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State v. Drake

Court of Appeals of Missouri, Western District, Fourth Division

March 28, 2017

STATE OF MISSOURI, Respondent,
v.
JOSEPH J. DRAKE, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri Honorable Marco Roldan, Judge

          Before Mark D. Pfeiffer, Chief Judge Presiding, Thomas H. Newton, and Anthony Rex Gabbert, Judges.

          Thomas H. Newton, Judge.

         Mr. Joseph Drake appeals a judgment convicting him of two counts of first-degree statutory sodomy, § 566.062, one count of first-degree child molestation, § 566.067, and one count of enticement of a child, § 566.151.[1] The issues on appeal include claims of trial court error in overruling Mr. Drake's motions for acquittal on one count of child molestation and error in presenting jury instructions that do not instruct the jury that they must unanimously agree on a specific criminal incident to convict Mr. Drake on each charge. We affirm in part and reverse in part.

         Mr. Drake appeals a judgment convicting him of two counts of first-degree statutory sodomy, one count of first-degree child molestation, and one count of enticement of a child. At trial, the following evidence was produced:

         The victim's mother would leave her six-year-old daughter, the victim, at Mr. Drake's house for multiple weekends a month from June 2004 to September 2007. When the victim stayed at Mr. Drake's home, she slept with him in his bed in his room, which was in the attic of his mother's house. In 2005, Mr. Drake's friend moved in with Mr. Drake and his mother. That year, the friend living with Mr. Drake became suspicious that Mr. Drake was sexually abusing the victim although he never witnessed any improper touching. The friend confronted Mr. Drake about his suspicions and Mr. Drake explained that he was "checking her because he thought somebody in the neighborhood had done something wrong to her." The resident reported his concerns to the police; Mr. Drake, however, was not charged based on this report.

         A few years later, Mr. Drake's neighbor came over to borrow a car jack, and Mr. Drake told him that he "checked [the victim] on a weekly basis, that he was able to- he said specifically, I can fit two fingers inside of her. I can slide my hand down her stomach and down between her legs and wake her up from a dead sleep."

         After the victim's ninth birthday, she told her mother about the touching, and her parents confronted Mr. Drake. Mr. Drake denied touching the victim during this confrontation. After the confrontation, the victim disclosed that she had been touched by Mr. Drake to a Children's Division investigator. During this interview, the victim stated that Mr. Drake began touching her under her clothes with his hands in her private area" and on her chest when she was six years old. She explained that this happened at night in his room and he would "never stop." She explained that Mr. Drake touched her every night she spent the night from the time she was six until she was nine. During the interview, the victim also stated that Mr. Drake showed her "bad magazines" with pictures of naked people touching one another. She also testified that Mr. Drake tried to touch her "bikini" with his "private" but was unsuccessful.

         At the conclusion of trial, the jury was given identical instructions for counts one and two for first-degree statutory sodomy, as well as instructions for count three, child molestation, and count four for enticement of a child. Mr. Drake did not object to these instructions. The jury returned guilty verdicts on all counts. In October 2009, the trial court sentenced Mr. Drake to three concurrent fifteen-year sentences and a concurrent seven-year sentence. After a grant of habeas corpus, Mr. Drake was resentenced in September 2015 to allow him to timely file a direct appeal. This appeal follows.

         Legal Analysis

         Sufficiency of the Evidence

         In the first point, Mr. Drake asserts that the trial court erred in overruling his motions for acquittal and entering a judgment of conviction on Count III, first-degree child molestation. He asserts that first-degree child molestation requires the State to produce sufficient evidence to establish that Mr. Drake touched the victim with his genitals and that the State failed to do so.

When reviewing a challenge to the sufficiency of the evidence, our role is limited to determining whether sufficient evidence exists from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt. In making this determination, we view the evidence and all reasonable inferences in the light most favorable to the verdict and disregard all contrary evidence and inferences. We defer to the circuit court's decision as to the credibility and weight of the witnesses' testimony, and we recognize that the circuit court "may believe all, some or none of the testimony of a witness."

State v. Warren, 304 S.W.3d 796, 799-800 (Mo. App. W.D. 2010) (internal citations omitted). "The Court may 'not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.' 'If the evidence is insufficient to sustain a conviction, plain error affecting substantial rights is involved from which manifest injustice must have resulted.'" State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc) (internal citations omitted), cert. denied, 534 U.S. 1030 (2001).

         Section 566.067.1 states that "[a] person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact." Under section 566.010 (3), sexual contact is defined as, "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person." At trial, the jury was instructed as follows:

As to Count III, if you find and believe from the evidence beyond a reasonable doubt:
First, that between and including June 26, 2004, and September 23, 2007, in the County of Jackson, State of Missouri, the defendant touched [the victim] on her body with his genitals and
Second, that he did so for the purpose of arousing or gratifying the sexual desire of any person, and
Third, that [the victim] was then less than fourteen years old,
then you will find the defendant guilty under Count III of Child Molestation in the First Degree under this instruction.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

         The jury heard testimony from Ms. Kristin Gilgour, the Child Protection Center Forensic Interviewer, who conducted the forensic interview in which the victim disclosed sexual abuse by Mr. Drake. During the course of her testimony, Mr. Gilgour explained the following:

Q: (By Mr. Eason) Now, during - and you witnessed the playing of this interview, right?
A: Yes.
Q: During that interview I noted that [the victim] was pointing out a spot on the diagram during your questioning to her about where she was touched by his penis?
A: Correct.
Q: Was there actually a mark that resulted from her pointing to the diagram?
A: No, there was not.
Q: And do you remember exactly where she was pointing?
A: I don't recall specifically. I believe it was between kind of the thighs and the ...

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