State v. Brammer

614 S.W.3d 18

STATE of Missouri, Plaintiff/Respondent,

v.Gray Wayne BRAMMER, Defendant/Appellant.

No. ED 108021

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: September 15, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied October 29, 2020

Application for Transfer Denied January 26, 2021

Gregory L. Barnes, P.O. Box 899, Jefferson City, MO 65102, For Plaintiff/Respondent.

James C. Egan, 1000 West Nifong, Building 7, Suite 100, Columbia, MO 65203, For Defendant/Appellant.

SHERRI B. SULLIVAN, J.

Introduction

Gray Wayne Brammer (Appellant) appeals from the judgment of the trial court entered after a jury found him guilty of child molestation in the first degree.¹ We affirm.

Factual and Procedural Background

Appellant does not contest the sufficiency of the evidence to support his conviction. Viewed in the light most favorable to the verdict, the facts at trial showed the following:

S.M. (Victim) was 12 years old at the time of the offense and lived with her grandmother. Victim's mother (Mother) lived with her boyfriend and Appellant, both registered sex offenders, in a trailer.

On February 4, 2017, Victim visited Mother at the trailer. Appellant was also present. During the day, Appellant and Victim went for a four-wheeler ride to pick up cigarettes, snacks, and alcohol from the store. Appellant had been told not to go on the four-wheeler with Victim and Victim went without permission from Mother. Victim drove and Appellant sat directly behind her. While driving to the store, Appellant reached up and grabbed Victim's right breast. Victim initially thought the touching may have been an accident, but Appellant kept his hand on her breast and made no attempt to reach the controls. Victim testified the contact occurred on a straight section of a flat, dirt path. Victim and Appellant returned from the store without further incident.

Appellant returned to the trailer and Victim continued to drive the four-wheeler. Victim did not mention the incident to Mother. Later, Appellant joined Victim on the four-wheeler and they rode up a hill. Eventually, Victim went inside to see that Appellant and Mother were drinking and Mother was intoxicated. Victim, Mother, and Appellant all sat at the kitchen table and Appellant repeatedly attempted to give Victim wine. Ultimately, Victim tried a little wine but spit it out. At the kitchen table, Appellant began touching Victim's thigh and making her uncomfortable. Victim tried to leave the table but Appellant held her. Finally, Mother told Appellant to stop and he did. Victim then contacted a relative because she was uncomfortable. In the end, Mother's boyfriend left work early and took her home.

Victim told her grandmother that Appellant had touched her "boob." Although Victim asked her grandmother to not tell anyone, her grandmother contacted the authorities. Victim was interviewed at a Child Advocacy Center (CAC) on February 17, 2017. During this interview, Victim confirmed Appellant touched her breast while they rode the four-wheeler on a flat surface.

On February 23, 2017, Appellant was interviewed at his home by a Children's Division worker, a detective, and an officer. During this interview, Appellant admitted to having potentially "brushed" against Victim's breast while reaching to give the four-wheeler gas as they drove up a hill.² Appellant denied any allegations of touching Victim at the kitchen table, stating he did not remember the group sitting at the table that evening.

As a result of the events on February 4, 2017, Appellant was charged with statutory sodomy in the first degree and child molestation in the first degree.

Appellant sought to exclude evidence of his prior convictions. In 1992, Appellant was convicted of first-degree statutory rape, first-degree sexual assault, and first-degree deviate sexual assault as a result of his relationship with his then 14-year-old step-niece. Appellant served 13 years in prison for his crimes. Appellant argued his certified prior convictions should not be introduced because their probative value was substantially outweighed by their prejudice. In support, Appellant noted the prior acts occurred more than 25 years ago, involved a relationship with a family member as opposed to a stranger, and had the potential to eclipse the current charges. The State countered Appellant's argument by emphasizing the similarity of the crimes and noting the current and prior victims were both females of similar age. The trial court agreed with the State, focusing on both the similarity of the crimes and the fact that the past crimes led to actual convictions. In the end, a stipulation providing the offense, date, and a brief description of the act was read to the jury.

At trial, the jury heard testimony from Victim; Mother; Ashlee Gamble, an investigative supervisor with the Children's Division (Gamble); Kelly Teeson, a forensic interviewer with the CAC (Teeson); and Detective Beverly Gilliam (Det. Gilliam). Gamble recounted the events surrounding the CAC interview with Victim. Gamble also testified to Victim's disclosure of Appellant's touching her breast while on the four-wheeler and rubbing her leg at the kitchen table. Victim testified about Appellant's touching her breast while on the four-wheeler and his touching her leg and vagina while at the dinner table. Additionally, Victim's CAC interview was played for the jury during the examination of Teeson. In the CAC interview, Victim also stated Appellant touched her breast while on the four-wheeler. Det. Gilliam testified in relation to her interview with Appellant at the trailer. Det. Gilliam testified that Appellant stated he may have brushed against Victim's breast while riding the four-wheeler, but he did not remember them all sitting down at the kitchen table. The jury also viewed a videotape of Det. Gilliam's interview of Appellant at the trailer, which stated the same. Finally, during Appellant's direct examination of Mother, she testified Victim relayed the touching of Victim's breast occurred while Victim and Appellant were riding the four-wheeler up a hill.

During the instruction conference, Appellant objected to Instruction No. 10, which addressed propensity evidence based on Appellant's prior criminal acts. No objection was raised to Instruction No. 7, the verdict director for Count II. Instruction No. 7 stated:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 04, 2017, in the County of Washington, State of Missouri, the defendant touched the breast of S.E.M. through the clothing, and

Second, that the defendant did so for the purpose of arousing defendant's sexual desire,

Third, that S.E.M. was a child less than fourteen years of age,

Fourth, that in the course of this conduct, the defendant had previously been found guilty of an offense under chapter 566, then you will find the defendant guilty under Count II of child molestation in the first degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

After deliberating, the jury found Appellant not guilty of Count I, statutory sodomy in the first degree, and guilty of Count II, child molestation in the first degree. Appellant was sentenced to 30 years in prison. This appeal follows.

Points Relied On

Appellant makes two claims of error on this appeal. Point I claims the trial court plainly erred in submitting Instruction No. 7 to the jury because the instruction failed to specify a particular incident of child molestation in the first degree. Point II claims the trial court abused its discretion by allowing the State to introduce evidence of Appellant's prior convictions because that evidence was substantially more prejudicial than probative.

Point I

Standard of Review

Appellant did not object to Instruction No. 7 and he concedes his claim was not properly preserved for appellate review.³ Therefore, Appellant requests we review Instruction No. 7 for plain error. "Any issue that was not preserved can only be reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted from trial court error." State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010). Significantly, "[a] claim of plain error places a much greater burden on a defendant than an assertion of prejudicial error." State v. Dean, 382 S.W.3d 218, 224 (Mo. App. S.D. 2012).

Plain error review is a two-step process. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). First, the reviewing court determines whether the claimed error affects Appellant's substantive rights in a way that is evident, obvious, and clear. State v. Myles, 479 S.W.3d 649, 655 (Mo. App. E.D. 2015). Instructional error rises to the level of plain error "when it is apparent the error affected the verdict." State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014). Second, "if plain error affecting substantial rights is found, the Court determines whether the error actually did result in manifest injustice or a miscarriage of justice." Id.

Discussion

Appellant argues this case falls under the umbrella of Celis-Garcia because evidence was presented of three potential acts. State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011). Specifically, there was evidence that Appellant touched Victim's breast: (1) while riding a four-wheeler together on a straightaway path, (2) while riding a four-wheeler together up a hill, and (3) while at the kitchen table. Therefore, although Appellant never argued the verdict director needed to distinguish between locations because multiple acts may have occurred, Appellant now claims that because Instruction No. 7 did not distinguish between the three possible events, some jury members may have based their findings of guilt on one event while others may have based it on another.

As the Supreme Court of Missouri explained in Celis-Garcia,...