State v. Silvey, s. 74030
| Decision Date | 21 March 1995 |
| Docket Number | 76072,Nos. 74030,s. 74030 |
| Citation | 894 S.W.2d 662 |
| Parties | STATE of Missouri, Respondent, v. Phillip E. SILVEY, Appellant. Phillip E. SILVEY, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Gary E. Brotherton, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for respondent.
Phillip E. Silvey was found guilty by a jury of two counts of sodomy in violation of section 566.060, RSMo 1986. The victim was four years old when the offenses occurred. The trial court found Silvey to be a dangerous offender under section 558.016, RSMo Supp.1990, and sentenced Silvey to thirty years on each count of sodomy with the terms to run concurrently. The Court of Appeals, Western District, affirmed the conviction. Judge Ellis dissented and certified the cause for transfer to this Court because he deemed the majority opinion to be contrary to previous decisions of the appellate courts of this state. Rule 83.01. We disagree. Silvey's Rule 29.15 motion for post-conviction relief was overruled by the trial court, and his appeal of that decision has been consolidated with his appeal to this Court. Rule 29.15(l). Silvey raises eleven points on appeal. Affirmed.
Silvey's victim, A.P., was about four years old when the offenses occurred and was six years old at the time of trial. A.P. lived with her mother, S.S., in Cass County. Silvey moved in with S.S. and A.P. in November 1988 and moved out in September 1989. During this period of time, Silvey often baby-sat A.P. while S.S. worked.
A.P. testified that when she and Silvey were alone, Silvey would remove his clothes, remove her clothes, and touch her in her "front private" and her "back private" or butt with his hands, a butterfly knife, and a gun. A.P. testified that Silvey pinched her nose in order to get her to open her mouth A.P. testified that the acts of sodomy occurred both at night and during the day in the bathroom, living room, and in her mother's bedroom. She testified that she was scared when Silvey touched her with the butterfly knife because he told her not to tell anyone or he would kill her. A.P. described the knife and how Silvey opened the knife to expose the blade.
and when she did he inserted his penis in her mouth. She testified that the penis squirted "slime" in her mouth.
A.P. first reported Silvey's actions to her grandmother in July 1989. A.P. told her grandmother that Silvey had rubbed her lower back and upper buttocks. After hearing this, S.S. ordered Silvey out of the house. However, S.S. allowed Silvey back into the house two days later because she did not think Silvey had sexually abused her daughter. Silvey moved out permanently in September 1989.
A.P. finally told her mother about Silvey's abuse six months after Silvey had moved out. S.S. reported the abuse to the police and division of family services, and A.P. was taken to a hospital where a physical examination failed to reveal any significant findings of abuse.
S.S. testified that she noticed behavior changes in A.P. both during the time Silvey was in her house and after he had moved out. These changes included bed-wetting, loss of appetite, hyperactivity, nightmares, wetting and soiling her pants, and chewing her fingers until they were raw.
S.S.'s sister, V.S., also noticed appreciable changes in A.P.'s behavior when she cared for A.P. V.S. testified that A.P. was happy and excited to go home with Silvey when he first moved in, but later began to cry when it was time to leave with him and said that she did not want to see Silvey. V.S. also testified that A.P. began to wet the bed more than once a night and had nightmares. In the spring of 1990, A.P. began to cry when V.S. washed her buttocks. A.P. said it hurt and burned. On one occasion when V.S. saw A.P. and Silvey in a store, A.P. ran to V.S., clutched her leg and cried that she did not want to leave with Silvey.
Michael Boniello, a social worker trained to work with sexually abused victims, testified that S.S. brought A.P. to him for counseling. Boniello testified that A.P. had told him of the acts that Silvey committed on her. He stated that A.P. displayed several behavioral indicators consistent with children who have suffered sexual trauma similar to that reported by A.P.
K.M., A.P.'s grandmother and S.S.'s mother, testified that Silvey entered her place of business in April 1990 and asked to speak with her privately. Silvey told K.M. that he thought S.S. was saying that he was a child molester and that K.M. should tell S.S. to shut up because he did not know what he would do if he saw her. Silvey also said, "we all want to grow old and gray don't we?"
At trial, the prosecution showed A.P. a butterfly knife the prosecution had purchased that was similar to the butterfly knife owned by Silvey. A.P. identified the knife as being like the one used by Silvey.
V.S., A.P.'s aunt and S.S.'s sister, testified that, after Silvey had moved out of her sister's house, Silvey showed his butterfly knife to her and her then-fiance outside of a video store. Silvey told V.S. that the knife was a butterfly knife and demonstrated how it opened. V.S. identified the butterfly knife bought by the prosecution as like the knife owned by Silvey.
V.S.'s fiance, D.S., was also present when Silvey demonstrated his butterfly knife outside of the video store. D.S. also testified that the knife shown by the prosecution was like the knife owned by Silvey.
In Silvey's first point on appeal, he argues that the trial court abused its discretion in allowing the prosecution, over objection, to place and demonstrate in front of the jury a butterfly knife not used in the commission of the charged offenses and unrelated to Silvey.
As the reader will surely note, a butterfly knife is a unique weapon that nearly defies an accurate oral or written description of its design and how it is opened and closed.
When closed, the four-inch blade rests within slots in the knife's two handles, like a buck knife with a second handle that closes over the unsharpened side of the blade. The two handles that enclose the knife are fastened at the bottom with a clasp. There are two pins at the top of the knife that connect each handle to the base of the blade and allow the handles to be rotated around the blade. The knife is opened by unhooking the clasp, whipping one of the handles almost 360 degrees around the pin connecting the handle to the base of the blade (this exposes the blade), turning the other handle 180 degrees, flipping the first handle back near its original position, and then flipping that handle in the original motion re-exposing the blade. If done correctly and with sufficient speed, the clasp will fall into place locking the two handles together at the bottom with the blade exposed at the top of the knife. The knife is closed by reversing the process.
The issue of whether the State would be allowed to display the butterfly knife to the jury first arose in the motion in limine filed prior to trial by Silvey. In the motion, Silvey argued that (Citations omitted.) The motion in limine was overruled by the trial court. The trial court carefully controlled the use of the weapon by requiring the prosecution to request a bench conference to declare its intention to use the knife before showing the knife to any of its witnesses or demonstrating it to the jury.
At trial, A.P. testified that Silvey threatened to hurt her with a butterfly knife. A.P. testified that the knife was brown and silver and "had a little switch on the bottom and you opened it, and then you swing it up and it [the blade] come out." At this time, the prosecution asked for the required bench conference and stated its intention of showing the look-a-like butterfly knife to A.P. Defense counsel objected because "the weapon which is not connected with either the defendant or offense is highly prejudicial and has no probative value to demonstrate this weapon in front of the jury." The court expressed its concern that showing the knife to A.P. may be leading the witness. Defense counsel stated that he had no objection to the leading nature of the proposed foundation question, but reiterated his earlier objection based on the knife being "a weapon which is not connected with the defendant and will not be connected with the defendant." The trial court overruled the objection and allowed the prosecution to proceed. Defense counsel requested and was granted a continuing objection on the grounds he had stated.
After A.P. was shown the knife and identified it as being like the knife owned by Silvey, the prosecution demonstrated how the knife opened. 1 Silvey did not object to the demonstration; all of his objections were based upon the grounds that the probative value of a similar knife was outweighed by the prejudice which arises because the knife was not related to the defendant or the offense. This is the only objection relating to the knife that Silvey preserved for appeal.
The prosecution relied on three witnesses for foundation evidence for the knife. The knife was first shown to A.P.
Q. [A.P.], did the knife that Phil [Silvey] showed you look like this knife?
A. Yes.
Q. Yes?
A. Yes.
Q. And did it open like this? (Demonstrating.)
A. Yes.
* * * * * * Q. Tell the jury how the defendant opened the knife--the knife.
A. He did this little clip at the bottom and it went like--somehow like that. (Indicating.)
Q. And the blade came out?
A. Yes.
Q. Like this? (Demonstrating.)
A. Yes
Q. Where did he put the knife, [A.P.]?
A. In my...
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