State v. Thigpen

• Decision Date: 08 August 2017
• Docket Number: No. ED 103992,ED 103992
• Citation: 548 S.W.3d 302
• Parties: STATE of Missouri, Respondent, v. Roderick THIGPEN, Appellant.
• Court: Missouri Court of Appeals

548 S.W.3d 302

STATE of Missouri, Respondent,

v.Roderick THIGPEN, Appellant.

No. ED 103992

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: August 8, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied October 23, 2017

Application for Transfer Denied July 3, 2018

Andrew E. Zleit, for appellant.

Joshua D. Hawley and Richard A. Starnes, for respondent.

ROBERT M. CLAYTON III, Presiding Judge

Roderick Thigpen ("Defendant") appeals the judgment entered upon a jury verdict convicting him of one count of forcible rape of a child under twelve years old. We affirm.

I. BACKGROUND

A. Evidence Presented at Defendant’s Jury Trial

Viewed in the light most favorable to the verdict, the evidence presented at Defendant’s jury trial revealed the following facts. On March 2, 2013, Victim M.V. ("M.V."), a nine-year-old girl, attended her uncle’s wedding. At around 1:00 a.m. on March 3, 2013, M.V., her mother ("Mother"), and her siblings left the wedding and went to her aunt L.G.’s¹ house in the City of St. Louis. There were other people in the house at that time, including Defendant, who was there to sell heroin. Defendant also used heroin while he was there.

Upon entering L.G.’s house, Mother, M.V., and her siblings went into M.V.’s cousin’s first-floor bedroom, which had red carpet, to go to bed. M.V. was still wearing the dress that she wore to the wedding when she got into bed. Shortly thereafter, Mother got out of bed and left with her other children to stay the night with the children’s father at a hotel. Mother left M.V. behind because M.V. did not want to go to the hotel.

Before M.V. fell asleep, Defendant came into the room and dragged M.V. from the bed into the living room by her feet. As M.V. lay on the floor, Defendant removed her underwear, got on top of her, and "started humping" her. Defendant’s penis touched M.V.’s vagina. Defendant then dragged M.V. back to the first-floor bedroom. Defendant blindfolded M.V., tied her arms together with t-shirts, and left M.V. on the floor of the bedroom.

At around 5:00 a.m., M.V.’s aunt K.B. found M.V. tied up on the floor in the first-floor bedroom. Aunt K.B. untied M.V. and asked who had tied her up; M.V. responded it was the men who were in the house. Aunt K.B. then took M.V. upstairs to lie down, and attempted to call the police but no one would give her a phone. Aunt K.B. eventually fell asleep. M.V. went to the bathroom and realized she was bleeding from her vagina. After aunt K.B. woke up, she helped M.V. change from the dress she wore to the wedding and overnight into clean clothes. Then, aunt K.B. took M.V. to her aunt E.G.’s house.

Upon arriving at aunt E.G.’s house, aunt K.B. told her what happened to M.V. Aunt E.G. suggested they call the police. During this time, Mother arrived at aunt L.G.’s house and realized M.V. was no longer there. Mother saw M.V.’s dress on the floor, so she picked it up and went to aunt E.G.’s house. After Mother got to aunt E.G.’s, she talked to M.V. and asked her what happened. M.V. would not tell Mother what happened while other people were in the room, so the two went into the bathroom. Then, M.V. told Mother someone put a sheet over her head, choked her, and rubbed against her. Mother asked M.V. if a man had touched her, and M.V. responded she did not know. M.V. told Mother that she saw blood when she went to the bathroom. Aunt E.G. then called the police.

M.V., Mother, aunt K.B., and aunt E.G. returned to aunt L.G.’s house to meet the police. Officers arrived and spoke with M.V. alone in a bedroom. M.V. told the police she fell asleep at aunt L.G.’s house, and when she woke up a black male whom she did not know was "choking her and humping her" with his pants on. M.V. said the man tied her up and covered her eyes. M.V. did not know what happened to her underwear during the encounter. The police officers who spoke with M.V. noted she had a "flat affect" that was consistent with trauma.

M.V. was subsequently taken to the hospital for examination. There, M.V. spoke with a doctor and a social worker, who both recalled M.V.’s "flat affect" and that she did not change her demeanor during the entire examination. M.V. told the doctor and the social worker similar stories: she woke up to a man choking her; he dragged her by her feet from the bedroom and into the living room where he humped her; and he took her back to the bedroom, covered her eyes and mouth, and tied her up with t-shirts. M.V. would later describe the incident in a similar manner during a forensic interview.

The physical examination of M.V. revealed several injuries. M.V. was bruised and swollen on her right eye, her right ear, the right side of her neck, and her right clavicle; she also had a laceration on her sternum. Blood and abrasions were found on M.V.’s genitals. Further, M.V.’s hymen was lacerated

and bleeding. A red fiber or "sticky red mass" was stuck in her anal area. A rape kit, including vaginal and rectal swabs, and M.V.’s underwear from the morning after the incident were collected for testing. Due to the amount of blood around M.V.’s vaginal area, the doctor flushed sterile water over the area then let the wash fall off and into a cup, which was also collected for testing.

Evidence was also collected from aunt L.G.’s house. M.V.’s underwear was found on the floor between the living room and dining room. There was blood and a hair braid on the living room floor. Blood was also found on the floor in the dining room. Police were unable to recover the t-shirts used to blindfold and restrain M.V.

Forensic and DNA testing produced the following results. It was confirmed there was blood on M.V.’s underwear recovered from the scene, as well as on the floor in the living room and dining room. Blood, seminal fluid, and sperm were found on M.V.’s dress she wore during the incident, M.V.’s underwear she wore during the examination the next day, and on the vaginal and rectal swabs taken from M.V. during the examination. Sperm was also present in the fluid used to wash M.V.’s vagina during the examination. M.V.’s DNA was found in her underwear from the scene, the underwear she wore during the examination, blood stains from the scene, and blood stains from her dress.

There was also a male DNA profile obtained from various pieces of evidence, which was entered into the Combined DNA Index System (CODIS) and matched to Defendant. Pursuant to a search warrant, the police collected a new DNA sample from Defendant to confirm his DNA profile. Defendant’s DNA was then confirmed on M.V.’s underwear recovered from the scene, the rectal swab, the vagina wash fluid, the underwear she wore during the examination, and on the dress she wore during the incident.

On direct examination, Defendant presented the following version of the facts. Defendant was at aunt L.G.’s house that night; he sold and used drugs with some of the other occupants in the house. Defendant claimed that while he was in the first-floor bedroom, aunt K.B. performed oral sex on him in exchange for drugs.² Then, according to Defendant, aunt K.B. used M.V.’s dress from a laundry pile in the first-floor bedroom to clean seminal fluid off Defendant and the rug, and threw the dress in the closet when she was done. Within thirty to forty-five minutes, Defendant left the house.

On rebuttal, the detective who executed the search warrant for Defendant’s DNA testified to the following. The detective stated Defendant began to cry when he read the search warrant. After Defendant was read his Miranda rights, Defendant said a woman had performed manual and oral sex on him in the dining room of aunt L.G.’s house that night. Defendant said the woman put the seminal fluid "in a napkin." When Defendant was asked if he had sexual intercourse with a nine-year old, Defendant started to cry again and said he did have sex with "someone" on the dining room floor.

B. Relevant Procedural Posture

Based on the events which occurred at aunt L.G.’s house on or between March 2 and March 3, 2013, Defendant was charged with one count of forcible rape of a child under twelve years old and one count of kidnapping. Defendant’s jury trial was held from November 30 through December 3, 2015.

Five days prior to trial, the State provided the trial court and Defendant’s counsel ("Defense Counsel" or "Counsel") with written notice of its intent to introduce propensity evidence of Defendant’s prior criminal acts pursuant to Article I, section 18(c) of the Missouri Constitution (" Article I, section 18(c)" or "the amendment"), including "the offenses of first degree sexual assault of a child and failure to comply with the requirements of the Wisconsin Sex Offender Registry."³ In response to the State’s notice of intent, Defendant filed a motion in limine arguing the evidence put forth by the State was not relevant to demonstrate propensity, pedophilia, or credibility, and it was highly prejudicial.

At the close of the State’s case-in-chief, the trial court permitted the State to read a "propensity statement" to the jury regarding Defendant’s failure to register offense. Then, on direct examination, Defense Counsel asked Defendant about his prior convictions. Acting upon an alleged misrepresentation of the offense which put Defendant on the sex offender registry, the State inquired further about the offense on cross-examination. The trial court also allowed the State to ask Defendant about his three other arrests for sexual assault of a child, but only permitted a general inquiry as to what Defendant had been arrested for, not specific information about each arrest. The State elicited the date and name of the charge.⁴

The jury found Defendant guilty of forcible rape; Defendant was acquitted of kidnapping. Defendant filed a motion for judgment of acquittal notwithstanding the verdict, or alternatively, motion for new trial asserting, inter alia , (1) the trial court erred in overruling Defendant’s objection to propensity evidence and in allowing the ...