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State v. Simmons

Court of Appeals of Missouri, Western District

January 10, 2017

STATE OF MISSOURI, Respondent,
v.
JOSEPH SIMMONS, Appellant.

         Appeal from the Circuit Court of Caldwell County, Missouri The Honorable Richard Brent Elliott, Judge

          Before Division Three: Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.

          James Edward Welsh, Judge

         Joseph Simmons appeals the circuit court's judgment following a jury trial convicting him of first-degree statutory sodomy. We affirm.

         Background

         In November 2014, the State charged Simmons with first-degree statutory sodomy (§ 566.062, RSMo[1]) for subjecting his five-year-old great-granddaughter ("Victim"[2]) to deviate sexual intercourse during the time period of August 2013-August 2014.

         The case was tried before a jury in April of 2015. The State's witnesses were the Victim and her brother, mother, father, and stepmother, an officer who investigated the case, and a Child Advocacy Center interviewer. Simmons' witnesses consisted of two of his daughters (including the Victim's grandmother), a granddaughter, his medical doctor, and himself.

         Viewed in the light most favorable to the verdict, [3] the evidence showed that, during the period in question, Victim was four and five years old, having turned five in September of 2013. At that time, Victim was in the custody of her grandmother ("Grandmother"), who is Simmons' daughter and the mother of Victim's father. The evidence further showed that, although Grandmother had custody of Victim, Victim slept next door at Simmons' house.

         In July 2014, Victim's father ("Father") and stepmother ("Stepmother") regained custody of Victim.[4] They soon discovered that Victim was "touching other people inappropriately" and "doing things to other children, " including at school. She was "always looking through the bathroom" trying to "catch the boys when they were in the shower without any clothes on" and "doing a lot of kissing" of boys. She reportedly had kissed multiple male cousins (sometimes with her tongue out), including one with whom "she [tried] to get under the [bedroom] covers." When Father asked Victim about her actions, her answer revealed the abuse by Simmons.

         Victim told Father, in the presence of Stepmother, that "she had popped a pimple and played with his balls, my grandpa, " referring to Simmons. Victim also told Stepmother that "bad things had happened to her" with Simmons, "that she would have to rub his balls and sometimes his wiener" and that they would "pop the pimple." Victim explained, in response to Stepmother's quizzical expression, "[y]ou know, that white/yellow stuff sometimes that comes out."

         Father and Stepmother contacted the Sheriff's Department. According to Sergeant Tony Kirkendoll, Father called the department and stated that Victim "had said some things to him and [Stepmother] that were alarming to him." Kirkendoll and another officer went to Father's home to investigate, and Father and Stepmother related Victim's allegations about Simmons. After hearing the allegations, the officers arranged for Victim and her older brother ("Brother") to be interviewed at the Children's Advocacy Center ("CAC").

         After the officers left, Stepmother called Victim's mother ("Mother") to tell her what Victim had told them. Mother testified that, when she later talked to Victim about the matter, Victim told her the same things that she had told Father, using the same explicit language. Victim told Mother that she had not mentioned the incidents because she did not want Mother to be mad at her. Mother told the jury that Simmons "definitely" showed favoritism toward Victim, in that he gave her gifts and money, and she was "never really allowed to get in trouble, per se."

         At her CAC interview, Victim disclosed that "every day and every night" (specifically, every day when she woke up) Simmons forced her to rub his "wiener" and/or "nuts" (genitalia) with her hands and "pop the pimple, " which caused "white stuff" to come out in the shape of a "rainbow." She said that Simmons made her wipe the white stuff on her pants. The interviewer testified that she believed Victim "was talking about ejaculation." Victim demonstrated to the interviewer how Simmons' sex organs would change shape when she rubbed him. Victim described Simmons' "nuts" as looking and feeling like a ball of water. She also stated that she had to touch Simmons' genitals with a towel and "wiggle it around." Victim told the interviewer that Simmons tried to touch her genitals and "butt" and tried to put something long, pink, and plastic in her "butt." Victim said that, when Simmons gave her a bath, he would touch her "bad spot" (her genital area) with his hand during the bath and while drying her off. Victim also stated that Simmons had threatened to shoot her or call the police and have her put in jail if she refused to perform these sex acts.

         Victim testified at trial about the sexual abuse. The prosecution asked Victim what would happen in Simmons' room, and she responded, "He would make me rub his wiener, " his "bad spot." She stated that this happened "every day and every night, " and that, when she told Simmons that she did not want to do these things, he responded, "get over here or I'll give you the belt." Victim ...


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