State v. Robinson

• Decision Date: 08 April 2003
• Docket Number: No. WD 60741.,WD 60741.
• Citation: 108 S.W.3d 689
• Parties: STATE of Missouri, Respondent, v. Grover C. ROBINSON, Jr., Appellant.
• Court: Missouri Court of Appeals

Page 689

108 S.W.3d 689

STATE of Missouri, Respondent, v. Grover C. ROBINSON, Jr., Appellant.

No. WD 60741.

Missouri Court of Appeals, Western District.

April 8, 2003.

Steven D. Wolcott, Liberty, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Nicole E. Gorovsky, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before EDWIN H. SMITH, P.J., and SMART and HARDWICK, JJ.

EDWIN H. SMITH, Presiding Judge.

Grover C. Robinson, Jr., appeals his convictions, following a jury trial in the Circuit Court of Jackson County, of three counts of child molestation in the first degree, § 566.067.¹ As a result of his convictions, the appellant was sentenced to three concurrent five-year terms of imprisonment in the Missouri Department of Corrections.

The appellant raises two points on appeal. In Point I, he claims that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence on all three counts of child molestation in the first degree because the State failed to prove, as required by due process, each and every element of the charged offenses beyond a reasonable doubt. In Point II, he claims, as to his conviction under Count II only, that the trial court erred in preventing him from introducing, as substantive evidence, alleged prior inconsistent statements of the victim contained in her deposition concerning the charged June 7, 1999, incident, because it was mandated under § 491.074.

We affirm.

Facts

During the summer of 1999, the appellant and his wife, Marjorie Robinson, lived in Raytown, Missouri, with their two children, Grover III and M.K.R. Although married, the appellant and his wife slept in separate bedrooms. The appellant's and the children's bedrooms were upstairs, while Mrs. Robinson slept in the basement.

On the evening of June 7, 1999, Mrs. Robinson watched television with her children until 10:00 p.m., at which time the children went upstairs to get ready for bed. Several minutes later, Mrs. Robinson walked upstairs to say goodnight to the children. As she walked down the hallway, Mrs. Robinson looked into the appellant's bedroom and saw him lying in bed with M.K.R., who was nine years old at the time. Although the lights in the bedroom were off, the room was illuminated by the television and the light from the hallway. Mrs. Robinson saw that the appellant had his hand inside the back of M.K.R.'s shorts in between her legs and appeared to be touching her vagina. The appellant, who was kissing his daughter and telling her how much he loved her, was attempting to roll her on top of him when Mrs. Robinson yelled, "What the hell is going on?" The appellant quickly took his hand out of M.K.R.'s shorts and said to his wife, "Oh you have an evil mind." Mrs. Robinson then rushed out of the appellant's bedroom and went to a nearby bathroom.

By the time that she reached the bathroom, Mrs. Robinson realized that she needed to get M.K.R. out of the appellant's bedroom. When she returned to the appellant's bedroom, the appellant was hitting M.K.R. on the shoulder and asking her, "You love me, don't you?" Mrs. Robinson took M.K.R. from the bedroom, and they went downstairs. She then asked M.K.R. if the appellant had done this before, and, if so, where on her body had she been touched. M.K.R. responded by pointing to her breasts and her crotch. Mrs. Robinson then proceeded to call the police, who arrived approximately ten minutes later.

Officers Christina Christiansen and Erick Simpson of the Raytown Police Department were dispatched to the appellant's home to investigate the complaint. Mrs. Robinson informed Officer Christiansen as to what she had witnessed, who spoke privately with M.K.R. M.K.R. told her that she fell asleep watching television, and, when she awoke, the appellant was touching her "private parts," which she identified by pointing to her chest and between her legs. In addition, M.K.R. told Officer Christiansen that the appellant had been doing this since she was six years old. Based on their investigation, Officers Christiansen and Simpson placed the appellant under arrest for suspicion of child molestation.

A social worker employed with the Child Protection Center of Children's Mercy Hospital, Julie Donlon, conducted a videotaped interview with M.K.R. on June 17, 1999. During that interview, M.K.R. stated that on the night of June 7, 1999, the appellant was touching the "outside of her leg" with his hand and that his leg touched her vagina. M.K.R. also told Donelon that the appellant had touched and kissed her breasts under her clothes on several occasions occurring in January 1999 and June 1999.

On October 28, 1999, the appellant was charged by information in the Circuit Court of Jackson County with sexual misconduct in the first degree, § 566.090, and eight counts of child molestation in the first degree, § 566.067. On July 27, 2001, the State filed an amended information charging the appellant with three counts of first-degree child molestation. In Count I, the State alleged that the appellant "touched [M.K.R.'s] breast with his hand"; in Count II, it alleged that the appellant "touched [M.K.R.'s] vagina with his hand"; and in Count III, it alleged that the appellant "touched [M.K.R.'s] breast with his mouth."

The appellant's case proceeded to a jury trial on August 17, 2001. The appellant moved for judgment of acquittal at the close of the State's evidence and the close of all the evidence. On August 23, 2001, the jury returned guilty verdicts against the appellant on all three counts. On October 3, 2001, the appellant filed a motion for judgment notwithstanding the verdict, and, in the alternative, a motion for new trial. The trial court overruled both motions and sentenced him to three concurrent five-year terms of imprisonment.

This appeal follows.

I.

In Point I, the appellant claims that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence on all three counts of child molestation in the first degree because the State failed to prove, as required by due process, each and every element of the charged offenses beyond a reasonable doubt. Specifically, he claims that to convict him, the State was required to prove inter alia, that he subjected the victim to "sexual contact," as defined in § 566.010(3), which it failed to do in that there was no evidence from which the jury could reasonably conclude that he touched the victim underneath her clothing.

Our standard of review is set forth in State v. Johnson, 62 S.W.3d 61, 69-70 (Mo. App.2001) (quoting State v. O'Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993)):

A challenge to the sufficiency of the evidence to support a finding of guilt is based in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. No person may be deprived of liberty, `except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt.' The constitutional sufficiency of the evidence is a question of law to be determined, in the first instance, by the trial court on proper motion by the defendant and again on appeal.

When properly raised by the defendant, the question of sufficiency arises before the case is put to the jury; the challenge is to the `submissibility' of the case. Therefore, any guilty verdict subsequently rendered by the jury is wholly irrelevant to the question of whether the case was sufficient to go to the jury at all. The Court's review is limited to determining whether the evidence is sufficient to persuade any reasonable juror as to each of the elements of the crime, beyond a reasonable doubt. To ensure that the reviewing court does not engage in futile attempts to weigh the evidence or judge the witnesses' credibility, courts employ `a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.' Thus, evidence that supports a finding of guilt is taken as true and all logical inferences that support a finding of guilt and that may reasonably be drawn from the evidence are indulged. Conversely, the evidence and any inferences to be drawn therefrom that do not support a finding of guilt are ignored.

The appellant was charged with three counts of child molestation in the first degree, under § 566.067, which provides:

1. A person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact.

2. Child molestation in the first degree is a class B felony unless the actor has previously been convicted of an offense under this chapter or in the course thereof the actor inflicts serious physical injury, displays a deadly weapon or deadly instrument in a threatening manner, or the offense is committed as part of a ritual or ceremony, in which case the crime is a class A felony.

In all three counts, the State alleged that "in between September 1, 1997 through June 7, 1999, in the County of Jackson, State of Missouri, the [appellant] subjected [M.K.R.] (DOB: 04/21/90), who was less than twelve years old to sexual contact." In Count I, the State alleged that the appellant "touched [M.K.R.'s] breast with his hand"; in Count II, it alleged that the appellant "touched [M.K.R.'s] vagina with his hand"; and in Count III, it alleged that the appellant "touched [M.K.R.'s] breast with his mouth."

At the time of the charged acts, "sexual contact" for purposes of § 566.067 was defined in § 566.010(3) as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, for the purpose of arousing or gratifying sexual desire of any person."² As the appellant contends, under that definition, in order to convict him on all three counts as charged, the State had to prove, inter alia, that the...