MARK D. PFEIFFER, Judge.
After a trial by jury in the Circuit Court of Henry County ("trial court"), Larry E. Uptegrove ("Uptegrove") appeals his convictions on two counts of child molestation in the first degree, in violation of section 566.067,
Viewing the record in the light most favorable to the jury's verdict,
Beginning in 2004, Uptegrove began inappropriately touching his ten-year-old granddaughter, M.B.U. At trial, M.B.U. testified that Uptegrove inappropriately touched her multiple times per week, starting when she was ten years old and ending just before her fifteenth birthday. The first incident occurred in Johnson County when Uptegrove was giving M.B.U. a ride home from her basketball game. M.B.U. testified that while they were driving, Uptegrove began to touch her in the vaginal area. He then pulled onto a gravel road and stopped the car. Uptegrove then told M.B.U. to pull down her shorts, and he put his hand under her underwear and started moving his finger around. When he finished, Uptegrove asked M.B.U. if it "felt good."
After this initial incident, Uptegrove continued to inappropriately touch M.B.U. for several more years, at least once a week. The inappropriate touching most commonly occurred during golf cart rides on paths in the woods and during trips Uptegrove and M.B.U. would take to Calhoun to pick up fuel for the family's farm
During the course of these incidents, Uptegrove regularly told M.B.U. not to tell anyone about how he would touch her. M.B.U., however, told several friends, some of her cousins, and finally, in March 2009, told a teacher. After the Children's Division learned about the incidents between Uptegrove and M.B.U., M.B.U. was interviewed by Child Safe in Sedalia. After observing the interview, Detective Jeremy Bowman ("Bowman") arrested Uptegrove for child molestation.
At the outset of the interview, prior to Bowman mentioning her name, Uptegrove stated that he believed the arrest had something to do with M.B.U. During the interview, Uptegrove acknowledged touching M.B.U. on her breasts. He also acknowledged that he could not keep his hands off of her. While Uptegrove could not recall whether he had ever told M.B.U. that he thought she was a "sex pot," Uptegrove used this phrase during the interview to refer to M.B.U. When questioned about the first incident of inappropriate touching, Uptegrove admitted that he stopped and parked with M.B.U. on the gravel road, just as M.B.U. described, but claimed he and M.B.U. just talked. When asked about the incident surrounding the purchase of the digital camera, Uptegrove claimed that he had only touched M.B.U. on the clothes above the belly but soon admitted that M.B.U. unbuttoned her pants because he asked her to. During the interview, Uptegrove denied that any of the contact with M.B.U. was sexual in nature.
Later, during a conversation with Marilyn Uptegrove, Uptegrove's wife, he also denied putting a finger inside M.B.U. but did not deny any of the other allegations made against him. Uptegrove further admitted to his wife that he made M.B.U. show him her underwear in exchange for the digital camera.
On April 21, 2009, a complaint was filed against Uptegrove which alleged that, over a fifty-month period, Uptegrove committed twenty counts of child molestation in the first degree by having sexual contact with M.B.U. On August 4, 2009, an information was filed formally charging Uptegrove with those twenty counts. An amended information was later filed, reducing the charges down to five counts of child molestation in the first degree.
At trial, M.B.U. testified in great detail as to several specific interactions between her and Uptegrove and to the general demeanor of Uptegrove toward her over the past several years. The State also admitted into evidence Bowman's pre-trial interview statement, along with the exhibit itself, regarding the Uptegrove interview conducted by Bowman after Uptegrove's arrest. At the close of the State's case and at the close of all the evidence, Uptegrove's motions for judgment of acquittal were overruled.
The jury returned verdicts finding Uptegrove guilty of two counts of child molestation in the first degree and not guilty of the remaining three counts. Uptegrove's
In his first point on appeal, Uptegrove argues that the trial court erroneously overruled his motion for judgment of acquittal due to the insufficiency of the evidence.
When reviewing a judgment of acquittal notwithstanding the verdict, we must view the evidence in the light most favorable to the verdict and disregard all contrary evidence and inferences. State v. Overkamp, 646 S.W.2d 733, 736 (Mo. banc 1983); State v. Richardson, 22 S.W.3d 753, 755 (Mo. App. E.D.2000). Similarly, when reviewing the sufficiency of evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict, making all reasonable inferences therefrom, and disregard all evidence and inferences contrary to that finding. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). We must determine "whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Wright, 998 S.W.2d 78, 81 (Mo.App. W.D.1999).
Uptegrove contends that the trial testimony of M.B.U. was the only evidence presented to establish the essential elements of the crime charged against him
"`[T]estimony of a single witness, if deemed credible by the jury, may be considered sufficient for conviction, though that testimony is uncertain or inconsistent.'" State v. Case, 140 S.W.3d 80, 91 (Mo.App. W.D.2004) (quoting State v. Platt, 496 S.W.2d 878, 881 (Mo.App.1973)). Furthermore, corroboration of a victim's testimony in criminal sexual offense trials is generally not necessary to make a submissible case. Wright, 998 S.W.2d at 81 (citing State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990)). There are, however, circumstances when a victim's testimony must be corroborated in order for it to be probative. Case, 140 S.W.3d at 91. Under the destructive contradictions doctrine, when a victim's trial testimony is strikingly inconsistent and contradictory, it is not probative evidence. Case, 140 S.W.3d at 92 (citing State v. Goudeau, 85 S.W.3d 126, 131-32 (Mo.App. S.D.2002) ("The rule provides that a witness's testimony loses probative value when his or her statements at trial are so inconsistent, contradictory, and diametrically opposed to one another that they rob the testimony of all probative force.")). The victim's trial testimony must be corroborated if it is "so `inherently incredible, self-destructive or opposed to known physical facts' on a vital point or element that reliance on the testimony is
Uptegrove insists that the destructive contradictions doctrine is applicable in this case. Uptegrove provides three instances where he claims M.B.U.'s testimony was "riddled with contradictions about key elements of the offense." In his first example, Uptegrove alleges that when M.B.U. testified at trial that Uptegrove told her "multiple times" she "turned him on," she "wildly" contradicted her earlier sworn testimony given at a preliminary hearing when she testified that she was unsure as to whether Uptegrove told her that she "turned him on" more than once. Uptegrove also argues that M.B.U. testified at trial that she had never been touched under her clothing in Henry County, but during the preliminary hearing, she testified that she had been touched under her clothing in Henry County on one occasion. Finally, Uptegrove argues that M.B.U.'s trial testimony conflicts with her deposition. In her deposition, M.B.U. testified that Uptegrove's hand would be on her thigh and she did not know if it was touching her vaginal area, while at trial, she testified that he would rub her vaginal area with his finger when his hand was on her thigh.
Uptegrove's criticisms of M.B.U.'s trial testimony do not call into play the destructive contradictions doctrine. The destructive contradictions doctrine "`is applicable only to the respective elements of a witness's testimony at trial, not to contradictions between trial testimony and prior statements.'" State v. Burns, 671 S.W.2d 306, 311 (Mo.App. W.D. 1984) (quoting Amish v. Walnut Creek Dev., Inc., 631 S.W.2d 866, 870 (Mo.App. W.D.1982)). See also State v. Helmig, 924 S.W.2d 562, 565 (Mo.App. E.D.1996) (destructive contradictions doctrine held inapplicable to sworn and unsworn pre-trial statements by victim in victim's deposition testimony, preliminary hearing testimony, and statement to police detective, which were inconsistent with victim's trial testimony); State v. Rodney, 760 S.W.2d 500, 503 (Mo.App. W.D.1988) (destructive contradictions doctrine held inapplicable to witness's pre-trial deposition testimony inconsistent with witness's trial testimony). Similarly, the destructive contradictions doctrine does not apply to "contradictions as to collateral matters, or to inconsistencies not sufficient to make the testimony inherently self-destructive." Wright, 998 S.W.2d at 81. See also State v. Marlow, 888 S.W.2d 417, 421-22 (Mo.App. W.D. 1994) ("The exception is triggered only by inconsistencies or contradiction within the victim's trial testimony." Furthermore "[t]he discrepancies must amount to `gross inconsistencies and contradictions,' and must go directly to an essential element of the case." (emphasis added)).
Uptegrove, in effect, asks us to completely disregard M.B.U.'s trial testimony because of a few slight inconsistencies on collateral matters between her trial testimony and her earlier pre-trial statements when, above all else, the contradictions complained of do not make M.B.U.'s testimony at trial inherently self-destructive. We decline to do so, as the testimonial discrepancies complained of were not "gross inconsistencies," did not materially impact the evidence as to "essential elements" of the case, did not render M.B.U.'s trial testimony "inherently self-destructive," and the issue of M.B.U.'s credibility and the effect of any trial testimony inconsistent or contradictory to pre-trial testimony was for the jury to determine.
M.B.U.'s trial testimony did not require application of the corroboration rule and was, therefore, properly admitted. As such, M.B.U.'s trial testimony constitutes sufficient evidence from which a reasonable juror might have found Uptegrove guilty beyond a reasonable doubt.
Point I is denied.
In his second point on appeal, Uptegrove argues that the trial court erred by not declaring a mistrial, sua sponte, after the State introduced evidence, without objection, of prior uncharged crimes that Uptegrove committed against M.B.U. in Johnson County.
When no objection is made by trial counsel regarding the admission of evidence, we are limited to plain error review. Under Rule 30.20,
Furthermore, the trial court is obligated to "ensure that a criminal defendant has a fair trial, including the obligation to exercise its discretion to control obvious misconduct by the prosecution." Roper, 136 S.W.3d at 902. However, "Missouri courts have been reluctant to criticize a trial court when it has declined to take action on its own motion on behalf of a party." Id. Because a mistrial is a drastic remedy, a court should only take such action sua sponte in exceptional circumstances. State v. Clay, 975 S.W.2d 121, 134 (Mo. banc 1998); State v. Camper, 391 S.W.2d 926, 927-28 (Mo.1965). For the
As Uptegrove's trial counsel did not object to the State's introduction of evidence of prior uncharged crimes Uptegrove committed, we are limited to plain error review. Therefore, to determine if relief is warranted, we must first determine whether there is plain error, error that is "evident, obvious, and clear," and if so, whether a manifest injustice or miscarriage of justice has occurred as a result of the error. Roper, 136 S.W.3d at 900.
"Without exception, `[e]vidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant's propensity to commit the crime with which he is presently charged.'" State v. Thurman, 272 S.W.3d 489, 495 (Mo.App. E.D.2008) (quoting State v. Ellison, 239 S.W.3d 603, 606 (Mo. banc 2007)). However, evidence of the defendant's prior misconduct is admissible when it is logically relevant — it has some legitimate tendency to directly establish the accused's guilt of the charges for which he is on trial, and when it is legally relevant — its probative value outweighs its prejudicial effect. Id. Missouri courts have admitted evidence of prior sexual misconduct for purposes other than propensity, such as establishing motive or intent. Id. See also State v. Slaughter, 316 S.W.3d 400, 403 (Mo.App. W.D.2010). Numerous courts have held that prior sexual contact toward the victim is admissible as it tends to demonstrate the sexual desire for that victim, thereby establishing motive. Thurman, 272 S.W.3d at 495. "Additionally, evidence of part of the circumstances or the sequence of events surrounding the offense charged may be admissible `to present a complete and coherent picture of the events that transpired.'" Id. (quoting State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994)); Slaughter, 316 S.W.3d at 403-04. Furthermore, a defendant's mental state can be determined from evidence of his conduct before the act itself and from his subsequent conduct. See State v. Callen, 97 S.W.3d 105, 110 (Mo.App. W.D.2002).
In addition to the incidents upon which the charged offenses were based, M.B.U. testified that Uptegrove first touched her in a sexual manner on the way home from a basketball game in Johnson County and again on a trip home from Warrensburg where Uptegrove had bought M.B.U. a digital camera. During these trips, Uptegrove asked M.B.U. whether his touching her vagina felt good and for M.B.U. to show him her underwear. Because Uptegrove raised the issue of intent by denying that the relationship was sexual in nature, the State properly introduced evidence of these two incidents. The evidence was offered for the purpose of establishing Uptegrove's intent to "arouse or satisfy" his sexual desires, a required element of the crimes charged. § 566.067. A juror could reasonably believe that these incidents established that Uptegrove intended to touch M.B.U. in a sexual manner for the charged incidents for which he was convicted.
The evidence of Uptegrove's prior sexual misconduct toward M.B.U. was properly admitted at trial. Because Uptegrove failed to show that the evidence's admittance constituted "evident, obvious, and clear" error, we need not examine whether a manifest injustice or miscarriage of justice has resulted.
Point II is denied.
M.B.U.'s trial testimony was properly admitted and constituted sufficient evidence from which a reasonable juror might have found Uptegrove guilty beyond a reasonable doubt. Additionally, Uptegrove failed to show plain error in the trial court's failure to sua sponte declare a mistrial because M.B.U.'s testimony as to Uptegrove's other sexual misconduct toward her was properly admitted to show Uptegrove's motive or mental state. The judgment of the trial court is affirmed.
JAMES EDWARD WELSH, Presiding Judge, and KAREN KING MITCHELL, Judge, concur.