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State v. Collins

Court of Appeals of Missouri, Western District, Second Division

August 29, 2017

STATE OF MISSOURI, Respondent,
v.
TOMMIE L. COLLINS, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Sandra C. Midkiff, Judge

          Before: Edward R. Ardini, Jr., Presiding Judge, and Karen King Mitchell and Anthony Rex Gabbert, Judges

          KAREN KING MITCHELL, JUDGE

         Tommie Collins appeals, following a jury trial, convictions of four counts of first-degree statutory sodomy, § 566.062, [1] and one count of possession of a controlled substance, § 195.202, for which he was sentenced, as a persistent offender, to concurrent fifteen-year terms of imprisonment for each statutory sodomy count and a consecutive term of ten years imprisonment for the possession count. Before trial, Collins unsuccessfully sought to sever the possession charge from the sodomy charges. He now appeals the trial court's refusal to sever. Finding no error, we affirm.

         Background

         On February 29, 2012, Victim J.M.-who was then six years old-was referred to her school counselor after her teacher overheard J.M. telling some classmates that they could not come over to her house because her stepdad might touch them in their private parts. In speaking with the school counselor, J.M. indicated that her stepdad (whom she identified as Collins-her mother's boyfriend at the time) "call[ed] his . . . private part his stomach and asks her to suck on his stomach and he makes her do it even when she doesn't want to and that he puts white stuff on it to make it taste better. And when she does suck on it, white stuff comes out, and he tells her to swallow it." J.M. told the school counselor that the last time it happened had been that morning before school.

         In response to J.M.'s disclosures, the school counselor placed a call to the Children's Division child abuse hotline. The Division worker receiving the call labeled it a Priority 1 Emergency, meaning that it needed to be investigated immediately. The Division worker went to J.M.'s home with two law enforcement officers. They arrived at J.M.'s home, which she shared with Collins, around 5:00 p.m.

         When they arrived, Collins answered the door. The Division worker introduced herself and advised Collins that she was there to ensure the children's[2] safety and asked if she could enter. Collins allowed her inside and she asked to first speak with him privately. She then advised Collins that the Division's purpose was to ensure the safety of children; Collins indicated that he knew this because he had been investigated before. When the worker advised Collins that the Division had received a new hotline report concerning sexual abuse of J.M. with Collins listed as the alleged perpetrator, Collins threw his arms up in the air, said "what?" and walked out of the room. The officers then took Collins outside while the worker spoke with J.M.

         J.M. told the worker that she knew the worker was there because of what J.M. had told her school counselor but indicated that she was afraid to repeat the information because she was told not to say anything or she would get a spanking and Collins spanked really hard. After receiving reassurance from the worker, J.M. reiterated the information she had provided to her school counselor. J.M. further detailed that Collins had put his "stomach" in her bottom, and it made her bleed, and that he had put his hand down her pants and touched "it, " pointing to her private area. J.M. indicated that the last incident of abuse had happened that morning before school, but she also stated that it happened "all the time." J.M. reiterated that Collins told her not to tell her mother or she would get a spanking.

         As a result of J.M.'s statements, Collins was arrested for an investigative hold. Collins was searched incident to his arrest, but before the search began, the officer asked Collins if he had anything in his pockets the officer needed to know about before conducting the search. Collins responded, "I smoke a little." The officer then conducted the search and located a plastic baggy containing a beige rock-like substance in Collins's pocket. Subsequently, when questioned at the police station, Collins admitted that what the officers found was "$20 worth of rock in his left pant pocket." Subsequent testing revealed that the substance found contained cocaine base, more commonly known as crack cocaine.

         J.M. was later interviewed by the Child Protection Center, where she revealed further acts of sexual abuse, all leading to the State charging Collins, in a single charging document, with four counts of first-degree statutory sodomy against J.M., along with a single count for possession of a controlled substance based upon the cocaine base found in Collins's pocket upon his arrest.[3]

         Before trial, Collins filed a motion to sever the possession count from the sodomy counts, arguing that joinder of the counts was improper and that a single trial on all of them would result in substantial prejudice to Collins insofar as "the jury would likely consider evidence of guilt on one charge as evidence of guilt on another charge." He specifically alleged, "Because the jury will likely be inflamed by evidence regarding Defendant's alleged sexual contact with the child complainants, it will also likely conclude that Defendant should be punished for drug abuse even though they may not believe he is guilty of doing so beyond a reasonable doubt."

         The trial court denied Collins's request, and he was tried on all counts charged in the indictment. The jury found Collins guilty as charged, and the trial court sentenced him, as a persistent offender, to concurrent fifteen-year terms on the statutory sodomy counts and a consecutive ten-year term on the possession count. Collins appeals.

         Analysis

         In his sole claim on appeal, Collins argues that the trial court abused its discretion in overruling his motion to sever the possession count from the sodomy counts because they were improperly joined in the first place. We disagree.

         A. ...


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