State v. Ray, s. 17733 and 18237

• Decision Date: 26 April 1993
• Docket Number: Nos. 17733 and 18237,s. 17733 and 18237
• Citation: 852 S.W.2d 165
• Parties: STATE of Missouri, Respondent, v. Raymond RAY, Appellant. Raymond RAY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 165

852 S.W.2d 165

STATE of Missouri, Respondent, v. Raymond RAY, Appellant.

Raymond RAY, Appellant, v. STATE of Missouri, Respondent.

Nos. 17733 and 18237.

Missouri Court of Appeals,

Southern District,

Division Two.

April 26, 1993.

Raymond L. Legg, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

MONTGOMERY, Presiding Judge.

A jury convicted Raymond Ray (Defendant) of sodomy, a class B felony. He was sentenced to thirteen years' imprisonment and appeals from that conviction in Case No. 17733.

Afterwards, Defendant filed a motion for postconviction relief under Rule 29.15. ¹ An evidentiary hearing was held on his amended motion. The motion court entered Findings of Fact and Conclusions of Law denying the relief requested. Defendant appeals from that denial in Case No. 18237. Pursuant to Rule 29.15(l ) we consolidated the appeals which will be separately addressed herein.

No. 17733

In this appeal, Defendant presents five claims of error, one of which alludes to the sufficiency of the evidence. In reviewing Defendant's conviction for sodomy, we consider the evidence in the light most favorable to the verdict rendered by the jury. State v. Norris, 813 S.W.2d 379, 380 (Mo.App.1991).

So viewed, the evidence reveals that on January 11, 1991, eight-year-old C.G. and her younger brother were living with their mother Shiela Hillis and Defendant in his home. On January 15, 1991, Hillis filed a sworn complaint with the New Madrid Sheriff's Department which stated on January 11, 1991, she had seen Defendant between her daughter's legs, licking her vagina.

Laura Wilburn of the Division of Family Services (DFS) interviewed C.G. on January 15, 1991, and the next day videotaped an interview with the child-victim. In the videotaped interview, C.G. marked, in her own words, the "wrong spot" on a diagram where Defendant had been licking between her legs. The jury observed the videotaped interview after Defendant objected on the basis the videotape was "cumulative and prejudicial."

C.G. testified at trial that Defendant had licked "in the private" between her legs on three occasions. On the last occasion, her mother came in the room while Defendant was engaged in the described act with C.G.

Hillis ² testified her original complaint against Defendant was untrue and she had told her daughter what to tell the authorities. Hillis stated she concocted the story because she was mad at Defendant after he had "kicked" her out of his home. Previous to trial Hillis had attempted to have the charges dropped against Defendant.

Defendant's trial testimony agreed with Hillis that he had kicked her out of his home causing her to be angry. Shortly thereafter, he was charged with the instant offense. He vehemently denied any sexual encounter with C.G.

Defendant's first point alleges the trial court erred in admitting into evidence the videotape of the interview with C.G. in that the cumulative effect of the hearsay statements improperly bolstered C.G.'s credibility.

Defendant mainly relies on State v. Seever, 733 S.W.2d 438 (Mo. banc 1987), where the Supreme Court held that the State's introduction of a videotaped interview with a child-victim, followed by the child-victim's own testimony, resulted in improper enhancement and rehabilitation which prejudiced the defendant. Both the videotaped statement and the child-victim's testimony covered the same precise ground. The Court said, "This bolstering is a departure from the normal course of trial proceedings." Id. at 441.

The trial proceedings in the instant case reveal a sharp contrast to those in Seever. Here, C.G. was cross-examined in the following manner:

Q. ... Do you remember telling me that they [referring to "DFS people"] coached you, or helped you remember what to say?

A. Yes.

Q. And they've helped you remember what to say here today, haven't they?

A. Yes.

Q. They weren't there in that room when whatever happened happened, were they?

A. Umm--

Q. The people from D.F.S.?

A. No.

* * * * * *

Q. Did they tell you that you had to testify here today?

A. Yes.

Q. Did they tell you that if you didn't testify here today that you wouldn't be able to see your mother again?

A. Yes.

Q. They did tell you that, that you had to testify here today or you wouldn't get to see your mother again; they told you that?

A. Yes.

During recross-examination, the following exchange occurred:

Q. Do you remember when this happened?

A. I can't remember.

Q. You can't remember the day?

A. Uh-huh.

Q. Can you remember the month?

A. No.

Q. Do you remember anything about that day, other than what you've said here today?

A. No.

Q. Do you remember what you did after this occurred?

A. No.

Q. You don't remember anything else about the day?

A. No.

Q. Do you remember anything about the day before this, before this happened?

A. No.

This examination of C.G. raised an inference she fabricated her story and attacked her credibility. The videotaped interview was not introduced until after Defendant's attack on C.G.'s credibility. C.G.'s description of the sexual encounter in the videotaped interview on January 16, 1991, was entirely consistent with her trial testimony.

In State v. Robinson, 782 S.W.2d 694 (Mo.App.1989), the child-victim testified in a rape and sodomy case. After defendant attacked her credibility the state introduced her videotaped statement which was consistent with her trial testimony. Relying on State v. Johnson, 684 S.W.2d 581, 583 (Mo.App.1984), the Court said that "[p]rior consistent statements of a witness may be admissible in order to rebut an inference of recent fabrication which is raised by appellant on cross-examination of the witness." Robinson, 782 S.W.2d at 697. Continuing, the Court noted that "any evidence tending to permit the inference that the testimony of the witness is recently fabricated opens the door to the introduction of the statement consistent with the witness' testimony if made prior to the suggested fabrication." Id., quoting State v. Hanson, 735 S.W.2d 100 (Mo.App.1987).

In the instant case the videotaped statement was made prior to the suggested fabrication. It was admissible to rehabilitate C.G.'s credibility after Defendant's cross-examination raised the inference C.G.'s testimony had been fabricated.

By revealing to the jury that C.G. had made prior consistent statements, the State was attempting to rebut an inference of recent fabrication. Seever does not apply under these circumstances. Defendant's first point is denied.

In Point II, Defendant contends the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because there was insufficient evidence that the "area [Defendant] was alleged to have licked was [C.G.'s] genitalia."

In reviewing a challenge to the sufficiency of the evidence, "the evidence, together with all reasonable inferences to be drawn therefrom, is viewed in the light most favorable to the verdict and evidence and inferences contrary to the verdict are ignored." State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc 1991), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). We look only to whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged. State v. Nelson, 818 S.W.2d 285, 288 (Mo.App.1991).

The crime of sodomy is established by proof of an act of deviate sexual intercourse with a victim less than fourteen years old, to whom the defendant is not married. § 566.060.3. ³ Deviate sexual intercourse is defined as any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person. § 566.010.1(2). In State v. Hooker, 791 S.W.2d 934, 938 (Mo.App.1990), this Court noted the definition of "genitals" or "genitalia" as "the organs of the reproductive system; esp. the external genital organs," citing from Webster's New Collegiate Dictionary 479 (1974).

Defendant "asserts that the state failed to prove that he licked [C.G.'s] genitalia when [C.G.] only testified that [Defendant] had licked her 'in the private' between her legs." This assertion ignores the videotape where C.G. marked a spot on the diagram and Laura Wilburn's testimony that C.G. called the place between her legs the "wrong spot." It further ignores the sworn statement, received in evidence, of C.G.'s mother that she saw Defendant licking her daughter's vagina. Although Hillis testified her statement was untrue, it is within the jury's province to believe all, some, or none of any witness's testimony in arriving at its verdict. Nelson, 818 S.W.2d at 288.

Clearly, a reasonable inference from C.G.'s testimony alone was that Defendant's acts constituted deviate sexual intercourse, i.e., the involvement of Defendant's mouth and C.G.'s genitals. See Hooker, 791 S.W.2d at 938. Her reference to "wrong spot" or "in the private" does not render the evidence insufficient. In State v. Lachterman, 812 S.W.2d 759 (Mo.App.1991), cert. denied, 503 U.S. 983, 112 S.Ct. 1666, 118 L.Ed.2d 387 (1992), defendant complained of insufficiency of the evidence based upon the failure of an eleven-year-old victim to specifically identify body parts. The victim testified defendant touched him "down below" with his hands and mouth. That term meant to the victim where he went to the bathroom. The victim further testified defendant made him touch the defendant "down below" with his hand and to "jack him off." The Court found this testimony sufficient to support submission to the jury one count of oral sodomy and one court of manual sodomy by saying:

In a prosecution of sodomy of a child, the name by which body parts are identified is a "collateral matter" State v. Webb, 737 S.W.2d 197, 200 (Mo.App.1987), of no material significance under all the evidence in the case. Despite [the victim's] lack of specificity it is clear he was describing the...