State v. Placke

• Decision Date: 05 August 2009
• Docket Number: No. SD 29207.,SD 29207.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Richard R. PLACKE, Defendant-Appellant.
• Court: Missouri Court of Appeals

290 S.W.3d 145

STATE of Missouri, Plaintiff-Respondent, v. Richard R. PLACKE, Defendant-Appellant.

No. SD 29207.

Missouri Court of Appeals, Southern District, Division One.

August 5, 2009.

Kent Denzel of Columbia, MO, for Appellant.

Chris Koster, Atty. Gen., James B. Farnsworth, Asst. Atty. Gen. of Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Judge.

Richard Placke (Defendant) was convicted by a jury of committing the crimes of statutory sodomy (Count I) and attempted statutory rape (Count II). The jurors recommended sentences of seven and ten years for these offenses, respectively. At the sentencing hearing, however, the trial court imposed a ten-year sentence for the statutory sodomy conviction and a seven-year sentence for the attempted statutory rape conviction.

Defendant presents three points of error on appeal. The first two deal with the admission of evidence at trial and have no merit. In the third point, Defendant contends the trial court plainly erred in imposing a sentence for the statutory rape conviction that exceeded the jury's recommendation. This Court agrees. Because it appears from the record that the trial court committed a plain error which affected the sentence imposed for each conviction, both sentences are vacated. The cause is remanded so the trial court can sentence Defendant again on Counts I and II. In all other respects, the judgment is affirmed.

I. Factual and Procedural Background

Defendant was charged by information with committing the unclassified felonies of statutory sodomy in the first degree and attempted rape in the first degree. See §§ 566.062, 566.032.¹ The information alleged that B.K., a minor less than 14 years old, was the victim of these crimes. The events serving as the basis for Count I allegedly occurred in May 2005, and the events serving as the basis for Count II allegedly occurred in July 2006. Following a jury trial, Defendant was convicted on both counts.

Defendant does not challenge the sufficiency of the evidence to sustain his convictions. On appeal, this Court considers the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and rejects all contrary evidence and inferences. State v. Newberry, 157 S.W.3d 387, 390 (Mo.App.2005); State v. Cravens, 132 S.W.3d 919, 921 (Mo. App.2004). Viewed from that perspective, the favorable evidence supporting the State's case against Defendant is summarized below.

B.K. was born in September 1993. In 2002, she began living with her grandmother, D.B. (Grandmother). At that time, B.K. was nine years old. In 2003, Grandmother became B.K.'s legal guardian.² In 2005, Grandmother and B.K. lived with Grandmother's other daughter, J.D. (Aunt). Her daughter, T.D., was approximately four years younger than B.K. The two young girls were good friends and were more like "sisters rather than cousins." Defendant was Aunt's live-in boyfriend. In August 2005, Grandmother and B.K. moved to another home in the area, but the families continued to socialize and gather for meals. B.K. and T.D. continued to be good friends and saw each other often.

In February 2007, B.K. told an adult that she and T.D. had been sexually abused by Defendant. The adult, who was a close friend to Grandmother, told her what B.K. had said. Grandmother called Aunt and said that B.K. was making allegations against Defendant and that it also involved T.D. Grandmother did not disclose any other details to Aunt at that time. Grandmother then called B.K.'s counselor, Larry Wright (Wright). B.K. had begun seeing Wright when she started living with Grandmother in 2002. B.K. had seen Wright at least once a week since that time. When Grandmother called Wright, he was told in general terms that B.K. was making allegations against someone and that she would not talk to Grandmother about it. Approximately two weeks later, Grandmother met with B.K. and Wright in his office. When Wright asked B.K. to tell them what was going on, she started crying and telling them that Defendant "had been touching her private parts."

Grandmother then called Aunt again. This time, Grandmother told Aunt about B.K.'s allegations against Defendant and that they needed to talk. While Aunt was on the phone, she called to T.D. and asked her if Defendant had ever touched her private area. T.D. answered that Defendant did, and that he also exposed himself to her. Aunt, T.D. and Defendant went to Grandmother's house and met in her living room. B.K. was in her room. When Grandmother asked Defendant if he knew what had been happening, he indicated "no" by shaking his head. Aunt said she had not discussed the subject with him. Grandmother told Defendant that B.K had accused Defendant of touching her and T.D. Grandmother asked T.D. if Defendant had been touching her privates, and T.D. said "yes." Grandmother told Defendant that a hot-line call had been made, and he probably would be arrested. Defendant initially said nothing. When B.K. walked into the room, Defendant said, "Well, I guess my life's over now. The cat's out of the bag." He became angry and started cursing as he made his way out of the house. Aunt yelled to B.K. that she should never call T.D. again or come to their house. As Aunt left, she expressed her hatred of B.K.

A few days later, B.K. was interviewed at her house by Dana Maxwell (Maxwell) of the Children's Division. Thereafter, B.K. was interviewed at the Child Advocacy Center (CAC) in Doniphan, Missouri, by CAC forensic interviewer Clea Fairaizl (Fairaizl). B.K.'s CAC interview was videotaped. T.D. was similarly contacted and interviewed first by Maxwell, and then by Fairaizl. T.D.'s CAC interview also was videotaped. A few days after B.K.'s CAC interview, she underwent a SAFE examination in Poplar Bluff, Missouri, performed by Dr. Dorothy Munch (Dr. Munch).

In March 2007, Defendant was charged with statutory sodomy and attempted statutory rape of B.K. At an April 2008 pretrial conference, defense counsel informed the trial court of his intention to call both Aunt and T.D. as witnesses for the defense.

A jury trial was held in April 2008. During opening statement, defense counsel told the jury that T.D. "is going to tell you that all this is made-up. [T.D.] is going to tell you why all of this is made-up." Grandmother, Dr. Munch and B.K. were the witnesses who testified during the State's case-in-chief. The following is a summary of B.K.'s direct examination testimony about how she had been sexually abused by Defendant.

In the spring of 2005, B.K. was 11 years old. Defendant took B.K. and T.D. outside one night to look at shooting stars. The three of them lied down on a blanket in the pasture beside their house. Defendant was lying between the two girls. Defendant slid his hand into B.K.'s shorts and began rubbing her vagina. He pressed his finger far enough inside that it was painful. B.K. jumped up and went inside. Later that night, B.K. talked to T.D. about what had happened. T.D. asked whether Defendant had been rubbing between B.K.'s legs. When B.K. said "yes," T.D. confided that Defendant also had been doing that to her.

On another occasion, B.K.'s family and Defendant were planning to go camping at a lake. As they prepared for the trip, B.K. followed Defendant into the barn where they stored supplies. Defendant stood in front of B.K. and told her to close her eyes. Defendant tried to put his penis in B.K.'s mouth, but he only made contact with her cheek instead. Afterwards, B.K. had to wipe Defendant's semen off the side of her face. When the group arrived at the lake, Defendant took B.K. and T.D. out in his boat to go swimming. He drove the boat to the middle of the lake and dropped anchor far enough from shore that no one could see what they were doing. While Defendant and B.K. were in the water, Defendant stuck his hand inside B.K.'s bathing suit and inserted his finger into her vagina. T.D. was out of sight on the other side of the boat.

Defendant's sexual contact with B.K. continued after the family returned home. B.K. and Defendant were sitting on the couch one evening watching television when he draped a blanket over B.K. and himself. Beneath the blanket, Defendant reached inside B.K.'s shorts and underwear and started rubbing her vagina. He put his finger inside her vagina. B.K. stood up, told Defendant to leave her alone and went to her bedroom. Thereafter, B.K. was left alone in the house with Defendant. Defendant was lying in bed when he called to B.K. to bring him a glass of water. As B.K. set the glass down on a bedside table, Defendant grabbed her and threw her onto the bed. He pulled her shorts and underwear off and then lowered his jeans, exposing his penis. He tried to put his penis into B.K.'s vagina, but he was unsuccessful. Eventually, he let B.K. go. On another occasion, B.K. and T.D. were swimming in the family pool with Defendant. The girls were wearing diving goggles. As they swam toward Defendant, he pulled his shorts aside to show them his penis. Later, B.K. talked to T.D. about the incident, and they agreed that Defendant's penis was "nasty and ugly."

B.K.'s last encounter with Defendant took place on July 4, 2006. B.K. and T.D. helped Defendant and Aunt clean the pool. Aunt went inside to take a shower. B.K., T.D. and Defendant got into the pool. The three of them were "playing around" when Defendant grabbed B.K.'s legs and pulled her toward him. Defendant stripped off B.K.'s bikini bottom and removed his shorts. He then spread B.K.'s legs open and tried to insert his penis into B.K.'s vagina. He failed to penetrate her. B.K. kicked Defendant and retrieved her swimsuit. She said she would tell on Defendant if he touched her or T.D. again.

Following B.K.'s testimony on direct, she was extensively cross-examined by defense counsel. After B.K. testified, the State rested. During Defendant's case-in-chief, his attorney called Aunt and T.D. as witnesses. Aunt testified that she loved...