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Mallow v. State

Supreme Court of Missouri, En Banc

August 19, 2014

LOUIS EDWARD MALLOW, Appellant,
v.
STATE OF MISSOURI, Respondent

Page 765

APPEAL FROM CIRCUIT COURT OF PHELPS COUNTY. Honorable Mary W. Sheffield, Judge.

Mallow was represented by Laura G. Martin of the public defender's office in Kansas City.

The state was represented by Evan J. Buchheim of the attorney general's office in Jefferson City.

GEORGE W. DRAPER III, JUDGE. All concur.

OPINION

Page 766

GEORGE W. DRAPER III, JUDGE.

Louis Mallow (hereinafter, " Movant" ) appealed from the trial court's judgment entered after a jury found him guilty of one count of child molestation, section 566.067, RSMo 2000.[1] The trial court sentenced Movant to a term of fourteen years' imprisonment. The Southern District affirmed his direct appeal in an unpublished opinion. State v. Mallow, SD27859. After an evidentiary hearing, the motion court overruled Movant's motion for post-conviction relief pursuant to Rule 29.15. Movant now appeals from the motion court's judgment, raising two points on appeal. The judgment denying post-conviction relief is affirmed.

Facts and Procedural History

Viewed in the light most favorable to the verdict, the evidence presented was: C.B.K. (hereinafter, " Victim" ) was born in 1992. Victim suffers from Turner's disease, which affects her learning ability, causes problems with her speech, sight and hearing, and prevents her from having children. Victim functions three to four years behind her peers. Victim lives with her mother.

Movant and his two children lived across the street from Victim. Victim and Movant's children played together and had occasional sleepovers at both houses.

In July 2004, a hotline report was made, claiming Movant sexually abused Victim. Victim was interviewed at a child advocacy center in July and November 2004. Movant was informed of Victim's allegations and interviewed. Movant stated he had not known Victim to lie, but he denied any sexual contact with her. Movant was then arrested. He again denied Victim's allegations but stated he was willing to accept the penalty. Based upon the information obtained from these interviews, Movant was charged with two counts of first-degree child molestation, section 566.067, and one count of first-degree sodomy, section 566.062.

Movant was tried by a jury. Victim's trial testimony clearly indicated there was sexual contact with Movant, but her testimony varied from her previous interviews. At trial, Victim testified regarding several incidents with Movant. First, Victim stated that Movant touched her " private parts" while she was wearing clothes. Victim indicated the location where Movant touched her, referring to the area as her " girl part" and " vagina." Victim testified Movant touched her there only one time. Victim also testified that she did not know whether Movant touched her anywhere else. Victim stated she knew that Movant's private part was hard, but she did not know how she knew. Victim stated she did not touch Movant.

Next, Victim testified that Movant " tried to make me do the Coyote Ugly dance" with her clothes on. Victim described this as " stripper dancing." Victim also testified that Movant wanted her to sleep with him. Victim described this as " two persons in a bed." Victim stated she did not do the dance or sleep with Movant.

Finally, Victim testified Movant tried to make her get into the bathtub with him while he was wearing only underwear. Victim could not remember if she did this or not.

During the jury instruction conference, Movant's trial counsel indicated he had some question whether the definition of " sexual contact" was included in one of the instructions, but that he would defer to the

Page 767

State's reliance on the " Notes on Use." Movant's trial counsel did not object to the instructions. The jury was instructed accordingly. The verdict directing instructions for the child molestation counts were instructions 5 and 6 (hereinafter, collectively, " the molestation verdict directors" ). Instruction No. 5 stated:

As to Count One, if you find and believe from the evidence beyond a reasonable doubt:
First, that between February 1, 2003 and July 17, 2004, in the County of Phelps, State of Missouri, [Movant] touched ...

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