State v. Pullum

Citation281 S.W.3d 912
Decision Date14 April 2009
Docket NumberNo. ED 91159.,ED 91159.
PartiesSTATE of Missouri, Plaintiff/Respondent, v. Donald PULLUM, Defendant/Appellant.
CourtCourt of Appeal of Missouri (US)

Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for respondent.

Maleaner Harvey, St. Louis, MO, for appellant.

KATHIANNE KNAUP CRANE, Presiding Judge.

Defendant, Donald Pullum, appeals from a judgment entered upon a jury verdict finding him guilty of statutory rape in the first degree, in violation of section 566.032 RSMo (2000)1 (Count I); statutory sodomy in the first degree, in violation of section 566.062 (Count II); attempted victim tampering, in violation of section 575.270 (Count III); statutory rape in the second degree, in violation of section 566.034 (Count IV); and child molestation in the second degree, in violation of section 566.068 (Count V). The trial court found defendant to be a prior and persistent offender and sentenced him to concurrent terms of fifteen years imprisonment for statutory rape in the first degree, fifteen years for statutory sodomy in the first degree, seven years for statutory rape in the second degree, and one year jail time for child molestation in the second degree, and three years imprisonment for attempted victim tampering, to be served consecutively to the other sentences.

On appeal, defendant contends that the trial court erred in overruling his motion for judgment of acquittal on attempted victim tampering because there was insufficient evidence to make a submissible case on that charge. Defendant also maintains that the trial court plainly erred in accepting the jury's verdict and in entering a judgment of conviction against him for the crime of statutory rape in the second degree on Count IV, because Count IV of the substitute information charged him with statutory sodomy in the second degree. He also asserts there was insufficient evidence to support the conviction of statutory rape in the second degree. We reverse the conviction of statutory rape in the second degree because the offense was not charged in the substitute information. We affirm the judgment entered on the remaining convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant does not challenge the sufficiency of the evidence or raise any allegations of error with respect to Counts I, II, and V. Defendant was the brother of the father of the two female victims, G.W., who was age 7 at the time of the offenses, and J.T., who was age 14 at the time of the offenses. Counts I and II were based on defendant's sexual misconduct with G.W., and Count V was based on defendant's molestation of J.T. Count III was based on defendant's threats to G.W. that she would get in trouble and that he would kill her if she told anyone about his sexual misconduct with her, causing her not to report his acts for a year. Count IV involves a fatal variance between the crime charged and the crime on which a conviction was entered, which is more fully explained below.

The case went to trial on a substitute information in lieu of indictment that identified Count IV in the list of charges as:

4. CNT: 4 STATUTORY RAPE-2ND DEGREE (Class C Felony) RSMo 566.034

FROM 8/21/2004 TO 8/30/2004 Place: [address deleted]

However, Count IV actually charged statutory sodomy in the second degree, in violation of section 566.064, as demonstrated by the following language:

The Circuit Attorney of the City of St. Louis, State of Missouri, upon information and belief, charges that the defendant, in violation of Section 566.064, RSMo, committed the class C felony of statutory sodomy in the second degree, punishable upon conviction under Sections 588.011 and 560.011, RSMo, in that between August 21, 2004 and August 30, 2004, in the City of St. Louis, State of Missouri, the defendant had deviate sexual intercourse with [J.T.] and at that time [J.T.] was less than seventeen years old and the defendant was twenty-one years of age or older.2

At the commencement of trial, defense counsel told the court that defendant was charged with statutory rape in the second degree, among the other charges. In its opening statement, the state told the jury that defendant was charged with statutory rape in the second degree and described the evidence that would prove that charge. At the jury instruction conference, defendant submitted alternative jury instructions based on different dates for the offenses, but did not otherwise object to the submission of a verdict director on Count IV based on MAI-CR3d 320.05, which submitted statutory rape in the second degree. Further, defendant submitted a converse instruction based on MAI-CR3d 308.02 for statutory rape in the second degree on Count IV, which the trial court gave. In closing arguments, the state set out the evidence supporting a finding of statutory rape in the second degree on Count IV. The jury found defendant guilty of statutory rape in the second degree on Count IV, and the trial court sentenced defendant to seven years imprisonment on that offense.

DISCUSSION
I. Sufficiency of Evidence — Attempted Witness Tampering

For his first point, defendant asserts that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence from which a reasonable juror could find defendant threatened G.W. and in doing so he purposely prevented or dissuaded G.W. from making any report to any peace officer, law enforcement officer, prosecuting agency, or judge.

We review the denial of a motion for acquittal at the close of evidence to determine if the state adduced sufficient evidence to make a submissible case. State v. Johnson, 244 S.W.3d 144, 152 (Mo. banc 2008); State v. Gonzales, 253 S.W.3d 86, 89 (Mo.App.2008). Our role is to "`determine whether enough evidence was produced at trial that a reasonable person could conclude that the accused was guilty.'" State v. Martin, 211 S.W.3d 648, 651 (Mo.App. 2007) (quoting State v. Vineyard, 839 S.W.2d 686, 690 (Mo.App.1992)). In determining whether the evidence is sufficient to support a conviction, we view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict, and we disregard all contradictory evidence and inferences. Johnson, 244 S.W.3d at 152. We defer to the jury's superior position to assess the credibility of witnesses and the weight and value of their testimony. Id. It is within the jury's province to believe all, some, or none of any witness's testimony in arriving at its verdict. State v. Nelson, 818 S.W.2d 285, 288 (Mo.App.1991).

Section 575.270.2 defines the crime of victim tampering:

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.

Section 564.011 defines attempt:

A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

Here, the state produced sufficient evidence to make a submissible case on the charge of attempted victim tampering in that the state showed that defendant attempted to prevent or dissuade G.W. from reporting defendant's actions to the proper authorities. In a videotaped interview conducted by an interview specialist with the Children's Advocacy Center, G.W. stated that defendant threatened to kill her if she told anyone about defendant's actions. In addition, G.W. testified at trial that after the incidents occurred, which was when she was seven years old, she did not tell her mother what defendant did to her because she was afraid of defendant and because she thought she would get in trouble. G.W. did not tell anyone about the incidents with defendant for a year. At that time, G.W. was present when the other victim, J.T., told a neighbor about defendant's actions involving her. After J.T. finished talking, G.W. told the neighbor what defendant did to her. Some time thereafter, the neighbor requested that the victims' mother come over to her house while both of the victims were present. With the neighbor's encouragement, both of the victims informed their mother about what defendant had done to them. G.W. told her mother that she had not said anything earlier because defendant told her she would get in trouble if she did. G.W.'s parents then took G.W. to the hospital to be examined, at which time a hotline report was made to the authorities.

This evidence was sufficient for a reasonable juror to find that defendant attempted, by threatening G.W. if she told "anyone," to prevent or dissuade G.W. from reporting defendant's actions to the proper authorities. The trial court did not err in overruling defendant's motion for acquittal and entering judgment on the jury verdict. Point one is denied.

II. Count IV — Variance

For his second point, defendant asserts that the trial court plainly erred in accepting the jury's verdict and in entering a judgment against him for statutory rape in the second degree because Count IV of the substitute information charged him with statutory sodomy in the second degree, but he was convicted of statutory rape in the second degree, resulting in a fatal variance between the information and the conviction.

This point has not been preserved for appeal. Defendant never called to the court's...

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