State v. Bellamy

680 S.W.3d 596

STATE of Missouri, Respondent,

v.Caleb T. BELLAMY, Appellant.

WD 85500

Missouri Court of Appeals, Western District.

OPINION FILED: December 12, 2023

Appeal from the Circuit Court of Clay County, Missouri, The Honorable Shane T. Alexander, Judge

Andrew Bailey, Attorney General, and Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Angela S. Fitle and Joe Ramboldt, Leawood, KS, Attorneys for Appellant.

Before Division Three: Lisa White Hardwick, Presiding Judge, and Karen King Mitchell and Cynthia L. Martin, Judges

Karen King Mitchell, Judge

Caleb Bellamy appeals his conviction for second-degree rape, § 566.031,¹ for which he was sentenced to seven years’ imprisonment. He raises four points on appeal. First, he argues the trial court abused its discretion by failing to intervene when the State criticized defense counsel during the State’s rebuttal argument. Second, Bellamy asserts the court plainly erred by failing to give a curative instruction when the State misstated the elements of second-degree rape during its closing argument. Third, he claims the court abused its discretion by overruling defense counsel’s objection to a question posed by the State during its redirect examination of M.T. (Victim). Lastly, Bellamy contends the court abused its discretion by refusing his properly proffered instruction on the lesser-included offense of second-degree sexual abuse. Finding no error, we affirm.

Background²

On February 2, 2020, Bellamy was charged by information with second-degree rape, a class D felony. At trial, Victim testified as follows. She and Bellamy were childhood friends. They dated briefly and had sexual intercourse once when Victim was fifteen years old. Seven or eight years later, Victim, Bellamy, Bellamy’s aunt, and their respective dates, met for drinks one night. After that, Victim did not see Bellamy again for roughly ten years.

On February 9, 2019, Victim was home alone when she saw an Instagram post from Bellamy, and she contacted him to catch up. Bellamy invited Victim out; she declined and, instead, invited Bellamy to her house before he went out for the evening. Bellamy arrived at Victim’s house around 5:30 p.m. with a six-pack of beer and a fifth of vodka. Bellamy and Victim spent the evening watching Netflix and talking, with Victim in her recliner and Bellamy on the couch. Nothing romantic occurred or was discussed.

While at Victim’s house, Bellamy drank all the beer and more than half the vodka; he was visibly impaired. Victim had two shots of bourbon. Victim also smoked marijuana, taking a couple of puffs on a pen every thirty minutes or so throughout the evening; she was high, but her decision-making and her memory of events were not impaired. Bellamy also took two or three hits off the pen.

Around 11:00 or 11:30 p.m., Victim said she was going to bed. She told Bellamy he could stay or get a ride home. Victim went into her bedroom, closed the door, and changed into her pajamas. Bellamy knocked on the bedroom door and asked whether Victim had anything he could wear to bed; she gave him a pair of athletic shorts. Victim then went into the bathroom while Bellamy changed into the shorts. Victim returned to her bedroom and got into bed.

Bellamy got into the other side of Victim’s bed, but she was not concerned because he was her childhood friend; she testified, "I mean, when we were little, we used to sleep in the same bed, snuggle on the couch, you know, like—we were good friends." Then Bellamy started rubbing the back of Victim’s arm and her lower back with his hand. She swatted his hand away and told him to stop. She also rolled onto her stomach, closer to the edge of the bed and away from Bellamy. Again he rubbed her arm and back, and again she swatted his hand and told him to stop. Then Bellamy straddled Victim and tried to pull her pajama pants and underwear down; she yanked them back up and told him to stop and to get off of her. But, instead, he ripped her pants and underwear and "jammed" his penis into her vagina. She yelled "Ouch," and then went numb. Bellamy ejaculated in Victim’s vagina, then rolled over and fell asleep. The next morning, Victim confronted Bellamy, who denied any physical contact.

When Bellamy left, Victim called her best friend (Friend). Friend testified that Victim was crying hysterically when she called him. According to Friend, Victim was confused about why Bellamy would rape her, but she was not confused about the details of the assault. Friend took Victim to North Kansas City Hospital where she was interviewed and examined by a sexual abuse nurse examiner (SANE nurse) who took photographs and collected samples. The SANE nurse testified that Victim showed signs of recent vaginal tearing. A DNA analyst with the Kansas City Police Crime Laboratory testified that Bellamy was the likely contributor of male DNA detected in a vaginal swab collected from Victim.

The jury found Bellamy guilty of second-degree rape. He waived jury sentencing, and the court sentenced him to seven years’ imprisonment. This appeal follows. Additional facts will be provided in the analysis, as necessary, to address Bellamy’s points on appeal.

Analysis

Bellamy raises four points on appeal. The first two points allege error related to the State’s rebuttal argument, and the third point alleges error in overruling defense counsel’s objection to the State’s questioning of Victim. Bellamy’s fourth point contends the court abused its discretion by refusing his properly proffered instruction on the lesser-included offense of second-degree sexual abuse. We address each of his points in turn.

I. The trial court did not err by failing to intervene when the State criticized defense counsel during the State’s rebuttal argument.

For his first point, Bellamy claims the trial court abused its discretion by failing to intervene and give a curative instruction when the State criticized defense counsel during rebuttal.

[1] "In order to preserve an error for appellate review, an objection stating the grounds must be made at trial, and the same objection must be set out in the motion for new trial and must be carried forward in the appellate brief." State v. Simms, 680 S.W.3d 870, 883 (Mo. App. W.D. 2021) (quoting State v. Ratliff, 622 S.W.3d 736, 745 (Mo. App. W.D. 2021)). Under this standard, Bellamy’s first point is partially preserved. He timely objected to the following rebuttal remark by the State:

So he just wants to rewrite history now so you forget what [Victim] said and what the SANE nurse said and that you can just come to the conclusion that for some reason, because they had sex 20 years ago, it was acceptable for Mr. Bellamy to go in her bedroom and rape her without her consent because apparently in the world that his defense attorney lives in, once you’ve had sex with somebody, you’ve forfeited your right to ever say no again.

The court overruled Bellamy’s objection, and, in his motion for new trial, he argued that the court erred in doing so. Thus, Bellamy’s claim as to the above remark by the State is properly preserved for appellate review, and we review this part of his claim for abuse of discretion. State v. Steele, 314 S.W.3d 845, 851 (Mo. App. W.D. 2010).

[2–4] Bellamy also takes issue with the court’s failure to intervene when, during rebuttal, the State said,

And now Mr. Bellamy’s defense attorney wants to rewrite history and tell you a bunch of things that I didn’t see happen…. You heard what [Victim] testified to, and I hope you paid attention and remember it. It’s none of the things that Mr. Bellamy’s defense attorney just told you.

And Bellamy argues that the court failed to intervene when the State impugned defense counsel’s character and integrity by labeling him a victim blamer and supporter of rape, citing the following rebuttal remark by the State:

But for some reason, people think it’s okay to blame the victim of a sex offense because she didn’t fight hard enough, because she is responsible, apparently, in [defense counsel]’s view, for stopping this from happening. I don’t know what planet he lives on, but it is not this one and it’s not the law of Missouri that a woman has to stop that from happening.

But Bellamy did not object to these latter remarks at trial, and he did not claim error in connection with them in his motion for new trial. Thus, his claim as to these latter remarks is not preserved for appellate review and "is subject, at best, to plain error review." State v. Ratliff, 622 S.W.3d 736, 745 (Mo. App. W.D. 2021). "Under plain error reviews we must determine whether the alleged error is ‘evident, obvious, and clear error’ [and] ‘facially establishes substantial grounds for believing that manifest injustice or a miscarriage of justice’ has occurred." Id. at 745-46 (quoting State v. Campbell, 600 S.W.3d 780, 788-89 (Mo. App. W.D. 2020)). " ‘[T]he defendant bears the burden of demonstrating manifest injustice entitling him to’ plain error review." State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020) (quoting State v. Oates, 540 S.W.3d 858, 863 (Mo. banc 2018)).

[5] Bellamy’s first point rests on the presumption that the State’s remarks were a personal attack on defense counsel. "If the argument is found to have been a personal attack, it is improper and objectionable." Steele, 314 S.W.3d at 852. "However, if the statement is characterized as an attack on the defense’s technique or trial tactics, ‘rather than counsel’s integrity or character[,]’ the argument is permissible." Id. (quoting State v. Reyes, 108 S.W.3d 161, 170 (Mo. App. W.D. 2003)).

Bellamy cites several cases in which prosecutorial comments during closing were found to be improper. In each, the State either suggested that defense counsel was lying, had committed a crime, or had otherwise acted improperly. See, e.g., State v. Greene, 820 S.W.2d 345, 347 (Mo. App. S.D. 1991) (prosecutor accused defense counsel of lying); State v. Hornbeck, ...