State v. Brown

596 S.W.3d 193

STATE of Missouri, Respondent,

v.Robert L. BROWN, Appellant.

WD 81873

Missouri Court of Appeals, Western District.

Filed: March 3, 2020

Carol D. Jansen, Columbia for appellant.

Evan J. Buchheim, Jefferson City for respondent.

Before Division Three: Lisa White Hardwick, Presiding Judge, Alok Ahuja and Anthony Rex Gabbert, Judges

Lisa White Hardwick, Judge

Robert Lee Brown appeals from his convictions for nine counts of first-degree statutory sodomy and two counts of victim tampering. He contends the circuit court plainly erred in instructing the jury on two of the first-degree statutory sodomy counts because the verdict directors violated his right to a unanimous verdict. Brown also argues the court plainly erred in allowing propensity evidence. For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The evidence, in the light most favorable to the verdicts, was that A.E., who was born in July 2006, and K.E., who was born in September 2008, lived with their mother ("Mother") and Brown, who was their stepfather. A.E. lived with Mother and Brown from March 2017 through April 2017, while K.E. lived with Mother and Brown from September 2016 through April 2017.

A.E. and K.E. were removed from the home in April 2017 after a neighbor reported that the girls were being physically abused and neglected by Mother and Brown.¹ After the girls were placed in foster care, they disclosed to their foster mother that Brown had sexually abused them. Specifically, A.E. told her foster mother that Brown had tried to "put his private inside of her." She described an incident during which Mother had given her four or five ten-milligram melatonin pills, she fell asleep, and when she woke up, Brown was "trying to put it in her bottom." K.E. told her foster mother that Brown would "put lotion on her butt and put his thing in there." K.E. said that, when she would cry or scream, he would put his hand over her mouth and slam her down on the ground until she quit screaming. K.E. also disclosed that Brown "put it in her mouth" in the garage and, after he ejaculated, he threw some towels at her and told her to clean it up. Additionally, K.E. told her foster mother that he molested her in his work truck. K.E. said that Brown told her that if she ever told anyone, she would be sent to a girls’ home and he would go to prison. Brown also told her that, when he got out of prison, he would find her and shoot her in the face with a shotgun.

After the girls disclosed the abuse to their foster mother, they spoke to Rebecca Baynum, a Children’s Division investigator. A.E. told Baynum that Brown had put his "bad spot inside of her," and she pointed to her vaginal area. K.E. also told Baynum that Brown had put his "bad spot" or "private" in her "bad spot," and she pointed to her vaginal area. Baynum referred both girls to Mari Asbury, a Child Safe forensic interviewer.

A.E. told Asbury that, when she was in her bedroom, Brown put his "bad spot" in her butt and put his finger in her "bad spot." She also said that Brown pulled down her pants, put his "bad spot" in her "bad spot," and asked her how it felt. A.E. pushed him off of her and tried to leave to tell Mother about what Brown had done. Brown prevented her from leaving, however, and threatened to put gasoline in her water and kill her if she told anyone. Additionally, A.E. told Asbury that, while she and Brown were sitting on the couch, he took her hand and tried to make her touch his "bad spot."

Asbury also interviewed K.E. K.E. told Asbury that Brown put his "bad spot" in her butt several times. She said that the first time it happened, on September 20, 2016, she was asleep in her bed when Brown came into her room. Mother was not home at the time, and K.E. said that he did this to her only when Mother was not home. K.E. said that Brown pulled down her pants and put his "thing" in her "butt." K.E. said that it hurt and that she told Brown to stop, but he put his hand over her mouth and told her to be quiet. K.E. said that Brown "did it" until he "cummed" and then he took "it" out of her "butt," put it in her mouth, "shoved it right down [her] throat, and "cummed" in her mouth. She said that the "cum" was white, gooey, and tasted "disgusting," and she "puked." She later told Asbury that Brown "cummed" only in her mouth that time. K.E. said that, when Mother got home, she wanted to tell Mother what Brown had done, but Brown told her that, after he got out of prison, he would kill her with a shotgun. K.E. said that she had to take a shower to clean up because Brown had "cummed" in her "butt," and she saw blood on her bottom before she got into the shower. K.E. told Asbury that Brown came back later that same night, sat down on her bed, woke her up, and did the same thing, but this time, he "cummed" in her "butt" and not in her mouth.

K.E. also disclosed to Asbury that, two weeks later, Brown put his "bad spot" in her bottom in the garage after pushing her onto van seats that had been taken out of the van and were on the garage floor. She said she could feel it in her stomach and that it hurt "really bad." K.E. said that Brown "cummed all over the place" on the seats, her "butt," and her legs, and told her to clean it up. K.E. further told Asbury that, once, when she was lying down in defendant’s bedroom, Brown put his "wiener" in her "butt," "cummed" a little bit in her "butt," and "put the rest of his cum" in her mouth. K.E. said she ran to the bathroom and "puked it out." On other occasion, Brown put his finger in her "butt" in her bedroom. Additionally, K.E. told Asbury that Brown licked the inside her "private" once when she was sleeping in A.E.’s bedroom, which she said "hurt really bad."

The State charged Brown with nine counts of first-degree statutory sodomy. The first seven counts of first-degree statutory sodomy alleged that Brown had deviate sexual intercourse with K.E., a child who was then less than 14 years old, between September 1, 2016, and April 14, 2017. Specifically, Count I alleged that Brown put his penis in K.E.’s anus while in K.E.’s bedroom; Count II alleged that Brown put his penis in K.E.’s anus in his bedroom; Count III alleged that Brown put his penis in K.E.’s mouth while in K.E.’s bedroom; Count IV alleged that Brown put his penis in K.E.’s mouth in his bedroom; Count V alleged that Brown put his penis in K.E.’s anus while in the garage; Count VI alleged that Brown put his penis in K.E.’s anus in the bedroom; and Count VII alleged that Brown put his tongue or mouth on K.E.’s genitalia in K.E.’s sister’s bedroom. The last two counts of first-degree statutory sodomy alleged that Brown had deviate sexual intercourse with A.E., a child who was then less than twelve years old, between March 1, 2017, and April 14, 2017. Count VIII alleged that Brown put his penis in A.E.’s anus, and Count IX alleged that Brown attempted to cause A.E.’s hand to be on his penis in the living room. The State also charged Brown with two counts of victim tampering by purposely preventing or dissuading K.E. and A.E. from reporting the first-degree statutory sodomy.

A jury trial was held in March 2018. Both A.E. and K.E. testified. A.E. testified that Brown had touched her "boobs," "butt," and vagina with his hands and his penis. She said that, when she was ten years old, Brown pulled down her pants and his pants and began "humping" her by moving back and forth. She testified that Brown put his "body parts" in her vagina and "butt." On one occasion when she and Brown were on the couch, he put her hand on his penis. A.E. testified that Brown threatened to put gas in her water and kill her if she told anyone.

K.E. testified that Brown "humped" her in her "bad spot" more than one time. Specifically, she said that, the first time, when Brown came into her bedroom, she was watching a movie, playing on her DSR, or sleeping. K.E. later testified that she could not remember what she was doing. She testified that, when Brown came in, he pulled down her pants, put his "bad spot" in her "bum" and was "humping" her. K.E. testified that he covered her mouth so she would not scream out loud, and he told her that he would "shoot [her] upside the head with the shotgun" if she told anyone. She said that he did the same thing at other times in A.E.’s room and in Brown’s bedroom when Mother was gone. K.E. further testified that "cum" came out of Brown’s "bad spot" when he did this to her, and she described it as being white and gooey. K.E. said that Brown would put the "cum" in either her mouth or her bottom. She said that, when he put it in her mouth, she went to the bathroom and spit it out. K.E. also testified that Brown put his tongue in her "front bad spot" and told her to touch his "front bad spot." Additionally, she testified that Brown "humped" her in the "bum" in the garage when she was bent over on a van seat. When asked if anything came out of Brown’s "bad spot" at that time, K.E. said that it did not. K.E. testified that this occurred in the garage only one time. On cross-examination, K.E. testified that she knew the word "cum" because Brown told her what it was and that she had never heard that word before he told her about it.

In addition to A.E.’s and K.E.’s testimony, the State presented testimony from the girls’ foster mother, a nurse practitioner to whom K.E. disclosed the sexual abuse during an interview and a police officer who was present during that interview, a Children’s Division employee to whom K.E. and A.E. disclosed the physical abuse inflicted by their mother and Brown and to whom K.E. disclosed Brown’s sexual abuse, Baynum from the Children’s Division, and Asbury from Child Safe. The State also presented testimony from a child abuse pediatrician from Children’s Mercy who examined both girls. The pediatrician found that the girls’ physical examinations were normal, and she explained that 90 to 95 percent of children who disclose sexual abuse will have normal physical...