State v. Talley

• Decision Date: 01 August 2008
• Docket Number: No. 28624.,28624.
• Citation: 258 S.W.3d 899
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jimmie Lee TALLEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

258 S.W.3d 899

STATE of Missouri, Plaintiff-Respondent, v. Jimmie Lee TALLEY, Defendant-Appellant.

No. 28624.

Missouri Court of Appeals, Southern District, Division Two.

August 1, 2008.

Jack N. Brill II, Joplin, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Roger W. Johnson, Assistant Attorney General, of Jefferson City, MO, for Respondent.

DON E. BURRELL, Judge.

Jimmie L. Talley ("Defendant") was convicted after a jury trial of first-degree statutory sodomy pursuant to section 566.062.¹ Defendant alleges that the trial court erred by: 1) overruling both Defendant's motion in limine and subsequent objection at trial to the admission of his medical records; 2) overruling Defendant's objection to certain questions the trial court asked the venire; 3) permitting the State to file a Second Amended Information at the close the State's case-in-chief; 4) providing to the jury for use during its deliberations an authenticated copy of a prior conviction Defendant had for child abuse that was received into evidence pre-trial to determine whether Defendant qualified as a "prior offender" for sentencing purposes; 5) overruling Defendant's objections to two comments made by the State during its closing argument; and 6) overruling Defendant's motions for judgment of acquittal because there was insufficient evidence to support the jury's verdict. For the reasons outlined below, we affirm the judgment.

I. Factual and Procedural Background

Viewed in the light most favorable to the verdict, State v. Woodmansee, 203 S.W.3d 287, 289 (Mo.App. S.D.2006), the pertinent facts are as follows:

Defendant was the step-father of C.H., a female child born July 6, 1988 ("Victim"). Victim was thirteen years old and was living with Defendant, her mother, and two siblings at the time of this offense. Defendant was a strict disciplinarian and required all of the children in the home to obey him. Before Victim reached her thirteenth birthday, Defendant paid little attention to her. At that point, however, Defendant began to take an increased interest in Victim and began spending more time with her. After one of Victim's basketball games, Defendant had Victim weigh herself. Defendant told Victim that she was fat and that no one would love her unless she lost some weight. Seemingly trying to help her, Defendant began to have Victim exercise regularly with him. Defendant, who drove a truck for a living, also began taking Victim along on his routes more often than he took the other children.

In April or May of 2002, Victim, Defendant, and Victim's mother were going to go out to eat. Victim was alone in the living room with Defendant while Victim's mother was getting ready in an upstairs bedroom. Defendant began to "wrestle"² with Victim and eventually pulled down her shorts, pushed her underwear to the side, and put his mouth on her vagina. Victim remembered the contact as lasting approximately two minutes and ending when they heard her mother moving around upstairs and closing the door. When Victim later asked Defendant about what had happened, he told her not to worry about it; he was just really stressed out with marital problems and Victim was helping to keep peace in the house. Defendant told Victim that he was also helping her out as she was "having all these hormones" and it was better that he do something about it instead of a boy "who could knock [her] up."

After this particular incident, Defendant continued to encourage Victim to exercise and get involved in sports, but he also began to take her out to dinner and buy her things she wanted from the store. Victim continued to ride with Defendant in his truck and often accompanied him on delivery trips to an underground storage facility in Carthage, Missouri. While waiting for his truck to be loaded or unloaded, Defendant would go into the sleeper section of the truck and tell Victim to join him-that he had something to show her. Once in the sleeping area, Victim would be forced to take her pants off and lie on the bed while Defendant put his mouth on her vagina. Defendant would also put his penis in Victim's mouth. Additionally, Defendant would lie on Victim while rubbing against her and pushing his penis against her vagina. Defendant once tried to penetrate Victim's vagina, but she told him to stop because it hurt. Although Defendant did stop at that time, he told Victim that he had "taken . . . virginity" before and that it did not hurt that much. He went on to tell Victim that if she wanted to have sexual intercourse with him, all she had to do was tell him.

Victim felt as though these sexual encounters with Defendant would last for several hours at a time and took place on most of the trips she made with Defendant to the underground facility in Carthage during the time period that fell between April and May of 2002 and the start of school in August of that same year.

In the fall of 2002, Victim began dating C.M. ("Boyfriend"), a boy she met at school. On one occasion after Victim and Boyfriend started dating, Defendant and Victim's mother saw them kissing on the way home from school. Defendant "freaked out" at this sight and began screaming at Victim that she was a "slut." After Defendant and Victim's mother divorced in October of 2002, Victim continued to see Boyfriend and they began engaging in sexual activity, including sexual intercourse, later that year.

The first time Victim told anyone about her sexual encounters with Defendant was when she told Boyfriend about them in April of 2003. Boyfriend urged Victim to tell her mother what had happened, and Victim did so a month later when school let out. When Victim told her mother about her sexual activities with Defendant, Victim's mother contacted the police who then arranged for Victim to be taken to the Child Center for a forensic interview and medical examination. That medical examination diagnosed victim as having genital warts.

A detective with the Webb City Police Department interviewed Defendant, who denied ever having any type of sexual contact with Victim. Defendant also initially denied ever having been diagnosed with or treated for genital warts. Defendant eventually admitted that he had had genital warts at one point in time, but had been successfully treated and no longer had them. The detective told Defendant there was no cure for genital warts and that Defendant would always carry the virus even if he had no apparent outbreaks. Defendant stated that wasn't true and that he no longer had genital warts. During this first interview with the detective, Defendant also admitted that his penis had an abnormally large glans.

Prior to the start of trial, Defendant filed several motions in limine. One of those motions challenged the anticipated admission of certain medical records of Defendant that would indicate he had been diagnosed as having Condyloma, a virus that causes genital warts. The trial court overruled the motion in limine and also allowed the records to be admitted into evidence at trial over Defendant's objection.

Also prior to the start of trial, the State asked the trial court to find, under section 558.016, that Defendant qualified as a prior offender because of a 1997 third-degree felony child abuse conviction he had received in the state of Utah. The trial court, at that time, received as evidence State's Exhibit 7—an authenticated record of the Utah conviction—and found Defendant to be a prior offender.

During the State's portion of voir dire, one of the venire disclosed that she had three grandchildren who were about the same age as Victim and had probably been classmates of Victim at one time or another. After making this observation, the panelist said, "I just, you know, I don't know that I can be all that fair." When counsel for the State questioned her further, the panelist went on to say that she would "do [her] best . . . [b]ut if there was any doubt, I would probably side for the child."

After the State had finished its portion of voir dire, and before Defendant had an opportunity to question the panel, the trial court asked its own questions of this particular venireperson³ and other panel members the trial court believed had given equivocal answers when questioned about their ability to be fair and impartial. Defendant's counsel asked to approach the bench and objected to this procedure by saying: "for the record, Your Honor, I would just like to respectfully object to the Court's rehabilitating of a witness in that manner. But again, I defer to the Court's judgment in that matter, but for the record, I just wanted to note that as far as the Court rehabilitating a witness, any more specific questions, I would object. All right." Shortly thereafter, the trial court granted Defendant's request for a continuing objection to the court's direct questioning of the venire on the grounds that the court was improperly rehabilitating and intimidating them.

After voir dire was completed, the trial court denied Defendant's request that the venireperson quoted above be stricken for cause. Defendant thereafter removed her by using one of his peremptory strikes.⁴

Victim was the State's chief witness and testified about her sexual encounters with Defendant in accordance with the factual recitation set forth above. She also testified that Defendant's was the first aroused penis she had ever seen. When describing Defendant's penis, she said it had an abnormally large glans, but she did not think this unusual until she later became intimate with Boyfriend.

Boyfriend testified during direct examination that he did not have, and had never had, any genital warts. On cross-examination, Boyfriend did admit, however, that he had never been tested to see if he had the virus that causes them.

At the close of the State's case-in-chief, Defendant moved for a judgment of acquittal, based primarily on the fact that the dates alleged in both the original and amended informations filed by ...