.3d 341, 345 (Mo.App. S.D.2007) (quoting State v. Smith, 185 S.W.3d 747, 758 (Mo.App. S.D.2006)). "[T]he uncorroborated testimony of the victim in a case of sexual assault is sufficient to sustain a conviction." State v. Paulson, 220 S.W.3d 828, 833 (Mo.App. S.D.2007) (quoting State v. Waddell, 164 S.W.3d 550, 553 (Mo.App. S.D.2005)). "Corroboration is not required unless the `victim's testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is thereby rendered doubtful.'" Id. (quoting Waddell, 164 S.W.3d at 553). It has often been noted by appellate courts that the testimony of young victims about sensitive and embarrassing subjects commonly contains some contradictions, variations or memory lapses. State v. Morton, 229 S.W.3d 626, 630 n. 2 (Mo.App. S.D.2007).

The victim testified at the trial, in the language of a child, that Defendant had touched her with his hand in the "wrong places," including her buttocks, vagina, and breasts. In her trial testimony, she denied that he had sexual intercourse with her, although she had told a forensic interviewer that he did have. She had made similar statements as to the touching to a half-sister and an aunt, to the forensic interviewer, and to the physician conducting a "SAFE" examination. However, a mere contradiction between her trial testimony and her out of court statements is not sufficient to cause her testimony to lose its probative value. State v. Fears, 217 S.W.3d 323, 328-29, (Mo.App. S.D. 2007). Her actual trial testimony was not so inconsistent or contradictory as to render the validity of her testimony doubtful. The testimony of the victim, even if uncorroborated, was sufficient to support the convictions, and this point is denied.

Defendant next contends that the trial court erred in denying his motion for a mistrial because of the testimony of the victim's thirty-year-old half-sister that she could tell a change in the victim because "the same thing happened to me when I was younger." The victim is a granddaughter of Defendant, but the half-sister is not. This colloquy occurred upon redirect examination of the half-sister by the State:

Q. . . . [Y]ou say you saw a change in [the victim] with the way of her demeanor and so forth, how did she act before?

A. Like a normal kid I suppose.

Q. Okay so you're stating you saw a definite change and that's?

A. I could tell a change because the same thing happened to me when I was younger so that gave me the inclination that something had happened to her.

Defense counsel objected and moved for a mistrial. The trial court sustained the objection and instructed the jury to disregard the answer. However, the trial court denied the motion for mistrial; and upon renewal of the motion, stated: "The statement was not responsive to the question and it didn't specify this defendant, she just stated that the same thing had happened to her without any indication it was the defendant and without provocation by question of the State." This witness also testified without objection that the victim told her that Kent Norris ("Kent"), who is Defendant's son and the victim's uncle, had pressed his "pee-pee" against her.

A mistrial is a drastic remedy which is to be used only in the most extraordinary circumstances when there is a grievous error which cannot otherwise be remedied. State v. Davis, 122 S.W.3d 690, 692 (Mo.App. E.D.2003). Review of a refusal to declare a mistrial is "on an abuse of discretion standard because the trial court is in a superior position to determine the effect of improper remarks, and what, if anything, must be done to cure the problem." Id. at 692-93. An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances, and it is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Fry, 197 S.W.3d 211, 213 (Mo.App. S.D.2006). Review is for prejudice, not mere error, and we will reverse only if the error is so prejudicial that it deprived the defendant of a fair trial. State v. McElvain, 228 S.W.3d 592, 596 (Mo.App. W.D.2007). Trial court error is not prejudicial unless there is a reasonable probability that the error affected the outcome of the trial. Id. at 596. See also State v. Wilkins, 229 S.W.3d 204, 209 (Mo. App. S.D.2007).

"The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes." State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). Vague and indefinite references to misconduct do not warrant a mistrial unless the reference is clear evidence of the defendant's involvement in another crime. State v. Kelly, 119 S.W.3d 587, 591 (Mo.App. E.D.2003); State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989). As the trial court in the case at bar observed, the testimony by the much older half-sister that the same thing happened to her is not evidence that Defendant committed an offense against her. Defendant also suggests that there is a great risk that the jurors may have accepted her testimony as that of an expert. We find no basis for this conjecture. There is no reasonable probability that the half-sister's improper testimony affected the outcome of the trial, and the trial court did not abuse its discretion in refusing to declare a mistrial because of this testimony. This point is denied.

For his third point, Defendant maintains that the trial court abused its discretion in denying his request for a mistrial after an investigating officer testified that he seized pornographic movies at Defendant's home while conducting a consensual search. Defendant objected to this testimony and moved for a mistrial. The trial court sustained the objection, but denied the motion for mistrial.

The officer also testified that he issued a ticket to Defendant for exposing himself to the officer and to a woman investigator during an interview. Defendant also objected to this testimony and moved for a mistrial. Again, the trial court sustained the objection and denied the motion for mistrial. As part of his third point, Defendant claims the trial court abused its discretion in denying this motion for mistrial.

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