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State v. Jenner

Court of Appeals of Missouri, Southern District, First Division

December 30, 2016

STATE OF MISSOURI, Plaintiff-Respondent,
TODD J. JENNER, Defendant-Appellant.



          DON E. BURRELL, J.

         Todd J. Jenner ("Defendant") was found guilty after a bench trial of first-degree statutory sodomy. See section 566.062.[1] Defendant challenges his resulting conviction in a single point that claims the trial court "abused its discretion in limiting cross-examination" of the victim's mother ("Mother"). Finding no merit in this claim, we affirm.

         Applicable Principles of Review

         "Trial courts retain broad discretion in deciding the permissible scope of cross-examination, and an appellate court will not reverse a conviction absent an abuse of that discretion." State v. Taylor, 134 S.W.3d 21, 25 (Mo. banc 2004). Such an abuse occurs only if the "ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Dewey, 86 S.W.3d 434, 439 (Mo. App. W.D. 2002). "This Court reviews for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Norris, 237 S.W.3d 640, 645 (Mo. App. S.D. 2007).

         Evidentiary and Procedural Background[2]

         Defendant was charged in a two-count information with committing first-degree statutory sodomy ("Count I") and child molestation ("Count II") for acts committed against E.C. ("Victim). See sections 566.062 and 566.067. Count I alleged that "on or between August 1, 2012 and January 18, 2014, " Defendant, "for the purpose of arousing or gratifying the sexual desire of any person, . . . touch[ed Victim]'s vagina with [his] hand." Count II alleged that "on or about January 19, 2014, " Defendant "knowingly subjected [Victim] . . . to sexual contact by touching [Victim]'s breast." The trial court found Defendant guilty on Count I and not guilty on Count II. Defendant does not contest the sufficiency of the evidence supporting his conviction, and we limit our summary of the evidence to that necessary to understand and resolve Defendant's point.

         During the charged period of time, when Victim was eight to nine years old, Mother and Defendant began living together after having dated for about four months. On occasions when Mother was not around, Defendant would instruct Victim to lie down on a bed with her pants and underwear pulled down, and he would touch her vagina with his hands. Defendant told Victim that he was touching her to check for "rashes" and to apply any necessary medication. Mother testified at trial that she did not "ever ask for [Defendant]'s help in [examining Victim or] making sure that medicine got administered[.]" Defendant would also watch Victim while she showered. During a forensic interview, Victim said that the touching incidents happened "over and over again, and it was really weird and awkward for me." She also stated that Defendant told her "not to tell" anyone about these incidents.

         On the evening of January 18, 2014, Mother had gone to bed with Defendant beside her. Sometime after midnight, Mother awoke to discover that Defendant was no longer in the bed. Mother got up and found Defendant in Victim's bedroom. Mother testified that Victim was asleep, her blanket was pulled down to her waist, her shirt was "part of the way up, " and Defendant was "standing there" and he was caressing her right breast."[3] Mother spoke with Victim later that morning and contacted the authorities.

         While cross-examining Mother at trial, defense counsel attempted to elicit testimony from her about statements she had apparently made during a deposition to the effect that she had herself been sexually abused as a child. The prosecutor objected on relevancy grounds. In response to that objection, defense counsel stated:

Okay. Well, I -- I respectfully submit, Your Honor, that anything that goes -- that the case law is clear that anything that could go to question a witness's perception is relevant in cross-examination. And I think that given all of the circumstances of what was going on when [Mother] says she saw [Defendant] touch [Victim]'s breast, just in the totality -- I'm not trying to embarrass [Mother]. This is the kind of question I just need to ask. I need to ask three questions.
I've asked her if she suffered trauma along the same lines as [Victim]. And then the next question is: Did you tell people? And then the last question is: Is it true nothing was ever done?

         After defense counsel made some additional statements, the trial court indicated that it "can see some probative value, but does the State want to stipulate that that's what her answers would be?" The prosecutor responded, "That's fine." ...

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