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State v. Powell

Court of Appeals of Missouri, Western District, First Division

April 30, 2019

STATE OF MISSOURI, Respondent,
v.
MARK ANTHONY POWELL, Appellant

          APPEAL 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

          VICTOR C. HOWARD, JUDGE

         Mark 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.[1] 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 molestation conviction.

         Factual and Procedural Background

         The 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.

         Later 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.

         Nearly 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.

         After 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.

         Victim 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 only time."

         Powell was charged as a persistent offender with one count of first-degree statutory sodomy and one count of first-degree child molestation.

         At 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 part."

         Victim 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 ...


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