State v. Owens

• Decision Date: 16 December 2008
• Docket Number: No. WD 68830.,WD 68830.
• Citation: 270 S.W.3d 533
• Parties: STATE of Missouri, Respondent, v. Freddie Leonard OWENS, Appellant.
• Court: Missouri Court of Appeals

270 S.W.3d 533

STATE of Missouri, Respondent, v. Freddie Leonard OWENS, Appellant.

No. WD 68830.

Missouri Court of Appeals, Western District.

December 16, 2008.

Craig Allan Johnston, Columbia, MO., for appellant.

Shaun Mackelprang, and Jayne T. Woods, Jefferson City, MO., for respondent.

Before THOMAS H. NEWTON, C.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

Appellant Freddie Owens appeals his conviction after a jury trial for attempted victim tampering pursuant to § 575.270.2,¹ on the basis that the jury's verdict was unsupported by the evidence and patently inconsistent. We reverse, and vacate Owens' conviction.

I. Factual Background

In January 2007, Owens was living with his girlfriend at the time, C.H.,² in Boone County. C.H.'s sixteen-year-old daughter, M.D., lived in the same home. During the early morning of January 11, 2007, M.D. called the police and told them that Owens had sexually assaulted her. When subsequently interviewed, M.D. stated that she was awakened by Owens touching her between her legs underneath her clothing. M.D. also claimed that Owens had asked her to perform oral sex on him, and had offered to perform oral sex on her.

Owens was arrested based on M.D.'s accusations. In late January 2007, while incarcerated in the Boone County jail awaiting trial, Owens made several telephone calls to C.H. Each of the conversations was recorded, a fact of which both Owens and C.H. were aware. During the calls Owens attempted to persuade C.H. to have M.D. sign a notarized statement indicating that she would not participate in Owens' prosecution, and "stop[] these whole proceedings." Owens told C.H. that "[y]ou can make [M.D.] go do it," and asked her to "force [M.D.] to do that." Owens told C.H. that, if M.D. signed a letter stating that she did not wish to press any charges, the State would drop the matter. He stated that "the only thing that can save me ... is a letter from her, or her going down to the DA's office and dropping charges." During the conversations Owens neither proclaimed his innocence, nor admitted his guilt, of the underlying offense. There was no evidence that either Owens or C.H. directly contacted M.D. to attempt to persuade her to drop the charges.

On February 5, 2007, following these recorded conversations between Owens and her mother, M.D. provided a one-sentence, notarized letter to the Boone County prosecutor's office, stating that she "would like to drop the charges filed against [Owens] on January 11, 2007." Prior to trial, M.D. told both the prosecutor's office and her aunt that the sexual assault had not occurred, and that she had made the story up.

As reflected in a First Amended Information filed on the first day of his trial, Owens was ultimately charged with three counts: Count I, statutory sodomy in the second degree, § 566.064; Count II, victim tampering, § 575.270.2; and Count III, attempted statutory sodomy in the second degree, §§ 564.011 and 566.064. (The attempted statutory sodomy count was based on the allegation that Owens "asked M.D. to perform oral sex on him.")

At trial, M.D. testified that Owens had not sexually assaulted her, and that she had made up the allegations due to a dispute with her mother. M.D. denied that either her mother or Owens had talked to her about dropping the charges against Owens; instead, M.D. insisted that it was her decision to inform the prosecutor's office that she had lied in making her accusations.

At the close of the State's evidence, Owens' trial counsel filed a motion for acquittal on all counts. In response, the trial court directed a verdict of not guilty on Count III, the attempted statutory sodomy charge. Prior to submission to the jury, the trial court granted the prosecution's unopposed oral motion to amend Count II from victim tampering to attempted victim tampering. The amendment was apparently triggered by the argument of Owens' counsel that there was insufficient evidence of the completed crime of victim tampering, because there was no evidence that either Owens or C.H. had actually spoken with M.D. to attempt to persuade her to drop the charges against Owens.³ Notably, under § 575.270.3, the range of punishment for attempted victim tampering is identical to that for the completed offense.

The jury acquitted Owens of Count I, the charge of statutory sodomy in the second degree; however, the jury found Owens guilty of Count II, attempted victim tampering. The trial court accepted the verdict and dismissed the jury. Owens made no objection based on any purported inconsistency in the verdict prior to the jury's discharge. The court sentenced Owens to five years incarceration in the Missouri Department of Corrections without possibility of parole.

II. Analysis

In his sole Point Relied On, Owens argues that his conviction for attempted victim tampering should be vacated because the jury "found Appellant not guilty of sodomy, and Appellant's victim tampering conviction is dependent upon the jury finding that M.D. was the victim of statutory sodomy." We agree.

A. Standard of Review

Generally, "[i]f a defendant claims that a verdict is inconsistent to the point of being self-destructive, he must present that claim to the circuit court before the jury is discharged; if he does not, he waives the claim." State v. Flemons, 144 S.W.3d 877, 881 (Mo.App. W.D.2004). Because Owens did not object to the jury's verdict in a timely fashion, we may review his claim for plain error only. Id.

Rule 30.20⁴ authorizes this Court to review "plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." "Review of plain error under Rule 30.20 involves a two-step process." State v. Lewis, 243 S.W.3d 523, 525 (Mo.App. W.D.2008). "First, we must determine if the claim on its face establishes substantial grounds to find that manifest injustice or miscarriage of justice has resulted." Id. "Errors are plain if they are evident, obvious, and clear." State v. Brink, 218 S.W.3d 440, 448 (Mo. App.2006). "In the absence of such error, we should decline to exercise our discretion to review the claimed error under Rule 30.20." Id. "If we find plain error on the face of the claim, we may proceed, at our discretion, to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected." Id.

In connection with our plain error analysis, we note that "[a] `trial court has a duty to examine the verdict returned by the jury for defects, inconsistencies and ambiguities.'" State v. Zimmerman, 941 S.W.2d 821, 824 (Mo.App. W.D.1997) (citation omitted). "`The law is clear that when a jury returns a verdict in improper form [there, as here, based on an inconsistency in verdicts on separate counts], it is the duty of the trial court to refuse to accept the same and require further deliberations until a verdict in proper form is returned.'" State v. Peters, 855 S.W.2d 345, 348 (Mo. banc 1993) (citation omitted). "For the court to attempt to resolve this inconsistency without directly addressing it with the jury through further deliberations ... relegates the court to trying to determine the intent of the jury as to its verdicts based upon inferences, conjecture and speculation." Zimmerman, 941 S.W.2d at 825.

B. Interpretation of § 575.270.2

Section 575.270.2, the statute under which Owens was convicted, provides:

A person commits the crime of "victim tampering" if, with purpose to do so, he prevents or dissuades or attempts to prevent or dissuade any person who has been a victim of any crime or a person who is acting on behalf of any such victim from:

(1) Making any report of such victimization to any peace officer, or state, local or federal law enforcement officer or prosecuting agency or to any judge;

(2) Causing a complaint, indictment or information to be sought and prosecuted or assisting in the prosecution thereof;

(3) Arresting or causing or seeking the arrest of any person in connection with such victimization.

(Emphasis added.)

Section 575.270.2 makes express and unambiguous that one of the elements of the crime of victim tampering is that the individual prevented or dissuaded be "a[ ] person who has been a victim of any crime." "It is up to the legislature, not this court, to determine the elements of a crime." State v. Porter, 241 S.W.3d 385, 397 (Mo. App. W.D.2007). "[I]t is presumed, of course, `that the legislature did not insert idle verbiage or superfluous language in a statute.'" Turner v. State, 245 S.W.3d 826, 828 (Mo. banc 2008)(quoting Civil Serv. Comm'n of St. Louis v. Bd. of Aldermen, 92 S.W.3d 785, 788 (Mo. banc 2003)).

Giving the language in § 575.270.2 its plain and ordinary meaning, a jury must find that the object of the tampering is "a victim of any crime" before an accused can be found guilty under the statute. State v. Granger, 966 S.W.2d 27 (Mo. App. E.D.1998), supports this conclusion. In Granger, the defendant was found guilty, after a jury trial, of assault in the first degree, armed criminal action, victim tampering, aggravated stalking, resisting arrest, and two counts of burglary in the first degree. Id. at 29. On appeal, the Eastern District concluded that the evidence was insufficient to support the defendant's conviction for one of the two counts of first degree burglary. Id. at 29-30. Without a lengthy analysis, Granger concluded that reversal of the burglary conviction likewise required reversal of the victim tampering conviction:

As discussed, there was insufficient evidence to find defendant guilty of burglary in the first degree relating to the June 22, 1995 incident. [In the victim tampering instruction,] [t]he jury was only instructed as to finding that Laura Morrow was the victim of burglary in the first degree relating to the June 22, 1995 incident. Defendant's conviction for the class C felony of victim tampering is...