STATE OF MISSOURI,                                 )
                                                   )
          Plaintiff-Respondent,                    )
                                                   )
v.                                                 )        No. SD34150
                                                   )
TODD J. JENNER,                                    )        Filed: Dec. 30, 2016
                                                   )
          Defendant-Appellant.                     )

             APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                                   Honorable Calvin R. Holden

AFFIRMED

          Todd J. Jenner (“Defendant”) was found guilty after a bench trial of first-degree

statutory sodomy. See section 566.062. 1 Defendant challenges his resulting conviction

in a single point that claims the trial court “abused its discretion in limiting cross-

examination” of the victim’s mother (“Mother”). Finding no merit in this claim, we

affirm.




1
 Unless otherwise noted, all statutory references are to RSMo Cum. Supp. 2006. Defendant received an
18-year sentence on the conviction of statutory sodomy.


                                                  1
                                 Applicable Principles of Review

        “Trial courts retain broad discretion in deciding the permissible scope of cross-

examination, and an appellate court will not reverse a conviction absent an abuse of that

discretion.” State v. Taylor, 134 S.W.3d 21, 25 (Mo. banc 2004). Such an abuse occurs

only if the “ruling is clearly against the logic of the circumstances then before the court

and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of

careful consideration.” State v. Dewey, 86 S.W.3d 434, 439 (Mo. App. W.D. 2002).

“This Court reviews for prejudice, not mere error, and will reverse only if the error was

so prejudicial that it deprived the defendant of a fair trial.” State v. Norris, 237 S.W.3d

640, 645 (Mo. App. S.D. 2007).

                          Evidentiary and Procedural Background 2

        Defendant was charged in a two-count information with committing first-degree

statutory sodomy (“Count I”) and child molestation (“Count II”) for acts committed

against E.C. (“Victim). See sections 566.062 and 566.067. Count I alleged that “on or

between August 1, 2012 and January 18, 2014,” Defendant, “for the purpose of arousing

or gratifying the sexual desire of any person, . . . touch[ed Victim]’s vagina with [his]

hand.” Count II alleged that “on or about January 19, 2014,” Defendant “knowingly

subjected [Victim] . . . to sexual contact by touching [Victim]’s breast.” The trial court

found Defendant guilty on Count I and not guilty on Count II. Defendant does not

contest the sufficiency of the evidence supporting his conviction, and we limit our

summary of the evidence to that necessary to understand and resolve Defendant’s point.




2
 We view the facts in the light most favorable to the verdict. State v. Lacy, 851 S.W.2d 623, 625 (Mo.
App. E.D. 1993).


                                                    2
           During the charged period of time, when Victim was eight to nine years old,

Mother and Defendant began living together after having dated for about four months.

On occasions when Mother was not around, Defendant would instruct Victim to lie down

on a bed with her pants and underwear pulled down, and he would touch her vagina with

his hands. Defendant told Victim that he was touching her to check for “rashes” and to

apply any necessary medication. Mother testified at trial that she did not “ever ask for

[Defendant]’s help in [examining Victim or] making sure that medicine got

administered[.]” Defendant would also watch Victim while she showered. During a

forensic interview, Victim said that the touching incidents happened “over and over

again, and it was really weird and awkward for me.” She also stated that Defendant told

her “not to tell” anyone about these incidents.

           On the evening of January 18, 2014, Mother had gone to bed with Defendant

beside her. Sometime after midnight, Mother awoke to discover that Defendant was no

longer in the bed. Mother got up and found Defendant in Victim’s bedroom. Mother

testified that Victim was asleep, her blanket was pulled down to her waist, her shirt was

“part of the way up,” and Defendant was “standing there” and he was caressing her right

breast.” 3 Mother spoke with Victim later that morning and contacted the authorities.

           While cross-examining Mother at trial, defense counsel attempted to elicit

testimony from her about statements she had apparently made during a deposition to the

effect that she had herself been sexually abused as a child. The prosecutor objected on

relevancy grounds. In response to that objection, defense counsel stated:

                   Okay. Well, I -- I respectfully submit, Your Honor, that anything
           that goes -- that the case law is clear that anything that could go to
           question a witness’s perception is relevant in cross-examination. And I

3
    As earlier noted, Defendant was acquitted of the Count II charge related to this alleged conduct.


                                                        3
        think that given all of the circumstances of what was going on when
        [Mother] says she saw [Defendant] touch [Victim]’s breast, just in the
        totality -- I’m not trying to embarrass [Mother]. This is the kind of
        question I just need to ask. I need to ask three questions.
                 I’ve asked her if she suffered trauma along the same lines as
        [Victim]. And then the next question is: Did you tell people? And then
        the last question is: Is it true nothing was ever done?

After defense counsel made some additional statements, the trial court indicated that it

“can see some probative value, but does the State want to stipulate that that’s what her

answers would be?” The prosecutor responded, “That’s fine.” After some additional

discussion, the trial court stated:

                Well, I think just the mere fact that something had happened to
        somebody’s not enough to make it become relevant or probative in this
        case. I don’t know where you are going after those three questions, but,
        you know, that’s why I’ll say, okay, I can see where there probably is
        some relevancy to it. But I don’t know what -- how you are going to tie it
        up. But I suspect that I’ll hear about it sooner or later.
                But, you know, they’ve stipulated that if she was asked those
        questions, she would say so.

Defense counsel thanked the trial court and continued with his cross-examination of

Mother.

        During his closing argument, defense counsel revisited the issue as follows:

                [DEFENSE COUNSEL]:           Let’s start with the misperception.
                                             Now, I have no doubt [Mother]
                                             believes it now, that she saw
                                             [Defendant] touching [Victim]’s
                                             breast. But the fact that she thinks
                                             she actually saw something does not
                                             make it so. It was dark. She had
                                             been asleep, after taking Benadryl
                                             for an allergic reaction.

                                                     In addition, her play -- her
                                             past plays a part. It is a fact that
                                             trauma from childhood --




                                             4
               [PROSECUTOR]:                 I object. That’s a fact not in
                                             evidence that’s never been
                                             established.

               [DEFENSE COUNSEL]:            It most certainly has. It was
                                             stipulated.

               THE COURT:                    Whoa. Whoa. Wait a minute. One
                                             at a time.

               [PROSECUTOR]:                 To establish the fact that past trauma
                                             creates anything in terms of future
                                             perceptions would require an expert,
                                             and I made that objection at the time,
                                             and I don’t think he gets to argue that
                                             that’s reason and common sense, that
                                             a past victim would misinterpret
                                             things in the future. There’s been no
                                             evidence of that.

               [DEFENSE COUNSEL]:            I didn’t say that. I said that past
                                             trauma -- it’s a fact that past trauma
                                             affects perceptions in adulthood. I
                                             do not need an expert for that. That
                                             is reasonable -- that is common
                                             sense. And you and --

               [PROSECUTOR]:                 I don’t think it’s reason and common
                                             sense. I don’t think it’s even true.

               [DEFENSE COUNSEL]:            Okay. Well, then, that’s an issue of
                                             weight that he [presumably a
                                             reference to the trial judge] can give;
                                             and if he thinks my argument is
                                             meaningless, then he can put it aside.

               THE COURT:                    I’ll overrule your objection. Go
                                             ahead.

                                        Analysis

       Defendant contends that the above statements by the trial court prove that it

denied Defendant “the opportunity to show that [Mother]’s testimony was biased by her

experience as a victim of sexual abuse as a child and the fact that nothing was ever done



                                            5
to help her even though she told people about it[.]” And although Defendant

acknowledges that the State stipulated to this evidence, he nonetheless argues that “it is

clear that the trial court ultimately excluded the evidence and did not consider it.” We

disagree.

       In support of his position, Defendant seizes on the trial court’s statement that, “the

mere fact that something had happened to somebody’s not enough to make it become

relevant or probative in this case.” But Defendant concedes that after the prosecutor

made his relevancy objection, he ultimately stipulated to defense counsel’s “three

questions” (and the expected answers) regarding Mother’s own history of sexual abuse.

In arguing that the trial court actually excluded the stipulated evidence, Defendant is

isolating the trial court’s initial statement from those that followed.

               Well, I think just the mere fact that something had happened to
       somebody’s not enough to make it become relevant or probative in this
       case. I don’t know where you are going after those three questions, but,
       you know, that’s why I’ll say, okay, I can see where there probably is
       some relevancy to it. But I don’t know what -- how you are going to tie it
       up. But I suspect that I’ll hear about it sooner or later.
               But, you know, they’ve stipulated that if she was asked those
       questions, she would say so.

(Emphasis added.)

       When viewed in context, the trial court initially questioned the relevancy of the

evidence, but it nonetheless anticipated that the stipulated evidence would be addressed

“sooner or later.” That moment came when, over the State’s objection, defense counsel

was allowed to argue in closing that Mother’s own trauma affected her ability to perceive

what Defendant was doing when she discovered Defendant in Victim’s bedroom. Thus,

Defendant’s claim that the trial court refused to consider evidence that Mother had been

sexually abused as a child is refuted by the record.



                                              6
       Even if the trial court had excluded the stipulated evidence regarding Mother’s

own history of abuse, we fail to see how Defendant would have been prejudiced. First,

Defendant was acquitted of the charge involving the conduct Mother said she had

witnessed. See State v. O’Neill, 825 S.W.2d 376, 378 (Mo. App. S.D. 1992)

(“[o]rdinarily there is no prejudicial error when a defendant is acquitted of the charge to

which the evidence relates”). Second, despite Defendant’s claim that “the State’s case

hinged on the motive behind [Defendant]’s admitted actions in touching [Victim] and

[Mother]’s version showed it [was] a sexual touching,” the trial court did not need to rely

on Mother’s testimony in order to find Defendant guilty of first-degree statutory sodomy.

Victim said in her recorded forensic interview that Defendant had told her not to tell

anyone about the touching incidents. The trial court could reasonably infer from

Defendant’s efforts to hide the touching that his purpose was not an innocent one. Cf.

State v. Polson, 145 S.W.3d 881, 889 (Mo. App. W.D. 2004) (a permissible inference of

guilt could be drawn from the defendant’s instruction to the victim “not to say anything

about the assault”).

       Defendant’s point is denied, and the judgment of conviction and sentence is

affirmed.

DON E. BURRELL, J. – OPINION AUTHOR

JEFFREY W. BATES, P.J. – CONCURS

MARY W. SHEFFIELD, C.J. – CONCURS




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