Court of Appeals of Missouri, Western District, First Division
FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE
HONORABLE SANDRA MIDKIFF, JUDGE
Before: Cynthia L. Martin, Presiding Judge, Victor C. Howard,
Judge and Thomas H. Newton, Judge
C. HOWARD, JUDGE
Powell appeals his convictions following a jury trial for
statutory sodomy in the first degree, section 566.062, and
child molestation in the first degree, section
566.067. He raises six points on appeal regarding
the introduction of evidence, prosecutorial misconduct, and
submission of the verdict directors. The conviction for
statutory sodomy in the first degree is affirmed pursuant to
Rule 30.25(b). Because a published opinion related thereto
would have no precedential value, a memorandum explaining the
reasons for the decision has been provided to the parties.
The conviction for child molestation in the first degree is
reversed, and the case is remanded. This opinion addresses
only point five, which is dispositive regarding the child
and Procedural Background
victim, Z.G. (Victim), who was born in February 2006, is
Powell's nephew. Powell's younger half-sister is
Victim's mother (Mother). At the end of 2013 and into
early 2014, Powell lived with Mother, Victim, and
Victim's siblings in Mother's residence. While he was
living there, Powell struck Victim in the chest so hard that
Mother took Victim to the emergency room to make sure he was
okay. Powell told Mother that he struck Victim when he became
upset that Victim and his brother were fighting. Powell moved
to his own home on Wabash in Kansas City in February 2014.
that month, Mother lost her residence, and Powell offered to
let Mother's sons, Victim, who had just turned
eight-years-old, and his two younger brothers, live with him.
Mother stayed in a hotel but telephoned her sons daily and
visited them multiple times per week. In May 2014, Mother got
an apartment, and her sons resumed living with her.
a year later in April 2015, Mother's sister told her that
Victim's brother, who was six years younger than Victim,
had touched her inappropriately after she fell asleep. Mother
asked Victim's brother why he did that, and his brother
said that Victim sometimes touches him in the bathroom.
Mother saw Victim lingering in the hallway listening to the
conversation, and she asked Victim if anyone had touched him
the "wrong way." Victim would not answer, but after
Mother repeatedly asked him if anybody had touched him, he
started shaking and crying and told her that Powell had
rubbed him all over his body and rubbed on his "private
area." He also told Mother that Powell had threatened to
hurt or kill him, including beating him to death with a belt,
if he told anybody about the touching. Powell had recently
been incarcerated when Victim made the disclosure to Mother.
Mother reported Victim's disclosure to the police, she
took Victim for a recorded forensic interview at the Child
Protection Center (CPC). Victim told the interviewer that
Powell had touched him all over his body, including his
"private parts;" he said that all of the touching
occurred at Powell's "white house" on Wabash.
Victim stated that Powell told him that if he told anybody
about the touching, he would punch Victim with all his might
and hit him with the metal part of a belt.
said Powell would come into the bathroom when Victim's
clothes were off for a shower or bath, and Powell would rub
his "ding-a-ling" with his hand. He said Powell
also touched his "ding-a-ling" and "nuts"
while putting cocoa butter lotion on Victim in Powell's
bedroom. Victim said that the first time Powell touched him
was in the bathroom while Victim was taking a shower or bath.
Powell came into the bathroom and rubbed Victim's
"ding-ding" with his hand. The last time Powell
touched him was in the bathroom while he was taking a bath.
Powell touched Victim's "ding-ding" and
"nuts," asked Victim why his "nuts" were
so shiny, and then kissed Victim's
"ding-a-ling." When the interviewer asked if there
were any other times that Powell had "kissed your
ding-ding", Victim responded, "no, that was the
was charged as a persistent offender with one count of
first-degree statutory sodomy and one count of first-degree
trial, Victim testified that while he was staying at
Powell's home, Powell would "touch on me" and
"wash me up inappropriately." He said that Powell
had touched his "ding-a-ling" more than once either
in the shower or upstairs in Powell's bedroom. Victim
described the first time that Powell had touched him. He said
that he was taking a shower and Powell came into the
bathroom, opened the shower curtain, and said "let me
wash you up." Victim said that Powell began to wash
"all over my private part" or
"ding-a-ling" with his hand. Victim was crying
because "it didn't feel comfortable or right."
Victim described another incident that occurred in
Powell's bedroom after the first shower incident. He said
Powell told him to take off his underwear and then put cocoa
butter lotion on his hand and rubbed his "private
part" or "ding-a-ling" "all nasty"
and in "sexual" way. Finally, Victim described
another occasion in Powell's bedroom where Powell was
putting lotion on him and he kissed him on his "private
said that Powell warned him on multiple occasions that if he
told anyone about the touching, he would punch him with all
his might and whip him with the metal part of a belt. Victim
said he didn't tell his mother about what Powell was
doing because he was scared Powell was going to beat him. He
testified that when he was living with ...