State v. Sexton

• Decision Date: 13 August 1996
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. John D. SEXTON, Appellant. 51733.
• Court: Missouri Court of Appeals

Page 909

929 S.W.2d 909

STATE of Missouri, Respondent, v. John D. SEXTON, Appellant.

No. WD 51733.

Missouri Court of Appeals,

Western District.

Aug. 13, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 1, 1996.

Gerald M. Handley, Kansas City, for Appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for Respondent.

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

EDWIN H. SMITH, Judge.

John D. Sexton appeals from his convictions for five counts of sodomy, § 566.060.3, ¹ following a jury trial in the Circuit Court of Jackson County. He was sentenced as a "prior offender," § 566.060.3, and received five concurrent forty-year sentences. Appellant asserts five points on appeal: 1) the trial court erred in sentencing appellant to five forty-year concurrent sentences because such sentences exceeded the sentences previously imposed following his first trial; 2) the trial court erred in permitting the victim's rebuttal testimony because she was in the courtroom in violation of the witness exclusionary rule; 3) the trial court erred in excluding evidence and cross-examination of the victim concerning her knowledge of sexual matters gained from pornographic magazines; 4) the trial court erred in overruling appellant's motion for judgment of acquittal because there was insufficient evidence; and, 5) the trial court erred in overruling appellant's request for change of judge following remand. Judgment affirmed in part and reversed in part.

FACTS

John D. Sexton was charged with one count of rape and five counts of sodomy by Amended Information filed in the Circuit Court of Jackson County. On January 26, 1994, appellant was convicted on all counts following a jury trial and was sentenced to five concurrent twenty-year sentences for sodomy to be served consecutively to a twenty-year sentence for rape. Appellant appealed and this court reversed and remanded the cause on February 1, 1995. State v. Sexton, 890 S.W.2d 389 (Mo.App.1995). On retrial, appellant was acquitted of rape but convicted by jury of five counts of sodomy, § 566.060.3, and was sentenced to concurrent 40-year terms of imprisonment as a "prior offender," § 558.016.2.

At the time of trial the victim, R.C., was eighteen years old. When she was approximately nine years old, her mother, Kathleen Sexton, married appellant. Appellant and his young son, Jessie, began living with R.C. and her mother in Lee's Summit, Missouri.

Within five or six months, appellant began subjecting his stepdaughter to a variety of physical and sexual abuse. He ordered her to kiss him on the lips and when she refused, he punched her with his fist in the mouth. When she still refused, he punched her in the nose and she finally acquiesced and kissed him on the lips.

Shortly after the abuse began, appellant removed all of her clothes, put her in a big yellow shirt, took her downstairs to the kitchen and turned on the garbage disposal. He placed her hand over the disposal and warned her that he would put her down there if she told anyone. He also told her that if she ever tried to leave or if she ever told on him that he would kill her.

When she was ten years old, a few months after he had forced her to kiss him on the lips, appellant placed his penis in her mouth and forced her to suck it. He would usually make her swallow the "white stuff" that came R.C. testified that over the period of time she lived with appellant, he placed his penis in her vagina, touched her vagina with his fingers and tongue, touched her breasts with his fingers and his mouth, and her "bottom" with his penis and his hands. She testified that she remembered on one occasion when she was ten or eleven, appellant bent her over the coffee table and pulled her pants down. He then inserted his penis into her rectum causing her bottom to bleed. On numerous other occasions appellant placed his penis in her vagina. These incidents of penile-genital conduct occurred in the bedroom at the family's home and in the family's trailer at Truman Lake.

out of his penis when he ejaculated. He forced her to perform oral sex between three and four times a week. The incidents normally occurred in the morning when her mother was at work.

At some point, appellant and her mother placed R.C. on birth control pills against her will. She was told that it was a precautionary measure to prevent against pregnancy in case somebody raped her because appellant didn't want her to get pregnant.

Appellant also used oral sex as a disciplinary tool and control mechanism. R.C. was given the choice between being whipped on the bare buttocks with a thick belt or performing oral sex whenever she needed to be punished. She normally chose the whippings which left marks and bruises on her arms, chest, legs and knees.

R.C. described an incident where appellant grabbed her by the hair and threw her down the stairs. She testified that he would hit her with his fists and throw various objects at her including tools, pencils, pillows, shoes and other items. Appellant would also force her to do something sexually if she wanted to socialize with her friends.

On November 10, 1992, following an incident of sexual abuse at Truman Lake, R.C. reported the abuse to the Lee's Summit police. She was removed from the home and placed in foster care temporarily before going to reside with her biological father.

I.

In Point I, appellant contends the trial court erred in sentencing him to five concurrent forty-year sentences because such sentences exceeded the sentences imposed following his first trial in which he received five concurrent twenty-year sentences for sodomy, to be served consecutively to a twenty-year sentence for rape. Appellant argues the increased sentences on his sodomy convictions negate the effect of his successful appeal.

Appellant argues that his sentences violate the prophylactic rule set forth in North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656, 670 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Pearce states that due process requires a defendant's sentence after retrial to be free from any vindictiveness by the court for successfully attacking his first conviction. Id. at 725, 89 S.Ct. at 2080. A defendant's fear of such vindictiveness may unconstitutionally deter his exercise of his right to appeal or collaterally attack his first conviction so he must be freed of apprehension to insure due process of law. Id. In order to guarantee the absence of such a motivation, the Pearce court held that whenever a judge imposes a more severe sentence upon a defendant after a new trial, he must state the reasons for doing so which must be based on objective information concerning conduct occurring after the time of the original sentence. Id. at 726, 89 S.Ct. at 2081. However, there is no violation of Pearce where the defendant has been tried and sentenced on multiple counts and is then resentenced and receives a different sentence on each viable count, but receives no greater sentence than the total sentence originally received. State v. Brooks, 551 S.W.2d 634, 660 (Mo.App.1977).

When a defendant is convicted of more than one count of a multicount indictment, the district court is likely to fashion a sentencing package in which sentences on individual counts are interdependent. When, on appeal, one or more counts of a multicount conviction are reversed and one or more counts are affirmed, the result is an "unbundled" sentencing package. [Citation omitted.] Because the sentences United States v. Shue, 825 F.2d 1111, 1114 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987). The Shue court held that the trial judge has the authority to re-evaluate the sentencing package in light of the changed circumstances and resentence the defendant to effectuate the original sentencing intent without violat[ing] Pearce or the Double Jeopardy Clause. Id.

are interdependent, the reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the district court's sentencing intent as to any one of the sentences on the affirmed convictions.

Here, appellant originally received five concurrent twenty-year sentences for sodomy, to be served consecutively to a twenty-year sentence for rape totaling forty years of imprisonment. On retrial, he was acquitted of rape, but convicted of five counts of sodomy and sentenced to five concurrent 40-year sentences. Thus, the prophylactic rule announced in Pearce was not violated since the total sentence appellant received on retrial did not exceed the total sentence originally imposed.

Appellant argues that although his sentences on retrial total forty years, the same as his original sentences, his sentences on retrial have the effect of being more severe than his original sentences due to the enactment of § 558.019, RSMo.1994. Section 558.019.5 provides that for purposes of construing the "minimum prison term" provisions, "in the case of consecutive sentences imposed at the same time pursuant to a course of conduct constituting a common scheme or plan," the parole board is "authorized to convert consecutive sentences to concurrent sentences, when the board finds, after hearing with notice to the prosecuting or circuit attorney, that the sum of the terms results in an unreasonably excessive total term, taking into consideration all factors related to the crime or crimes committed and the sentences received by others similarly situated." This provision by its own terms applies only to offenses occurring on or after August 28, 1994. Mo.Rev.Stat. § 558.019.7 (1994); State v. Dean, 898 S.W.2d 704, 706 (Mo.App.1995). Appellant's offenses were alleged to have occurred "between September 1, 1990 through February 12, 1991." Thus, § 558.019.5 does not apply and appellant's argument is without merit. Point...