State v. Burrow

680 S.W.3d 162

STATE of Missouri, Respondent,

v.Cecil BURROW, Appellant.

No. ED 110967

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: December 5, 2023

Appeal from the Circuit Court of St. Francois County, Cause No. 18SF-CR01139-01, Honorable Wendy Wexler Horn, Judge

FOR APPELLANT: William J. Swift, Woodrail Centre 1000 West Nifong Building 7, Suite 100, Columbia, MO 65203.

FOR RESPONDENT: Andrew Bailey, Dora A. Fichter, P.O. Box 899, Jefferson City, MO 65102.

Cristian ?. Stevens, J.

Introduction

Cecil Burrow ("Defendant") appeals from the judgment upon his conviction following a jury trial on four counts of sodomy in the first degree. Defendant argues the trial court erred in admitting his out-of-court statements as evidence because the State failed to establish the corpus delicti of each and every element on all counts. Defendant further argues the trial court erred in overruling his motion for judgment of acquittal on all counts. Finally, Defendant argues the trial court erred in admitting Defendant’s statement about his impending divorce because it was improper character evidence and was not logically or legally relevant. We affirm the judgment of the trial court.

Factual and Procedural History

Facts

Victim and her boyfriend went to the Black River on July 14, 2018.¹ Victim was wearing a black bikini, a black cut-off shirt, and Nike slides. While at the river, Victim began drinking whiskey and became increasingly intoxicated. Victim and her boyfriend left the river around 3 p.m. They began arguing, and Victim became belligerent. Victim angrily jumped out of her boyfriend’s truck and began walking down the road. Victim’s boyfriend initially drove off after Victim jumped out, but soon circled back and began looking for Victim. After looking for Victim for three to four hours, her boyfriend called Victim’s parents. Victim’s parents and others joined Victim’s boyfriend in looking for her.

Victim, after walking along the road, got a ride from a person heading to Ironton. Near Lake Hanna, Victim saw her boyfriend pass by in his truck. Victim told the person to stop and Victim got out of the car so her boyfriend could see her. Victim’s boyfriend did not see her. Victim went to the lake to cool down and then got out of the lake to walk across the dam. From there, Victim "went black" and could not remember what happened.

Other witness testimony revealed that, while Victim was blacked out, she was observed stumbling down the road and engaging in unusual behavior. Victim trespassed into a house she thought was her grandmother’s house. She was intoxicated, her speech was slurred, and she was incoherent. Victim initially refused to leave and insisted it was her grandmother’s house. Eventually, she left the house and disappeared. The homeowner called the Lake Hanna security guard and later identified Victim as the trespasser.

After leaving the house, Victim asked the neighbor if he had seen her grandmother, who lived nearby. As Defendant drove by, the neighbor asked Defendant to take Victim to her grandmother’s house. Defendant told Victim he would take her to her grandmother’s house, and Victim got in his truck.

The next thing Victim remembered was waking up in a trailer house and not knowing where she was. She was on a bed in a bedroom, and Defendant, who Victim did not know, was standing in front of her. Victim’s bikini bottoms were off and her "butt hurt." Specifically, Victim had rectal pain. Victim recovered her bikini bottoms from the bedroom floor, put them on, and left the trailer.

After Victim left the trailer, the Lake Hanna security guard found Victim and confronted her about the earlier trespassing. She was a few hundred feet from Defendant’s trailer, smelled of alcohol, and was intoxicated. Ultimately, the owner of the house in which Victim trespassed did not press charges because Victim was "under the influence" and was lost.

When the homeowner opted not to press charges, the security guard contacted Victim’s boyfriend, and Victim’s boyfriend picked her up. Victim told her boyfriend that she thought something had happened to her, but she had no recollection what it was. Victim’s friend later told Victim to go to the hospital, and Victim reported the incident to police.

Within the next few days, the Lake Hanna security guard learned that Victim reported she might have been sexually assaulted. The security guard called the St. Francois County Sheriff’s Office. The security guard also went to Defendant’s trailer, and Defendant admitted to having sex with Victim. Defendant said Victim "was too drunk to know what was going on." Detectives from the sheriff’s office also went to Defendant’s property to talk to him. Defendant said he knew at some point they would be coming to see him.

Defendant went to the sheriff’s office for a video-recorded interview. A detective began the interview by building a rapport with Defendant. During this conversation, Defendant brought up that his wife asked him for a divorce. The detective asked why Defendant’s wife wanted a divorce. Defendant responded that his wife did not like that he talked to other women online and that he had a Facebook girlfriend in Kentucky. The detective advised Defendant of his Miranda rights, and Defendant acknowledged he understood his rights and waived them.

Defendant told the detective he expected to be questioned about the incident, but he did not know when it would be. Defendant stated he gave Victim a ride so she could find her grandmother’s house. After searching for a while, Defendant and Victim were unable to find her grandmother’s house. They then returned to Defendant’s camper, where Victim asked to lay down. Defendant admitted Victim was "plastered" and estimated Victim was an "eight out of ten" on a scale of how drunk she was. Defendant stated Victim propositioned Defendant for sex and Defendant readily agreed. Defendant helped Victim take off her clothing. Defendant admitted he put his penis in Victim’s mouth, put his mouth on Victim’s genitals, stuck his finger in Victim’s anus, and had anal sex with Victim. Defendant stated he believed he did nothing wrong.

Procedural History

The State charged Defendant, via grand jury indictment, with four counts of sodomy in the first degree. During the pretrial conference, Defendant asked the trial court to dismiss the case because the State failed to establish the corpus delicti. Defendant argued that, other than his own statements and that Victim’s "butt hurt," there was no evidence that a sexual assault had occurred. The trial court expressed it had not heard any evidence yet and denied the motion, but granted Defendant a continuing objection. The case proceeded to trial.

At the close of the State’s evidence, Defendant moved for judgment of acquittal for insufficient evidence and the State’s failure to establish the corpus delicti on all four counts. The trial court denied the motion, stating the corpus delicti had been made because the "evidence that was presented in the State’s case [was] consistent with the theory of the case, along with the statements that were made by the defendant." Following the close of all evidence, Defendant renewed his motion for judgment of acquittal, and the trial court again denied the motion. The jury found Defendant guilty on all four counts of sodomy in the first degree. Defendant now appeals.

Analysis

Defendant raises nine points on appeal. In Points I through IV, Defendant argues the trial court erred in admitting Defendant’s out-of-court statements acknowledging that he engaged in sexual acts with Victim because the State failed to establish the corpus delicti of each and every element of each of the four sodomy counts. In Points V through VIII, Defendant argues the trial court erred in denying his motion for judgment of acquittal on each of the four counts. In Point IX, Defendant argues the trial court erred in admitting his statement about his impending divorce because it was improper character evidence and irrelevant.

Points I through IV: Corpus Delicti

In Points I through IV, Defendant argues the trial court erred in admitting Defendant’s extrajudicial statements acknowledging that he engaged in sexual acts with Victim because the State failed to establish the corpus delicti of each and every element of the charged crimes.

[1–4] "A trial court has broad discretion to admit or exclude evidence at trial." State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005). This Court may reverse the trial court’s evidentiary decision if it has clearly abused its discretion. Id. "A trial court abuses its discretion when its decision ‘is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.’ " State v. Scherrer, 673 S.W.3d 899, 914 (Mo. App. E.D. 2023) (quoting State v. Hood, 451 S.W.3d 758, 765 (Mo. App. E.D. 2014)). We will reverse for evidentiary error only if prejudice is demonstrated, that is, there is a reasonable probability the error affected the outcome of the trial. Scherrer, 673 S.W.3d at 914.

[5–7] Missouri adopted the corpus delicti rule from English common law to avoid conviction of a criminal defendant without corroborating evidence independent of the defendant’s out-of-court confession or "extrajudicial admissions." See Madorie, 156 S.W.3d at 354. "[C]onfessions of a party not made in open court, … uncorroborated by circumstances, and without proof aliunde that a crime has been committed, will not justify a conviction." Id. (quoting Robinson v. State, 12 Mo. 592, 597 (1849)). "Extrajudicial admissions or statements of the defendant are not admissible in the absence of independent proof of the commission of an offense, i.e. the corpus delicti." Madorie, 156 S.W.3d at 355.

[8] Defendant insists the State failed to prove the corpus delicti as to each and every element of the charged crimes. But the State need not present independent evidence sufficient to prove each and every...