State v. Wright, WD
| Decision Date | 22 June 1999 |
| Docket Number | No. WD,WD |
| Citation | 998 S.W.2d 78 |
| Parties | STATE of Missouri, Respondent, v. John Henry WRIGHT, Appellant. 55436. |
| Court | Missouri Court of Appeals |
Emmett Queener, Columbia, for appellant.
John Munson Morris, Jefferson City, for respondent.
Before Judge JAMES M. SMART, Presiding, Judge FOREST W. HANNA and Judge LAURA DENVIR STITH.
Defendant John Wright appeals his convictions on two counts of child molestation in the first degree, in violation of Section 566.067, RSMo 1994, for which he received consecutive two-year sentences. On appeal, Defendant asserts: (1) the trial court erred in overruling his motion for acquittal because the uncorroborated trial testimony of the victims was insufficient evidence to prove his guilt beyond a reasonable doubt; and (2) the trial court abused its discretion in imposing consecutive sentences, because, the court made clear it did so in order to punish him for exercising his right to proceed to trial. Finding merit in the latter contention, we affirm the conviction but vacate the sentence and remand for resentencing.
The facts at trial established that in July 1997 the Defendant, John Wright, lived with his nephew, David Grippando, David's wife, Lisa, and their three children. On July 19, 1997, David and Lisa took their son Anthony and their then nine-year old daughter Tasha, as well as their seven-year old niece Amanda and their nephew Andre, to Worlds of Fun amusement park for the day. They arrived home from the park late that evening. Tasha and her cousin Amanda fell asleep on a couch in the Grippandos' living room.
Early the next morning, Tasha woke up because she felt someone lifting her shirt and rubbing her breasts while she was lying on the couch sleeping. She stated she looked up and saw her great-uncle, Defendant, standing above her. She said she told him to quit and that Defendant told her he was just trying to cover her up. She then turned over and went back to sleep. Amanda also states she woke up early that morning because her shirt was lifted up and Defendant was rubbing her "boobies" and her "body."
Mrs. Grippando was also up early that next morning in order to go to work, and she saw Defendant wandering through the house. Mrs. Grippando noted that this was unusual because Defendant normally did not get up and walk around the house early in the morning. She states that when she went downstairs, Defendant went into the kitchen and the two girls sleeping on the couch got up "very quickly" and came to stand by her. Mrs. Grippando asked the girls if something was wrong. Tasha told her that while she was sleeping, she felt her shirt going up repeatedly and that she kept pulling it down, and as she looked up, she saw Defendant standing over her. She told him to quit and he said he was covering her up, although both girls said they had no covers on the couch. Mrs. Grippando further states that Amanda told her Defendant lifted her shirt and touched her body. After hearing both girls' stories, Mrs. Grippando woke Mr. Grippando and had both girls tell him what they had told her. Mr. Grippando then went downstairs and told Defendant to leave the house.
The next day, Tasha and Amanda were separately interviewed by Detective Jill Voltmer in a private interview room at the St. Joseph police station. Amanda said that Defendant had touched her and Tasha's "boobs," meaning breasts, under their shirts, and "body," meaning vaginal area, outside their clothing. Defendant was charged with two counts of child molestation and was tried before a jury on December 16, 1997.
At trial, both young girls took the stand and testified before the jury. Tasha, then ten years old, testified she was positive that it was the feeling of Defendant's hands rubbing her breasts that woke her that next morning. She further testified that she told both her mother and her father that Defendant had touched her on her skin, under her shirt. Amanda, still seven years old, testified that Defendant touched her breasts with her shirt up, and touched her body with her shorts on. Defendant did not present any evidence.
At the close of the trial, the jury returned verdicts of guilty on each count, and recommended a sentence of two years for each offense. The trial judge sentenced Defendant to two consecutive two-year terms, explaining that he ran the sentences consecutively because there were two victims and because Tasha and Amanda were further victimized by having to come to court and testify in front of Defendant, the judge and the jury. Defendant appeals. We find that the evidence was sufficient to support the verdict, but that the court erred in punishing the Defendant for choosing to go to trial when imposing sentence, and remand for resentencing.
When reviewing the sufficiency of the evidence supporting a criminal conviction, we defer to the trier of fact. State v. Grim, 854 S.W.2d 403, 414 (Mo. banc 1993). Our standard of review is whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id., citing State v. Dulany, 781 S.W.2d 52 (Mo. banc 1989). We view the evidence in the light most favorable to the verdict. Id.
Defendant argues the trial court erroneously overruled his motion for judgment of acquittal at the close of the evidence because the evidence was insufficient to support a guilty verdict. Defendant asserts the doctrine of "destructive contradictions" applies because the trial testimony of the two victims was so incredible and contradictory that it could not be believed by rational people. He specifically alleges that the victims' testimony required corroboration because: (1) the two victims were the only source of proof against him; (2) their pre-trial statements and trial testimony were contradictory; and (3) their trial statements were impeached through the testimony of other witnesses.
Generally, corroboration of the victim's testimony in criminal sexual offense trials is not mandated in order to make a submissible case. State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990). Our Supreme Court does, however, recognize an exception to the general rule under the "destructive contradictions" doctrine. The doctrine is properly invoked only when the testimony is so "inherently incredible, self-destructive or opposed to known physical facts" on a vital point or element that reliance on the testimony is necessarily precluded. T.L.C. v. T.L.C., 950 S.W.2d 293, 295 (Mo.App.1997) (citations omitted). See also State v. Silvey, 894 S.W.2d 662 (Mo. banc 1995); State v. Harris, 620 S.W.2d 349 (Mo. banc 1981). The doctrine specifically does not apply to contradictions between the victim's trial testimony and prior out-of-court statements, to contradictions as to collateral matters, or to inconsistencies not sufficient to make the testimony inherently self-destructive. T.L.C., 950 S.W.2d at 295. Further, it does not apply where the inconsistencies are between the victim's statements and those of other witnesses; the latter types of inconsistencies in testimony simply create questions of credibility for jury resolution. State v. Marlow, 888 S.W.2d 417, 422 (Mo.App.1994); State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992).
Defendant asserts that the doctrine applies here, because no evidence at trial corroborated Tasha's testimony that Defendant touched or rubbed her breasts, and all credible evidence given by other witnesses at trial contradicted that claim. In support, Defendant notes that Tasha testified at trial that it was the feeling of Defendant's hands rubbing her breasts that woke her that morning, and that she told this to both her mother and her father. This was contradicted, he argues, by Mrs. Grippando's testimony that Tasha had said she woke up when she felt her shirt raising up, and Amanda's cross-examination testimony that she did not actually see Defendant touch Tasha.
Even were we to consider the issue whether the touching of Tasha's breasts is what woke her up to be a vital issue, as opposed to a collateral issue, it does not call into play the destructive contradictions doctrine. As stated above, contradictions between the victim's testimony and the testimony of other witnesses at trial does not invoke the doctrine; it applies only to contradictions in the victim's own trial testimony. It does not apply here.
Defendant further contends the totality of Tasha's testimony was incredible and impeached by other witnesses on issues such as whether Defendant was at the house when the family arrived home from Worlds of Fun, what Tasha and Amanda did when they arrived home from Worlds of Fun, and exactly where Mrs. Grippando was when Tasha and Amanda told her what Defendant had done. These matters, however, are collateral or non-essential issues and affect only the credibility of the witness and the weight to be given to the evidence, not its admissibility. State v. Gatewood, 965 S.W.2d 852, 858 (Mo.App.1998); State v. Kuzma, 751 S.W.2d 54, 58 (Mo.App.1987).
Defendant also argues that Amanda's trial testimony that Defendant rubbed her boobies with her shirt up and touched her body with her shorts on was inconsistent with some of her statements on cross-examination. However, there was also evidence from Tasha as to what occurred, and while Amanda's testimony on direct and on cross-examination had some inconsistencies, her direct testimony that Defendant touched her breasts with her shirt up was consistent with Tasha's own trial testimony and with both girls' pre-trial statements. Defendant, in effect, asks us to ignore both victims' in-court testimony and to ignore the fact that they both made similar...
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