State v. Stiff

• Decision Date: 27 July 2021
• Docket Number: ED 109155
• Citation: State v. Stiff, 626 S.W.3d 916 (Mo. App. 2021)
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. Benjamin STIFF, Appellant.

626 S.W.3d 916

STATE of Missouri, Respondent,

v.Benjamin STIFF, Appellant.

ED 109155

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: July 27, 2021

Stephen P. Ranz, 1010 Market Street, Ste. 1100, St. Louis, MO 63101, for appellant.

Kristen S. Johnson, Assistant Attorney General, 221 W. High Street, Jefferson City, MO 65101, for respondent.

Lisa P. Page, Judge

Benjamin Stiff (Defendant) appeals from the trial court's judgment convicting him of first-degree statutory sodomy, in violation of Section 566.062,¹ and sentencing him to 20 years in prison. We affirm.

BACKGROUND

The State of Missouri (State) charged Defendant with statutory sodomy in the first degree, in violation of Section 566.062, alleging that Defendant touched J.L.’s² vagina with his hand while in bed between June 1, 2017, and August 15, 2017. A jury trial was held on December 9 and 10, 2019, where the following evidence was adduced.

J.L. (Victim) was born in 2010. Victim's mother, Dawn Stiff (Mother), married Defendant in 2014, and later that year they had a child together (Sister). In 2016, Mother left Defendant and moved to Kentucky, with Victim and Sister. In summer 2017, Victim and Sister returned to St. Louis to visit with Defendant when he was residing with Shelby Prevost (Prevost). Defendant wanted to spend time with his daughter, and did not want Victim to feel left out. The girls wanted to stay with Defendant longer when Mother arrived to pick them up, so she agreed to let them stay until school started and returned to Kentucky. In December 2017, Mother again took Victim and Sister to visit Defendant for Christmas.

In August 2018, when Mother, Victim, and Sister were residing with Danielle Davenport (Davenport) and her children, Davenport noticed two of her children and Victim playing in a room with the door shut, which she did not permit in her home. She opened the door and saw Victim kneeling in front of her five-year-old son, whose pants were down. She became angry and when she frantically asked what was going on, Victim ran out of the room, and Davenport's daughter explained what had happened. Davenport took all the children into her bedroom and put on a movie so she could keep her eye on all of them. During the movie, Victim climbed up onto the bed and told Davenport that Defendant touched her when he gave her baths. Victim also said that when Defendant spanked her, he would make her touch him. Victim explained that she had not said anything before because she didn't want her mom to get into trouble. Victim then cried uncontrollably for 35 minutes. Davenport called Mother and reported what Victim said to her.

Victim was interviewed at the Child Advocacy Center (CAC) in Kentucky. Victim told the interviewer that Defendant had touched her two times on her "cootie," which she identified as her vaginal area. She said it first happened when Mother and Defendant lived together in St. Louis and she had fallen asleep in Defendant's bedroom while Mother was at work and the other children were outside. The other time was when she was staying with Defendant at Prevost's home for the summer. She was sleeping in a bed between Sister and Defendant while Prevost slept on the floor. After she fell asleep, she saw Defendant's hand, and felt it in her pants. Victim stated she was afraid to say anything because Defendant told her he would do it again if she ever told Mother.

Shortly before trial, Defendant filed a "Motion to Admit Evidence of Prior Sexual Conduct Pursuant to Section 491.015 RSMo."³ The motion declared Defendant's intent to adduce evidence at trial that Victim had made prior unrelated accusations of sexual abuse by different individuals. The motion claimed that this evidence would not constitute evidence of prior sexual conduct, but that it was filed out of an abundance of caution pursuant to Section 491.015.3.⁴ Defendant sought admission of evidence that Victim had previously made reports of sexual abuse, was familiar with how such reports were made, and the subsequent investigations that took place because the State endorsed an expert to explain the process of delayed disclosure. He argued that the prior investigations would be relevant in considering Victim's statement that she did not disclose earlier because Defendant threatened to touch her again. Defendant did not raise a constitutional issue in the motion or at trial.

The trial court took up Defendant's motion during a recess on the first day of trial, after the jury was seated. Defendant's trial attorney (Defense Counsel) argued that the evidence he sought did not fall under the rape shield law because he planned to show only that there had been prior investigations relating to Victim after she disclosed sexual conduct, not to show the specific details of that sexual conduct. Defense Counsel asserted that Victim's delay in disclosing the sexual conduct would be a large part of the case, and that the immediacy of her prior disclosures showed that she knew the process of making a complaint and knew that adults would protect her and make sure that she was okay. The trial court ruled that this evidence fell under the rape shield statute as specific instances of the complaining witness’ prior sexual conduct.

Defense Counsel argued that the evidence of the prior investigations fell under Section 491.015.2 because it was evidence that was relevant to a material fact or issue. Specifically, he argued the prior investigations were relevant to Victim's knowledge of sexual matters at such a young age, her delay in disclosing the sexual conduct, and potentially Victim's benefit of keeping Defendant away from the family. Defense Counsel made an offer of proof, stating that through the testimony of Victim and Mother, he would introduce evidence of prior Children's Division investigations into disclosures she made while staying in a homeless shelter with her siblings and Mother. Victim told volunteers that an unknown boy touched her in her vaginal area, "humped" her, and did "nasty things" to her. Victim also reported sexual activity of other children, such as an eight-year-old that spoke about sexually explicit things she did at school, and a four-year-old that also used sexually explicit language. Upon Victim's disclosures, the homeless shelter immediately informed Mother. However, Victim was not interviewed following her reports of these prior incidents and the State noted, "nothing materially changed in her life" due to her allegations. In addition, the Children's Division investigation report allegedly stated that the investigators did not believe Victim would know these kinds of sexually explicit details without talking to those kids and the occurrence with the unknown boy actually happening to her.

The trial court denied Defendant's motion, finding he failed to establish a material fact or issue that the evidence would aid the jury, and that the evidence was more prejudicial than probative. The trial court added that if the State opened the door by arguing or implying that Defendant was the sole source of Victim's knowledge of sexual matters or inappropriate touching, then Defendant could adduce the contested evidence.

During trial, Victim testified that when she stayed in Prevost's home, she slept in bed with Sister and Defendant, and Prevost slept on the floor. When she was in bed, she kept feeling tickling things on her "haha," which is what she used to go to the bathroom. She would wake up and Sister was near her. She never saw a hand or anything near her "haha."

The State called Linda McQuarry (Expert), the forensic director at the CAC in St. Louis, to testify to the process of disclosure, the purpose of the forensic interview and how one is conducted in St. Louis. She did not know the facts of the case and had neither met Victim nor reviewed her CAC interview. She testified that a "purposeful disclosure" occurs when a child chooses to tell someone what happened, while an "accidental disclosure" occurs when the information is disclosed not because the child made a choice but is discovered in a different way, for example walking in on an abusive scenario or reading about something in a diary.

Expert explained the "different steps" that many children go through with an accidental disclosure, although every child may not experience each step in a "chronological manner." Denial is often the first step, followed by a "tentative disclosure" where a child does not fully deny but also does not give a full account. For example, "maybe something happened one time," or "I don't remember everything," or "I really don't want to talk about it." She identified the next step as "active disclosure," where a child fully discloses what has happened. She explained that some children may then recant and/or later reaffirm their initial disclosures. She compared disclosure to the way people enter a swimming pool – some dive right in while others slowly test the water. Expert further testified that delayed disclosure is the "norm" in her work, for reasons such as reluctance to hurt family or cause someone to go to jail, feeling ashamed or embarrassed, or afraid of being blamed.

During closing argument, the State reminded the jury of Expert's testimony regarding the types of disclosure and argued that Victim's disclosure was accidental in that she did not want to tell anyone because she was afraid of Defendant and he had told her he would do it again if she told. Defense Counsel argued Victim was not telling the truth, and the inconsistencies could not be explained by the delay or incremental disclosure testimony as seen in the timeline where Victim continued to go stay with Defendant even after the alleged abuse; Victim did not say anything or act differently after the alleged incidents. Defense Counsel questioned the reason Victim gave the CAC interviewer for her delay in making the allegations and said this should give the jurors pause and find Defendant not guilty. The State's rebuttal asked the...