Gilcrease v. State

693 S.W.3d 130

Ralph GILCREASE, Appellant,

v.STATE of Missouri, Respondent.

No. ED 111503

Missouri Court of Appeals, Eastern District, DIVISION FIVE.

FILED: May 21, 2024

Rehearing Denied July 23, 2024

Appeal from the Circuit Court of St. Louis County, Cause No. 19SL-CC01868, Honorable John N. Borbonus, Judge

FOR APPELLANT: Stephanie A. Hoeplinger, 1010 Market St Suite 1100, St. Louis, Mo 63101.

FOR RESPONDENT: Daniel N. McPherson, PO POX 899, Jefferson City, Mo 65102.

OPINION

Rebeca Navarro-McKelvey, J.

Ralph Gilcrease (Appellant) appeals from the motion court’s judgment denying his Rule 29.15 ¹ amended motion for post-conviction relief following an evidentiary hearing. In the first of three points on appeal, Appellant argues that Trial Counsel was ineffective for failing to cross-examine a forensic examiner about a nurse practitioner’s questioning of a victim during a sexual assault medical examination. In his second point on appeal, Appellant claims Trial Counsel was ineffective for failing to cross-examine a victim about his recent school suspension serving as a possible motive to fabricate sexual abuse allegations. In Appellant’s final claim he asserts that Trial Counsel was ineffective for failing to call a victim’s sister as a witness as he alleges she would have provided a viable defense. We are unpersuaded by Appellant’s arguments that counsel was ineffective, or that he was prejudiced by these alleged failures under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, we affirm the judgment of the motion court.

Background

The State charged Appellant with committing multiple sexual offenses against D.H., J.S., and I.W. (Victims), specifically, three counts of first-degree statutory sodomy, § 566.062;² two counts of second-degree statutory sodomy, § 566.064, RSMo.; one count of enticement of a child, § 566.151, RSMo. (Cum. Supp. 2007); two counts of second-degree child molestation, § 566.068, RSMo; and one count of first-degree child molestation, § 566.067, RSMo. (Cum. Supp. 2007) for acts against D.H., J.S., and I.W. Following a 2017 trial, the jury found Appellant guilty on all counts.

Prior to trial, the trial court granted a motion in limine barring all evidence of prior bad acts of the State’s witnesses, including Victims. At trial, the State called a Child Advocacy Center forensic examiner (CAC examiner), a Sexual Assault Response Team nurse practitioner (SART nurse), all three child Victims, as well as the Victims’ parents, who testified to the incidents and subsequent disclosures. The defense called Appellant’s wife and the police officer who took the report from victim I.W.’s mother about I.W.’s allegations. At the close of trial, the jury convicted Appellant on all counts. The trial court then sentenced Appellant as a predatory sexual offender pursuant to § 566.125.5, RSMo. (2016), to consecutive sentences of life imprisonment for the three counts of first-degree statutory sodomy, concurrent sentences of five years for the two counts of second-degree statutory sodomy, one year for each count of second-degree child molestation, ten years for enticement of a child, and ten years for first-degree child molestation. Appellant directly appealed from his convictions and sentences, and this Court affirmed. See State v. Gilcrease, 567 S.W.3d 298 (Mo. App. E.D. 2019).

Victim D.H.

At trial, Victim D.H. stated that, when he was about ten or eleven years old, Appellant, who was also his godfather, molested him. D.H. testified that one night at his home, he was in the basement of the house asleep and Appellant came down and began sucking on D.H.’s neck. When D.H. tried to scream, Appellant pushed his face in a pillow. D.H. testified that "he tried to put it in, but he didn’t put it in. And then it was hurting." D.H. explained that he was referencing Appellant’s penis in his anus. D.H. then testified that, after that, Appellant began "jacking off" in front of D.H., saying "yeah, baby." When Appellant ejaculated, D.H. testified that he wiped it off with a towel and then took a shower. D.H. also testified that, during the same incident, Appellant sucked on D.H.’s penis and D.H. "didn’t want him to." D.H. also testified that Appellant made D.H. suck on Appellant’s penis right after Appellant attempted to anally penetrate D.H. D.H. testified that he told his grandmother the next morning after the incident. D.H. also testified that his mother saw the "hickeys" on his neck. D.H.’s mother took him to the hospital where he was examined by a SART nurse. D.H. additionally testified about a second incident that occurred at Appellant’s house wherein Appellant perpetrated similar acts of abuse on D.H.

At trial, the CAC forensic examiner testified about the protocols that forensic examiners apply to elicit reliable information from children. The CAC examiner stated the purpose of a CAC interview is to provide a safe place for children to talk without the examiner coaxing or suggesting answers. He explained the interview approach may vary depending on the stage of disclosure the child is in. In early stages, a child may tentatively disclose abuse, and in a later stage of active disclosure, the child may provide more details about the abuse. CAC examiner also explained why children sometimes are hesitant to share the details of their abuse. CAC examiner testified how his training and experience allow him to have a good indication as to when a child’s story is reliable. CAC examiner then testified about his interview with D.H., then eleven years old, where D.H. disclosed abuse by Appellant with statements substantially similar to D.H.’s trial testimony. The video and transcript of this interview were submitted into evidence and played for the jury.

The State also called SART nurse, who testified that she is a nurse practitioner working in sexual abuse management with the Child Protection Team at Children’s Hospital and SART for the purpose of medical examination and evidence collection. She testified that she begins with a few general questions, then takes a medical history so that she knows where to look for injury or evidence. She stated that she tries to keep all questions open-ended but sometimes needs to narrow the questions to ascertain what happened in order to provide appropriate medical care for the child and collect medical evidence. SART nurse testified that her primary objective is medical treatment of the child. She also testified that she audio records the medical history conversation but not the physical examination. SART nurse testified that she examined D.H. and followed the protocol to which she previously testified by asking both open-ended and direct questions so she knew physically where to derive her collection of evidence from D.H.’s body. The trial court admitted the audio recording of D.H.’s medical history, which was played for the jury. Based on D.H.’s disclosure, SART nurse swabbed D.H.’s mouth, penis, and anus. The swab from D.H.’s mouth later confirmed the presumptive presence of seminal fluid. The swab from D.H.’s penis later confirmed the presence of saliva. Photos of D.H.’s neck showed three suction hematomas, commonly known as "hickeys."

CAC examiner also testified at the postconviction evidentiary hearing. He reiterated that his role in a CAC forensic interview is to interview children in accordance with a protocol that monitors multiple factors, including the child’s ability to recall events, and suggestibility. CAC examiner explained how the protocol requires exercising caution to avoid suggesting answers to children, such as suggesting the identity of the abuser before the child has identified the abuser. He also testified about presenting questions in an "hourglass" format, such that in some instances direct questions are asked and then opened back up to more open-ended questions in order to gather information. CAC examiner reviewed the transcript of SART nurse’s interview with D.H. and observed that while some of the questions asked were not open-ended, different professionals have particular protocols to gather information unique to their role in the process of a child victim’s disclosure of abuse. He commented that the goal of a CAC forensic examiner is to create a safe space for a child to talk, using the "hourglass" or narrative approach, while the goal of a SART nurse is to determine the best medical response to assess medical needs. Additionally, he testified that it is more common for a medical provider, such as a SART nurse, to ask direct questions than it is for a forensic examiner in a CAC interview.

Trial Counsel testified at the evidentiary healing about her representation of Appellant with respect to the claims in the amended motion. Regarding the CAC examiner claim, Trial Counsel acknowledged that witnesses are not normally allowed to testify as to the credibility of other witnesses. Trial Counsel testified that she did not recall what she asked the CAC examiner at trial and that, if she did not ask questions about open and close-ended questions, she did not have a strategic reason for not doing so.

Victim J.S.

In his trial testimony, J.S. stated that when he was under the age of fifteen, he was alone with Appellant, a friend of his father, and Appellant showed him sexually explicit pictures and questioned him about his sexual history. J.S. testified that Appellant told him he "wanted" him ever since he met him. J.S. also testified that after exiting the bathroom after a shower, Appellant was standing in the doorway of the bathroom in case J.S. "needed any help." At one-point, Appellant asked J.S. to rub lotion on various parts of his body, including Appellant’s buttocks. J.S. testified that Appellant and J.S. had oral sex involving both J.S. and Appellant’s mouths and penises. The sexual contact continued in another room in the house where J.S. testified that he held Appellant’s penis. J.S. testified that, later...