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State v. Wheeler

Court of Appeals of Missouri, Western District, Second Division

September 26, 2017



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


         Tanya L. Wheeler (Wheeler) appeals her conviction for first-degree statutory sodomy following a jury trial. Wheeler argues that the trial court abused its discretion in permitting the State to call two witnesses who were endorsed shortly before trial. Finding no error, we affirm.

         Factual and Procedural Background [1]

         Wheeler lived with Victim's biological father (Father) in Johnson County. Victim, who was thirteen years old at the time of the sexual abuse, stayed with them every other weekend. During one of these weekends, Wheeler walked in on Father inappropriately touching Victim. Victim testified that after observing Father's conduct, Wheeler appeared upset that Father had not involved her in the abuse of Victim. Thereafter, Wheeler began engaging in sexual acts against Victim.

         Victim testified that Wheeler touched Victim's breasts and vagina with both her hands and mouth in addition to using a sex toy. These incidents occurred in the bedroom shared by Wheeler and Father. On multiple occasions when Victim and her friends were at Father's residence, Wheeler or Father would call Victim into their bedroom ostensibly because Victim was in trouble. Once separated from her friends, Wheeler would touch or rub Victim or use a "strap on" or "harness" to hold a sex toy in place and have sex with Victim. These sexual acts often occurred while Father was present in the room.

         Victim described how on some occasions Father would masturbate while Wheeler used the sex toy on Victim. When Victim complained that the sex toy hurt, Wheeler told her that it would stop hurting soon while Father instructed Victim to keep quiet and allow Wheeler to do what she wanted. Victim stated that Wheeler used the sex toy on her at least ten times. She also described how Wheeler instructed her to touch Wheeler's breasts and vagina with her mouth. This occurred at least once while Wheeler was alone with Victim. Finally, Victim described occasions where Father would engage in sexual intercourse with Wheeler while Wheeler touched and rubbed Victim's breasts and vagina. According to Victim, the last time the sexual abuse occurred was around April 5, 2009, which was the weekend proceeding Father's arrest for possession of child pornography.

         Following Father's arrest, Victim informed her mother about Father's conduct, though she did not at that time disclose Wheeler's involvement. Victim's mother contacted police who instructed her to take Victim to ChildSafe of Sedalia, a child-advocacy-center, where Victim disclosed the details of being abused by Father. During the course of the investigation into the allegations, police interviewed Victim's friend, J.S., who implicated Wheeler in the abuse as well. A police investigator forwarded this information to the Johnson County Children's Division who, in turn, contacted Victim. Victim eventually acknowledged Wheeler's involvement and gave a second interview at ChildSafe during which she disclosed the details of the abuse committed by Wheeler.

         Following the second ChildSafe interview, police interviewed Wheeler, who denied abusing Victim, but admitted that she owned several sex toys and gave her consent to the police to seize them. Victim identified one of these sex toys at trial as the one used on her by Wheeler. Wheeler was arrested and charged with one count of first-degree statutory sodomy.

         In addition to calling Victim to testify at trial, the State also presented testimony from a police detective as well as J.S. and R.B. who were friends with Victim during the period of abuse. J.S. testified that on multiple occasions while she was at Father's residence, Father or Wheeler would call Victim into their bedroom for allegedly doing something wrong. She stated that Victim would typically return after twenty or thirty minutes. R.B. provided nearly identical testimony but added that Victim would be upset and crying when she returned from the bedroom. Portions of Victim's recorded interviews with ChildSafe were also played for the jury.

         Wheeler testified that she had never inappropriately touched Victim and that she was unaware of the abuse by Father. She did not dispute that Victim would occasionally be called into the bedroom when she was in trouble for the purpose of imposing discipline and that Victim sometimes left the bedroom in tears. She stated that Victim was called into the bedroom "because nobody likes to be berated in front of their friends and we tried to show her some respect." Wheeler also called a criminalist from the highway patrol crime lab who testified that Victim's DNA was not found on the sex toys recovered from Wheeler; a woman Wheeler had previously lived with who testified that she discovered a sex toy under a pillow in the room where Victim slept when at Father's residence; a friend of Victim who testified that Victim and Wheeler appeared to have a normal relationship and that Victim had taken her into Father and Wheeler's bedroom and showed her sex toys in a nightstand; and a children's division investigator who testified that Victim did not report that Wheeler had sexually abused her when Victim made her initial allegations against Father.

         The jury was given three alternative verdict directors based on three different acts of sodomy: (1) putting a sex toy in Victim's vagina; (2) finger-to-vagina sodomy; and (3) mouth-to-vagina sodomy. The jury found Wheeler guilty on each submitted verdict director. Wheeler waived jury ...

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