State v. Sapien

• Decision Date: 22 February 2011
• Docket Number: No. WD 69575.,WD 69575.
• Citation: 337 S.W.3d 72
• Parties: STATE of Missouri, Respondent,v.Andrew M.T. SAPIEN, Appellant.
• Court: Missouri Court of Appeals

337 S.W.3d 72

STATE of Missouri, Respondent,

v.Andrew M.T. SAPIEN, Appellant.

No. WD 69575.

Missouri Court of Appeals, Western District.

Feb. 22, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied March 29, 2011.

William E. Shull, Jr., Liberty, MO, for Appellant.Terrence M. Messonnier, Jefferson City, MO, for RespondentBefore Thomas H. Newton, P.J., James Edward Welsh, and Alok Ahuja, JJ.JAMES EDWARD WELSH, Judge.

Andrew Sapien appeals his conviction for two counts of statutory sodomy in the first degree involving his sister and step-brother. Sapien makes three arguments: first, that the circuit court erroneously admitted testimony concerning an uncharged crime to explain a witness's delayed reporting of one of Sapien's offenses; second, that the circuit court erroneously admitted evidence concerning the disposition of a juvenile charge during the sentencing phase of Sapien's trial; and third, that the circuit court erroneously refused to dismiss the charges against him on the basis of prosecutorial vindictiveness. We affirm.

Factual Background

Sapien was found guilty of two counts of statutory sodomy in the first degree. Following a separate sentencing phase of trial, the jury recommended that Sapien be sentenced to thirty years on each count. Consistent with the jury's recommendation, the circuit court sentenced Sapien to concurrent terms of thirty years. Sapien appeals.

The incidents giving rise to Sapien's sodomy convictions occurred in November and December of 2004. Sapien was living with his father and step-mother; Sapien's biological sister (“M.J.S.”), step-brother (“D.T.”), and step-sister (“M.T.”) also lived in the house. At the time, M.J.S. was 10 years old; D.T. was 11.

The first incident, which occurred in November 2004 after the Thanksgiving break, involved Sapien, M.J.S., and D.T. After watching pornography on the computer, Sapien asked M.J.S. and D.T. whether they could “do [Sapien] a favor.” After initially refusing, M.J.S. and D.T. yielded and went with Sapien to his bedroom in the basement. Sapien closed the door, and told M.J.S. and D.T. that they were not going to be let out of the room until they did what he asked. He told them to pull their pants down, and they complied. Sapien then directed M.J.S. and D.T. to engage in sexual acts with each other. He later sodomized M.J.S. while rubbing her vagina with his hand, and he attempted to sodomize D.T.

M.J.S. described a second incident, which occurred a couple of weeks after the first incident. After viewing pornography, Sapien again approached M.J.S. and D.T. and asked them whether they would do him a favor. Sapien took M.J.S. and D.T. to their parents' bedroom upstairs. Sapien then told D.T. to leave, and took M.J.S. to a downstairs bathroom, lubricated his penis, and sodomized her.

D.T. also described other incidents in which he was sodomized by Sapien. During these incidents, Sapien had D.T. get on his hands and knees while Sapien got on his knees behind D.T. D.T. testified that Sapien's penis was definitely inside D.T.'s “butt” on these other occasions. He testified that these incidents occurred once in M.T.'s bedroom, and otherwise in Sapien's bedroom. D.T. testified that M.J.S. was present during the other incidents, except on one occasion when she acted as a look-out and alerted Sapien and D.T. when Sapien's mother returned home.

Neither M.J.S. nor D.T. initially told anyone about the first incident. Following the second incident, M.J.S. told M.T., her older step-sister, what had happened; however, the girls did not inform either of their parents at that time. M.T. testified at trial that she had herself observed a further incident, which involved Sapien and D.T. in the bathroom in November–December 2004. M.T. witnessed Sapien standing behind D.T. while both had their pants down; D.T. was on his knees, bent over the toilet. M.T. testified that she did not immediately reveal this incident to anyone because Sapien had raped her previously, and she was scared of him.

In January 2005, M.J.S. was again approached by Sapien to “do a job.” This time, she refused and, with M.T., told her parents about Sapien's behavior. Sapien fled the house quickly, not even bothering to put on shoes, despite the fact that it was cold and snowy.

M.J.S. and D.T. were interviewed by police and examined by doctors. The examinations, performed by Dr. Michael Moran, did not show any physical abnormalities, although Dr. Moran testified that sodomization trauma often heals over time.

Jill Hazell, a member of Synergy Services, a child advocacy center, interviewed M.J.S. and D.T. individually on February 10, 2005. These interviews were recorded and transcribed, and admitted in evidence during Sapien's trial.

Sapien was initially charged with two counts of child molestation in the first degree (one for the acts involving M.J.S. and one for the acts involving D.T.). The State subsequently filed a first amended information amending both charges from child molestation in the first degree to the greater offense of statutory sodomy in the first degree. Prior to doing so, the State had notified defense counsel of its intention to file the amended charges, indicating that it would forego filing them if Sapien would enter a plea of guilty to the lesser charges of child endangerment in the first degree and accept a proposed disposition. Sapien rejected the State's plea offer, and the State thereafter filed the enhanced charges.

Sapien filed a motion to dismiss the first amended information, arguing that the filing of the new, heightened charges constituted vindictive prosecution because it was done in response to his rejection of the plea proposal. The motion was denied.

Sapien filed a pretrial motion in limine to exclude any evidence of his juvenile record. The circuit court entered an order in limine that such evidence was not to be introduced during the guilt phase unless Sapien testified. After the jury's finding of guilt in the first phase of Sapien's trial, the State asked the circuit court to order Sapien's juvenile records unsealed. Sapien objected. The circuit court ordered that the petition and order of disposition regarding Sapien's rape of M.T. be released to both attorneys. During the penalty phase and over Sapien's objection, M.T. testified about the details of Sapien's rape of her in March 2004. The State also introduced the petition and order of disposition from the juvenile division concerning this offense, again over Sapien's objection.

Analysis

In his first point, Sapien argues that the circuit court erred in allowing M.T.'s testimony regarding his prior rape of her. In his cross-examination of M.T., Sapien's counsel highlighted the fact that, after discovering Sapien and D.T. apparently engaged in a sexual act in her bathroom, M.T. “[d]idn't [immediately] tell anybody about it” or “bring it to anybody's attention” but, instead, simply “went downstairs, sat on the couch, and watched TV.” (M.T. and M.J.S. together informed their parents of Sapien's sexual acts involving M.J.S. and D.T. several weeks later.) In response to this cross-examination, the prosecution argued that Sapien had opened the door concerning the reasons for M.T.'s delayed reporting of what she had witnessed. The circuit court agreed. Over Sapien's objection, the court permitted the State on redirect examination to elicit testimony from M.T. that the reason she had not immediately reported Sapien's misconduct was because she was scared of him, because he had previously raped her.¹

We need not decide whether the circuit court properly exercised its discretion in permitting testimony concerning Sapien's prior rape of M.T. Even if the court's evidentiary ruling were erroneous, it would not justify reversal because Sapien has failed to establish that he suffered sufficient prejudice to require a new trial. “On direct appeal we review the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999) (citation and internal quotation marks omitted).

The test for prejudice is whether the improper admission was outcome-determinative. A finding of outcome-determinative prejudice expresses a judicial conclusion that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all evidence properly admitted, there is a reasonable probability that the jury would have reached a different conclusion but for the erroneously admitted evidence. In determining prejudice, this court considers the amount of the erroneously admitted evidence and the extent to which the evidence was referenced during the trial. When the inadmissible evidence is substantial and there are several references to the inadmissible evidence, prejudice is found.

State v. Chism, 252 S.W.3d 178, 185 (Mo.App.2008) (citations and internal quotation marks omitted) (concluding that the erroneous admission of evidence of uncharged misconduct was not prejudicial and, therefore, did not mandate a new trial).

We first note that the evidence concerning the uncharged offense admitted during the guilt phase of Sapien's trial was exceedingly limited and was essentially limited to M.T.'s three-word response—“He raped me.”—to a question by the prosecution as to the source of her fear of Sapien. While it is a very serious allegation, it is significant that this issue was not highlighted during the testimony and no details concerning this other incident were provided to the jury. During closing arguments, the State referenced this allegation solely to argue that the jury should credit M.T.'s testimony as to the incident she had witnessed.

We also note that the evidence against Sapien was strong. While there was no physical evidence of his offenses, the testimony of his two victims, and their out-of-court statements, corroborated each...