State v. Billings

694 S.W.3d 556

STATE of Missouri, Respondent,

v.Robert Shannon BILLINGS, Appellant.

WD 85545 consolidated with WD 85898

Missouri Court of Appeals, Western District.

OPINION FILED: May 28, 2024

Application for Transfer Denied September 3, 2024

Appeal from the Circuit Court of Platte County, Missouri, The Honorable Thomas Fincham, Judge

John Esposito, Kansas City, MO counsel for Appellant.

Gregory Barnes, Jefferson City, MO counsel for Respondent.

Before Division Two: Thomas N. Chapman, Presiding Judge, Karen King Mitchell, Judge, and W. Douglas Thomson, Judge

Thomas N. Chapman, Presiding Judge

Robert Billings appeals his convictions and sentences for two counts of first-degree statutory sodomy. He contends that the trial court abused its discretion in admitting propensity evidence from two witnesses; plainly erred in failing to dismiss the venire panel following a juror’s inflammatory and prejudicial outburst; plainly erred in imposing consecutive sentences under the mistaken belief that consecutive sentences were statutorily mandated; and plainly erred in submitting the verdict director for Count I in violation to his right to a unanimous verdict. The judgment is affirmed.

Factual and Procedural Background¹

[1] Billings was charged by amended information with first-degree statutory sodomy for attempting to touch Victim 1’s vagina with his hand (Count I), first-degree statutory sodomy for attempting to touch Victim 2’s vagina with his hand (Count II), and sexual misconduct involving a child for exposing his genitals to Victim 2’s sister (Count III). The jury found Billings guilty of Counts I and II and not guilty of Count III.

The evidence at trial was as follows. Victim 1 is the great-niece of Billings. Victim 2 and Victim 2’s sister are Billings’s nieces and cousins of Victim 1. In May 2019, six-year-old Victim 1 told her older sister, who was 12 or 13 years old at the time, that Billings had touched her inappropriately. She said that Billings had hurt her, and when her sister asked how, she said that "he touched me down there." They were at her sister’s friend’s house "playing a game, telling each other secrets" when Victim 1 made the disclosure. Victim 1 was "really nervous" and was "really scared to tell an adult" but her sister told her that if they didn’t tell an adult, "something bad could happen again and it’s a really serious thing." The next morning, Victim 1 disclosed to a counselor at school.

Thereafter, Victim 1’s mother (Billings’s niece) and grandmother (Billings’s sister) reported to law enforcement that Victim 1 had told a school counselor that Billings had inappropriately touched her. A detective with the Parkville Police Department ("Detective") set up a forensic interview with Victim 1 through the Children’s Advocacy Center at Synergy Services. The forensic interview was video recorded, and it was admitted into evidence at trial and played for the jury.

In the interview, Victim 1 disclosed to the forensic interviewer that Billings tried to touch her private more than one time. She said that she was five years old when Billings first "tried to touch me in inappropriate places." She pointed to her "private" and indicated the vagina on an anatomical drawing. She said that Billings put his hand on her on top of her clothes and that his hand was not moving and was "still as a rock." She said that it happened while they were watching TV on Billings’s bed. Victim 1 told Billings to stop. She also disclosed that Billings tried to get her to touch "it" and circled the penis on an anatomical diagram, which she called a "private." Victim 1 did not want to touch Billings’s private, but Billings told her that he wanted her to. Billings also tried to get Victim 1 to touch his butt with her hand. She did not touch Billings. Victim 1 said that she was six years old the last time Billings tried to touch her. She also told the interviewer that Billings tried to do the same thing to her two cousins, later identified as Victim 2 and Victim 2’s sister. She added that there was something she was "not ready" to talk about concerning Billings and that she wanted her mother to know that. At trial, Victim 1, who was nine years old at the time, acknowledged that Billings had done something bad to her and had hurt her. She said that he touched her. She remembered that she had told her older sister what Billings had done.

As a result of Victim 1’s forensic interview, Detective contacted Victim 2 on June 6, 2019. Victim 2, who was 15 years old at the time, told him that when she was five years old, Billings had tried something similar with her. She said that Billings unzipped her onesie pajamas and started sliding his hand down her body until one of his fingers was inside her underwear. At that point, she stood up, zipped up her onesie, and went upstairs. She also told Detective that Billings slapped her butt on Christmas 2018. Detective set up forensic interviews with Victim 2 and Victim 2’s sister.

In her forensic interview, Victim 2 repeated her disclosure that when she was five years old, Billings had attempted to touch her when she was wearing onesie pajamas.² She "literally drew a line kind of from the top of her neck, kind of between her chest just above to probably the pubic bone as to where he tried to touch." Victim 2 "said no and left."

Victim 2, who was 18 years old at trial, testified that when she was younger, she had a close bond with Billings but over time, "it was just uncomfortable being around him." She said that when she and her sister, who was a year older than her, were younger, they would sometimes spend the night at their grandmother’s house, where Billings also lived. They would sometimes sleep in Billings’s bedroom. She continued that Billings "would look at naked women" on his computer "in front of us without a care in the world." He said that the women "were hot." Victim 2 "just got up and left." She explained that one time when she was five or six years old, she and Billings were lying on a futon in the basement watching TV when Billings unzipped her onesie, ran his hand down her body, and put his finger in her underwear. He stopped when she got up and went upstairs. Billings told Victim 2 that "it was our secret and we need to keep it that way." She "waited a little bit" and then told her sister what had happened. She told her aunt, Victim 1’s grandmother, about the incident around the time that she talked to the police. Victim 2 confronted Billings at some point by text about the incident, and he did not deny it. He "blamed it on his drinking at the time." Victim 2 also testified that while Victim 1 and Billings had once been "really close" and "best friends," she witnessed a change in Victim 1’s behavior around Billings. "[S]he just didn’t want to be around him any more" and "[s]he did not want to be alone with him."

In her forensic interview, Victim 2’s sister disclosed that Billings "had pulled up pictures of naked women on a computer" and she and Victim 2 "were able to see those images." He said, "[H]ey, they are hot." The girls "felt uncomfortable" and "chose to leave that room at that time."

On July 25, 2019, Detective interviewed Billings. The interview was video recorded, and it was played for the jury. Detective first had Billings read aloud the Miranda warnings, which he did, and Billings waived them. Detective then told Billings that Victim 1 had disclosed that he tried to touch her vagina, and Billings said that it was "not true." Billings explained that he lived with his mother, Victim 1’s great-grandmother and Victim 2’s grandmother. Victim 1 spent the night at their house and was sleeping in Billings’s bed with him when she wet the bed. He said that he "probably reached toward her crotch to see if she had wet panties." He said that he was "half asleep" and that "of course I would feel her crotch, just to see if she was wet." He then told Victim 1 to go see her great-grandmother so she could help her change her pants. Billings told Detective, "I don’t remember any other time I was reaching for her crotch when she was in bed with me."

Detective then told Billings that Victim 2 had disclosed that when she was five years old and they were watching TV, he unzipped her onesie pajamas and reached his hand inside her underwear and tried to touch her vagina. Billings denied that it had happened, and said, "I know she thinks it happened because she texted me about it." He said that Victim 2 texted "You put your hand down my onesie" and that he responded, "I don’t remember. If you say it happened, I won’t argue with you about it." Billings said he was "drinking at the time a little bit, sure."

Billings denied viewing pornography on his computer when Victim 2 and Victim 2’s sister were there and said that it may have been possible that they saw naked women on one of the newsfeeds he looks at called Reddit. He did not remember saying the naked women were "hot." Billings also denied telling Victim 2 and Victim 2’s sister that if they ever lost their virginity, they should tell him all about it. He explained that he had told them that they could talk to him about anything, including sex, and said, "Obviously, I was too open." Billings told the detective that he is "one of the greatest influences" on "those kids" and that he "made sure that they feel loved." He said that the girls’ father was not a caring person and "that’s something I provide for them." He said he loved "those kids so much" and "I was always sweet to those girls."

Prior to trial, the State filed a request to admit propensity evidence in the form of the testimony of two witnesses pursuant to Article I, Section 18(c) of the Missouri Constitution. The trial court heard argument on the issue and overruled Billings’s objection. At trial, Billings again objected to the admission of the propensity evidence and was granted a continuing objection. The State introduced the testimony of Propensity Witness 1, who was 46 years old at...