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State v. Raulerson

Court of Appeals of Missouri, Western District, Second Division

June 21, 2017

STATE OF MISSOURI, Respondent,
v.
JAMES RAULERSON, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY The Honorable Janet L. Sutton, Judge

          Before: Cynthia L. Martin, Presiding Judge, Lisa White Hardwick and Alok Ahuja, Judges

          Lisa White Hardwick, Judge

         James Raulerson appeals from his conviction of first-degree child molestation. He contends the circuit court erred in admitting certain evidence and in sentencing him based on a materially false understanding of the possible range of punishment. For reasons explained herein, we affirm Raulerson's conviction but vacate his sentence and remand for resentencing.

         Factual and Procedural History

         The sufficiency of the evidence to support Raulerson's conviction is not at issue. In January 2014, Raulerson was living with his girlfriend, Paula Malloy, in the home of Malloy's daughter, Candacee Funk, Funk's husband, and their children. Funk operated a small daycare center out of her home. One of the children in the daycare was M.M., who was seven years old. M.M. was in Funk's care before and after school on weekdays, and she spent Friday nights at Funk's house. M.M. was very close to the Funk family and referred to Raulerson as "Poppa."

         On January 3, 2014, the children in the daycare were taking naps, with M.M. and another girl lying on a sectional couch in the Funks' living room. M.M. was covered with a blanket. Malloy was lying down in another room. When Malloy later got up and went into the living room, she saw M.M. lying on the couch and Raulerson standing behind the couch. His hands were in the front of M.M.'s pants, and M.M.'s blanket was pulled down around her feet.

         When Raulerson noticed Malloy was in the room, he was startled. He walked out of the living room and into another room. Malloy followed him and told him to take his stuff and get out. While Raulerson was packing, Malloy told him to say something to Funk about what happened. Before he left, Raulerson told Funk he was leaving to go to Texas to find work.

         After Raulerson left, Funk asked M.M. if he touched her, and M.M. indicated that he had. Funk asked M.M. if he had touched her under her clothes or on top of her clothes. M.M. reported that he touched her on top of her clothes. Malloy called the police. The police came and obtained information about Raulerson and the incident from the adults in the home.

         An officer later apprehended Raulerson at a bus stop. He said that he was going to a truck stop to hitch a ride to Florida. Raulerson agreed to go to the police station with the officer. Once at the police station, the officer noticed that Raulerson put hand sanitizer on his hands and started aggressively scrubbing his hands with it. He used the sanitizer several times, rubbing each finger individually and then picking under his fingernails. Raulerson did this for several minutes, even though his overall hygiene appeared poor. The officer had never seen anybody in the station use so much hand sanitizer or scrub so aggressively.

         Meanwhile, an investigating officer at the Funk house asked Funk to talk to M.M. about the incident again. During this conversation, M.M. said that Raulerson touched her under her clothes and put a finger inside of her. After this disclosure, M.M. was taken to the hospital, where a nurse, Miriam Crandall, performed a SAFE exam on her. The examination revealed two lacerations to M.M.'s internal genitalia. The doctor who evaluated these results found her injuries consistent with sexual abuse and inconsistent with accident, as there were no corresponding injuries to the external genitalia.

         M.M. was later interviewed by a forensic psychologist at a child advocacy center. The interview was recorded. During the interview, M.M. described the incident, saying that she was sleeping on the couch in the living room when Raulerson woke her up by putting his finger in her "private." She also reported several other occasions during which he had touched her "private, " forced her to touch his "private, " licked her "private, " licked her chest, and used a "buzzer" sex toy to touch her "private." Police searched Raulerson's belongings and found a "cock ring" sex toy, conducted DNA tests on it, and determined that the DNA on it was M.M.'s.

         The State subsequently charged Raulerson, as a prior and persistent offender, with first-degree child molestation. A jury found him guilty of the charge. The court sentenced Raulerson as a prior and persistent offender to a term of 20 years in prison. Raulerson appeals.

         Standard of Review

         Nine of Raulerson's ten points on appeal allege error in the admission of evidence. Only one of those claims of error is preserved. In reviewing the preserved claim, we recognize that the circuit court has broad discretion to admit or exclude evidence at trial and will reverse only if we find an abuse of discretion. State v. Pennington, 493 S.W.3d 926, 931 (Mo. App. 2016). An abuse of discretion occurs when the ruling is "'clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.'" State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007) (citation omitted). On direct appeal, we are to review "for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial." Id. at 145-46 (internal citations and quotation marks omitted).

         Raulerson concedes that he did not preserve his eight remaining claims challenging the admission of evidence and another claim challenging his sentence. He requests plain error review under Rule 30.20. Plain error will be found only where the alleged error facially establishes "substantial grounds for believing a manifest injustice or miscarriage of justice occurred." State v. Tisius, 362 S.W.3d 398, 405 (Mo. banc 2012) (internal quotation marks and citations omitted). Review for plain error review is a two-step process. State v. Horton, 325 S.W.3d 474, 477 (Mo. App. 2010). First, we look to whether the circuit court committed an evident, obvious, and clear error that affected Raulerson's substantial rights. Id. Then, if we find such an error, we determine whether the error resulted in a manifest injustice or miscarriage of justice. Id.

         Analysis

         In Point I, Raulerson contends the circuit court plainly erred in admitting Crandall's testimony regarding M.M.'s credibility. During Raulerson's cross-examination of Crandall, defense counsel and Crandall had the following exchange:

Q. [Defense counsel]: You're calling these abrasions. You do no[t] know how they got there?
A. [Crandall]: I go based on the patient's story and her story -- she actually disclosed personally to me which is ...

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