State v. Sprinkle

• Decision Date: 25 November 2003
• Docket Number: No. WD 62703.,WD 62703.
• Parties: STATE of Missouri, Respondent, v. Mark SPRINKLE, Appellant.
• Court: Missouri Court of Appeals

122 S.W.3d 652

STATE of Missouri, Respondent, v. Mark SPRINKLE, Appellant.

No. WD 62703.

Missouri Court of Appeals, Western District.

November 25, 2003.

Rehearing Denied January 27, 2004.

James R. Wyrsch, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Richard A. Starnes, Jefferson City, MO, for Respondent.

Before THOMAS H. NEWTON, P.J., PATRICIA A. BRECKENRIDGE and PAUL M. SPINDEN, JJ.

THOMAS H. NEWTON, Judge.

Mr. Mark Sprinkle was convicted of two counts of child molestation. He appeals the convictions and raises several points for our review. Mr. Sprinkle claims the indictment was not specific enough when it stated the abuse happened within the three months the victim lived in his home. He asserts the trial court should not have admitted the victim's out-of-court statements through other witnesses. Mr. Sprinkle argues that the corroboration rule applies in this case, requiring additional evidence to support the victim's testimony. Finally, he claims the trial court should have quashed the venire panel based on allegedly prejudicial comments made by some venire panel members. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant, Mark Spinkle, was charged by indictment with two counts of first-degree child molestation in violation of section 566.067.¹ He was convicted by a jury on both counts and sentenced to two consecutive terms of six years each.

In the spring of 1997, approximately April through June, K., the alleged victim, lived with her aunt and uncle, Kristie and Mark Sprinkle. She was seven years old at that time. Her mother, Kim Hopkins, was going through a divorce and had moved into a different school district. K. stayed with her aunt and uncle to finish first grade at the school that she had been attending that year. K. generally went to stay with her mom over the weekends.

While living with her aunt and uncle, K. slept in her cousin Andrew's bedroom. Her aunt was pregnant and having trouble sleeping, so she generally slept alone in the other bedroom. Her uncle, the appellant, often slept in the living room.

K. testified that on six or seven different nights while staying with the Sprinkles, while everyone was asleep, Mr. Sprinkle came into the room where she was sleeping and brought her out into the living room. On each occasion, Mr. Sprinkle would take off all of her clothes and touch her vagina with his hand. K. said this generally would happen around midnight. On one other morning, around 7 a.m., he took K. into the living room, pulled down his underpants and had her touch his penis. Mr. Sprinkle made her rub his penis until "white stuff came out." He also tried to get her to lick his penis, but she refused. Mr. Sprinkle told K. not to tell anyone.

K. testified that she tried to tell her aunt about it once while she was still staying there, but Mr. Sprinkle stopped her and she did not try again. Her aunt, however, testified that this did not happen.

In March of 1998, when K. was eight years old, K. attended a school program about sexual abuse sponsored by the Metropolitan Organization to Counter Sexual Assault (MOCSA). As a part of the program, a video was shown about a girl who was touched inappropriately by her uncle. The MOCSA counselor told the students that if any of them had been subjected to a "bad touch" they should tell the counselor. K. then told the counselor what Mr. Sprinkle had done to her. The counselor told K. to go home and tell her mother, which she did that evening.

The prosecution moved to admit K.'s out-of-court statements to Ms. Hopkins, Ms. Watson, the school counselor, and Ms. Donalin, a forensic interviewer with the Child Protection Center, about the abuse under section 491.075. A pre-trial hearing was held on this motion.² Ms. Hopkins testified at the hearing that K. initially said that Mr. Sprinkle had molested her when she stayed with him the year before. Later K. also told her mom that Mr. Sprinkle "would rub her private area and he would make her rub his private area."

K. then began to see Stephanie Watson, a school counselor, to discuss the abuse. Ms. Watson testified at the hearing that K. said that Mr. Sprinkle sexually abused her. When K. met with Ms. Watson in March of 1998 she said, "her uncle had her try to get stuff to come out of his thing." When she met with Ms. Watson in September of 1998, she said, "white stuff shot out of his thing." K. did not tell Ms. Watson that Mr. Sprinkle tried to touch her.

Ms. Donalin conducted a forensic interview with K. in September of 1998, to discuss the abuse. This was videotaped and the tape was shown at trial. Ms. Donalin testified at the hearing that K. disclosed that Mr. Sprinkle had her touch his penis and that he touched her vagina and buttocks. K. also said that "white goo came out of his penis." During the hearing, defense counsel extensively questioned Ms. Donalin about her interview techniques and about points where K. got confused during the interview.

The jury found Mr. Sprinkle guilty on both counts. Mr. Sprinkle brings four points on appeal. Mr. Sprinkle claims the indictment should have been dismissed for failing to state the specific times when the abuse occurred, or that he should have been granted his request for a bill of particulars. Mr. Sprinkle also claims the trial court erred in admitting K.'s out-of-court statements to Ms. Hopkins, Ms. Watson, and Ms. Donalin under section 491.075 because they lacked adequate indicia of reliability. Mr. Sprinkle claims he should have been granted an acquittal because the evidence was insufficient to sustain a jury verdict because K.'s testimony was contradictory and, therefore, needed to be corroborated. Finally, Mr. Sprinkle claims that he should have been granted a mistrial or the venire panel should have been quashed because of prejudicial comments made by members of the venire panel.

II. STANDARD OF REVIEW

The trial court's decision whether to grant a motion to dismiss an indictment is reviewed for abuse of discretion. State v. Floyd, 18 S.W.3d 126, 133 (Mo. App. S.D.2000). The trial court has discretion to direct the filing of a bill of particulars, and denial of a motion for a bill of particulars is also reviewed for abuse of discretion. State v. Larson, 941 S.W.2d 847, 851 (Mo.App. W.D.1997). Even if the trial court abuses its discretion, the defendant still must show he was prejudiced by denial of that motion. State v. Armentrout, 8 S.W.3d 99, 109 (Mo. banc 1999).

The trial court's decision to admit hearsay testimony under section 491.075 is reviewed for abuse of discretion. State v. Porras, 84 S.W.3d 153, 156 (Mo. App. W.D.2002). Even if the trial court abuses its discretion in allowing evidence in, appellant must show the admission of the evidence was prejudicial to be entitled to relief. State v. Danikas, 11 S.W.3d 782, 792 (Mo.App. W.D.1999).

In determining if the evidence is sufficient to support the verdict, all evidence and inferences reasonably drawn therefrom are viewed in the light most favorable to the verdict, and contrary evidence and inferences are disregarded. State v. Gatewood, 965 S.W.2d 852, 856 (Mo.App. W.D.1998). Review is limited to determining whether the evidence was sufficient that a reasonable person could have found the defendant guilty beyond a reasonable doubt. Id.

A trial court has broad discretion in deciding whether a jury panel should be dismissed and the court's ruling will not be disturbed unless there is a clear abuse of discretion. State v. Thompson, 985 S.W.2d 779, 789 (Mo. banc 1999). "The declaration of a mistrial is a drastic remedy to be granted only in extraordinary circumstances where prejudice to the defendant cannot be removed by any other means." State v. Kelley, 83 S.W.3d 36, 42 (Mo.App. W.D.2002). The court reviews the denial of a motion for mistrial for abuse of discretion. State v. Costa, 11 S.W.3d 670, 675 (Mo.App. W.D.1999).

III. LEGAL ANALYSIS

A. The indictment was adequate and a bill of particulars was not necessary

Mr. Sprinkle's first point on appeal is that the trial court erred in failing to dismiss the indictment, or in the alternative, to grant his request for a bill of particulars. He asserts that the charges in the indictment did not provide him adequate notice of the charges because they did not state the times during which the alleged crimes occurred with sufficient particularity. Mr. Sprinkle claims that he needed more specific times to cultivate the defenses of alibi and lack of access to the victim.

Specifically, Mr. Sprinkle objects to the fact that both counts of the indictment say the crimes were committed "on or between April 1, 1997, and July 1, 1997." He claims this broad window of time, with a failure to particularly state the time when the acts occurred, requires a dismissal of both counts or a bill of particulars providing more particularity.

The purpose of an indictment is to inform the defendant of the charges against him so he may prepare an adequate defense. State v. Gheen, 41 S.W.3d 598, 602 (Mo.App. W.D.2001). The indictment must contain all essential elements of the offense and all the facts constituting the offense. Id. If the indictment fails to sufficiently inform the defendant of the particulars of the offense, it is subject to a motion for a bill of particulars under Rule 23.04.³ Larson, 941 S.W.2d at 851. Mr. Sprinkle complains only that specific times are not listed and, therefore, he was not sufficiently informed about the offense to ably prepare a defense.

The claim that an indictment is not specific enough because the dates are too broad is often made in sexual abuse cases. See, e.g., State v. Weiler, 801 S.W.2d 417, 420 (Mo.App. W.D.1990) (stating that defendant's complaint that the dates are not specific enough is often raised in cases of sex offenses against children and ruled against defendants time after time). In sex offense cases, time is not of the essence. State v. Sexton, 929...