Miller v. State

636 S.W.3d 197

Vernon Earl MILLER, Movant-Respondent,

v.STATE of Missouri, Respondent-Appellant.

No. SD 36039

Missouri Court of Appeals, Southern District, Division Two.

Filed: December 1, 2021

Attorneys for Appellant: Eric S. Schmitt, Atty. Gen., and Daniel N. McPherson, Asst. Atty. Gen., of Jefferson City, MO.

Attorney for Respondent: Tyler P. Coyle of Columbia, MO.

JEFFREY W. BATES, C.J.

The State of Missouri (State) appeals from the motion court's order granting the request of Vernon Earl Miller (Movant) in his amended Rule 29.15 motion to vacate the judgment entered and sentences imposed following his convictions of forcible rape, statutory sodomy in the second degree, and statutory rape in the second degree.¹ In two points on appeal, the State contends the motion court clearly erred by granting relief because Movant was not prejudiced by: (1) defense counsel's failure to object to the introduction of testimony about a laptop and a CD; or (2) defense counsel's failure to litigate and obtain a ruling on a motion to exclude all evidence kept in the Dent County Sheriff's Department evidence room (hereinafter, the Motion to Exclude All Evidence). We conclude that the motion court's findings and conclusions are clearly erroneous because, after reviewing the complete record, we have a definite and firm impression that a mistake has been made. See Hefley v. State , 626 S.W.3d 244, 248 (Mo. banc 2021) ; Coday v. State , 179 S.W.3d 343, 346 (Mo. App. 2005). Accordingly, the motion court's order granting relief is reversed. The case is remanded with directions to enter an order denying Movant's amended Rule 29.15 motion.

Factual and Procedural Background

Movant's convictions and sentences were affirmed on direct appeal by this Court. State v. Miller , 531 S.W.3d 91, 92-93 (Mo. App. 2017).² Just as in the direct appeal, we must view the facts in the light most favorable to the jury's verdicts. Rousan v. State , 48 S.W.3d 576, 579 (Mo. banc 2001).

Movant lived on his property with his girlfriend, her sons, and her two daughters (M.L. and A.A.). Movant began inappropriately touching M.L. when she was seven or eight years old. Movant gave her extended hugs, French-kissed her, and touched her breasts and vaginal area. Before M.L. graduated from eighth grade, she was told by Movant that he would take her virginity on graduation night. On the night of M.L.’s graduation, M.L. told Movant she did not want "it" to happen, so Movant did nothing. The following morning, Movant entered M.L.’s room and told her she "was going to be his" and that they would be married. Movant took the 14-year-old M.L. to a barn and forced her to have intercourse with him.

A.A. is M.L.’s younger sister. On the night before A.A.’s eighth grade graduation, Movant approached A.A. and told her that he needed to explain her body to her and "show [her] the ways of the world." On the day after A.A.’s eighth grade graduation, Movant called A.A. into his bedroom and said he wanted to give her "a gift [she] would never forget." Movant undressed A.A., pinned her hands above her head, and forced her to have intercourse with him.

About a year later, A.A. was not feeling well and was resting in her bedroom. Movant came in and told her sex would make her feel better. Movant put his hands in A.A.’s pants and rubbed her vagina.

After a hotline call was made to the Children's Division (Division), an investigator and a Dent County sheriff's deputy went to Movant's home. While they were at the home, Movant pulled into the driveway and denied the allegations of sexual abuse. The following day, Movant called the Division investigator and threatened to destroy evidence. Movant later refused to cooperate with the Division and told a service worker to leave his property.

Officers obtained an arrest warrant for Movant and a search warrant for Movant's trailer. The trailer was searched, and officers located a tube of cinnamon lubricant in his bedroom. A.A. testified that Movant had a bottle of cinnamon lubricant that he wanted to use on her. Officers also located lingerie that was too small for Movant's girlfriend. Officers further located a computer bag containing a laptop computer and a CD with a letter stored on it. The computer bag, laptop and CD were found in Movant's bedroom.

Movant was interviewed by Deputy Rodney Jackson (Deputy Jackson). He conducted Movant's police interview. Deputy Jackson recorded the interview using a microcassette recorder with which he was unfamiliar. The interview lasted about three hours, but 70 minutes were not recorded. During the interview, Deputy Jackson recalled admissions by Movant that he and M.L., who was 17 years old at the time, had engaged in some "heavy petting and necking" in her bedroom. Movant said M.L. was "trying to christen her bedroom." There was another episode in Movant's bedroom a couple of months later. Movant explained that heavy petting "was like a poodle on your leg, bumping and grinding, polishing your belt buckle." Movant denied having intercourse with either M.L. or A.A. When Movant made these statements, the first side of the cassette tape was full, and the recorder had stopped running. Once Deputy Jackson realized the tape-recording had stopped, he took a break. He flipped the tape over and covered Movant's admissions about his interactions with M.L. again, so that they would be on the recording. After the interview, Deputy Jackson transferred the cassette tape to Deputy Wayne Becker (Deputy Becker). He created a digital file of the recording (hereinafter referred to as the audio recording). Deputy Jackson listened to the entire audio recording and confirmed it accurately reflected what took place during the interview.

M.L. and A.A. were removed from Movant's residence. Some of M.L.’s belongings were left there, including an "Ag record book" (Ag book) used for her high school Agriculture class. Thereafter, the Division conducted a family support team (FST) meeting. M.L. and Movant were among those who attended the meeting. During the meeting, Movant passed a note to M.L.³ The note instructed M.L. to check her Ag book. M.L. had recently been given her Ag book by another student, who had received it from Movant. Inside the Ag book, M.L. located a typed letter she believed was from Movant. The caption of the letter stated:

WARNING WARNING WARNING WARNING WARNING WARNING READ THIS INFORMATION AND DESTROY IMMEDIATELY. DO NOT GET CAUGHT WITH THIS !!!!!!!!!!!!! VERY IMPORTANT !!!!!!!!!!

The letter mentioned the allegations made by M.L. and A.A. and referred to M.L.’s cat, which had remained at Movant's residence. The letter instructed M.L. to talk with A.A. and immediately destroy the letter. M.L. believed the letter was sent from Movant because "[t]here was very specific details, pet information, what [she] had done with a bedroom that was [hers], and family members’ names[.]" M.L. interpreted the letter to mean that she "should remain silent about everything that was going on. That it wasn't anybody else's business and that in order to keep my family together [she] should keep [her] mouth shut." This message was similar to statements Movant had previously made to M.L.

Deputy Becker was one of the officers who had searched Movant's residence pursuant to the search warrant. Deputy Becker had 28 years of IT work experience and training as a certified forensic examiner. He performed a search on the laptop seized from Movant's bedroom and located a piece of the "WARNING WARNING WARNING" letter given to M.L. This artifact indicated that the letter was printed from the laptop, but the document had not been saved on it. A copy of the entire letter was contained on the CD found in the computer bag.

At trial, five exhibits offered by the State were admitted in evidence and published to the jury. Exhibits 1 and 2 were pictures of M.L. and A.A. taken on June 14, 2006, before their interviews at the Child Advocacy Center (CAC). Division investigator Anna Tucker, who observed the CAC interviews of M.L. and A.A., laid the foundation for admission of these two exhibits. She testified that the pictures fairly and accurately showed the girls’ appearance on that day. Exhibit 3 was the two-page letter M.L. found in her Ag book. M.L. laid the foundation for admission of this exhibit. She testified that she found the letter in her Ag book, and she explained how she knew it was from Movant. Exhibit 4 was a photograph of the bottle of cinnamon lubricant. The foundation for admission of this picture was laid by Deputy Becker, who found and photographed the lubricant. Deputy Becker testified that the picture fairly and accurately showed the lubricant bottle. Exhibit 5 was a USB thumb drive containing a digital copy of the audio recording of Movant's police interview. The foundation for admission of this exhibit was laid by Deputy Jackson, who conducted the interview. Exhibit 5 was admitted and played for the jury.

During Movant's case-in-chief, Movant testified on his own behalf. No additional exhibits were offered. During deliberations, the jurors asked to see Exhibits 1-3. The court suggested sending all five exhibits to the jurors. Defense counsel objected to sending Exhibit 4 (photo of lubricant bottle) and Exhibit 5 (USB thumb drive of the audio recording). The court overruled the former objection and sustained the latter. The court sent Exhibits 1-4 to the jury.

The jury convicted Movant of forcible rape, statutory sodomy in the second degree, and statutory rape in the second degree. The court sentenced Movant to serve 25 years on the forcible rape conviction, seven years on the sodomy conviction, and seven years on the statutory rape conviction, with all sentences to run consecutively. As noted above, Movant's convictions and sentences were affirmed on direct appeal. Miller , 531 S.W.3d at 92-93. The only issues raised on appeal were the trial court's actions in accepting the verdicts and in sending exhibits to the jury during deliberations. Id ...