State v. Primm

• Decision Date: 28 June 2011
• Docket Number: No. SC 91427.,SC 91427.
• Citation: 347 S.W.3d 66
• Parties: STATE of Missouri, Respondent,v.Daniel M. PRIMM, Appellant.
• Court: Missouri Supreme Court

347 S.W.3d 66

STATE of Missouri, Respondent,

v.Daniel M. PRIMM, Appellant.

No. SC 91427.

Supreme Court of Missouri, En Banc.

June 28, 2011.As Modified on Denial of Rehearing

Aug. 30, 2011.

Jessica Hathaway, Public Defender's Office, St. Louis, MO, for Appellant.John W. Grantham, Attorney General's Office, Jefferson City, MO, for Respondent.WILLIAM RAY PRICE, JR., Judge.

I. Introduction

Appellant Daniel M. Primm appeals his conviction on ten counts of sexual abuse involving his grandniece, T.B. Evidence of uncharged crimes was properly admitted under an exception allowing for evidence of motive and to provide a coherent picture of the events that transpired, and there was sufficient evidence of penetration to support each count of statutory rape. While the judgment is affirmed in all other respects, the cause is remanded for the entry of a nunc pro tunc order correcting the written judgment.

II. Facts and Procedural History

Appellant was charged in the Circuit Court of St. Louis City on multiple counts of sexual offenses against his grandnieces, T.B. and R.C. T.B. was 14 years old at the time of the abuse, and R.C. was 15 years old. According to their testimony, the Appellant committed sexual acts against the girls at various locations in St. Louis City and St. Louis County.

At trial, T.B. testified about four separate incidents of sexual abuse by her great uncle that occurred in the city of St. Louis. The first incident occurred at what T.B. referred to as “the fruit company.” It is a parking lot with two warehouses on either side, commonly referred to as St. Louis Produce Row. T.B. testified as follows regarding this particular incident:

Q: How did you end up near the fruit company with your uncle?

A: Because he was supposed to be taking me to my house, but he had went to the fruit company. Then he was like let's stop here first. Then that was when he went to see if anybody was looking and he parked his car.

Q: So he parked his car in front of the fruit company?

A: Uh-huh.

Q: And what car was he driving that day?

A: His moving truck.

...

Q: And what happened after he parked his car at the parking lot of the fruit company?

A: He goes to the back and then told me to pull my pants down. Then he pulled his down.

...

Q: And then what happened?

A: And then that's when he got on top of me and he started like touching my breasts and all that.

Q: And was he touching your breasts with his hands or—

A: Mouth.

...

Q: And after he touched your breasts with his mouth, what happened?

A: Then that's—he told me to touch his penis.

...

Q: What happened after that?

A: Then that's when he started doing it then. He had—that's when he started doing like kissing me and stuff, and then after that he told me to pull my pants back up and then he—I got back in the front and he took me to my house.

Appellant abused T.B. a second time in the same parking lot at Produce Row, this time in his SUV. According to her testimony, he again told her to pull down her pants and then penetrated T.B.'s vagina with his finger and penis, touched her breasts, and instructed her to touch his penis.

Appellant also abused T.B. at her home in the city of St. Louis on two separate occasions when her mother was gone. The first time the acts occurred in T.B.'s bedroom. Specifically, T.B. testified that Appellant came into her bedroom and said “do you want to do it” and then told her to pull down her pants. While T.B. lay on her bed Appellant lubricated his penis with Vaseline and then inserted his penis into her vagina. She testified that he also put his finger in her vagina.

On another occasion, Appellant sexually abused T.B. on the dining room floor of her home. T.B. testified that the two of them were alone in the house and that he said “let's do it,” had her lay down on the carpet, and got “some Vaseline, put it on his penis and then he had put his penis in my vagina.”

Appellant's other grandniece, R.C., then testified about two incidents in which Appellant sexually abused her in the city of St. Louis. On one occasion he took her to a hotel on Grand Avenue in St. Louis, where he got a room. According to R.C., in the hotel room Appellant took nude pictures of her and then performed oral sex on her while masturbating. R.C. also testified to a time when she and Appellant where alone at T.B.'s home and he laid her down on the couch, told her she owed him a favor, told her to take off her pants, and performed oral sex on her and had sexual intercourse with her.

Appellant was only charged with the acts that occurred within the city limits (at Produce Row, at T.B.'s house, and at the hotel on Grand). However, T.B. and R.C. also testified about sexually abusive acts that occurred at Appellant's house in St. Louis County. Specifically, T.B. testified that the first time Appellant abused her they were alone at his house, and he pulled down her pants, pulled down his own pants, and then “got on top” of her. She also mentioned that there were two other times when Appellant committed sexual acts with her at his home. R.C. also testified about two occasions when Appellant sexually abused her at his home. On one occasion she stated Appellant took her into one of the bedrooms and performed oral sex on her and then had sexual intercourse with her. On another occasion when R.C. was with Appellant in his basement, Appellant asked her if he could “do the same thing that he did before,” but after she explained that she was menstruating he asked if he could just touch her butt instead.

Both girls also testified that, around the time the abuse began, Appellant commented to them, separately, that they were “getting thick.” Their testimony further revealed that after these abusive acts took place, Appellant would give the girls gifts. T.B. testified that Appellant would sometimes give her money after performing these sex acts with her and would instruct her not to tell her mother. R.C. similarly testified that he would give her some money after they had sex, and on one occasion he gave her a bag of marijuana.

Pretrial, the defense moved to exclude testimony about uncharged sex offenses alleged to have taken place in St. Louis County as well as testimony that Appellant gave R.C. marijuana. The state opposed the motion, arguing that the evidence about uncharged allegations “goes to the common scheme or plan and the surrounding circumstances of everything” and demonstrated that Appellant “would give the girls things after he abused them.” The trial judge overruled the motion, ruling “I will not bar the State ... from presenting testimony of the entire coherent scheme, even if it slops over into certain events that may have occurred in another jurisdiction.”

Appellant was charged with 13 separate counts for the acts testified to that occurred within the city limits of St. Louis.¹ He was charged with second-degree statutory rape (Count I), second-degree statutory sodomy (Count II), and second-degree child molestation (Count III) for his actions against T.B. in the moving van while parked at Produce Row; second-degree statutory rape (Count IV) and second-degree statutory sodomy (Count V) for his actions against T.B. in her bedroom at her home; second-degree statutory rape (Count VI) and second-degree child molestation (Count VII) for his actions against T.B. on the dining room floor of her home; and second-degree statutory rape (Count VIII), second-degree statutory sodomy (Count IV), and second-degree child molestation (Count X) for his actions against T.B. in his SUV while parked at Produce Row. The State also charged Appellant with three separate counts for his actions against R.C., including second-degree statutory sodomy (Count XI) for his actions in the hotel room, as well as second-degree statutory rape (Count XII) and second-degree statutory sodomy (Count XIII) for his actions against R.C. on the couch at T.B.'s home.

After trial, a jury convicted Appellant of all four counts of second-degree statutory rape, all three counts of second-degree statutory sodomy, and all three counts of misdemeanor second-degree child molestation, relating to the acts Appellant committed against T.B. Appellant was acquitted on the three charges relating to his alleged abuse of R.C. The trial court sentenced Appellant to serve concurrent prison terms of 15 years for each of the statutory rape counts; one year terms for each count of child molestation, to be served concurrently with the rape sentences; and five-year terms for each sodomy count, to be served concurrently with each other and consecutive with the sentences for the rape and molestation counts, for a total of 20 years in prison. Appellant raises two points on appeal.

III. Analysis

A. Admissibility of Evidence of Uncharged Crimes

Appellant first claims the trial court abused its discretion by admitting, over objection, evidence that Appellant had committed uncharged sex crimes against T.B. and R.C. in St. Louis County and that Appellant gave R.C. marijuana.

The standard of review for the admission of evidence is abuse of discretion. State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009). “This standard gives the trial court broad leeway in choosing to admit evidence; therefore, an exercise of this discretion will not be disturbed unless it is clearly against the logic of the circumstances.” Id.

It is a well-established general rule that “proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial.” State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008). The rationale for the general rule of exclusion is to prevent such evidence from being admitted for the purpose of demonstrating the defendant's propensity to commit the crime with which he is presently charged. State v. Ellison, 239 S.W.3d 603, 606 (Mo. banc 2007). However, there are several exceptions under which otherwise...