State v. Perkins

• Citation: 656 S.W.3d 285
• Decision Date: 06 December 2022
• Docket Number: ED 109896
• Parties: STATE of Missouri, Respondent, v. Timothy J. PERKINS, Appellant.
• Court: Missouri Court of Appeals

656 S.W.3d 285

STATE of Missouri, Respondent,

v.Timothy J. PERKINS, Appellant.

No. ED 109896

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: December 6, 2022

Christian Lehmberg, 1000 W. Nifong, Bldg 7, Columbia, Mo. 65203, for appellant.

Julia E. Rives, P.O. Box 899, Jefferson City, Mo. 65102, for respondent.

Thomas C. Clark II, J.

I. INTRODUCTION

Timothy Perkins ("Defendant") appeals from the judgment convicting him after a jury trial of two counts of statutory sodomy in the first degree, violating § 566.062.¹ The trial court sentenced him to consecutive terms of ten years of imprisonment on each count, totaling 20 years in the Missouri Department of Corrections. On appeal, Defendant raises ten points. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Viewed in a light most favorable to the verdict,² the evidence adduced at trial showed the following facts: At age eight, J.B.³ ("Victim") lived with his mother and two sisters in a residence where Defendant also lived. On or about September 23, 2019, Victim was in the living room playing games when Defendant asked Victim to do him a favor and suck his penis. Defendant pulled down his pants and made Victim kneel in front of him. Initially, Defendant made Victim rub Defendant's penis with both hands then suck his penis while Defendant was seated on a couch. Victim observed a lot of black hair in Defendant's private area. Victim stopped sucking Defendant's penis when Victim's mother ("Mother") came upstairs and saw what Victim was doing. After Victim told Mother that Defendant made him touch and suck his penis, Mother called the police.

Shortly thereafter, St. Louis County Police Officer James Sims ("Officer Sims") responded to a call of a possible sexual assault at Victim's home. When Officer Sims arrived, he saw Mother and Defendant arguing outside and overheard Mother state that "she couldn't believe that he done (sic) that." After locating the Victim inside the residence, Officer Sims questioned him privately. Victim stated Defendant made him touch Defendant's "tuda" When asked what he meant by "tuda" Victim pointed down to his private area. Victim went to the hospital.

On October 15, 2019, Victim met with forensic interviewer Kathleen Knudson ("Knudson") at the Children's Advocacy Center. When asked what he came in to talk about, Victim answered that a man named "TJ" (Defendant) had asked him to do a favor for him at night in the living room. Victim further stated that Defendant asked him, "Can you suck my privates?" Victim told Knudson that he touched Defendant's private area with his hands and mouth. Then his Mother came upstairs, saw them and asked Victim what he was doing. Victim told Mother that Defendant made him touch Defendant's privates, prompting Mother to call the police. Victim said the police arrived and later arrested Defendant.

After responding to more questions, describing the layout of the furnishings and explaining his positioning in relation to Defendant's location in the living room, Victim said he was playing games when Defendant asked him to do "that favor." Victim stated he first had to touch Defendant's penis with his hands, demonstrating while using a pencil. Victim said Defendant was clothed initially but Defendant later pulled down his pants. Victim said that he saw Defendant's pubic hair while gesturing to the location and he described how he touched and made oral contact with Defendant's private area. Additionally, Victim knelt on the ground to demonstrate how he was positioned when Defendant forced him to make oral contact with his private area. During the interview, Victim also circled the genitals on a diagram of a male body to further describe what he meant when referring to Defendant's "privates."

When asked what made him stop the oral contact, Victim responded that his Mother came upstairs. After Mother took her son into another room, Victim said that he then told her that Defendant forced him to touch the genital area and "suck his privates," prompting Mother to call the police.

The State charged Defendant with two counts of statutory sodomy in the first degree. Defendant deposed Victim prior to trial and the court ruled that Victim's statements to both Officer Sims and to Knudson were admissible as substantive evidence under § 491.075.

When arguing the State's motion in limine , the State asked the court to preclude Defendant from presenting evidence or argument that Mother and her boyfriend, Jewell Ford, robbed Defendant on the night of the incident. Relatedly, Defendant intended to present evidence Mother had physically abused her son, Victim, and owed Defendant money. Defendant also informed the court that he intended to argue that Mother coached Victim to make up the allegations.

Consequently, the trial court ruled Defendant could present evidence of what occurred on September 23, including any evidence that Mother and Ford robbed Defendant. However, the court barred evidence that Mother physically abused her son or that she owed Defendant money, finding there was not any evidence that she coached the Victim. Further, the trial court ruled that whether Victim was abused by Mother was not relevant to whether Victim was credible when making his assertions against Defendant.

Additionally, Defendant argued that Mother's physical abuse of Victim motivated Victim to fabricate the allegations of sexual abuse to gain sympathy from Mother and deter her from continuing the physical abuse. In support of his contention, Defendant pointed to Victim's deposition testimony that Mother hit him almost daily prior to the September 23 incident but she stopped hitting him during the two months he lived with her after the incident and before moving in with his grandmother.

The trial court pointed out that Defendant lacked a good faith basis to elicit this evidence because Defendant's attorney failed to confront Victim on whether the abuse prompted him to fabricate or exaggerate his allegations against Defendant at the deposition. The trial court found that defense counsel's suggested inference was "not ... a reasonable inference based upon the circumstances." The court stated:

Whether or not the child was beaten or not beaten by his mother, and whether or not that beating allegedly stopped at the same time that this might have occurred is not sufficient for there to be an inference drawn that that is why the child made up these allegations. So I am not going to allow that evidence in. Or that argument ....

Following the court ruling addressing the motions in limine , the parties conducted voir dire and both the State and defense gave opening statements. The testimony provided at trial relevant to this appeal is summarized below:

Officer Sims's Testimony

Officer Sims recounted that he responded to a call of a possible sexual assault at Victim's home on September 23, 2019. When he arrived, he observed Defendant and Mother in the street arguing. Officer Sims heard Mother say, "she couldn't believe that he done[sic] that." Defendant objected to this testimony as hearsay. The State argued the statement explained Officer Sim's subsequent conduct. The court overruled Defendant's objection. Sims testified that next he entered the house and interviewed Victim, who told him that Defendant "made him touch his tuda." After asking Victim what he meant, Victim pointed down at his private parts.

Victim's Testimony

Victim testified he lived with his grandmother but used to live with Mother and Defendant. Victim identified Defendant in the courtroom. Victim testified one evening he was in the living room and Defendant forced him to touch Defendant's "private" with his hand. He testified he did not have to touch Defendant's private with anything else.

Then, out of the jury's presence, Defendant conducted an offer of proof regarding Mother abusing Victim. Victim testified Mother hit him almost daily as a consequence of bad behavior. He said Mother used drugs on a daily basis but she was not "doing them" at the time of the incident. He stated Mother did not owe Defendant any money. Victim testified Mother did not hit him after the night of the incident or over the course of the next few months before relocating to live with his grandmother. The court denied Defendant's request to solicit this testimony in front of the jury.

The State also called Knudson, who testified she interviewed Victim about his allegation. Further, the State played Victim's recorded forensic interview for the jury before resting.

Defendant's Testimony

On direct examination, Defendant denied forcing Victim to touch his penis or perform oral sex. Defendant stated that he was not in the living room with Victim but was sleeping in his bedroom on the evening of the alleged incident. Defendant said Mother and her boyfriend, Jewell Ford, woke him up, pointed a gun in his face and demanded his money. Defendant testified he believed they were also looking for drugs. Defendant stated Ford then called 911 and said he was reporting a possible rape. Defendant stated Ford and Mother took $300 and ultimately all his property because he never returned to the home following the allegations. Defendant admitted both he and Victim were at the residence on the night of the incident, both before and after the police arrived but he was detoxing from heroin, making him too sick to move.

Again, the court allowed Defendant to make an offer of proof outside the hearing of the jury. Defendant testified that Mother used drugs daily, acquired her drugs from Defendant and even continued to obtain drugs from Defendant without paying him. In fact, Mother owed Defendant $80 for drugs, he said. He also testified that he saw Mother beat Victim almost daily, including at times after she ingested crack and heroin.

The trial court denied Defendant's request to present these allegations to the jury. Further, the court reiterated its ruling that Defendant was permitted to testify about the robbery allegations but his assertions...