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State v. Edwards

Court of Appeals of Missouri, Eastern District, Fifth Division

October 24, 2017

STATE OF MISSOURI, Respondent,
v.
KENNETH DEAN EDWARDS, Appellant.

         Appeal from the Circuit Court of Franklin County 14AB-CR02176 Honorable Gael D. Wood

          OPINION

          James M. Dowd, Chief Judge.

         Kenneth Dean Edwards appeals the judgment entered upon his conviction following a jury trial in the Circuit Court of Franklin County of three counts of first-degree statutory sodomy and one count of incest. Edwards was sentenced to a total of 34 years in prison. In three points on appeal, Edwards claims (1) the trial court erred because there was insufficient evidence to convict him on Count II of first-degree statutory sodomy; (2) the court abused its discretion by allowing an older sister of the victim, K.W., to testify about what Victim told her about Edwards's sexual abuse of Victim; and (3) the court abused its discretion by allowing the State to introduce evidence of his prior misdemeanor conviction of first-degree sexual misconduct. Finding no reversible error, we affirm.

         Factual and Procedural Background.

         We must review some of the disturbing facts of this case in order to dispose of Edwards's claims of error. Between summer 2004 and summer 2008-during which period Victim was between the ages of seven and eleven-Edwards in various ways sexually violated, abused, and preyed on Victim in Warrenton, Missouri at the home where Edwards, Victim, Victim's mother, and Victim's sisters lived. Edwards committed these acts when he was home alone with Victim, before Victim's mother arrived home from work.

         One day during summer 2007, one of Victim's older sisters ("Victim's sister") came home early from her job and abruptly opened the front door to the home to find Edwards in what appeared to be the act of abusing Victim. Edwards quickly shut the door in her face. Nearly seven years later, in January 2014, Victim's sister asked Victim to explain what was happening that day. Victim told her sister that Edwards was abusing her, and provided her with an account of what happened that day which is discussed in further detail below.

         On April 14, 2014, when Victim was 16 years old, she and her sister reported Edwards's abuse of Victim to the police. Subsequently, Victim was interviewed at the Child Advocacy Center ("CAC"), an anti-child-abuse non-profit. Some of the information she provided during her CAC interview and in a deposition differed from her testimony at trial. At trial, Victim recounted the acts of abuse referenced above, among others, and described in detail two incidents where Edwards forced her to perform oral sex on him, one of which she had discussed in depth during her CAC interview. Victim's sister also testified at trial, relating Victim's January 2014 statements to her about the abuse. On the basis of this evidence, together with other evidence, Edwards was convicted of all four charged offenses. This appeal follows. Further details are provided below.

         Point I: The Sufficiency of the Evidence on Count II.

         In his first point on appeal, Edwards contends that there was insufficient evidence to convict him on Count IPs charge of first-degree statutory sodomy. We disagree.

         We review a challenge to the sufficiency of the evidence only to determine whether the State introduced sufficient evidence at trial for a reasonable juror to have found that each element of the offense was established beyond a reasonable doubt. State v. Bateman, 318 S.W.3d681, 687 (Mo.banc 2010). We accept as true all evidence and reasonable inferences favorable to the verdict, disregarding contrary evidence and inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. State v. Whalen, 49 S.W.3d 181, 184 (Mo.banc 2001). We give great deference to the trier of fact and do not act as a "super juror" with veto powers. State v. Feldt, 512 S.W.3d 135, 156 (Mo.App.E.D. 2017). But where the act constituting the crime is specified in the charge, the State is held to proof of that act, and the defendant may be convicted only on the basis of that act. State v. Armstrong, 863 S.W.2d 374, 377 (Mo.App.E.D. 1993) (citing State v. Edsall, 781 S.W.2d 561, 564 (Mo.App.S.D. 1989)). Additionally, we presume that the jury followed the instructions. State v. Madison, 997 S.W.2d 16, 21 (Mo.banc 1999).

         Here, in the second amended information and according to the trial court's instructions, Count II charged that between July 1, 2004 and June 30, 2008, Edwards had Victim perform oral sex on him and told her that it was a game. During jury deliberations, the jury asked the trial court whether, to convict on Count II, it had to believe that the "game" happened, or just that Edwards committed sexually deviant acts. The court told the jury to be guided by the instructions.

         Based on these facts, Edwards claims that the jury convicted him on Count II without sufficient evidence. Edwards compares this case to State v. Jacltson, 896 S.W.2d 77, 82-83 (Mo.App.W.D. 1995), in which the Western District concluded that because particular charges against the defendant specified that the offenses occurred in the bathroom of a residence, the defendant could not be convicted of those offenses based on evidence that they were committed in the bedroom of the residence. In that case, there was therefore no evidence in the record that the defendant committed the specific act charged.

         We find Jackson distinguishable. Jackson marks an exception to the general rule found in such cases as State v. Nelson, 334 S.W.3d 189, 197 (Mo.App.W.D. 2011), that where the act proven falls within the statutory definition of the offense and the charging document informs the accused of that charge, inclusion of the details of the commission of that offense is mere surplusage that the State is not required to prove. In Jackson, 896 S.W.2d at 83, the court observed that while generally it is not necessary to prove the location where the offense occurred, where the location is "significant for purposes of identifying and distinguishing between the numerous incidents of sodomy, " proof of that charged detail may be required. Specifically, proof of a charged detail that would otherwise be considered mere surplusage in the charging document must be presented if, without proof of the detail, the State would present evidence not of the charged offense, but only of what "appears to be a separate offense." Id., But that did not happen here.

         In this case, the State presented evidence of the three charged first-degree statutory sodomy offenses, but not of any separate offenses that might reasonably need to be distinguished from those charged. The evidence showed Edwards forced Victim to participate in the single charged incident of anal sex, and two incidents of oral sex performed by Victim on Edwards. Victim testified she could remember "[m]aybe two" occurrences of the latter sort of incident. The first, she said, involved Edwards telling her the oral sex was a "fever reducer" for him. When asked about the second incident, Victim first stated it was "kind of blurry, " and that she could not recall anything specific Edwards said during it. Subsequently, however, Victim testified Edwards suggested they "play a game" called "hide the sausage, " and ...


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