Court of Appeals of Missouri, Eastern District, Second Division
Before the Circuit Court of the City of St. Louis. Hon. Michael P. David.
FOR APPELLANT: Amy E. Lowe, St. Louis, MO.
FOR RESPONDENT: Chris Koster, Attorney General, Karen L. Kramer, Asst. Attorney General, Jefferson City, MO.
ROBERT G. DOWD, JR., Judge. Lawrence E. Mooney, P.J. and Sherri B. Sullivan, J., concur.
ROBERT G. DOWD, JR., Judge
Melvin Huffman appeals from his conviction on one count of statutory sodomy in the first degree. Huffman asserts plain error in the trial court's refusal to give a child molestation instruction and its failure to sua sponte declare a mistrial during the State's closing argument and during the State's cross-examination of a defense witness. We find no errors, plain or otherwise, and affirm.
Huffman was charged with statutory sodomy in the first degree for touching the outside of H.B.'s vagina with his hand one night while she was having a sleepover with his daughter, Amanda. The information charged that this occurred between
May 1, 2002 and September 1, 2002. At trial, H.B. testified that she and Amanda were sleeping in the same bed in Amanda's room. H.B. woke up to find her legs apart and Huffman touching the outside of her vagina. She rolled over and hit him in the face with her knee. H.B. said Amanda woke up and asked Huffman what he was doing; he pretended to look for something on the floor then left the room. H.B. told Amanda what happened. H.B. stayed the remainder of the night, and the next day the girls swam in the Huffman's pool and played video games. Several years later, after running into Huffman at various places, H.B. reported the incident.
H.B. testified that she was not sure if she was ten or eleven years old at the time, but she knew that this incident happened the summer after fourth grade. Based on her birth date and the year she started school, the summer after fourth grade would have been the summer of 2002. In her reports to others, H.B. consistently stated she was ten or eleven. She never indicated that it could have happened any earlier than the summer of 2002. Defense counsel tried to suggest on cross-examination that H.B. had switched her story from age eleven to age ten because Huffman was incarcerated during the summer of 2003 when H.B. was eleven. Huffman was also incarcerated for parts of 1999, 2000 and 2001. He was not incarcerated at all in 2002.
Huffman denied that anything like this ever happened and claimed not to even remember H.B. Amanda testified that she and H.B. were only friends during the 1998-1999 school year; she denied knowing anything about Huffman touching H.B. Huffman's wife testified that H.B. had not been at their house after early 2000.
The State submitted the first-degree statutory sodomy instruction, which was given to the jury without objection. It directed the jury to find Huffman guilty if they found that on or about May 1, 2002 to September 1, 2002, Huffman knowingly touched H.B.'s vagina, that the conduct was " deviate sexual intercourse" and that H.B. was less than twelve years old at the time. The definition of " deviate sexual intercourse" therein included hand to vagina contact. Defense counsel submitted a child molestation instruction, which included the same date range of May to September 2002. Counsel argued this was a lesser included offense--not relating to the date of the crime--but the trial court rejected the instruction.
The State argued that as to the time frame of the incident as stated in the instruction, there was sufficient evidence that it happened in the summer of 2002, after H.B. was in fourth grade, when she was ten. This was corroborated, the prosecutor argued, by Huffman's own testimony that in 2002, they bought the pool the girls would have been swimming in the day after the incident. The prosecutor went through the remaining elements listed in the verdict-directing instruction and, in the context of whether H.B. was under twelve, noted that the evidence showed she was ten and that, in any case, it could not have happened when she was eight, ...