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State v. Cooper

Court of Appeals of Missouri, Southern District, First Division

June 17, 2019

STATE OF MISSOURI, Plaintiff-Respondent,

          APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY Honorable James K. Journey, Circuit Judge.



         Following a bench trial after waiver of a jury trial, the trial court found Anthony Mitchell Cooper ("Defendant") guilty of five sexual offenses against a single child victim ("Victim") on three separate occasions when Victim was ten, twelve and fifteen. The trial court subsequently sentenced Defendant to concurrent terms of life without eligibility for parole until thirty years are served on two of the offenses and significant but lesser, concurrent terms of imprisonment for the other three offenses. Defendant appeals claiming in two points relied on that the trial court abused its discretion in (1) excluding alleged specific instances of Victim's prior sexual conduct that were near in time to Defendant's last sexual offense against Victim, and (2) admitting evidence of two violent acts by Defendant against his grandmother and brother (one before the first three sexual offenses when Victim was ten, and one apparently after the first three sexual offenses but before the fourth sexual offense when Victim was twelve) that were witnessed by Victim and, in part, were admitted to show Defendant used forcible compulsion in committing the first, second, fourth and fifth sexual offenses, and to explain why Victim did not disclose Defendant's sexual offenses until significantly after the offenses occurred. We reject Defendant's points, and affirm the trial court's judgment.

         Facts and Procedural Background

         Defendant was charged by information with five separate offenses against Victim arising out of events that occurred on three occasions - once when Victim was ten; once when Victim was twelve; and once when Victim was fifteen. Count I charged forcible rape; Count II charged forcible sodomy; Count III charged child molestation in the first degree; Count IV charged forcible rape; and Count V charged rape in the first degree.

         On July 13, 2017, Defendant waived a trial to a jury. On the first morning of trial before opening statements, the trial court addressed "preliminary matters" including Defendant's "motion to present rape shield evidence." Defense counsel indicated to the trial court that Defendant's motion was based on section 491.015.1(3). Under section 491.015.1(3) and 491.015.2, RSMo 2016, "evidence of specific instances of [a] complaining witness' prior sexual conduct . . . is inadmissible, except where such specific instances [are relevant and] are . . . [e]vidence of immediate surrounding circumstances of the alleged crime." Defense counsel sought to introduce evidence that Victim had been sexually active between the second charged offenses at age twelve and before the third charged events at age fifteen. The trial court ruled "in limine" that "the rape shield law applies and such conduct, alleged conduct[, ] by the victim is not admissible." Subsequently, on several occasions, Defendant tried to enter into evidence testimony that Victim had dated older boys.[1]

         Over the course of the trial, the State called Victim and five other witnesses and introduced multiple exhibits. Defendant chose not to testify, but called five witnesses and introduced multiple exhibits. The evidence indicated Victim was eighteen when the trial began. Defendant was Victim's first cousin - Defendant's mother and Victim's mother are sisters. Defendant is approximately ten years older than Victim.

         Defendant does not challenge the sufficiency of the evidence that convicted him. Suffice it to say, Defendant was convicted of five sexual offenses. There is no need to detail the facts of the sexual assaults. It is important to note that on each occasion, Defendant told Victim to be quiet and that he would hurt her if she told anyone. Victim did not disclose Defendant's acts against her to an adult until Defendant showed up at her house unexpectedly on December 7, 2014, and, with a boyfriend's encouragement, Victim told her mother about the abuse. Victim subsequently disclosed Defendant's acts to law enforcement and a child forensic interviewer in mid-December 2014.

         At trial, Defendant also objected to testimony by Victim's mother that Defendant had a reputation for violence and turbulence. Victim's mother testified that Defendant's reputation for violence was known and discussed by and in front of Victim. Victim's mother also testified to various incidents of violence by Defendant. For instance, on one occasion Defendant pulled a knife on his own grandmother in the presence of Victim.[2]Victim's mother testified that Defendant threatened to kill his grandmother during the altercation. Victim's mother testified about another incident where Defendant chased his brother into Victim's mother's home when Defendant was carrying a gun. During this incident, Defendant was outside yelling at his brother, then threw a rock through the mother's window, damaged her truck with a rake, and fired the gun into the air.

         Victim testified without objection that she was afraid of Defendant at the time of the first rape because, among other things, Defendant was "always getting in trouble" and "family history." At the time of the second rape she was afraid for the same reasons and because of the first rape. By that time, Defendant had the fight with his brother that involved Defendant firing a gun. Victim also testified without objection that, at the time of the third rape, Victim "still believe[d]" Defendant's threats against her were "credible" because of "things [she had] seen before and experienced."


         Standard of Review

         We review a trial court's decision to admit or exclude evidence as follows:

A trial court has broad discretion to admit or exclude evidence at trial. This standard of review compels the reversal of a trial court's ruling on the admission of evidence only if the court has clearly abused its discretion. [T]hat discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. Additionally, on direct appeal, this Court reviews the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial.

State v. Forrest, 183 S.W.3d 218, 223-24 (Mo. banc 2006) (internal footnotes and quotations omitted).

         Point I

         In his first point relied on, Defendant claims that the trial court abused its discretion in excluding evidence regarding the prior sexual conduct of Victim because this evidence would provide the fact-finder with a complete and coherent picture of the immediate surrounding circumstances of the last rape and ...

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