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DIVISION FOUR
STATE OF MISSOURI, ) No. ED101974
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Honorabie Michael F. Stelzer
PHELTON JOHNSON, )
)
Appellant. ) FILED: January 12, 2016
Introduction
Phelton Johnson (“Johnson”) appeals the trial court’s judgment entered following a jury
trial. Thejury convicted Johnson on five counts of second-degree statutory sodomy and one
count of second-degree child molestation. In this appeal, Johnson challenges the sufficiency of
the evidence supporting his conviction on Count 11 for second-degree statutory sodomy. Johnson
further challenges the trial court’s rulings admitting certain photographs into evidence and
prohibiting him from cross—examining Victim regarding a prior rape.
Because the State did not present sufficient evidence that Johnson’s hand touched
Victim’s genitals, the trial court erred in denying Johnson’s motion forjudgment 0f acquittal on
Count II, the charge of second~degree statutory sodomy. Johnson did not preserve his objection
to the admission of the photographs. Because we find no manifest injustice in the trial cornt’s
admission of the photographs into evidence, we decline to exercise plain—error review. Lastly,
Johnson did not comply with the written—motion requirement of the rape shield statute, Section
491.0153.l Accordingly, evidence that Victim may have been a prior rape victim was
inadmissible, and the trial court did not err in limiting cross-examination. We vacate Johnson’s
conviction and sentence as to Count II only. The remainder of the trial court’s judgment and
sentences are affirmed.
Factual and Procedural History
Because Johnson disputes the sufficiency of the evidence for his conviction on Count II,
we view the relevant evidence adduced at trial in the light most favorable to the verdict. In
November of 201 1, Johnson lived in the City of St. Louis with his daughters. Victim, who was
fourteen years old, and Victim’s friend wanted to make some money by braiding Johnson’s
daughters’ hair and helping the daughters with their homework. Victim and her friend skipped
school and walked to Johnson’s home. At some point, Victim’s friend went to the store with one
of Johnson’s daughters, while Victim stayed at Johnson’s house. Johnson’s other daughters were
in the basement.
Johnson approached Victim on the couch and sat next to her. Johnson then kissed Victim
and asked if Victim’s boyfriend ever “ate [Victim] like this.” Victim did not understand and she
stated, “Excuse me.” Johnson began to pull off Victim’s pants with his hands. Victim tried to
puli her pants back up, but Johnson succeeded in removing them. Victim testified that Johnson
“kissed me from my mouth down to my stomach down to my private area.” Johnson was
kneeling on the floor, and Victim was sitting on the couch. Johnson performed oral sex on
Victim. Victim was asked at trial, “where were his hands?” Victim replied, “On the floor. I’m
not sure.” Johnson then moved to Victim’s feet, where he licked and sucked her toes. Johnson
I All statutory references are to RSMo (2000), unless otherwise noted.
“When a defendant challenges the sufficiency of the evidence to support a finding that
sexual contact occurred, the issue is whether there is at least a reasonable inference that there
was the touching of the genitals.” State v. Greenlee, 327 S.W.3d 602, 619 (Mo. App. ED.
2010). Johnson argues that Victim never testified that Johnson touched her genitals with his
hand during this sexual encounter. When asked where Johnson’s hands were during the alleged
sexual encounter, Victim testified, “0n the floor. I’m not sure.” The State presented no
affirmative evidence that Johnson touched Victim’s genitals with his hand, and instead relies
upon speculation that Johnson touched Victim’s genitals with his hand.
In State v. Simmons, the State charged a defendant with second-degree sodomy for
allegedly forcing the victim’s hand to touch the defendant’s penis. 233 S.W.3d 235, 238 (Mo.
App. ED. 2007). The State presented no affirmative evidence that Victim actualiy touched the
defendant’s penis with her hand, and the State conceded the point in its brief. Li at 239.
Without any affirmative evidence of a touching, this Court held that the evidence was
insufficient to support second-degree sodomy. 1d, Similarly here, the record contains no
affirmative evidence (relevant to Count II) that Johnson touched Victim’s genitals with his hand.
The State argues that a jury reasonably could have inferred Johnson’s hand touched
Victim’s genitals from the evidence. Viewed in the light most favorable to the State, the
evidence shows that Johnson removed Victim’s pants, leggings, and underwear with his hands.
Victim testified that her and Johnson “were going back and forth for a moment" with her pants
11
and underwear. Johnson then performed oral sex on Victim.3 The State contends that Johnson
could have touched Victim’s genitals when he was taking off her underwear.
The State is correct that direct evidence is not always necessary to prove the facts
required to support a conviction because findings of fact may be premised upon reasonable
inferences. fi State v. Wilkins, 872 S.W.2d 142, 145 (Mo. App. SD. 1994). In m, the
defendant contested the sufficiency of the evidence that his hands or penis touched the victim’s
genitals or breasts. I_d. Evidence showed that the defendant was lying flat on Victim; the
defendant’s groin was pressed onto victim. 1d," When asked if the defendant put his hand in her
vaginal area, Victim testified that she felt pain. E Later, the victim testified that she did not
“know if it was his hand or his penis.” Li. This additional evidence was sufficient —albeit
marginally sogfor a juror to reasonably infer that the defendant touched the victim’s genitals
with either his hand or penis. I_d. at 145—46.
Wilkins is distinguishable from the facts here because of the manner in which the crimes
were charged. The State in m only needed to prove that either the defendant’s hand or his
penis touched Victim’s genitals. 872 S.W.2d at 145. When supported with additional evidence
that Victim felt pain in her genital area, and that both Victim’s hand and penis were in close
proximity to her genital area, ajury could have reasonably concluded that either Defendant’s
hand or penis caused Victim’s pain. I_d. The Court in mils emphasized that the evidence was
only marginally sufficient. Q at 146. The evidence is far weaker here. Here, the State could
prove the crime as charged in Count Ii only by showing Johnson’s hand touched Victim’s
genitals. Victim testified that she did not know where Johnson’s hands were during the oral sex.
3 We note that Johnson’s mouth touching Victim’s genitals satisfies the definition of “deviate
sexual intercourse.” However, this conduct was charged separately as second—degree sodomy for
which Johnson was convicted in Count I.
12
The only additional evidence relevant to Johnson’s hands was the testimony that Johnson
removed Victim’s pants and underwear. Unlike the facts in ME, Victim did not testify as to
pressure, pain, or touch of her genital areas while Johnson removed her clothing.
Close proximity between a defendant’s body part and a victim’s body part is insufficient
to reasonably infer actual contact without additional evidence. For example, in Stag
Molkenbur a trial court refused to give an instruction for third—degree sexual assault, which
required the State to prove “sexual contact.” 723 S.W.2d 894, 896—97 (Mo. App. SD. l987).
“Sexual contact” meant touching the genitals or anus of any person, or the breast of a female,
either directly or through clothing, for the purpose of arousing or gratifying sexual desire. _I_d_. at
897. The evidence adduced at trial showed that the defendant put his hand inside the woman’s
nightgown, but the evidence did not indicate what, if anything, the defendant touched. gt. This
evidence was held insufficient to reasonably infer contact between the defendant’s hands and the
genitals, anus, or breasts of the victim. I_d.
In State v. Ray, the victim never specifically testified that the defendant’s penis touched
her anuswas was required for the charged crime. 407 S.W.3d 162, 167 (Mo. App. ED. 2013).
The Court held the victim’s testimony that the defendant’s “weenie” touched her “butt,” standing
alone, was insufficient to infer touching of her “anus,” despite the close proximity of those body
parts. I_d. Victim never specifically stated that the defendant’s penis touched her anus, which
was anatomically distinct from her “butt.” 1d, However, additional evidence established that
Victim, who was oniy ten years old during her testimony, indicated that defendant’s “weenie”
was inside of her “booty” and that it “rocked.” I_d_. at 168. Given the Victim’s age and
vocabulary, the court found this additional evidence sufficient for a trier of fact to reasonably
infer that the defendant’s penis touched the victim’s anus. I_d_.
13
Similar to Molkenbur, where the defendant reached inside the victim’s robe, the jury
heard evidence that Johnson pulled down Victim’s pants and underwear. While this evidence
suggests that Johnson’s hands were in close proximity to Victim’s genitals, the evidence fails to
establish what part of victim’s body Johnson touched. Inferring that Johnson touched Victim’s
genitals when pulling down her pants and underwear is forced at best. No additional evidence
suggested that Johnson’s hands actually touched Victim’s genitals. Victim was also fourteen
years old during the alleged incident and seventeen years old during her testimony—a high
school senior. Unlike the very young victim in _R_ay, the State cannot 1'er on Victim’s youth and
unfamiliarity with basic anatomy to justify vague testimony about whether J ohnsou’s hands
touched her genitals. Without additional evidence, ajuror could only speculate about whether
Johnson’s hand touched Victim’s genitals. Such speculation is not a reasonable inference. fl
Langdon, 110 S.W.3d at 81142.
Johnson testified that this sexual encounter with Victim did not happen. Instead, Johnson
claimed that he only kissed Victim and sucked her toes. Since the jury convicted Johnson, the
State asserts that the jury did not believe his testimony. The State argues that Johnson‘s
dishonesty can be treated as affirmative evidence that his hands touched Victim's genitals, citing
State v. Woods, 284 S.W.3d 630, 640—41 (Mo. App. W.D. 2009). We reject this bootstrapping
argument. Unlike the facts in Woods, there is simply no evidence, physical or otherwise, to
support a reasonable inference that Johnson’s hand touched Victim’s genitals. Even though the
jury disbelieved Johnson and found that some sexual activity occurred between himself and
Victim, a finding that Johnson’s hand touched Victim’s genitals is rank speculation without
some additional evidence of what Johnson touched.
i4
Given the totality of the evidence presented at trial, the jury could only speculate that
Johnson’s hands touched Victim’s genitals. We will not give the State the benefit of such
speculation and forced inferences. Langdon, 110 S.W.3d at 81 1~12. Because the jury could not
reasonably infer from the evidence that Johnson’s hand touched Victim’s genitals, the evidence
was insufficient to support Johnson’s conviction on Count II. The trial court therefore erred in
denying Johnson’s motion for judgment of acquittal. Accordingly, Point One is granted.
m
Johnson’s conviction for second-degree sodomy on Count II is reversed, and the
corresponding sentence is vacated. The judgment and sentences of the trial court are affirmed in
all other respects.
K RT S. ODENWALD, Judge
Sherri B. Sullivan, P.J., concurs.
Lisa S. Van Amburg, C.J., concurs.
15
aiso asked to keep Victim’s underwear, but Victim refused. The encounter ended when Victim’s
friend returned home from the store and wiggled the doorknob.
Johnson and Victim had two additional sexual encounters over the following weeks.
Because Johnson does not dispute the sufficiency of the evidence related to those encounters, we
will not elaborate on those facts. Although the sexual encounters ended before Christmas of
2011, Johnson “kept caliing and texting” Victim, causing her concern. In January of 2012,
Johnson saw Victim and her friend walking to a bus stop and Johnson approached them.
Johnson showed Victim a tattoo of Victim’s name on Johnson’s arm. Victim and her friend ran
away from Johnson and went to a police station, where Victim reported her sexual encounters
with Johnson. Police eventually arrested Johnson. The State charged Johnson with eight counts
stemming from his contact with Victim. Count II of the complaint alleged second-degree
statutory sodomy, in that “defendant touched [Victim] in a sexual way, the defendant, by
touching [Victim’s] genitals with defendant’s hand, had deviate sexual intercourse” with Victim,
who was less than seventeen years old. Johnson was more than twenty-one years old.
At trial, the State offered into evidence three photographs of Johnson’s bar room at his
house. The photographs were marked as Exhibits 5, 6, and 7. Johnson, through counsel,
objected to these exhibits at trial “based on [the] previous motion.” The “previous motion” to
which Johnson referred was actually two oral motions in limine argued before evidence was
presented.
In the first motion in limine, Johnson asserted that “one photograph” was inadmissible.
This “one photograph”, which was marked as Exhibit 6, showed J ohnson’s bar room wall
covered with women’s underwear and other personal items. A sign hanging on the wall was
labeled “Romeo’s dick,” and the sign included a corresponding illustration. Victim knew
Johnson by the nickname “Romeo.” Johnson stated, “And as far as the underwear being on the
wall, there is [sic] two other photographs that show underwears on the wall. We are not
contesting these.” But Johnson argued that the “Romeo’s dick” sign was not relevant. The State
reasoned that the photograph was relevant because it identified the bar room as Johnson’s and it
corroborated Victim’s testimony that Johnson asked for Victim’s underwear. The trial court
compromised by redacting everything other than'the name “Romeo’s” on the Sign, and otherwise
allowing the photograph to be admitted into evidence.
In the second motion in limine, Johnson asserted that another photograph, later marked as
Exhibit 7, was inadmissible. Exhibit 7 showed the same wall as Exhibit 6. Because the
photograph’s angle was different, the right side of Exhibit 7 showed pornographic materials
hanging on the wall. Counsel for Johnson argued, “I don’t think it’s relevant to our case, and I
think it’s obviously quite inflammatory if you look at it, and it’s something that kind ofml guess
just touches your sensibilities I’d ask that if this photograph is going to be admitted that that
part of it be redacted.” The trial court ordered the redaction of the pornographic materials in the
photograph and admitted the redacted photograph as Exhibit 7.
The photograph marked as Exhibit 5 depicted several pieces of women’s underwear
hanging on a wall in the same bar room. Johnson did not contest the admissibility of Exhibit 5 in
either of his motions in limine.
At trial, Victim and Victim’s mother testified how the sexual encounters hurt Victim. For
example, Victim testified, “I don’t trust nobody. I don’t like going outside. I don’t want to
work. I don’t like school no more. I don’t want to play sports. I scrub my skin until it bleeds. I
out myself.” Johnson sought to question Victim about a prior rape in which Johnson was not
involved. Johnson maintained that Victim had previously been raped, and that incident was
relevant to her testimony that Johnson was the cause of Victim’s emotional and mental state.
Citing Missouri’s rape shield statute, Section 491.015, the trial court prohibited Johnson from
questioning Victim about the prior rape.
Thejury convicted Johnson on five counts of second-degree statutory sodomy and one
count of second-degree child molestation. The trial court denied Johnson’s motion for new trial
and sentenced Johnson to a total of 21 years in prison. This appeal follows.
Points on Appeal
Johnson raises three points on appeal. First, Johnson argiles the trial court erred in
overruling his motion for judgment of acquittal because the evidence was insufficient to support
his conviction of second-degree statutory sodomy (Count 11). Specifically, Johnson asserts that
the State failed to present evidence that Johnson touched Victim’s genitals with his hand, a
requirement for second-degree sodomy. Second, Johnson argues that the trial court abused its
discretion in overruling his objection to Exhibits 5, 6, and 7. Johnson asserts that these
photographic exhibits, which depicted women’s underwear hanging on the wall of his bar room,
were irrelevant and that the prejudice of the photos outweighed any probative value such
photographs may have had. Third, Johnson argues the trial court abused its discretion in
overruling his motion to cross-examine Victim about her prior rape. Specifically, Johnson
asserts that evidence Victim had been previously raped was evidence encompassed within an
exception to the Rape Shield Statute, which allows such evidence to show an alternative source
of disease.
Discussion
Points Two and Three of Johnson’s appeal address all of the counts for which Johnson
was convicted. Point One addresses only Count H, one count of statutory sodomy in the second
degree. Accordingly, we will address Points Two and Three before addressing Point One.
5
I. Point Two—Admissibility of Exhibits 5, 6, and 7
To preserve an objection to evidence for appellate review, the objection at trial must be
specific, and the point raised on appeal must be based on that same theory as raised at trial. m
v. Knese, 985 S.W.2d 759, 766 (Mo. banc 1999). An appellant cannot broaden the scope of his
objections beyond the grounds relied upon at trial. State v. Johnson, 207 S.W.3d 24, 43 (Mo.
banc 2006). We may review unpreserved issues only for plain error. id;
Johnson argues on appeal that Exhibits 5, 6, and 7 were irrelevant. Johnson asserts that
photographs of the bar room’s existence and the presence of women’s underwear on the walls
served only to inflame the passions and prejudices of the jury. The record shows that at trial,
Johnson objected to the admission of Exhibits 5, 6, and 7 based upon his “previous motion.” The
“previous motion" to which Johnson referred was actually two pretrial motions in limine.
A. Exhibit 5
We note that Johnson did not object to Exhibit 5 in either of his pretrial motions in
limine. Correspondingly, Johnson raised no objection to the introduction of Exhibit 5 at trial.
Having made no objection at trial, Johnson did not allow the trial court to remedy any alleged
error. E State v. Borden, 605 S.W.2d 88, 90 (Mo. banc 1980). Therefore, the lack of an
Objection precludes our consideration of Johnson’s argument as preserved error with respect to
Exhibit 5. State v. Morris, 585 S.W.2d 231, 234 (Mo. App. ED. 1979).
B. Exhibits 6 and 7
Johnson argued during pretrial motions in limine that Exhibit 6 was unduly prejudicial
and inadmissible because the photograph depicted a sign labeled “Romeo’s dick.” Johnson also
argued that Exhibit 7 was unduly prejudicial because it depicted pornography hanging on
Johnson’s bar room wall. We note that the trial court agreed with Johnson on both of these
points and redacted the word “dick” and the corresponding illustration in Exhibit 6, and also
6
redacted the objectionable pornography from Exhibit 7. The record shows that the trial court
addressed and accommodated Johnson’s concerns with regard to these two photographs. “If a
party gets what he requests from the trial court, he should not be able to convict it of error, plain
or otherwise, for complying with his request.” State V. Mashek, 336 S.W.3d 478, 484 (Mo. App.
SD. 2011).
Johnson now argues on appeal that Exhibits 6 and 7 were unfairly prejudicial because the
exhibits showed the existence of the bar room and underwear hanging on the wall. Johnson’s
appeal fails because he expressly declined to make this argument at trial. Johnson stated at
pretrial motions, “And as far as the underwear being on the wall, there is [sic] two other
photographs that show underwears [sic] on the wall. We are not contesting these.” 2 Because
Johnson’s arguments on appeal do not rely on the same theories advanced at trial, Johnson has
not preserved his objection to Exhibits 6 and 7.
Because Johnson did not object to Exhibit 5 and has not preserved his objections to
Exhibits 6 and 7, we may review these points only for plain error. Johnson, 207 S.W.3d at 43.
We find no manifest injustice or a miscarriage of justice upon review of the record. We will not
convict the trial court of error, plain or otherwise, when it accommodated Johnson’s complaints.
See Mashek, 336 S.W.3d at 484. Therefore, we decline to review for plain error. E State v.
White, 247 S.W.3d 557, 561 (Mo. App. ED. 2007) (outlining plain-error review). Point Two is
denied.
2 We acknowledge the concept of affirmative waiver. When one party makes the statement “no
objection,” or apparently consents to the admission of evidence, this statement affirmatively
waives appellate review and precludes plain—error review. See, e.g., State v. Woods, 357
S.W.3d 249, 255 (Mo. App. W.D. 2012). We need not determine whether Johnson’s statement
during pretrial motions consitututed an affirmative waiver because we nevertheless decline to
exercise plain error review. SE State v. Collins, 188 S.W.3d 69, 78 (Mo. App. ED. 2006)
(finding affirmative waiver and declining to review for plain error).
II. Point Three—Rape Shield Statute
Section 491.015, known as the rape shield statute, creates a presumption that evidence of
a victim’s prior sexual conduct is irrelevant to prosecutions for sex crimes. State v. Kelley, 83
S.W.3d 36, 39 (Mo. App. WD. 2002). Specific instances of the complaining witness’s prior
sexual conduct are inadmissible, unless an exception to the rape shield statute applies. Section
491.01 5 .1. One exception occurs where specific instances of sexual activity show an “alternative
source or origin of semen, pregnancy or disease.” Section 491 .015.] (2) (emphasis added).
Johnson argues that evidence of Victim’s prior rape provides an alternative source of the
various emotional or mental symptoms that Victim described at trial. Victim’s symptoms
included distrust of others, dislike of activities she previously enjoyed, and self-destructive
tendencies. The State argued at trial that Johnson’s conduct caused those symptoms. Johnson
contends that Victim’s symptoms were indicative of some form of mental disease. Johnson
reasons that evidence of Victim’s prior rape, in which Johnson was not involved, provided an
alternative source of Victim’s mental disease. The parties have not provided and we are not
aware of any Missouri authority interpreting “disease,” as used in 491.015.1(2), to encompass
mental disease. However, we need not address Johnson’s substantive arguments because
Johnson did not comply with Section 491.015.3.
Section 491 .015.3 states in relevant part:
If the defendant proposes to offer evidence of the sexual conduct of the
complaining witness under this section, he shall file with the court a written
motion accompanied by an offer of proof or make an offer of proof on the record
outside the hearing of the jury. [Emphasis added]
An appellant may not argue that the trial court erred in excluding evidence under the rape
shield statute when the defense fails to follow the requirements of Section 491.015. & State v.
Beliah, 74S S.W.2d 213, 217 (Mo. App. ED. 1987). In Beliah, defense counsel sought to
question the victim about possible alternative sources of semen under Section 491.015.1(2). id,
The trial court prohibited such questioning of the victim, and the defendant argued on appeal that
the trial court erred. Li. After noting the written-motion requirement in Section 491.015.3, this
Court found that the offered evidence was inadmissible because a written motion had not been
filed as required by statute. Li (citing State v. Poe, 708 S.W.2d 723, 728 (Mo. App. SD. 1986)).
This strict rule articulated in M is consistent with the purpose of Section 491.015 to
protect the victim. See State v. Smith, 157 S.W.3d 379, 382 (Mo. App. E.D. 2005). Section
491.015.3 protects the victim by ensuring that a careful procedure is followed before a defendant
may question the victim in open court about prior sexual conduct. This mandatory procedure
requires a written motion and an offer of proof. Section 491.015.3. Next, the trial court holds an
in camera hearing to determine whether the proferred evidence should be admitted, and what
limitations, if any, will accompany the admission of the evidence. LcL Finally, the record of the
in camera hearing must be sealed from the general public. I_d. This careful procedure is not
followed without a written motion and an accompanying offer of proof. E
Our review of the record shows that Johnson made an oral motion to question Victim
about a prior rape at trial. We find the record devoid of the required written motion to question
Victim on this topic or an accompanying offer of proof Because Johnson did not comply with
the express requirements of Section 491.015.3, the trial court properly precluded his cross-
examination of victim on the subject of any prior rape. Accordingly, Point Three is denied.
III. Point One——Sufficicncy of the Evidence (Count 11)
Johnson was charged with multiple counts of second-degree statutory sodomy. In Count
II, the State charged Johnson with second-degree statutory sodomy alleging that Johnson had
deviate sexual intercourse with Victim by touching Victim’s genitals with his hand. The State
also aileged that Victim was less than seventeen years old at the time and that Johnson was
9
twenty-one years or older. This charge complied with Section 566.064.]. The only question on
appeal is whether the State presented sufficient evidence allowing ajury to find that Johnson
touched Victim’s genitals with his hand.
A. Standard of Review
To determine whether the State presented sufficient evidence to sustain a conviction, we
consider each element of the crime. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). We
apply the same standard of review regardless of whether the State’s case relies on direct evidence
01' circumstantial evidence. 1g, at 405$8. We View the evidence in the light most favorable to
the State and grant the State all reasonable inferences from the evidence. I_d_. at 411. Conversely,
we disregard all contrary inferences unless the inferences are “such a natural and logical
extension of the evidence that a reasonable juror would be unable to disregard them.” I_d. We
will not supply missing evidence or give the State the benefit of unreasonable, speculative, or
forced inferences. State v. Langdon, 110 S.W.3d 807, 811—12 (Mo. banc 2003). Viewing the
evidence in this light, the issue becomes “whether a reasonable juror could find each of these
elements beyond a reasonable doubt.” grim, 854 S.W.2d at 41 l.
B. The State’s evidence was insufficient.
“A person commits the crime of statutory sodomy in the second degree if being twenty-
one years of age or older, he has deviate sexual intercourse with another person who is less than
seventeen years of age.” Section 566.064.]. Johnson’s argument on appeal is that the State did
not present sufficient evidence that Johnson had “deviate sexual intercourse” with Victim.
“Deviate sexual intercourse” includes “any act involving the genitals of one person and the hand,
mouth, tongue, or anus of another person.” Section 566.010(1) (Cum. Supp. 2008). In Count II,
the State charged that Johnson’s hand touched Victim’s genitals.
10