Riсhard Placke (Defendant) was convicted by a jury of committing the crimes of statutory sodomy (Count I) and attempted statutory rape (Count II). The jurors recommended sentences of seven and ten years for these offenses, respectively. At the sentencing hearing, however, the trial court imposed a ten-year sentence for the statutory sodomy conviction and a seven-year sentence for the attempted statutory rape conviction.
Defendant presents three points of error on appeal. The first two deal with thе admission of evidence at trial and have no merit. In the third point, Defendant contends the trial court plainly erred in imposing a sentence for the statutory rape conviction that exceeded the jury’s recommendation. This Court agrees. Because it appears from the record that the trial court committed a plain error which affected the sentence imposed for each conviction, both sentences are vacated. The cause is remanded so the trial court can sentence Defendant again on Counts I and II. In all other respects, the judgment is affirmed.
I. Factual and Procedural Background
Defendant was charged by information with committing the unclassified felonies of
Defendant does not challenge the sufficiency of the evidence to sustain his convictions. On appeal, this Court considers the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and rejects all contrary evidence and inferences.
State v. Newberry,
B.K. was born in September 1993. In 2002, she began living with her grandmother, D.B. (Grandmother). At that time, B.K. was nine years old. In 2003, Grandmother became B.K.’s legal guardian. 2 In 2005, Grandmother and B.K. lived with Grandmother’s other daughter, J.D. (Aunt). Her dаughter, T.D., was approximately four years younger than B.K. The two young girls were good friends and were more like “sisters rather than cousins.” Defendant was Aunt’s live-in boyfriend. In August 2005, Grandmother and B.K. moved to another home in the area, but the families continued to socialize and gather for meals. B.K. and T.D. continued to be good friends and saw each other often.
In February 2007, B.K. told an adult that she and T.D. had been sexually abused by Defendant. The adult, who was a close friend to Grandmother, told her what B.K. had said. Grandmother called Aunt and said that B.K. was making allegations against Defendаnt and that it also involved T.D. Grandmother did not disclose any other details to Aunt at that time. Grandmother then called B.K.’s counselor, Larry Wright (Wright). B.K. had begun seeing Wright when she started living with Grandmother in 2002. B.K. had seen Wright at least once a week since that time. When Grandmother called Wright, he was told in general terms that B.K. was making allegations against someone and that she would not talk to Grandmother about it. Approximately two weeks later, Grandmother met with B.K. and Wright in his office. When Wright asked B.K. to tell them what was going on, she started crying and telling them that Defendant “had been touching her privatе parts.”
Grandmother then called Aunt again. This time, Grandmother told Aunt about B.K’s allegations against Defendant and that they needed to talk. While Aunt was on the phone, she called to T.D. and asked her if Defendant had ever touched her private area. T.D. answered that Defendant did, and that he also exposed himself to her. Aunt, T.D. and Defendant went to Grandmother’s house and met in her living room. B.K. was in her room. When Grandmother asked Defendant if he knew what had been happening, he indicated “no” by shaking his head. Aunt said she had not discussed the subject with him. Grandmother told Defendant that B.K.
A few days later, B.K. wаs interviewed at her house by Dana Maxwell (Maxwell) of the Children’s Division. Thereafter, B.K. was interviewed at the Child Advocacy Center (CAC) in Doniphan, Missouri, by CAC forensic interviewer Clea Fairaizl (Fairaizl). B.K’s CAC interview was videotaped. T.D. was similarly contacted and interviewed first by Maxwell, and then by Fairaizl. T.D.’s CAC interview also was videotaped. A few days after B.K’s CAC interview, she underwent a SAFE examination in Poplar Bluff, Missouri, performed by Dr. Dorothy Munch (Dr. Munch).
In March 2007, Defendant was charged with statutory sodomy and attempted statutory rape of B.K. At an April 2008 pretrial conference, defensе counsel informed the trial court of his intention to call both Aunt and T.D. as witnesses for the defense.
A jury trial was held in April 2008. During opening statement, defense counsel told the jury that T.D. “is going to tell you that all this is made-up. [T.D.] is going to tell you why all of this is made-up.” Grandmother, Dr. Munch and B.K. were the witnesses who testified during the State’s case-in-chief. The following is a summary of B.K’s direct examination testimony about how she had been sexually abused by Defendant.
In the spring of 2005, B.K. was 11 years old. Defendant took B.K. and T.D. outside one night to look at shooting stars. The three of them lied down on a blanket in the рasture beside their house. Defendant was lying between the two girls. Defendant slid his hand into B.K’s shorts and began rubbing her vagina. He pressed his finger far enough inside that it was painful. B.K. jumped up and went inside. Later that night, B.K. talked to T.D. about what had happened. T.D. asked whether Defendant had been rubbing between B.K.’s legs. When B.K. said “yes,” T.D. confided that Defendant also had been doing that to her.
On another occasion, B.K.’s family and Defendant were planning to go camping at a lake. As they prepared for the trip, B.K. followed Defendant into the barn where they stored supplies. Dеfendant stood in front of B.K. and told her to close her eyes. Defendant tried to put his penis in B.K’s mouth, but he only made contact with her cheek instead. Afterwards, B.K. had to wipe Defendant’s semen off the side of her face. When the group arrived at the lake, Defendant took B.K. and T.D. out in his boat to go swimming. He drove the boat to the middle of the lake and dropped anchor far enough from shore that no one could see what they were doing. While Defendant and B.K. were in the water, Defendant stuck his hand inside B.K.’s bathing suit and inserted his finger into her vagina. T.D. was out of sight оn the other side of the boat.
Defendant’s sexual contact with B.K. continued after the family returned home. B.K. and Defendant were sitting on the couch one evening watching television when he draped a blanket over B.K. and himself. Beneath the blanket, Defendant reached inside B.K’s shorts and under
B.K.’s last encounter with Defendant took place on July 4, 2006. B.K. and T.D. helрed Defendant and Aunt clean the pool. Aunt went inside to take a shower. B.K., T.D. and Defendant got into the pool. The three of them were “playing around” when Defendant grabbed B.K’s legs and pulled her toward him. Defendant stripped off B.K.’s bikini bottom and removed his shorts. He then spread B.K’s legs open and tried to insert his penis into B.K’s vagina. He failed to penetrate her. B.K. kicked Defendant and retrieved her swimsuit. She said she would tell on Defendant if he touched her or T.D. again.
Following B.K.’s testimony on direct, she was extensively cross-examined by defense counsel. After B.K. testified, the State rested. During Defendant’s case-in-ehief, his attorney called Aunt and T.D. as witnesses. Aunt testified that she loved Defendant and had been involved with him for seven years. On cross-examination, Aunt admitted that she knew T.D. had complained about sexual contact by Defendant. Aunt also admitted that she received social security benefits for T.D. If she were removed from the household, Aunt’s income would be reduced.
T.D. was the next witness called. She was in the fifth grade as of the date of trial. T.D. was crying before she began to testify. When defense counsel asked why, T.D. said she was crying because she knew that what she had done was wrong. Defense counsel asked, “[w]hat did you do that you think is wrong?” T.D. replied that she had said Defendant “did all these things and he really didn’t.” When asked what things she was talking about, T.D. answered, “[l]ike raping me and [B.K.] and stuff like that.” According to T.D., she made allegations against Defendant because B.K. said she would no longer be T.D.’s friend or talk to her anymore if she did not do so. T.D. also claimed to be afraid of B.K. because she had threatened to hit T.D. According to T.D., B.K. was mad at Defendant. Both B.K. and T.D. helped Defendant reсycle scrap metal, but Defendant only paid T.D. for her work. T.D. testified that B.K. said she was going to “get [Defendant] paid back,” and told T.D. to say that Defendant had sexually abused her. T.D. said she remembered the day when everyone had gathered at Grandmother’s house, and she admitted that she had told Grandmother “something that night.”
On cross-examination, T.D. testified that she recalled talking to Fairaizl at the CAC. T.D. acknowledged that she had been asked to tell the truth and informed that it was important to tell the truth. After receiving those instructions, T.D. said that Defendant had touched her sеxually and exposed his private parts to her. Nevertheless, T.D. claimed at trial that the things she told Fairaizl were lies.
In surrebuttal, Defendant called Maxwell. She had interviewed T.D. and witnessed the forensic interview between T.D. and Fairaizl. Maxwell testified that T.D. said that Defendant had touched her as often as once a day; Defendant “poked his penis in between her vagina and bottom hole”; and he “pushed his privatе against her, but it did not go in.” The State did not ask Maxwell any questions.
After the jury found Defendant guilty of first-degree statutory sodomy under Count I and first-degree attempted rape under Count II, the jurors heard additional evidence from Defendant on the issue of sentencing. The jury recommended a seven-year sentence on Count I and a ten-year sentence on Count II. At the subsequent sentencing hearing, however, the trial court imposed concurrent sentences of ten years on Count I and seven years on Count II. This appeal followed. Additional facts necessary to the disposition of this appeal will be set out below as we address Defendant’s three points of error.
II. Discussion and Decision
Point I
In Defendant’s first point, he contends the trial court erred in admitting testimony that Defendant had sexually abused T.D. Defendant argues the following testimony should not have been admitted:
1. Grandmother’s testimony that T.D. said Defendant had touched her private area and exposed himself.
2. B.K.’s testimony that T.D. said Defendant was rubbing between her legs while the trio was stargazing.
3. Aunt’s testimony that T.D. had complained of sexual contact by Defendant.
4. Fairaizl’s testimony that T.D. had disclosed multiple incidents of sexual assault perpetrated by Defendant.
5. T.D.’s entire videotaped CAC interview.
Defendant objected to item 1 as hearsay and to item 5 as improper impeachment. These same objections were carried forward in the motion for new trial and have been raised as a part of Defendant’s first point. Accordingly, Defendant properly preserved these objections for appellate review.
State v. Lloyd,
This Court reviews preserved errors relating to the admission of evidence for abuse of discretion.
Cummings,
Defendant has requested plain error review of his unpreserved challenges to the above-mentioned evidence. Rule 30.20 provides that “plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.”
Id.
“Plain errors are evident, obvious, and clear, and we determine whether such errors exist based on the facts and circumstances of each case.”
State v. Johnson,
With this prologue completed, we turn to the first argument presented by Defendant’s point. He contends the trial court committed plain error in admitting items 1-5 in evidence because all of this testimony constituted improper evidence of uncharged crimes. Evidence of prior uncharged misconduct is generally inadmissible for the purpose of showing the propensity of the defendant to commit such crimes.
State v. Bernard,
In Dеfendant’s second argument, he argues that the trial court abused its discretion by admitting item 1, Grandmother’s testimony that T.D. said Defendant had touched her private area and exposed himself.
3
“[A] conviction will not be reversed for improper admission of hearsay that was not prejudicial to the accused.”
State v. McFarland,
In Defendant’s third argument, he contends the trial court abused its discretion in admitting T.D.’s videotaped CAC interview because it was improper impeachment evidence. Section 491.074 states that “a prior inconsistent statement of any witness testifying in the trial of a criminal offense shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statеment.”
Id.
“Inconsistent statements are available as substantive evidence, and may be used just as soon as the inconsistency appears from the testimony. The only necessary foundation is the inquiry as to whether the witness made the statement, and whether the statement is true.”
State v. Bowman,
Our conclusion is amply supported by
Bowman,
upon which Defendant relies. In
Bowman,
witness Lytle gave a videotaped statement to the police stating that he heard cries of protest by the victims and the sounds of pain and that he saw the defendant stab one of the victims. At trial, Lytle admitted having made these statements, but he said they were not true. Lytle claimed he made these statements because the police had mistreated him.
Bowman,
Point II
In Defendant’s second point, he contends the trial court abused its discretion in admitting B.K’s statement to Grandmother that Defendant “had been touching her private parts.” Prior to trial, the prosecutor filed a notice of the State’s intention to use B.K’s statements to certain individuals, including Grandmother, pursuant to § 491.075 RSMo Cum.Supp. (2007). On the first day of trial, the court found that B.K.’s statements to some of those individuals were admissible, but the court did not make any findings with regard to the admissibility of B.K.’s statements to Grandmother. At trial, Defendant’s hearsay objection to Grandmother’s
As previously noted, “a conviction will not be reversed for improper admission of hearsay that was not prejudicial to the accused.”
State v. McFarland,
Point III
In Defendant’s third point, he contends the trial court plainly erred in sentencing him to ten years imprisonment on Count I when the jury recommended a seven-year sentence. At trial, the jury recommended sentences of seven years on Count I and ten years on Count II. At the sentencing hearing, however, the trial court obviously transposed those recommendations because the judge stated that “[t]he jury entered its recommended sentence in each of those two [counts], that being ten years on Count I and seven years on Count II.” No one corrected the court’s misstatement. The court entered sentences on each count based on that mistaken recitation of what the jury had recommended. Thus, it is obvious from the record before this Court that: (1) the court intended to sentence Defendant on each count in accordance with the jury’s recommendations; but (2) both sentences wеre imposed based upon a mistaken belief by the judge as to what the jury had recommended on each count.
Defendant contends the trial court committed plain error by sentencing him to a term greater than the jury recommended for Count I in violation of § 557.036.5 RSMo Cum.Supp. (2007). This subsection states:
If the jury returns a verdict of guilty in the first stage and declares a term of imprisonment in the second stage, the court shall proceed as provided in subsection 1 of this section except that any term of imprisonment imposed cannot exceed the term declared by the jury unless the term declared by the jury is less than the authorized lowest term for the offense, in which event the court cannot impose a term of imprisonment greater than the lowest term provided for the offense.
Id.
The lowest term for each offense was five years.
See
§§ 566.062, 566.032. The trial court committed an evident, obvious and clear error in sentencing Defendant to serve 10 years on Count I because that exceeded the jury’s recommendation.
See
§ 557.036.5 RSMo CurmSupp. (2007);
State v. Washington,
Defendant’s third point is granted. Defendant’s sentences are vacated, and the cаuse is remanded for resentencing on Counts I and II. In all other respects, the judgment of the trial court is affirmed.
Notes
. All references to statutes are to RSMo (2000) unless otherwise specified. All references to rules are to Missouri Court Rules (2009).
. B.K.’s mother, who was Grandmother’s daughter, and B.K.’s father were both in prison.
. Defendant also seeks plain error review of other statements by T.D. that Defendant claims were hearsay. This Court declines to engage in further plain error review in this regard. Because Defendant offered similar evidence, he failed to establish any prejudice in admitting the statements and is entitled to no relief.