State v. Wilkins

• Decision Date: 15 March 1994
• Docket Number: No. 18518,18518
• Citation: 872 S.W.2d 142
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Fred L. WILKINS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 142

872 S.W.2d 142

STATE of Missouri, Plaintiff-Respondent, v. Fred L. WILKINS, Defendant-Appellant.

No. 18518.

Missouri Court of Appeals,

Southern District,

Division Two.

March 15, 1994.

Ralph Aubuchon, West Plains, for defendant-appellant.

Steven Privette, Pros. Atty., Howell County, West Plains, for plaintiff-respondent.

GARRISON, Judge.

Appellant (Defendant) was sentenced to six months in jail and fined $100 after a jury found him guilty of the Class B misdemeanor of sexual abuse in the third degree, § 566.120 . ¹ On this appeal, Defendant alleges insufficiency of the evidence to support the conviction, instructional error, and violation of Defendant's right to compulsory process by the court's failure to issue a writ of attachment for a witness who failed to appear.

In his first point, Defendant argues that the trial court erred in overruling his motions for judgment of acquittal and for new trial because the evidence was insufficient to support the verdict. When the sufficiency of the evidence is challenged, the evidence and all reasonable inferences arising therefrom are viewed in a light most favorable to the verdict, and all contrary evidence and inferences are disregarded. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). We are not to weigh the evidence or determine the credibility of witnesses, but are to review the record only to determine whether there was sufficient evidence from which the jury could reasonably have found the defendant guilty beyond a reasonable doubt. State v. Whittle, 813 S.W.2d 336, 337 (Mo.App.1991).

The felony information in the instant case charged that Defendant, on July 13, 1991, "subjected M.B., a minor, to whom defendant was not married, to sexual contact without her consent...." ² Sexual contact is defined in § 566.010(2) as "any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person." Defendant contends that "the state presented no evidence ... that defendant touched the genitals, anus, or breasts of the complainant, but left the jury to speculation and conjecture as to whether sexual contact occurred on the basis of evidence that the defendant pushed complainant down on her bed, kissed her, was on top of her, and that complainant's underwear were [sic] missing when she awoke." ³ Therefore, the issue is whether the evidence was sufficient to establish sexual contact.

At the time of the incident, Defendant and M.B. were both high school students living about two miles apart. On the night in question, Defendant and his friend, Cory, went to M.B.'s residence for the purpose, as Defendant said, of playing a prank on her. M.B. lived with her parents and siblings in two adjacent but unconnected structures, one of which was a trailer house where M.B. and her brother slept. Between 12:00 and 1:00 a.m., Defendant entered the darkened trailer house and found his way to M.B.'s room. According to Cory's testimony, he followed a short time later but left after he recognized M.B.'s voice asking who else was in the room.

According to M.B.'s testimony, she was a heavy sleeper but was awakened by pain and a person, who she later identified as Defendant, lying on top of her; she pushed him off; and Defendant pushed her back down on the bed and started kissing her again. She further testified as follows:

Q. ... When you awoke, was there any items of your clothing that had been removed?

A. Yes, my underwear was gone.

Q. And the defendant was on top of you in the bed?

A. Yes.

Q. Was he laying flat on top of your body?

A. Yes.

....

Q. Where was his groin in relation to yours?

A. Right on top of me.

Q. Was he doing anything sexual towards you?

A. I felt a lot of pain whenever I woke up.

Q. Did he do anything with his mouth?

A. Yes, he was kissing me.

....

Q. When Fred left ... did he pick up or take anything with him?

A. Yes, he picked some items up from off the floor.

Q. Could you see exactly what that was?

A. I could tell they were clothes.

....

On cross-examination, she testified:

Q. Now going back to the point in time where you were in the bedroom and Fred was in the bedroom with you. You never once felt Fred place his hand on your vaginal area. Isn't that correct?

A. I had felt pain and then I'd woke up. I don't know where it was.

Q. You had no idea what that was.

A. I don't know if it was pain from his hand or not.

Q. And you never felt, I don't know, say, for instance, his penis touching you in the vaginal area. Isn't that correct?

A. That's why I don't know if it was his hand or his penis.

Q. You don't know what? You say you were in pain?

A. Yes.

On redirect examination, she testified:

Q. Some part of his body was contacting you? Is that correct?

A. Yes. ⁴

Defendant testified that when he entered M.B.'s room he shook her by the shoulders to awaken her, but he did not touch her vagina, press his body against her vaginal area, and did not undress. Both M.B. and Defendant testified that he left after she insisted that he do so. M.B. then reported the incident to her father who testified that she was hysterical and hard to understand.

When a defendant disputes the sufficiency of the evidence to prove sexual contact as an element of sexual abuse, the issue is whether there is at least a reasonable inference that there was the touching of the genitals or anus of any person or the breast of a female. State v. Eastin, 735 S.W.2d 50, 53 (Mo.App.1987). In the instant case, a review of the evidence and all reasonable inferences in the most favorable light to the State, as we are required to do, leads us to conclude that there was evidence from which the jury could find that Defendant touched M.B.'s genitals and breasts in violation of §§ 566.010 and .120. M.B. testified that Defendant was lying flat on top of her--his groin was right on top of her. When asked if she felt Defendant put his hand in her vaginal area, she stated that she felt pain. Later, in response to a question about whether his penis was touching her in the vaginal area, she said she didn't "know if it was his hand or his penis." From this testimony it could be inferred that Defendant touched her genitals with either his hand or penis and also touched her breasts with some part of his body.

Our appellate courts have affirmed convictions on evidence of sexual contact which was less than specific. In State v. Seemiller, 775 S.W.2d 273 (Mo.App.1989), the requisite "sexual contact" was found to exist where defendant forced himself on top of the victim so that their pelvic regions touched through their clothing and "placed his hand between the victim's legs." In State v. Eastin, 735 S.W.2d 50, the evidence which the court found sufficient was the testimony of a twelve-year-old child who testified that defendant "touched me in the front and rubbed me in the back," and then apparently pointed to the areas for the benefit of the court and jury. The record, however, did not indicate specifically where she pointed. State v. Edwards, 657 S.W.2d 343 (Mo.App.1983), involved a five-year-old girl who testified that defendant took her pants off, placed her on a bed, kissed her "bottom," "jumped on" her, and hurt her by "bouncing hard." Her mother testified that the victim had said defendant kissed her and pointed to the area between her legs both in the front and in the back. State v. Doolen, 759 S.W.2d 383, involved a conviction which was affirmed on the testimony of a twelve-year-old boy that defendant rubbed his "ding-dong" on the child's "behind," and was "rocking back and forth." The court said, "The child's testimony at trial ... was sufficient to establish that Doolen deliberately rubbed his genitals against the child's anal area for the purpose of arousing or gratifying Doolen's deviate sexual desires." Id. at 385. In State v. Ek, 834 S.W.2d 828 (Mo.App.1992), defendant's conviction was affirmed on testimony that the eight-year-old victim was nude, and was found straddling defendant over his crotch area with his hands on her buttocks.

On the strength of the above cases and the standard of review by which we are bound, we conclude that the evidence was sufficient, albeit marginally so, to sustain the conviction. The first point is, therefore, denied.

In his second point, Defendant contends that the trial court committed reversible error in submitting Instruction No. 7 to the jury. The disputed portion of the instruction reads as follows:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about the 13th day of July, 1991, in the County of Howell, State of Missouri, the defendant touched the genitals or breast of [M.B.] either directly or through her clothing, and

....

Where there is sexual contact with various parts of the body of the victim, each represents a separate and distinct offense, even though they arose from the same set of circumstances or same transaction. Bland v. State, 805 S.W.2d 192, 194 (Mo.App.1991). See also State v. Bolen, 731 S.W.2d 453, 457-58 (Mo.App.1987). Where that is the case, the offense may be complete by the finding of either. See State v. Oswald, 306 S.W.2d 559, 563 (Mo.1957).

Defendant's complaint with this instruction, however, is that by submitting the two separate offenses disjunctively, the jury was told they could find him guilty if he touched either M.B.'s genitals or breasts. He reasons that some of the jurors could have believed that he touched her breasts while others, disbelieving that proposition, could have believed that he touched her genitals. The possible result is that while he was found guilty by a unanimous verdict, that may not necessarily mean that all the jurors believed he touched M.B. in both places or that he touched her in one place as opposed to the other.

Defendant did not make this objection to Instruction No. 7 either at the time of trial or in his motion for...