State v. Davis

564 S.W.3d 649

STATE of Missouri, Respondent,

v.Ronnie Dale DAVIS, Sr., Appellant.

WD 79655

Missouri Court of Appeals, Western District.

OPINION FILED: September 18, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied November 13, 2018

Application for Transfer to Supreme Court Denied January 29, 2019

Jedd Schneider, Columbia, MO, Counsel for Appellant.

Shaun Mackelprang, Jefferson city, MO, Counsel for Respondent.

Before Division One: Thomas H. Newton, P.J., Alok Ahuja, and Gary D. Witt, JJ.

Thomas H. Newton, Presiding Judge

Mr. Ronnie Davis appeals a Buchanan County Circuit Court conviction by a jury for two counts of the class A misdemeanor of sexual abuse in the second degree. Mr. Davis was sentenced to consecutive terms of one year in jail for each count. We affirm.

Factual and Procedural Background

In June 2014, Mr. Davis was looking after his granddaughters, ten-year-old M.D., and nine-year-old E.D., while Grandmother was at work. Mr. Davis asked M.D. to try on her swimsuit and when she needed help fastening it, Mr. Davis "went under [her] swimsuit and touched [her] boob."

Not long after this incident, Mr. Davis called M.D. into his bedroom, and he touched her under her shirt on her boob and made skin-to-skin contact. E.D. entered the room, witnessed the occurrence, and the girls told Mr. Davis they were going to tell Grandmother. Mr. Davis responded by saying he was "going to beat [M.D.’s] butt."

M.D. and E.D. went to Grandmother’s room to watch television. Mr. Davis came into the room and began wrestling around with both girls on the bed. As he was doing so, he bit M.D.’s boob, and touched her "bad spot" between her legs. Around this same time, Mr. Davis asked M.D. to go get him a Dr. Pepper. When M.D. returned she saw Mr. Davis touching E.D. underneath her skirt, where she "goes potty." Both girls again told Mr. Davis that they were going to tell their Grandmother because what he had done was bad.

When Grandmother returned home from work, M.D. and E.D. asked her to go on a walk with them. While the three were walking, M.D. and E.D. told their Grandmother what had happened. When the three returned home, Grandmother confronted Mr. Davis about what the girls had told her. Mr. Davis said he had been wrestling with the girls and had tickled them, but that he had not touched them sexually. Grandmother called the girls' mother who said she did not think anything had happened. Grandmother then called the police.

Officers arrived at the house around 7:46 p.m., and Grandmother told them what M.D. had told her about Mr. Davis biting her breast and touching her vagina. Officers spoke with M.D. who told them that Mr. Davis had asked her to try on her swimsuit, that he had wrestled with her on the bed and touched her inappropriately. M.D. told officers that he had touched her on her right breast and had tickled her vaginal area. E.D. also spoke with the officers and told them that Mr. Davis had touched her "bad spots" and gestured toward her vagina. E.D. also told officers that Mr. Davis had threatened to whip them if they said anything to Grandmother.

The officers spoke with Mr. Davis who told them that he had been wrestling with the girls and that after a while he told them to settle down and when they did not comply he told them he would whip them if they did not do so. M.D.’s shirt was sent to a lab for testing along with a DNA swab provided by Mr. Davis. The sample collected from the right breast of the shirt contained a mixture of DNA from at least three different people, so no comparisons with known DNA samples were attempted.

On July 3, 2014, M.D. and E.D. met with Trenny Wilson who conducted individual forensic interviews with the girls. On July 10, 2014, the police spoke with Grandmother, and she provided a written statement about what had occurred. The State charged Mr. Davis with two counts of first-degree child molestation and the case went to trial on September 22, 2015. The trial court declared a mistrial after a witness for the State offered inadmissible testimony.

The second trial was held on March 8, 2016. At trial, Mr. Davis denied touching the girls' breasts or vaginal areas. He testified that he may have "bumped [those areas] or something" while they were wrestling.

For each count, the jury was instructed on the lesser offense of second-degree child molestation as well as sexual abuse in the second degree. The jury found Mr. Davis guilty on both counts of the lesser included offense of second-degree sexual abuse. The trial court sentenced Mr. Davis to one year in jail for each count to run consecutively. This appeal followed.

Legal Analysis

In points one and two, Mr. Davis claims that the trial court erred in overruling his motions for judgment of acquittal and rendering sentence and finding that there was a reasonable inference that Mr. Davis perpetrated body-to-breast contact against M.D., and hand-to-genital contact against E.D. for the purpose of arousing or gratifying sexual desire.

Mr. Davis filed motions for judgment of acquittal at the close of the State’s evidence and at the close of all evidence; the trial court denied both motions. Mr. Davis brought this same allegation of error in his motion for a new trial. Mr. Davis properly preserved this issue for appeal.

When reviewing a challenge to the sufficiency of the evidence, this Court will accept "as true all evidence and its reasonable inferences in a light most favorable to the verdict and reject[ ] all contrary evidence and inferences." State v. Botts , 151 S.W.3d 372, 375 (Mo. App. W.D. 2004). We must determine "whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt, not whether the verdict was against the weight of the evidence." Id. This Court will not, however, "supply missing evidence, or give the State the benefit of unreasonable, speculative or forced inferences." State v. Whalen , 49 S.W.3d 181, 184 (Mo. banc 2001) (citation omitted). The relevant question here is "whether, after viewing the evidence in a light most favorable to the [State], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Bateman , 318 S.W.3d 681, 687 (Mo. banc 2010) (citation omitted).

Mr. Davis was convicted of two counts of second-degree sexual abuse. Under section 566.101, a person commits the offense "if he or she purposely subjects another person to sexual contact without that person’s consent." Sexual contact is defined as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person[.]" § 566.010(3).¹ Mr. Davis challenges the sufficiency of the State’s evidence and claims the evidence presented at trial was insufficient to show that he touched M.D. and E.D. for the purpose of gratifying his sexual desire.

Mr. Davis’s mental state during the touching rests on "circumstantial evidence and permissible inferences" and will be "dependent upon the circumstances of the particular case." A.B. v. Juvenile Officer , 447 S.W.3d 799, 804 (Mo. App. W.D. 2014) (citation omitted). Mr. Davis relies on this Court’s holding in A.B. v. Juvenile Officer , to support his assertion that the State’s evidence "relied on an inference of criminal purpose." In A.B. , a twelve-year-old boy was charged with sexual molestation in the first degree pursuant to section 566.067.1 after he touched the genitals of a five-year-old with his hand and mouth. Id. at 800-01.² The juvenile appealed and stated that the evidence was insufficient to find that he had committed the acts for the purpose of gratifying sexual desire. Id. at 803. This Court reversed the juvenile court’s decision because we were "not persuaded that intent [could] be inferred from the act alone." Id. at 806.

This Court’s holding in A.B . relied in significant part on In re J.A.H. , 293 S.W.3d 116 (Mo. App. E.D. 2009). Similar to A.B. , both the juvenile and the victim were younger than twelve. Id. at 117. On appeal, the juvenile argued that the Juvenile Officer (J.O.) had failed to prove that the acts were done for the purpose of sexual arousal or gratification.³ Id. at 119. The J.O. argued that "there [was] no other discernible reason for [Juvenile] to have put his penis in T.H.’s mouth other than for sexual arousal or gratification." Id. at 122. The Eastern District was not persuaded by this argument. Id.

In both cases, we, and our sister court in the Eastern District, rejected the argument that intent could be inferred from the act alone. Mr. Davis argues that the circumstances in these cases are very similar to his own and, like in both cases, we should find the evidence to be insufficient. We disagree. One stark contrast between these cases and Mr. Davis’s is that, unlike those defendants, Mr. Davis is a 56-year-old man, not a child, and there is no evidence that he was lacking basic knowledge of sex. In both holdings, we, and our sister court emphasized the age of both parties. In A.B. we quoted the following from J.A.H. ;

We recognize that, in certain circumstances, [other cases holding] that an adult’s actions toward a child were done for "no other discernible reason" but for the purpose of sexual arousal or gratification, may be applicable in the juvenile context. We find it difficult, however, to apply [that holding] in this case, where [Juvenile] was eight or nine and [Victim] was five, six or seven, and there was no evidence regarding the [Juvenile’s] behavioral development or knowledge of sexual subject matter. Without such evidence or more detailed information regarding the circumstances of the touchings, we are unwilling to find that an eight or nine year old touches his penis to the mouth of a five or six year old for no discernible reason other than sexual arousal or gratification.

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