State v. Putfark
| Decision Date | 06 September 2022 |
| Docket Number | WD84246 |
| Parties | STATE OF MISSOURI, Respondent, v. CHARLES H. PUTFARK, IV, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Pettis County, Missouri The Honorable Robert Lawrence Koffman, Judge
Before Gary D. Witt, Presiding Judge, Anthony Rex Gabbert, Judge and W. Douglas Thomson, Judge
Charles Putfark ("Putfark") appeals from his convictions following a jury trial in the Circuit Court of Pettis County ("trial court"), of two counts of statutory sodomy in the first degree, section 566.062;[1] three counts of child molestation in the first degree, section 566.067; and one count of sexual misconduct involving a child, section 566.083. On appeal, Putfark argues: (1) the trial court erred in sentencing Putfark on counts III and IV of child molestation in the first degree because each is a lesser-included offense of statutory sodomy for which he was convicted under Counts I and II, and his sentences for both offenses violates the double jeopardy clause of the United States Constitution, U.S. Const. amends V, XIV, and section 556.041; (2) the trial court erred in preventing cross-examination regarding the taking of a sex toy from the victim's mother's room because the discovery of the sex toy was not prohibited under rape shield statute, section 491.015, the wholesale exclusion of witness bias or potential fabrication is not allowed, and the exclusion of this evidence violated Putfark's right to confront his accuser under the confrontation clause of the Constitution, U.S. Const. amends. VI, XIV and Article I section 18(a) of the Missouri Constitution; and (3) the trial court erred in sentencing Putfark on three separate counts (Counts III, IV, and V) of child molestation in the first degree because the trial court submitted the instruction, and the jury found Putfark guilty of child molestation in the second degree.
We affirm in part and reverse and remand in part. We reverse and vacate the convictions and sentences on counts III and IV. Further, on Count V, the conviction and sentence for the Class A felony of child molestation in the first degree is vacated, and the cause is remanded for the trial court to enter a conviction on Count V for the Class B felony of child molestation in the second degree and for resentencing for Count V within the range of punishment for the Class B felony of child molestation in the second degree. We affirm the judgment of the trial court in all other respects.
Factual Background[2]
K.C.[3], a female child born September 27, 2010, and K.C.'s mother ("Mother") became Putfark's next-door neighbors in 2017. Putfark, born February 28, 1974, served as the live-in caregiver for Michelle Province ("Province"), a woman with whom Mother had developed a friendship as neighbors. Province offered to help Mother take care of K.C. after school until Mother returned home from work. Putfark assisted Province in caring for K.C after school. As Province became more debilitated from her illness, Putfark began babysitting K.C. more often, both at his house and at K.C.'s home. Putfark spent considerable time with K.C., including playing videogames, wrestling, and going on bike rides to the park alone with K.C. Mother came home one day when Putfark was babysitting K.C. and observed K.C.'s hair was wet from a shower, the clothes K.C. had been wearing earlier that day were in the washing machine, and K.C. was wearing different clothes. Mother testified that this was memorable because K.C. did not take showers without being told, and that it was uncommon for her to shower under Putfark's supervision.
In August of 2019, after Putfark had stopped babysitting K.C. entirely, K.C. disclosed to Mother that Putfark had exposed himself to her. Immediately after the disclosure, Mother took K.C. to the police station. There, officers took a report from Mother and then directed her and K.C. to an organization called Child Safe. K.C. was interviewed by Child Safe employee Hillary Dulaban, a forensic interviewer. During K.C.'s video recorded interview at Child Safe, she made disclosures consistent with what she told Mother as well as additional disclosures. During the Child Safe interview, K.C. stated that Putfark exposed himself to her on multiple occasions, forced her to shower with him, asked her to touch his genitals, showed her photos of nude people, talked to her about sex, touched her breasts, and kissed her naked genitals on two occasions. During the interview, K.C. was provided anatomical drawings of males and females, and she circled the female genitals when asked where Putfark had "kissed" her. K.C. disclosed two instances in which Putfark "kissed her down there." K.C. detailed that the first time Putfark was unshaven and that his pointy beard hurt her, and that the second time his face was shaved.
After a police officer with the Sedalia Police Department viewed the recorded video from Child Safe, Putfark was taken to the police station for questioning. During the interview at the police station, Putfark admitted to talking to K.C. about sex and masturbation. Putfark also stated that he may have accidentally touched K.C.'s breast or butt while wrestling with her. During the interview Putfark specifically denied all other allegations except for the two occasions when Putfark had "kissed [K.C.] down there." In response to these allegations Putfark did not deny them but instead remarked, "that is interesting because [I do] shave about every six months." The interview concluded with Putfark's arrest.
The State charged Putfark with six felony charges; Count I of statutory sodomy in the first degree, section 566.062, by touching K.C.'s vagina with his mouth in the living room while he was unshaven; Count II of statutory sodomy in the first degree, section 566.062, by touching K.C.'s vagina with his mouth in the living room while he was clean shaven and K.C. was lying on her stomach with her legs extended and her head raised; Count III of child molestation in the first degree, section 566.067, by touching K.C.'s genitals in the living room while he was unshaven; Count IV of child molestation in the first degree, section 566.067, by touching K.C.'s genitals while he was clean shaven and K.C. was lying on her stomach with her legs extended and her head raised; Count V of child molestation in the first degree, section 566.067, by touching K.C.'s breasts through her clothing; and Count VI of sexual misconduct in the first degree, section 566.083, by exposing his genitals to K.C.
During a pre-trial hearing, the parties argued extensively about whether Putfark's trial counsel could question Mother and K.C. on cross-examination regarding K.C. entering Mother's room without permission and taking a sex toy and hiding it in her own room. Mother testified during the 491 hearing[4] that she had discovered that K.C. had taken a sex toy from Mother's room. Mother found the sex toy in K.C.'s room and planned to confront K.C. about why she had taken Mother's sex toy. Mother testified she took K.C. to dinner, and when Mother started to ask K.C. why she had taken Mother's sex toy, K.C. disclosed to Mother for the first time that Putfark had exposed himself to her. At trial, Putfark sought to introduce evidence on cross-examination regarding the discovery of the sex toy, and the State objected. Over the span of two sidebars regarding the relevancy of the testimony, Putfark argued that the testimony about the discovery of the sex toy was relevant because it occurred on the day of, and prior to, the initial disclosure by K.C., and that Mother discovering the prohibited item in K.C.'s possession provided K.C. a motive to lie in order to shift blame from herself and avoid punishment. The trial court sustained the State's objection; however, the trial court ruled Putfark could question Mother if K.C. had "done something" prior to the initial disclosure that had gotten K.C. in trouble without referencing the taking and discovery of the sex toy. The trial court also ruled Putfark's trial counsel could ask K.C. whether she thought she was in trouble when she disclosed to Mother that Putfark had exposed himself.
The jury returned guilty verdicts on all six counts, and the trial court sentenced Putfark to terms of ten years' imprisonment on each of counts I and II to be served consecutively to each other but concurrent with any other sentences; terms of ten years' imprisonment on each of counts III, IV, and V to be served concurrently with each other and with any other sentences; and a term of four years' imprisonment on count VI to be served concurrently with any other sentences. This appeal follows.
Putfark argues that the trial court erred in convicting and sentencing him on Counts III and IV, child molestation in the second degree, because child molestation in the second degree is a lesser included offense of statutory sodomy in the first degree, and this error violated the constitutional prohibition against double jeopardy, U.S. Const. amends. V XIV, and section 556.041. Because he failed to raise this issue before the trial court or in a motion for new trial Putfark seeks plain error review under Rule 30.20. Plain error lies where we find that manifest injustice or a miscarriage of justice has resulted from trial court error. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). "A double jeopardy violation determinable from the face of the record is entitled to plain error review." State v. Clark, 494 S.W.3d 8, 12 (Mo. App. E.D. 2016) (internal quotations and alterations omitted). "[W]e have discretion to review for plain error only where the appellant asserting error establishes facially substantial grounds for believing...
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