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State v. Thigpen

Court of Appeals of Missouri, Eastern District, First Division

August 8, 2017


         Appeal from the Circuit Court of the City of St. Louis 1322-CR05035-01 Honorable Jimmie M. Edwards

          ROBERT M. CLAYTON III, Presiding Judge.

         Roderick Thigpen ("Defendant") appeals the judgment entered upon a jury verdict convicting him of one count of forcible rape of a child under twelve years old. We affirm.

         I. BACKGROUND

         A. Evidence Presented at Defendant's Jury Trial

         Viewed in the light most favorable to the verdict, the evidence presented at Defendant's jury trial revealed the following facts. On March 2, 2013, Victim M.V. ("M.V."), a nine-year-old girl, attended her uncle's wedding. At around 1:00 a.m. on March 3, 2013, M.V., her mother ("Mother"), and her siblings left the wedding and went to her aunt L.G.'s[1] house in the City of St. Louis. There were other people in the house at that time, including Defendant, who was there to sell heroin. Defendant also used heroin while he was there.

         Upon entering L.G.'s house, Mother, M.V., and her siblings went into M.V.'s cousin's first-floor bedroom, which had red carpet, to go to bed. M.V. was still wearing the dress that she wore to the wedding when she got into bed. Shortly thereafter, Mother got out of bed and left with her other children to stay the night with the children's father at a hotel. Mother left M.V. behind because M.V. did not want to go to the hotel.

         Before M.V. fell asleep, Defendant came into the room and dragged M.V. from the bed into the living room by her feet. As M.V. lay on the floor, Defendant removed her underwear, got on top of her, and "started humping" her. Defendant's penis touched M.V.'s vagina. Defendant then dragged M.V. back to the first-floor bedroom. Defendant blindfolded M.V., tied her arms together with t-shirts, and left M.V. on the floor of the bedroom.

         At around 5:00 a.m., M.V.'s aunt K.B. found M.V. tied up on the floor in the first-floor bedroom. Aunt K.B. untied M.V. and asked who had tied her up; M.V. responded it was the men who were in the house. Aunt K.B. then took M.V. upstairs to lie down, and attempted to call the police but no one would give her a phone. Aunt K.B. eventually fell asleep. M.V. went to the bathroom and realized she was bleeding from her vagina. After aunt K.B. woke up, she helped M.V. change from the dress she wore to the wedding and overnight into clean clothes. Then, aunt K.B. took M.V. to her aunt E.G.'s house.

         Upon arriving at aunt E.G.'s house, aunt K.B. told her what happened to M.V. Aunt E.G. suggested they call the police. During this time, Mother arrived at aunt L.G.'s house and realized M.V. was no longer there. Mother saw M.V.'s dress on the floor, so she picked it up and went to aunt E.G.'s house. After Mother got to aunt E.G.'s, she talked to M.V. and asked her what happened. M.V. would not tell Mother what happened while other people were in the room, so the two went into the bathroom. Then, M.V. told Mother someone put a sheet over her head, choked her, and rubbed against her. Mother asked M.V. if a man had touched her, and M.V. responded she did not know. M.V. told Mother that she saw blood when she went to the bathroom. Aunt E.G. then called the police.

         M.V., Mother, aunt K.B., and aunt E.G. returned to aunt L.G.'s house to meet the police. Officers arrived and spoke with M.V. alone in a bedroom. M.V. told the police she fell asleep at aunt L.G.'s house, and when she woke up a black male whom she did not know was "choking her and humping her" with his pants on. M.V. said the man tied her up and covered her eyes. M.V. did not know what happened to her underwear during the encounter. The police officers who spoke with M.V. noted she had a "flat affect" that was consistent with trauma.

         M.V. was subsequently taken to the hospital for examination. There, M.V. spoke with a doctor and a social worker, who both recalled M.V.'s "flat affect" and that she did not change her demeanor during the entire examination. M.V. told the doctor and the social worker similar stories: she woke up to a man choking her; he dragged her by her feet from the bedroom and into the living room where he humped her; and he took her back to the bedroom, covered her eyes and mouth, and tied her up with t-shirts. M.V. would later describe the incident in a similar manner during a forensic interview.

         The physical examination of M.V. revealed several injuries. M.V. was bruised and swollen on her right eye, her right ear, the right side of her neck, and her right clavicle; she also had a laceration on her sternum. Blood and abrasions were found on M.V.'s genitals. Further, M.V.'s hymen was lacerated and bleeding. A red fiber or "sticky red mass" was stuck in her anal area. A rape kit, including vaginal and rectal swabs, and M.V.'s underwear from the morning after the incident were collected for testing. Due to the amount of blood around M.V.'s vaginal area, the doctor flushed sterile water over the area then let the wash fall off and into a cup, which was also collected for testing.

         Evidence was also collected from aunt L.G.'s house. M.V.'s underwear was found on the floor between the living room and dining room. There was blood and a hair braid on the living room floor. Blood was also found on the floor in the dining room. Police were unable to recover the t-shirts used to blindfold and restrain M.V.

         Forensic and DNA testing produced the following results. It was confirmed there was blood on M.V.'s underwear recovered from the scene, as well as on the floor in the living room and dining room. Blood, seminal fluid, and sperm were found on M.V.'s dress she wore during the incident, M.V.'s underwear she wore during the examination the next day, and on the vaginal and rectal swabs taken from M.V. during the examination. Sperm was also present in the fluid used to wash M.V.'s vagina during the examination. M.V.'s DNA was found in her underwear from the scene, the underwear she wore during the examination, blood stains from the scene, and blood stains from her dress.

         There was also a male DNA profile obtained from various pieces of evidence, which was entered into the Combined DNA Index System (CODIS) and matched to Defendant. Pursuant to a search warrant, the police collected a new DNA sample from Defendant to confirm his DNA profile. Defendant's DNA was then confirmed on M.V.'s underwear recovered from the scene, the rectal swab, the vagina wash fluid, the underwear she wore during the examination, and on the dress she wore during the incident.

         On direct examination, Defendant presented the following version of the facts. Defendant was at aunt L.G.'s house that night; he sold and used drugs with some of the other occupants in the house. Defendant claimed that while he was in the first-floor bedroom, aunt K.B. performed oral sex on him in exchange for drugs.[2] Then, according to Defendant, aunt K.B. used M.V.'s dress from a laundry pile in the first-floor bedroom to clean seminal fluid off Defendant and the rug, and threw the dress in the closet when she was done. Within thirty to forty-five minutes, Defendant left the house.

         On rebuttal, the detective who executed the search warrant for Defendant's DNA testified to the following. The detective stated Defendant began to cry when he read the search warrant. After Defendant was read his Miranda rights, Defendant said a woman had performed manual and oral sex on him in the dining room of aunt L.G.'s house that night. Defendant said the woman put the seminal fluid "in a napkin." When Defendant was asked if he had sexual intercourse with a nine-year old, Defendant started to cry again and said he did have sex with "someone" on the dining room floor.

         B. Relevant Procedural Posture

         Based on the events which occurred at aunt L.G.'s house on or between March 2 and March 3, 2013, Defendant was charged with one count of forcible rape of a child under twelve years old and one count of kidnapping. Defendant's jury trial was held from November 30 through December 3, 2015.

         Five days prior to trial, the State provided the trial court and Defendant's counsel ("Defense Counsel" or "Counsel") with written notice of its intent to introduce propensity evidence of Defendant's prior criminal acts pursuant to Article I, section 18(c) of the Missouri Constitution ("Article I, section 18(c)" or "the amendment"), including "the offenses of first degree sexual assault of a child and failure to comply with the requirements of the Wisconsin Sex Offender Registry."[3] In response to the State's notice of intent, Defendant filed a motion in limine arguing the evidence put forth by the State was not relevant to demonstrate propensity, pedophilia, or credibility, and it was highly prejudicial.

         At the close of the State's case-in-chief, the trial court permitted the State to read a "propensity statement" to the jury regarding Defendant's failure to register offense. Then, on direct examination, Defense Counsel asked Defendant about his prior convictions. Acting upon an alleged misrepresentation of the offense which put Defendant on the sex offender registry, the State inquired further about the offense on cross-examination. The trial court also allowed the State to ask Defendant about his three other arrests for sexual assault of a child, but only permitted a general inquiry as to what Defendant had been arrested for, not specific information about each arrest. The State elicited the date and name of the charge.[4]

         The jury found Defendant guilty of forcible rape; Defendant was acquitted of kidnapping. Defendant filed a motion for judgment of acquittal notwithstanding the verdict, or alternatively, motion for new trial asserting, inter alia, (1) the trial court erred in overruling Defendant's objection to propensity evidence and in allowing the "propensity statement" to be read to the jury; and (2) the trial court erred in partially overruling Defendant's objection to the State's cross-examination of Defendant regarding other alleged juvenile arrests, and in denying Defendant's motion for mistrial based on this line of questioning. The trial court subsequently denied Defendant's post-trial motion. The trial court entered a judgment in accordance with the jury's verdict, and sentenced Defendant as a prior and persistent offender to life imprisonment. Defendant appeals.


         Defendant raises four points on appeal, which we will discuss in the following order. In his fourth point on appeal, Defendant maintains the trial court plainly erred in allowing the State to introduce any propensity evidence because, (1) Article I, section 18(c) could not apply to this case as the offense was committed before the amendment's effective date, and it may only be applied prospectively; and (2) there are no applicable case law exceptions to the prohibition against propensity evidence. In Defendant's first and second points on appeal, he argues the trial court erred in admitting the propensity statement under Article I, section 18(c). And in Defendant's third point on appeal, he contends the trial court erred in allowing the State to cross-examine Defendant about his prior juvenile arrests.

         A. Standard of Review

         The trial court has broad discretion to admit or exclude evidence at trial, and an appellate court reviews evidentiary rulings for an abuse of discretion. State v. Hood, No. SD34258, 2017 WL 2482640 at *2, 3-5 (Mo. App. S.D. June 8, 2017) (case mandated on June 26, 2017) (reviewing a challenge to evidence as violating Article I, section 18(c) for an abuse of discretion); State v. McBenge, 507 S.W.3d 94, 112 (Mo. App. E.D. 2016). An abuse of discretion occurs when the trial court's decision "is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration." McBenge, 507 S.W.3d at 112 (quotations omitted). We review evidentiary rulings for prejudice, not mere error; thus, we will only reverse if the defendant proves he was prejudiced by the evidentiary error, i.e., there was a reasonable probability the trial court's ruling affected the outcome of the trial. Id.; State v. Burton, 320 S.W.3d 170, 176 (Mo. App. E.D. 2010).

         B. Relevant History of Missouri Law Relating to Propensity Evidence in Cases Involving Crimes of a Sexual Nature

         Propensity evidence has been defined as "evidence of uncharged crimes, wrongs, or acts used to establish that a defendant has a natural tendency to commit the crime charged." State v. Joyner, 458 S.W.3d 875, 886 (Mo. App. W.D. 2015) (quoting State v. Shockley, 410 S.W.3d 179, 193 (Mo. banc 2013)). This appeal involves issues relating to the use of propensity evidence in prosecutions for crimes of a sexual nature, specifically involving victims of a young age. Due to the complexity of the issue and the ever-changing law on this subject area, we begin our discussion by reviewing the current state of Missouri law regarding the use of such propensity evidence.

         The Missouri General Assembly attempted several times to enact legislation on the issue of propensity evidence in prosecutions for crimes of a sexual nature. See State v. Prince, 2017 WL 2644431 at *10 (Mo. App. E.D. June 20, 2017) (J. R. Dowd, Jr. concurring). The most recent example of such legislation is section 566.025[5], which became effective in 1995. Section 566.025 authorized the State, in prosecuting cases of a sexual nature involving a victim under fourteen years old, to present "evidence that the defendant committed other charged or uncharged crimes of a sexual nature involving victims under fourteen years of age . . . for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he or she is being charged." State v. Rucker, 512 S.W.3d 63, 66-67 (Mo. App. E.D. 2017) (quoting section 566.025). However, the Missouri Supreme Court declared section 566.025 unconstitutional in State v. Ellison, finding the statute ran afoul of the Missouri Constitution's general prohibition against evidence of prior misconduct to establish a defendant's propensity. 239 S.W.3d 603, 607-08 (Mo. banc 2007) (superseded by Mo. Const., art. I, sec. 18(c)); see also Rucker, 512 S.W.3d at 67.

         The General Assembly subsequently approved a joint resolution, which proposed to Missouri voters a constitutional amendment allowing for the admission of propensity evidence in particular criminal cases. See Prince, 2017 WL 2644431 at *10 (J. R. Dowd, Jr. concurring). Missouri voters approved the constitutional amendment, and Article I, section 18(c) went into effect on December 4, 2014. See Rucker, 512 S.W.3d at 67. With the enactment of Article I, section 18(c), Missouri voters effectively overturned Ellison. See id. The amendment reads:

Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

Mo. Const., art. I, sec. 18(c). The amendment expanded on the exception to the rule against propensity evidence. Compare Mo. Const., art. I, sec. 18(c), with section 566.025; see also Rucker, 512 S.W.3d at 67 n.5. Under Article I, section 18(c), the trial court "may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice." (emphasis added). In contrast, section 566.025 only allows the propensity evidence to be admitted if the probative value was not outweighed by its prejudicial effect.

         Since the enactment of Article I, section 18(c), Missouri appellate courts have addressed the proper application of the amendment on three occasions.[6] First, in State v. Rucker, this Court addressed whether the trial court plainly erred in admitting evidence of the defendant's prior sexual offenses. 512 S.W.3d at 68-70. The defendant asserted the prejudicial effect of the evidence substantially outweighed its probative value. Id. at 68-69. Our Court first held that because the amendment provides a court "may exclude" relevant propensity evidence if the probative value is substantially outweighed by the danger of unfair prejudice, the trial court had discretion to exclude such evidence and was not required to exclude even if the probative value was substantially outweighed by the prejudicial effect. Id. (emphasis added). Then, our Court concluded any prejudicial effect resulting from the evidence of defendant's prior misconduct did not substantially outweigh its considerable probative value to establish the defendant's motive and intent. Id. at 69-70. In so holding, we noted the trend of Missouri courts' "greater willingness to allow evidence of prior sexual acts in sex crimes, especially prior sexual acts committed against children." Id. at 70.

         Next, the Southern District took up the issue of propensity evidence under Article I, section 18(c) in State v. Hood. 2017 WL 2482640 at *3-5. There, the defendant asserted the trial court erred in admitting evidence of his alleged previous sexual misconduct against his mother, sister, and brother because the defendant's juvenile adjudications were not "prior criminal acts" so as to be admissible under the amendment. Id. at *3. However, the Court found this argument without merit because the propensity evidence admitted in defendant's trial was testimony from his mother, sister, and brother regarding the defendant's misconduct; no evidence regarding defendant's juvenile adjudications or juvenile records were admitted during his trial, and the witnesses did not rely on or testify about his juvenile adjudications or juvenile records. Id. at *4-5. Further, the Court noted a flaw in defendant's argument, in that it implicitly assumed, without citation to legal authority in ...

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