State v. Peeples

• Decision Date: 26 May 2009
• Docket Number: No. ED 90975.,ED 90975.
• Citation: 288 S.W.3d 767
• Parties: STATE of Missouri, Respondent, v. Gregory PEEPLES, Appellant.
• Court: Missouri Court of Appeals

288 S.W.3d 767

STATE of Missouri, Respondent, v. Gregory PEEPLES, Appellant.

No. ED 90975.

Missouri Court of Appeals, Eastern District, Division Two.

May 26, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 23, 2009.

Gwenda R. Robinson, St. Louis, MO, for Appellant.

Shaun J. MacKelprang, Jefferson City, MO, for Respondent.

OPINION

GEORGE W. DRAPER III, Judge.

Gregory Peeples (hereinafter, "Appellant") appeals from the trial court's judgment after a jury convicted him of one count of attempted statutory rape in the first degree, Section 566.032 RSMo (2000),¹ one count of attempted statutory rape in the second degree, Section 566.034, five counts of statutory sodomy in the first degree, Section 566.062, seven counts of statutory sodomy in the second degree, Section 566.064, two counts of child molestation in the first degree, Section 566.067, four counts of child molestation in the second degree, Section 566.068, and two counts of attempted victim tampering, Section 575.020. Appellant was sentenced to concurrent sentences on the sexual offenses for a total of twenty-five years' imprisonment, which run consecutively to concurrent seven year sentences for the attempted victim tampering convictions. Appellant raises six points on appeal. We affirm in part, reverse and remand in part.

Viewed in the light most favorable to the verdict, the facts are as follows: Appellant was engaged in a relationship with B.B., who had three children, A.B., G.B., and R.B. During October 2002 through August 2006, Appellant subjected A.B. and G.B. to repeated acts of sexual abuse while the victims lived at three different residences in the City of St. Louis. The abuse was discovered by one of A.B.'s teachers, who received a note from A.B. and later placed a hotline call reporting the incident. A.B. and G.B. were interviewed by police, who determined Appellant had sexual intercourse with them.

Appellant was arrested and charged with twenty-seven counts of various sexual offenses and attempted victim tampering against A.B. and G.B. During the five day trial, both victims testified against Appellant. After the trial court granted Appellant's motion for judgment of acquittal on two of the counts, the jury returned guilty verdicts on twenty-two of the remaining twenty-five counts. Appellant was sentenced to concurrent sentences on the sexual offenses for a total of twenty-five years' imprisonment, which run consecutively to concurrent seven year sentences for the attempted victim tampering convictions. The specific evidence adduced at trial challenging the sufficiency of the evidence, in addition to the evidence related to Appellant's other claims on appeal will be set forth in our analysis as needed to avoid repetition.

Appellant's first two points on appeal challenge the sufficiency of the evidence to sustain two of his convictions. We limit our review of a challenge to the sufficiency of the evidence supporting a criminal conviction to "a determination of whether the [S]tate presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty." State v. Vandevere, 175 S.W.3d 107, 108 (Mo. banc 2005). We consider the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict, and disregard all contrary evidence and inferences. Id. While reasonable inferences may be drawn from direct and circumstantial evidence, "the inferences must be logical, reasonable and drawn from established fact." State v. Presberry, 128 S.W.3d 80, 91 (Mo.App. E.D.2003).

"In considering the sufficiency of the evidence, there must be sufficient evidence of each element of the offense." State v. Jordan, 181 S.W.3d 588, 592 (Mo. App. E.D.2005)(quoting State v. Dixon, 70 S.W.3d 540, 544 (Mo.App. W.D.2002)). The State has the burden to prove each and every element of a criminal case. State v. Barnes, 245 S.W.3d 885, 889 (Mo. App. E.D.2008). If the State fails to produce sufficient evidence to sustain a conviction, we must reverse the trial court's judgment. State v. Simmons, 233 S.W.3d 235, 238 (Mo.App. E.D.2007).

In his first point, Appellant claims the State presented insufficient evidence to support his conviction for statutory sodomy in the first degree, specifically related to the charges alleged in Count 8. Appellant argues the act of touching G.B.'s vagina over her clothing did not constitute deviate sexual intercourse, but rather sexual contact.

Count 8 alleges Appellant "committed the felony of statutory sodomy in the first degree ... in that between October 3, 2002 and July 19, 2005, in the City of St. Louis ... [Appellant] had deviate sexual intercourse with [G.B.], who was less than fourteen years old by putting his hands on her vagina." G.B. testified at trial that while she and her family were living on Compton, Appellant was "feeling my vagina over my clothes." G.B. could not recall if Appellant felt her vagina under her clothes when she lived at the Compton address.

Section 566.062.1 states, "A person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old." "Deviate sexual intercourse" is defined as

any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person or for the purpose of terrorizing the victim.

Section 566.010(1).

Appellant argues his conduct of touching G.B.'s vagina through her clothing constituted sexual contact, not deviate sexual intercourse. We agree. "Sexual contact" is defined 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." Section 566.010(3) (emphasis added). The type of touching, whether through or underneath the clothing, is inconsequential. State v. Patton, 229 S.W.3d 631, 637 (Mo.App. S.D.2007).

Thus, it is clear after reviewing G.B.'s testimony regarding what transpired at the Compton address that Appellant's touching did not rise to the level of deviate sexual intercourse. The facts as alleged and submitted to the jury were insufficient to sustain a conviction for statutory sodomy. As a result, Appellant seeks reversal and discharge from the statutory sodomy conviction.

When this Court determines a conviction lacks sufficient evidence to convict on a greater offense, "we may enter a conviction for the lesser offense `if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements to enter the ill-fated conviction on the greater offense.'" State v. Herndon, 224 S.W.3d 97, 100 (Mo.App. W.D.2007)(quoting State v. Whalen, 49 S.W.3d 181, 187-88 (Mo. banc 2001)). Child molestation in the first degree is a lesser included offense of first degree statutory sodomy. See Becker v. State, 260 S.W.3d 905, 910 (Mo.App. E.D. 2008); State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004).

Child molestation in the first degree occurs when a person "subjects another person who is less than fourteen years of age to sexual contact." Section 566.067.1. Appellant concedes his conduct constitutes sexual contact pursuant to Section 566.010(3) and does not challenge G.B.'s age at the time of the offense. Therefore, when the jury concluded Appellant touched G.B.'s vagina through her clothing when she was less than fourteen years old, the jury found all of the requisite elements to convict Appellant of child molestation in the first degree. Therefore, we reverse the trial court's judgment convicting Appellant of first degree statutory sodomy, and remand the cause for the trial court to enter judgment convicting Appellant of first degree child molestation and impose sentence accordingly. Point granted.

In his second point, Appellant claims the State failed to present sufficient evidence to support his conviction for statutory sodomy in the second degree, specifically related to the charges contained in Count 22. The State charged Appellant with four separate occurrences when Appellant was alleged to have put his penis into A.B.'s hands. The two incidents at issue here are set forth in Counts 22 and 27. Count 22 alleged Appellant committed statutory sodomy in the second degree between June 20, 2004, and February 17, 2006 when Appellant had deviate sexual intercourse with A.B. by putting his penis in her hand, and at that time A.B. was less than seventeen years old and the Appellant was twenty-one years of age or older. Similarly, Count 27 charged Appellant with having committed statutory sodomy in the second degree in that on or about February 17, 2006 Appellant had deviate sexual intercourse with A.B. by putting his penis in her hand, and at that time A.B. was less than seventeen years old and the Appellant was twenty-one years of age or older.

Section 566.064.1 states, "A person commits the crime of statutory sodomy in the second degree if being twenty-one years of age or older, he [or she] has deviate sexual intercourse with another person who is less than seventeen years of age." Appellant does not dispute the age requirements or that by placing his penis in A.B.'s hand that it was done for the purpose of arousing or gratifying his sexual desire. Rather, Appellant argues the evidence failed to prove beyond a reasonable doubt he put his penis in A.B.'s hand on any day other than February 17, 2006, and therefore, the conviction based on Count 22 lacks sufficient evidence. We disagree.

A review of the transcript reveals A.B. was asked by the prosecutor if there was any other incident where Appellant's "privacy" touched a part of...