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State v. Walker

Court of Appeals of Missouri, Western District, Third Division

February 27, 2018

STATE OF MISSOURI, Respondent,
v.
RUSSELL DONALD WALKER, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GENTRY COUNTY The Honorable Roger M. Prokes, Judge

          Before Gary D. Witt, Presiding Judge, Lisa White Hardwick and Edward R. Ardini, Jr.

          LISA WHITE HARDWICK, JUDGE

         Russell Walker appeals his convictions for two counts of statutory rape. He contends the circuit court erred in instructing the jury because the verdict directors violated his right to a unanimous verdict. He also argues the court erred in admitting expert testimony about characteristics of sexual abuse victims. For reasons explained herein, we affirm.

         Factual and Procedural History

         Walker's daughter, B.W., was born in August 2000. B.W. did not start living with Walker until 2009, when she and her brother moved into his apartment in Maryville. In 2011, B.W. and her brother moved with Walker to his residence in Burlington Junction. Walker was physically abusive to both B.W. and her brother. When B.W. was 10 years old, Walker began having sexual intercourse with her. Walker continued to sexually abuse B.W. up until just before she turned 14 years old in August 2014. In May, June, and July 2014, Walker had sex with B.W. every other day. Every time, Walker would tell her brother to go to his room and close the door. Then, Walker would grab B.W. by the wrist, tell her to "come on, " take her into either his bedroom or the bathroom, remove their clothes, get on top of her, and stick his penis in her vagina. B.W. said that she knew what was going to happen when he grabbed her wrist because he had done it "a hundred times before."

         B.W.'s best friend and her best friend's mother witnessed Walker behaving inappropriately with B.W. On one occasion, when Walker was dropping B.W. and her brother off at a school dance, B.W.'s friend and her mother saw Walker put his hands on B.W.'s waist and give her a prolonged kiss on the lips. B.W.'s friend's mother said that the kiss was "way too long for a parent to be kissing their child, " and B.W.'s friend said that the "prolonged kiss" was uncomfortable to watch and was not the way parents usually kiss their kids. B.W.'s friend also said that, when she spent the night with B.W., she heard Walker call B.W. to come "cuddle, " and she saw Walker and B.W. "spooning."

         Eventually, B.W. and her brother ran away from Walker's residence and were placed in foster care. B.W. did not tell anyone about the sexual abuse until five months after they left Walker's residence. B.W. initially told her best friend, who, in turn, told her mother. B.W. then texted her own mother and disclosed that Walker had raped her. B.W. said that she waited to tell anyone about the sexual abuse because she was ashamed, embarrassed, afraid that people would judge her and make fun of her, and concerned that she and her brother would be split up if they were removed from Walker's residence.

         B.W. disclosed to a Children's Advocacy Center forensic interviewer that Walker had put his penis in her vagina. B.W. had suicidal thoughts and was depressed over what happened to her and her brother. She was diagnosed with PTSD, anxiety, and depression.

         The second victim in this case is N.G., who was born in November 2001. N.G. and her mother, who was dating Walker, moved in with him in 2010 when N.G. was nine years old and moved out in 2012 when N.G. was 11 years old. For the entire time N.G. lived with Walker, Walker had sexual intercourse with her in his bedroom every time her mother went to Walmart. Walker would drag N.G. into his bedroom, close the door, pull off her pants and his pants, and then put his penis in her vagina. N.G. did not tell her mother or anyone else about the sexual abuse because she was scared that she would get into trouble for it and be suspended from school. N.G. did not know how many times Walker had sexual intercourse with her, but she said that it had gone on for three years.

         A medical exam revealed that N.G. had a complete transection of her hymen, which indicated a prior penetrative injury caused by something inserted into her vagina. During a forensic interview, N.G. initially denied any sexual contact with Walker. Later in the interview, however, she disclosed that Walker had sexual intercourse with her every other night when her mother went to Walmart.

         According to N.G.'s mother, while she and N.G. lived with Walker in Burlington Junction, he would encourage her to leave the house and go to Walmart, which was 20 miles away. Sometimes, she went to Walmart two or three times a week and would be gone for an hour. The children would be at home in bed when she left. Whenever she was out in the evening on those occasions, Walker, who never volunteered to run these errands, would frequently call her near the time she would be returning to find out if she was on her way home and where she was. B.W.'s brother said that, every time B.W. or N.G. were in Walker's bedroom with Walker, he could hear groaning noises and the bed squeaking.

         The State charged Walker with one count of first-degree statutory rape involving B.W., one count of first-degree statutory rape involving N.G., and one count of attempted first-degree statutory sodomy involving B.W. A jury trial was held. Walker testified at trial that he never sexually abused either B.W. or N.G. The jury found Walker guilty of both counts of first-degree statutory rape and not guilty of attempted first-degree statutory sodomy. The court later imposed the jury-recommended sentences of 25 years in prison on each of the statutory rape counts, to be served consecutively. Walker appeals.

         Analysis

         In Points I and II, Walker contends the circuit court erred in submitting the verdict directors for the first-degree statutory rape counts because they failed to specify a particular incident or to instruct ...


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