State v. the Honorable Gary Sprick

• Citation: 59 S.W.3d 515
• Decision Date: 20 November 2001
• Docket Number: SC83543
• Parties: State of Missouri, ex. rel. Jeremiah W. (Jay) Nixon, Attorney General, Relator, v. The Honorable Gary Sprick, Associate Judge, Randolph County, and Norma Prange, Circuit Clerk of Randolph County, Respondents. SC83543 Supreme Court of Missouri
• Court: United States State Supreme Court of Missouri

State of Missouri, ex. rel. Jeremiah W. (Jay) Nixon, Attorney General, Relator,

v.

The Honorable Gary Sprick, Associate Judge, Randolph County, and Norma Prange, Circuit Clerk of Randolph County, Respondents.

SC83543

Supreme Court of Missouri

11/20/2001

Appeal From: ORIGINAL PROCEEDING IN CERTIORARI

Counsel for Appellant: Stephen D. Hawke

Counsel for Respondent: John W. Simon

Opinion Summary:

Terry Lee Edwards was convicted of sodomy through deviate sexual intercourse with and first-degree sexual assault upon his niece, who at the time was 12 years old or younger. He was sentenced as a prior and persistent offender and was sentenced to concurrent terms of eight years for the sodomy and two years for the assault. Before his trial, the sodomy statute under which Edwards was charged was repealed and replaced with a new law. Under the old law, touching the genitals of a child under 14 years old was sodomy, while under the new law, touching a child's genitals was either firstor second-degree child molestation, depending on the child's age. For first-degree child molestation, the child would have to be less than 12 years old; if the child is between 12 and 14 years old, it is second-degree child molestation. In 1999, this Court found that the amended statute should have been applied in Edwards' case. The circuit court subsequently granted Edwards a writ of habeas corpus, vacating the sentence and remanding the case to the sentencing court for resentencing under the proper statute. The state seeks certiorari review to that writ here.

Court en banc holds: Edwards' request to supplement the record in this Court to include the instructions given to the jury at the sodomy trial is granted as a matter of due process. After reviewing the record, as supplemented, this Court finds that the habeas court exceeded its jurisdiction when it vacated Edwards' sentence. Under the amended law, Edwards committed first-degree child molestation, which is punishable by up to 20 years in prison for a persistent offender. Accordingly, the eight-year sentence Edwards received is within the range of punishment permissible under both the old and new law. The sentence is not manifestly unjust, unauthorized by law or unconstitutional, and thus the writ of habeas corpus was not appropriate here.

All concur.

John C. Holstein, Judge.

This is an original proceeding in certiorari to review the Circuit Court of Randolph County's order granting a writ of habeas corpus to Terry Lee Edwards. The order vacated Edwards' eight-year sentence for sodomy and remanded to the trial court to determine whether Edwards should be sentenced according to the penalty provided for child molestation in the first degree, or child molestation in the second degree, and then resentence Edwards accordingly. Finding that the court acted in excess of its jurisdiction, the record of the circuit court granting a writ of habeas corpus is quashed. I.

The facts of this case have been described both in Edward's direct appeal, State v. Edwards, 918 S.W.2d 841 (Mo. App. 1996), and in this Court's review of the court of appeals' grant of Edwards' motion to recall the mandate, State v. Edwards, 983 S.W.2d 520 (Mo. banc 1999) (Edwards II). At the time of the charged incidents of abuse, the victim, K.E., lived with Edwards (her uncle), her mother, grandmother, and two brothers in Independence, Missouri. At trial, K.E. testified that Edwards "sexually abused" her from the time she was "five, six, or seven" years old. She also described two or three incidents of abuse when she was eleven, and one when she was twelve years old. K.E. stated that on one occasion when she was eleven years old, Edwards touched her vagina "below her panties" and touched her breast. She testified that the last time she remembered Edwards touching her was in early October 1993 when she was twelve years old. At that time he " touched [her] on [her] breast and on top of [her] panties."

Edwards was charged by a two-count indictment. Count I alleged that he committed sodomy through deviate sexual intercourse with K.E. when he touched her genitals when she was less than fourteen years old. Sec. 566.060.3, RSMo Supp. 1992. Count II alleged Edwards committed first degree sexual assault by touching the child's breasts when she was less than twelve years old. Sec. 566.100, RSMo Supp. 1992. Edwards was sentenced by the trial judge as a class X (sec. 558.019, RSMo Supp 1992) and a prior and persistent offender, (secs. 558.016 and 557.036.4, RSMo Supp. 1992) to concurrent terms of eight years under Count I and two years under Count II.¹

Before Edwards' trial, the sodomy statute under which he was charged, section 566.060, was repealed and the legislature devised new law to govern the same conduct. Under the prior law, touching the genitals of a child under fourteen years old through the clothing for purposes of sexual gratification was not sodomy; it was sexual abuse in the first degree because it involved sexual contact as then defined. Secs. 566.100.1(2) and 566.010(2), RSMo Supp. 1992. The relevant form of the crime of sodomy under the older scheme required that the child be subjected to deviate sexual intercourse, that is, an actual touching of the genitals. Sec. 566.060.3, RSMo Supp 1992.

Under the new law, effective January 1, 1995, touching a child's genitals is not sodomy or sexual abuse, but is instead punishable as child molestation in the first or second degree, depending on the age of the child. The new section on first-degree child molestation, section 566.067, RSMo 1994, provides: "A person commits the crime of child molestation in the first degree if he subjects another person who is less than twelve years of age to sexual contact." It is punishable as a class C felony. Section 566.068, RSMo 1994, governing second-degree child molestation, provides that: "A person commits the crime of child molestation in the second degree if he subjects another person who is less than fourteen years of age to sexual contact." Second degree child molestation is punishable as a class A misdemeanor, absent certain aggravating circumstances not relevant here. Sec. 566.068.2, RSMo 1994. "Sexual contact" under the amendatory law is defined as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, for the purpose of arousing or gratifying sexual desire of any person." Sec. 566.010(3), RSMo 2000.

In Edwards II this Court found that the amended statutory scheme of chapter 566 should have been applied to Edwards' sentencing because Edwards might be entitled to a lesser punishment under the amendatory law. Sec. 1.160, RSMo 2000; Edwards, 983 S.W.2d 520 at 521-522. Following this Court's suggestion, Edwards petitioned for a writ of habeas corpus in the appropriate venue. The habeas court granted the writ, vacating the sentence and remanding the case to the sentencing court for resentencing under the proper statute. This Court has now granted certiorari to review the issuance of the writ of habeas corpus. The state does not dispute that Edwards' sentence should have been governed by the punishment set forth in the new statutes because they had the effect of reducing the punishment. II.

Before reaching the merits of the case, the Court considers Edwards' motion to supplement the record to include the instructions given to the jury at the sodomy trial. Whether a party may supplement the record on certiorari is dependent upon the scope of this Court's review in a certiorari proceeding. As a general rule, only "the record brought up by the return" is subject to review; evidence outside the record that was before the habeas court may not normally be considered on certiorari. Missouri ex rel. Reorganized Sch. Dist. R-9 v. Windes, 513 S.W.2d 385, 390 (Mo. 1974).

At least one narrow exception has been recognized to that doctrine, however. In criminal matters involving the issue of due process where the extraneous matter bears on that issue and does not "impeach the judgment rendered," evidence outside the record may be considered by the certiorari court. State ex rel. Stewart v. Blair, 208 S.W.2d at 277. Though the term is somewhat arcane, it appears that evidence that impeaches the judgment rendered is evidence of matters that would be inadmissible if offered at the habeas proceeding because the evidence impeaches, or is "inconsistent with," the judgment in the criminal case. Id. at 276; Young v. Parker, 335 Mo. 245, 246, 195 S.W.2d 743, 744 (banc 1946). The instructions found in the record in the underlying criminal case would most certainly have been admissible in the habeas proceeding because they do not oppose or impeach the verdict. Rather, the instructions explain what occurred at trial.

Though Edwards' right to due process is not directly asserted...