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State v. Rycraw

Court of Appeals of Missouri, Eastern District, Fourth Division

September 27, 2016

STATE OF MISSOURI, Respondent,
v.
ANTONIO RYCRAW, Appellant.

         Appeal from the Circuit Court of the City of St. Louis Honorable Philip D. Heagney.

          KURT S. ODENWALD, JUDGE

         Introduction

         Appellant Antonio Rycraw ("Rycraw") appeals from the judgment of the trial court entered after a jury trial. The jury convicted Rycraw on four counts of statutory sodomy and two counts of sexual misconduct against Victim, who was between five and eight years old when the incidents occurred. The jury acquitted Rycraw on one count of furnishing pornography to Victim. Rycraw argues that the trial court erred in four respects: (1) in refusing to replace a juror who "dozed off during evidence; (2) in precluding evidence that Victim had sexual intercourse with a third party; (3) in precluding evidence that Victim had viewed pornography with her brother; and (4) in submitting multiple-act verdict directors for Counts I-V, which deprived Rycraw of his constitutional right to a unanimous jury verdict.

         We find no trial-court error on Rycraw's first three points. The record shows that the trial court properly questioned the juror and reasonably concluded that the juror could fulfill her duties. The trial court also did not abuse its discretion in prohibiting evidence that Victim had intercourse with a third party or viewed pornography because the admission of such evidence was prohibited by the rape shield statute and was not prejudicial. With respect to Rycraw's fourth point, the trial court properly submitted the jury instructions for Counts I, III, and V, but erred in submitting the jury instructions for Counts II and IV because the verdict directors for those counts failed to ensure a unanimous jury verdict. Accordingly, we reverse the trial court's judgment with respect to Counts II and IV, but affirm in all other respects.

         Factual and Procedural History

         I. Factual Overview

         Rycraw lived in a one-story home with three bedrooms, one bathroom, and a basement. In 2009, five-year-old Victim moved into the home with her mother, father, and siblings. Victim shared one bedroom with her two sisters, while Rycraw had his own bedroom. Rycraw's sister (who also lived in the home) had a relationship with Victim's mother, and Victim referred to Rycraw as "Uncle Tony."

         Several years later, then eight-year-old Victim attended a school program that taught students about inappropriate touching. After the program, Victim reported that Rycraw had touched her inappropriately and the school nurse called the child-abuse hotline.

         Subsequently, a forensic interviewer from the Child Advocacy Center conducted a videotaped interview with Victim (“CAC interview"). Victim described several inappropriate incidents involving Rycraw. Victim did not describe these incidents chronologically in the video, but the forensic interviewer pressed Victim to identify each act as the "first time" in Rycraw's bedroom, the "second time" in Rycraw's bedroom, or in the bathroom.

         With regard to the first incident, Victim reported that she was sitting fully clothed on the bed in Rycraw's bedroom watching a movie. Rycraw and other children were in the bedroom, but at some point the other children left. Victim recalled that Rycraw, who was laying on the bed, unzipped his pants and exposed his "private part."[1] Rycraw reached into Victim's pants and "pushed" on the inside of her vagina; Rycraw's other hand grabbed his exposed genitals. Victim ran away and told her parents about the incident, but her parents simply told her to stay away from Rycraw. According to Victim, Rycraw threatened to shoot her in the head if she told anyone. Victim tried to stay out of Rycraw's bedroom after that incident.

         Victim also reported a second incident that occurred in Rycraw's bedroom. This time, Victim told the forensic interviewer that she was sitting on the couch in another room in the house when Rycraw "tricked" her into coming into his bedroom by asking her to bring the cat into his bedroom. Victim said that when she gave Rycraw the cat, Rycraw dropped the cat, touched her vagina, and asked her if she wanted to have sex. Rycraw then pulled out his "private part" and put it in Victim's mouth.

         Third, Victim described an encounter that occurred in the only bathroom in the home. Victim had to use the bathroom badly, but Rycraw was showering at the time, so Victim closed her eyes and entered the bathroom. While in the bathroom, Rycraw allegedly showed Victim a "nasty video" on his cell phone depicting pornography. Victim said that while she was in the bathroom, Rycraw forced her to touch his "balls" with her hand. Victim's manual demonstration suggested that she was moving her hand up and down on Rycraw's penis. Victim said she saw a "white thing" come out in the shower and the encounter ended. Victim was unclear whether the two acts (viewing of pornography and hand-to-penis contact) occurred at the same time or at different times, but said both acts took place in the same bathroom.

         The State charged Rycraw with four counts of felony first-degree statutory sodomy for the inappropriate contact (Counts I, III, V, and VII), two counts of misdemeanor sexual misconduct for genital exposure (Counts II and IV), and one count of furnishing pornography to a minor (Count VI).

         II. Pretrial Motions

         The State moved in limine to prohibit the defense from eliciting evidence that Victim allegedly viewed a pornographic video with her brother. The prosecutor asserted that Victim did not view any actual pornography, but only saw "the title menu of the porn DVD." Defense counsel replied that the evidence was relevant because Rycraw was charged with furnishing pornographic materials to Victim. The trial court granted the State's motion, reasoning that Victim's viewing of a pornographic DVD menu was not relevant to what Victim might have seen in the bathroom with Rycraw.

         Invoking the protections of Missouri's rape shield statute, the State also moved in limine to prohibit the introduction of any evidence that Victim had sexual intercourse with a third party. The trial court preliminarily granted the State's motion in limine. Rycraw subsequently filed a written motion under Section 491.015[2] urging the trial court to reconsider. The trial court denied Rycraw's motion. Defense counsel presented an offer of proof consisting of testimony from Rycraw's brother, Leroy Rycraw ("Leroy"[3]).

         Leroy testified that, in May or June of 2011, he heard noise on the side of the home. Leroy saw his nephew and Victim outside, through a window. The nephew "had [Victim] bent over, and he was humping on her." Leroy clarified that "humping" meant intercourse. After Leroy's offer of proof, defense counsel argued that Leroy's testimony fell within the third exception in the rape shield statute: evidence of immediate surrounding circumstances of the alleged crime. The prosecutor responded that Leroy's testimony would only tarnish Victim's reputation, emphasizing that "the entire point of Section 491 is to prevent that." The trial court precluded the testimony from being admitted into evidence at trial.

         III. Trial

         Victim was ten years old when she testified at trial. Victim's trial testimony was scattered, and she did not express a clear order of events. Victim recalled that Rycraw put his hands in her pants and touched her "private area" when she was in his room watching television. Victim next testified about the bathroom incident. Rycraw was taking a shower while Victim had to use the restroom. Victim entered the bathroom to use the toilet. While in the bathroom, Rycraw allegedly showed her pornography on his phone. Next, Victim mentioned "the cat thing, " where Rycraw asked Victim to bring him the cat. Victim testified that Rycraw started touching her, and she ran. At the end of Victim's testimony, the prosecutor asked Victim if Rycraw had touched any other part of her body. Victim replied, "No, but he made me touch something of his." Victim explained that her hands touched Rycraw's "front area" and that this contact happened in "the room." Victim remembered moving her hand up and down until she saw "white stuff." When the prosecutor asked if Victim had touched any other part of Rycraw's body, she replied, "He tried to make me suck it." Victim explained that her lips touched Rycraw's "front area." Victim did not explain where this penis-to-mouth contact occurred.

         The State also played the recorded CAC interview for the jury. While the video was being played, defense counsel heard Juror Washington snort aloud and saw another juror attempt to wake Juror Washington with a slap. After the video was played, defense counsel informed the trial court that Juror Washington "was asleep for at least part" of the CAC interview. Thus, defense counsel moved to replace Juror Washington with an alternate juror. The prosecutor acknowledged seeing Juror Washington's eyes closed and requested that the trial court question the juror. Juror Washington was questioned outside the presence of the rest of the jury:

[Trial court]: ... Ms. Washington, about when we were watching that tape or the DVD this afternoon from the CAC, and at one point it looked like you had dozed off. Had you?
[Juror]: Yes, sir.
[Trial court]: Okay. And do you know how much of the tape or how much of the DVD you might have missed?
[Juror]: My fellow jurors said about two seconds. I was-I work nights. I'm trying to get used to this being up. That's-
[Trial court]: That makes it hard?
[Juror]: Yes, sir. I'm going to do better. I didn't miss a lot. I got my notes and everything. I'm sorry. [Trial court]: Okay. Thank you. And I just want to check with you. Do you believe-and there is no right or wrong answer here.
We've got alternate jurors if we need somebody to step up and fill in for you, but do you believe that you've been able to pay attention to the evidence and to hear and see the evidence that's been presented so far?
[Juror]: Yes, sir, I do believe.
[Trial court]: Okay.
[Juror]: Yes, sir, and yes, sir and yes, ma'am.
[Trial court]: And do you feel that given that you dosed [sic] off for a little bit watching the CAC DVD that you have the information you need to continue to serve as a juror or you don't have that information?
[Juror]: I have that information. I have that information, and I have that information over there, young man.
[Trial courts Okay. Let me just check and see.
[The prosecutor], do you have any questions that you want to ask Ms. Washington?
[Prosecutor]: The other jurors said it was about two seconds?
[Juror]: Yeah.
[Prosecutor]: So you don't feel like you fell asleep for like a couple of minutes?
[Juror]: No.
[Prosecutor]: Nothing further.
[Defense counsel]: Ms. Washington, is it fair to say you don't know how long you were asleep because you were asleep?
[Juror]: No, I don't think that's fair to say that, because I know as soon as I did it, they touched me and I kind of caught myself. ...

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