State v. Uptegrove

• Decision Date: 18 January 2011
• Docket Number: No. WD 72356.,WD 72356.
• Citation: 330 S.W.3d 586
• Parties: STATE of Missouri, Respondent,v.Larry Eldo UPTEGROVE, Appellant.
• Court: Missouri Court of Appeals

330 S.W.3d 586

STATE of Missouri, Respondent,
v.
Larry Eldo UPTEGROVE, Appellant.

No. WD 72356.

Missouri Court of Appeals, Western District.

Jan. 18, 2011.Rehearing Denied March 1, 2011.

[330 S.W.3d 588]

John P. O'Connor, Kansas City, MO, for Appellant.Chris Koster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.MARK D. PFEIFFER, Judge.

After a trial by jury in the Circuit Court of Henry County (“trial court”), Larry E. Uptegrove (“Uptegrove”) appeals his convictions on two counts of child molestation in the first degree, in violation of section 566.067, ¹ for which he received two concurrent seven-year sentences. Uptegrove raises two points on appeal, in which he argues that: (1) the trial court erroneously overruled Uptegrove's motion for judgment of acquittal at the close of all evidence due to the insufficiency of the evidence; and (2) the trial court plainly erred by failing to sua sponte declare a mistrial after the State introduced evidence (that Uptegrove's counsel did not object to) of prior uncharged crimes. We disagree with Uptegrove's claims of error and affirm.

Factual and Procedural Background

Viewing the record in the light most favorable to the jury's verdict,² the following evidence was established at trial:

Beginning in 2004, Uptegrove began inappropriately touching his ten-year-old granddaughter, M.B.U. At trial, M.B.U. testified that Uptegrove inappropriately touched her multiple times per week, starting when she was ten years old and ending just before her fifteenth birthday. The first incident occurred in Johnson County when Uptegrove was giving M.B.U. a ride home from her basketball game. M.B.U. testified that while they were driving, Uptegrove began to touch her in the vaginal area. He then pulled onto a gravel road and stopped the car. Uptegrove then told M.B.U. to pull down her shorts, and he put his hand under her underwear and started moving his finger around. When he finished, Uptegrove asked M.B.U. if it “felt good.”

After this initial incident, Uptegrove continued to inappropriately touch M.B.U. for several more years, at least once a week. The inappropriate touching most commonly occurred during golf cart rides on paths in the woods and during trips Uptegrove and M.B.U. would take to Calhoun to pick up fuel for the family's farm

[330 S.W.3d 589]

equipment. Uptegrove would touch M.B.U. on her upper thigh and occasionally on her vaginal area and breasts. During this period of inappropriate touching, Uptegrove told M.B.U. that she was a “sex pot” and that she was “hot.” Uptegrove also told M.B.U. that he was “obsessed” with her and that she “turns him on.” Uptegrove also bought special gifts for M.B.U., beyond what he typically gave his other grandchildren. These special gifts included a pair of cowboy boots and a digital camera. On the drive back home after purchasing the digital camera, Uptegrove pulled the car over and made M.B.U. unbutton her pants and show him her underwear in exchange for getting the digital camera.

During the course of these incidents, Uptegrove regularly told M.B.U. not to tell anyone about how he would touch her. M.B.U., however, told several friends, some of her cousins, and finally, in March 2009, told a teacher. After the Children's Division learned about the incidents between Uptegrove and M.B.U., M.B.U. was interviewed by Child Safe in Sedalia. After observing the interview, Detective Jeremy Bowman (“Bowman”) arrested Uptegrove for child molestation.

At the outset of the interview, prior to Bowman mentioning her name, Uptegrove stated that he believed the arrest had something to do with M.B.U. During the interview, Uptegrove acknowledged touching M.B.U. on her breasts. He also acknowledged that he could not keep his hands off of her. While Uptegrove could not recall whether he had ever told M.B.U. that he thought she was a “sex pot,” Uptegrove used this phrase during the interview to refer to M.B.U. When questioned about the first incident of inappropriate touching, Uptegrove admitted that he stopped and parked with M.B.U. on the gravel road, just as M.B.U. described, but claimed he and M.B.U. just talked. When asked about the incident surrounding the purchase of the digital camera, Uptegrove claimed that he had only touched M.B.U. on the clothes above the belly but soon admitted that M.B.U. unbuttoned her pants because he asked her to. During the interview, Uptegrove denied that any of the contact with M.B.U. was sexual in nature.

Later, during a conversation with Marilyn Uptegrove, Uptegrove's wife, he also denied putting a finger inside M.B.U. but did not deny any of the other allegations made against him. Uptegrove further admitted to his wife that he made M.B.U. show him her underwear in exchange for the digital camera.

On April 21, 2009, a complaint was filed against Uptegrove which alleged that, over a fifty-month period, Uptegrove committed twenty counts of child molestation in the first degree by having sexual contact with M.B.U. On August 4, 2009, an information was filed formally charging Uptegrove with those twenty counts. An amended information was later filed, reducing the charges down to five counts of child molestation in the first degree.

At trial, M.B.U. testified in great detail as to several specific interactions between her and Uptegrove and to the general demeanor of Uptegrove toward her over the past several years. The State also admitted into evidence Bowman's pre-trial interview statement, along with the exhibit itself, regarding the Uptegrove interview conducted by Bowman after Uptegrove's arrest. At the close of the State's case and at the close of all the evidence, Uptegrove's motions for judgment of acquittal were overruled.

The jury returned verdicts finding Uptegrove guilty of two counts of child molestation in the first degree and not guilty of the remaining three counts. Uptegrove's

[330 S.W.3d 590]

motion for judgment of acquittal notwithstanding the verdict and motion for new trial were overruled. Uptegrove was sentenced to seven years on each count, to run concurrently. This timely appeal followed.

Point I

In his first point on appeal, Uptegrove argues that the trial court erroneously overruled his motion for judgment of acquittal due to the insufficiency of the evidence.

Standard of Review

When reviewing a judgment of acquittal notwithstanding the verdict, we must view the evidence in the light most favorable to the verdict and disregard all contrary evidence and inferences. State v. Overkamp, 646 S.W.2d 733, 736 (Mo. banc 1983); State v. Richardson, 22 S.W.3d 753, 755 (Mo.App. E.D.2000). Similarly, when reviewing the sufficiency of evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict, making all reasonable inferences therefrom, and disregard all evidence and inferences contrary to that finding. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). We must determine “whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.” State v. Wright, 998 S.W.2d 78, 81 (Mo.App. W.D.1999).

Sufficiency of the Evidence and Destructive Contradictions Doctrine

Uptegrove contends that the trial testimony of M.B.U. was the only evidence presented to establish the essential elements of the crime charged against him ³ and that M.B.U.'s uncorroborated trial testimony was so inherently contradictory that it could not be believed by a rational person and, therefore, was devoid of all probative value and should have been excluded. Consequently, Uptegrove claims there was insufficient evidence to support a guilty verdict.

“ ‘[T]estimony of a single witness, if deemed credible by the jury, may be considered sufficient for conviction, though that testimony is uncertain or inconsistent.’ ” State v. Case, 140 S.W.3d 80, 91 (Mo.App. W.D.2004)...