                                                         In
                                                         I the
                                   Misssouri Court
                                             C     off Appeaals
                                               Westeern Disttrict
STATE OF MISSO
             OURI,                                             )
                                                               )
                       Resp
                          pondent,                             )    D77585
                                                                   WD
                                                               )
v.                                                             )   OPIINION FIL
                                                                              LED: Deceember 8, 2015
                                                               )
    EW CANA
ANDRE     ADAY,                                                )
                                                               )
                        Appellant.                             )

                     Appea
                         al from thee Circuit Court of Jacckson Coun  nty, Missou
                                                                                uri
                              The Ho
                                   onorable Paatrick W. Caampbell, Juudge

     Beforre Division Four: Alokk Ahuja, Ch
                                          hief Judge, Presiding, GGary D. Wiitt, Judge annd
                             Kaathleen A. Forsyth,
                                          F        Speecial Judge

                                                 INTR
                                                    RODUCTIO
                                                           ON

             Following
             F         a bench triial, Andrew
                                            w Canadayy ("Canadayy") was coonvicted inn the

Circuit Court
        C                   unty of onee count of sstatutory raape, in violation of section
              of Jaackson Cou

566.032,1 one coun
                 nt of child molestation
                             m           in violationn of sectionn 566.067 aand one couunt of

intention                                V virus2 in vviolation off section 191.677. Thee trial
        nally exposing anotherr to the HIV

court sen
        ntenced Can
                  naday to liffe in prison on the firstt count andd to fifteen yyears on eacch of

the remaaining coun
                  nts, to run co
                               oncurrently
                                         y with the life sentencee.


       1
           All statutory refereences are to RS
                                             SMo 2000 cum
                                                        mulative as suppplemented unlless otherwise nnoted.
       2
           Humman Immunodeeficiency Viruss.
          On direct appeal, Canaday argues that the trial court erred in overruling his motion

for acquittal because (1) he was prejudiced when the court allowed the State to amend the

factual basis for the child molestation charge at the close of the evidence, and (2) there

was insufficient evidence that he had sexual intercourse with the victim such that the

findings of guilt as to the statutory rape and intentional HIV exposure charges were

erroneous. We affirm in part and reverse in part.

                               FACTS AND PROCEDURAL HISTORY

          Viewed in the light most favorable to the verdict,3 the following evidence was

adduced at trial:

          On June 1, 2012, seven-year-old A.B.4 was playing hide-and-seek outside her

home with other children. Canaday lived across from A.B. As A.B. and another child sat

near Canaday's home, Canaday grabbed A.B. and took her inside his house to the

bedroom on the second floor. Canaday removed A.B.'s underwear, touched her vagina

and then penetrated her vagina with his penis.

          Canaday's roommate, Dominique Darden ("Darden"), returned home from running

errands. Canaday met her halfway up the stairwell wearing a robe. He then asked her to

leave again and get a pizza. Darden came back about ten or twenty minutes later, to find

children gathered in front of her residence, one of whom told her excitedly that Canaday

had "touched the little girl." Darden found A.B. up the street crying hysterically and

hugging a telephone pole. A.B. told her that Canaday touched her vagina.


    3
        State v. Brooks, 446 S.W.3d 673, 674 (Mo. banc 2014) (citation omitted).
    4
        We refer to the child victim using only her initials to protect her privacy. § 566.226.

                                                            2
         Latasha Lambert's ("Lambert") daughter, who had been playing outside with A.B.,

came inside hysterical and out of breath. Lambert went outside and found A.B. up the

street crying. A.B. told Lambert that Canaday put his penis in her vagina and that he

touched her vagina. A.B. also stated that Canaday gave her a dollar so that she would not

tell anyone. Lambert called 911.

         Officer Joe Smith ("Officer Smith"), along with three other officers, responded to

the scene. A.B. told Officer Smith that Canaday "put his private part inside of her private

part." Officers located Canaday walking away from the neighborhood and placed him

under arrest. A.B. was then taken by ambulance to Children's Mercy Hospital where she

was examined by Lisa Robinson ("Robinson"), a certified Sexual Assault Nurse

Examiner. A.B. had bruising at the base of her hymen consistent with penile penetration.

         When police searched Canaday's residence, they found A.B.'s underwear hidden

under the mattress on Canaday's bed. The police also found a pair of men's boxer shorts

underwear on the floor. There was a mixture of DNA5 on A.B.'s underwear and the

major profile matched Canaday's DNA. There was also a mixture of DNA identified on

the men's boxer shorts; the major profile matched Canaday's DNA and the minor profile

matched A.B.'s DNA.

         A.B. was interviewed at the Child Protection Center by Brandy Hodgkin

("Hodgkin"). A.B. stated that Canaday put "the thing that you pee with" in her vagina.

A.B. testified at trial that Canaday touched her "front private" with his hand. A.B. further

     5
       The type of DNA found is sometimes referred to as "touch" DNA which can be obtained from skin cells as
opposed to bodily fluids. This type of DNA is very specific to an individual, with an expected frequency of 1 in 460
billion in unrelated persons.

                                                         3
testified that Canaday's "private part, what he pees out of," touched the inside of her

vagina. On cross-examination, A.B. testified that Canaday tried to "put his private part

into [her] private part," but "it didn't happen".

       Sharon Kathrens ("Kathrens"), a registered nurse at the infectious disease clinic at

Truman Medical Center, testified that she had been treating Canaday for HIV since May

of 2004.

       At the close of all the evidence, the State moved to amend the child molestation

count by changing the factual allegation of how Canaday committed the crime. The

original charge contained the factual allegation that he had committed child molestation

by placing his mouth on A.B.'s breast; the amended charge was that he committed the

same crime by placing his hand on her vagina. Over Canaday's objection, the court

allowed the amendment.

       The court found Canaday guilty on all three counts. On May 21, 2012, the court

sentenced Canaday, whom it found to be a prior and persistent offender, to concurrent

sentences of life in prison for statutory rape, fifteen years for child molestation in the first

degree, and fifteen years for recklessly exposing another person to HIV infection. This

appeal follows.

                                            Point I

       In his first point, Canaday argues that the trial court erred when it allowed the

State to amend Count II, the charge of child molestation after the close of all evidence "in

that [his] substantial rights were prejudiced because his planned defense and evidence

was no longer available after the amendment."

                                               4
                                              Standard of Review

          "This Court reviews a trial court's decision to allow an amendment of a charging

document for abuse of discretion." State v. Seeler, 316 S.W.3d 920, 925 (Mo. banc 2010)

(citing State v. Smith, 242 S.W.3d 735, 742 (Mo. App. S.D. 2007)). "An abuse of

discretion occurs when the trial court's 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. Fassero, 256

S.W.3d 109, 115 (Mo. banc 2008) (internal quotations and citations omitted).

                                                     Analysis

          At the close of all of the evidence, but just before closing arguments, the State

moved to amend the factual allegation supporting Count II and, over Canaday's objection,

the court granted the motion to amend. Rule 23.086 allows a charging document to be

amended or substituted during the trial. The rule provides:

          Any information may be amended or an information may be substituted for
          an indictment at any time before verdict or finding if:

          (a) No additional or different offense is charged, and

          (b) A defendant's substantial rights are not thereby prejudiced.

          No such amendment or substitution shall cause delay of a trial unless the
          court finds that a defendant needs further time to prepare a defense by
          reason of such amendment or substitution.

          Canaday concedes that the amendment did not charge a different offense under

Rule 23.08(a); indeed, the offense of child molestation in the second degree may be


    6
        All rule references are to Missouri Court Rules (2015).

                                                          5
committed by many different means, including touching the victim's vagina or female

breast.     Canaday alleges error instead under Rule 23.08(b), arguing that he was

prejudiced by the amendment, which changed the factual allegation by which the offense

was alleged to have been committed without charging a different offense. See State v.

Folson, 197 S.W.3d 658, 661 (Mo. App. W.D. 2006) (citation omitted). Canaday argues

that he was prejudiced by the amendment as the change affected his defense to the

charge, and therefore the trial court erred under subsection (b) of the rule. We agree.

          The test for prejudice is whether 1) the planned defense to the original charge

would still be available after the amendment, and 2) whether the defendant's evidence

would be equally applicable after, as well as before, the amendment.7 Seeler, 316 S.W.3d

at 926; State v. Taylor, 375 S.W.2d 58, 63 (Mo. 1964) (setting forth the test for prejudice

following an amendment).

          "A person commits the crime of child molestation in the first degree if he or she

subjects another person who is less than fourteen years of age to sexual contact." §

566.067.1. "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).




      7
       Canaday does not argue in his brief that this test applies to evidence or planned defenses applicable to other
counts other than the one which was amended. Thus, we focus our analysis on the evidence and defenses applicable
only to the charge which was amended.

                                                         6
          With regard to Canaday's planned defense to the child molestation count, his

counsel, in explaining how Canaday was prejudiced, argued the following to the trial

court:

          [M]y whole trial strategy, the whole entire case, has been that this is a case
          of digital penetration, not a case of statutory rape.[8] Why would I concede
          that? Because I know that statutory rape, child molestation, is not a lesser
          included offense. So they have never charged anything to do with digital
          penetration. So if I argue digital penetration the whole entire way through
          the trial and argue that there is no statutory rape, I know that they can't
          amend down to molestation in regards to count one, because it's not a lesser
          included offense and there is case law on point that says they can't do that.
          The reason we are prejudiced is because all of our lines of questioning and
          the whole entire trial strategy we've had throughout this trial has to do with
          that line of defense. Now at the end of trial, when evidence is closed, they
          decide to amend. All the witnesses are gone. I wasn't prepared to ask those
          questions or to close on that manner or to cross-examine people in regards
          to that count. We were doing only a statutory rape charge. I think that's
          why it causes prejudice. It violates my client's due process rights and it
          also, I mean, it messes up our trial strategy and I think that's why it's
          prejudicial.

          In considering whether Canaday would be prejudiced by the amendment, the court

stated:

          [I]t's not as if the Defendant has not been on notice since the case began
          that there were allegations having to do with the girl's vagina. This is not a
          case where the only thing that had ever been mentioned was, so to speak,
          above the waist, the lips, mouth on the breast, and now they want to amend.
          I mean, this whole case has been directed by-- I don't want to say the whole
          case, but certainly a significant portion of the case has been about Count I
          and the statutory rape charge. So I don't find that there is prejudice to the
          Defendant with regards to preparation.



      8
       Statutory rape is codified in section 566.032, which states as follows: "1. A person commits the crime of
statutory rape in the first degree if he has sexual intercourse with another person who is less than fourteen years old.
2. Statutory rape in the first degree or an attempt to commit statutory rape in the first degree is a felony . . . ."
Sexual intercourse is defined as "any penetration, however slight, of the female sex organ by the male sex organ,
whether or not an emission results." § 566.010(4).

                                                           7
      The court then granted the State's motion to amend the information. As noted

above, in order for there to be prejudice, the "planned defense to the original charge"

must become unavailable and the evidence "no longer applicable after the information

was substituted." Seeler, 316 S.W.3d at 926. Canaday argues that his planned defense to

the child molestation charge was that "he never touched [the victim's] breast." He then

argues that the defense of not touching her breast "in turn shaped his defense" to the

statutory rape and intentional exposure to HIV charges. Indeed, he argues that "every

question that defense counsel asked was geared toward that defense and that strategy."

      In short, Canaday argues that his defense to the child molestation charge was that

he never touched the victim's breast and his defense to the statutory rape charge and

exposure to HIV charges was that he penetrated her vagina with his finger but not with

his penis. Thus, he argues that he was not guilty of statutory rape. Likewise, he argues

that if there was only digital penetration, there would be no exchange of fluids and he

could not be convicted of exposing A.B. to HIV. By amending the child molestation

charge to allege digital penetration, he lost the defense he intended to use as to that

charge and had to, in fact, admit to the child molestation charge in order to use his

planned defense to the remaining two counts.

      Canaday contends that the facts here are analogous to those of State v. Seeler,

requiring reversal. 316 S.W.3d 920. In Seeler, "the indictment charged that Seeler acted

while under the influence of alcohol and/or a controlled substance causing the death of

Gavin Donahue by striking him with a motor vehicle while operating a motor vehicle

with criminal negligence in that defendant was driving in a closed construction zone,

                                            8
thereby leaving said highway's right-of-way . . . ." Id. at 923. Seeler was charged with

the class B felony of involuntary manslaughter which is defined as to "cause the death of

any person not a passenger in the vehicle operated by the defendant, including the death

of an individual that results from the defendant's vehicle leaving a highway . . . or the

highway's right-of-way . . . ." Id. at 924 (citing § 565.024.1(3)(a)). All of Seeler's

evidence was geared towards proving that he never left the highway or the highway right-

of-way. "Seeler came to trial to defend by showing that he did not leave the highway's

right-of-way, and that if he did leave the right-of-way, the choice was not negligent."

Seeler, 316 S.W.3d at 925. "After the close of the state's evidence, the defense moved for

acquittal because the evidence did not show that Seeler's car had left the highway's right-

of-way." Id. at 922. In response, the State requested leave to amend the information by

replacing "leaving the highway's right-of-way" with "drove into a lane closed to traffic."

Id. Leaving the right-of-way was "a necessary part of the case."9 Id. at 927. Seeler's

defense had been that although he did drive into a lane closed to traffic (the center lane),

the center lane was still within the highway's right-of-way due to other lanes being closed

for construction.

                 The amended charge in the information shifted the focus of the
          evidence to the question of whether Seeler's driving in the center lane was
          in a lane closed to traffic instead of a right-of-way. Therefore, Seeler's
          evidence that the center lane was still part of the right-of-way was no longer
          applicable.

      9
       Another point raised in Seeler was whether a closed lane would still be considered the right-of-way, as that
term is undefined in the statute. Further, the State argued that Seeler's defense of staying within the right-of-way
was merely a technical defense. The Court resolved the issue by stating that since "the indictment treated the
allegation as to the highway or its right-of-way as a necessary part of the case," his defense was not a technical
defense. 316 S.W.3d at 927. A technical defense is one that "is immaterial or does not affect substantial rights." Id.
at 927 n.8.

                                                          9
Id.

Staying within the right-of-way, then, was central to Seeler's defense. At the time the

State amended the information, the evidence had been closed and the witnesses were

gone. The State had chosen its factual theory, and the defense had developed and

presented its theory accordingly. The defense in Seeler was not a general one but rather

relied quite heavily and quite specifically on the way the State had worded its charging

instrument. This was key in Seeler, as is evident in the Court's finding that the defendant

was prejudiced: "the prosecution must pick its factual theory and stick with it." Id.

Therefore, at that late juncture, there was no way to view the facts in the amended

information as a mere "technical defense," which the Seeler Court noted is defined in part

as one that is "immaterial or does not affect substantial rights." Id. at 927, n.8 (quoting

BLACK'S LAW DICTIONARY 1463 (6TH ED. 1990)).

      Here, amending the factual basis for the charge of child molestation from

molesting by placing his mouth on A.B.'s breast to molesting by touching her vagina with

his hand significantly changed the factual support for the charge, making Canaday's line

of questioning throughout trial inapplicable because no witness had ever testified that

Canaday touched A.B.'s breast with either his hand or his mouth. Indeed, the trial court

recognized this and stated that "going from placing a mouth on a breast to a hand on or in

the victim's vagina" is a "significant change." Without evidence in any report or from

any witness that Canaday had touched A.B.'s breast, the charge of molestation by




                                            10
touching the breast simply could not be proven.10 Knowing that there was an absence of

such testimonial evidence, Canaday argued that although damage to A.B.'s vagina was

found, the damage was caused by digital penetration rather than penile penetration,

making the evidence insufficient to prove the statutory rape charge. Being aware that

digital penetration was not a lesser-included charge of statutory rape, Canaday felt it was

a safe, strategic decision to essentially admit digital penetration, as opposed to penile

penetration. Because digital penetration was not charged by the State, this defense was

applicable to all three counts. By changing the factual support for the child molestation

charge to digital penetration, Canaday was left with no defense to the charge of child

molestation. In other words, his planned defense became inapplicable. This is confirmed

by the fact that, after the amendment was allowed, Canaday conceded the child

molestation charge. Under Seeler, changing the key facts of the information after the

State has presented its case, the defense has relied on the information with a specific

defense, the evidence has been submitted, and the witnesses gone, results in prejudice.

The summary sentence from Seeler is applicable here: Canaday "was prejudiced because

the defenses he prepared for trial—which were relevant to the original specification in the

indictment—were no longer relevant." Id. at 927-28.




      10
        The State argues that because there was nothing in any of the discovery which reflected that Canaday had
touched the child's breast, with his mouth or otherwise, Canaday was not prejudiced in that he should have predicted
that the State would amend the charge to conform to the facts adduced in pretrial discovery (i.e. that he touched her
vagina with his hand, rather than her breast with his mouth). It was the State who investigated the charge, it was the
State who brought the charge, it was the State who had the burden of proving the charge it brought, beyond a
reasonable doubt, and it was the State's sloppiness which resulted in it filing a charge for which there was no
evidence anywhere in its file to support. Yet, the State wishes to fault Canaday for not predicting the State's
incompetence.

                                                         11
          Because Canaday's planned defense to the child molestation charge was no longer

available after the amendment, we find an abuse of discretion in the trial court's ruling

allowing the charge to be amended after the close of all of the evidence.11 "Trial court

error is not prejudicial unless there is a reasonable probability that it affected the outcome

of the trial." State v. Williams, 420 S.W.3d 713, 721 (Mo. App. W.D. 2014) (citation

omitted). In so holding, we find that there was a "reasonable probability" that, had the

charge not been amended, Canaday could not have been convicted of child molestation as

there was absolutely no evidence produced at trial that he touched the victim's breast with

his mouth or with his hand. Thus, we agree with Canaday that he was prejudiced by the

timing together with the content of the amendment. Point I is granted.

                                                    Point II

          In his second point, Canaday contends that the evidence was insufficient that he

had sexual intercourse with the victim, thus making his convictions of statutory rape and

intentionally exposing another to HIV erroneous.

                                            Standard of Review

          Appellate review of the sufficiency of the evidence is limited to whether the State

has introduced sufficient evidence from which a reasonable fact-finder could have found

each element of the crime beyond a reasonable doubt. State v. Hunt, 451 S.W.3d 251,

257 (Mo. banc 2014) (citation omitted). This court does not reweigh the evidence but,

rather, considers it in the light most favorable to the verdict and grants the State all

     11
        Because Canaday has admitted before this court that the "credible evidence against [him] was that he had
inserted his finger in [victim's] vagina," there is no dispute as to whether the amendment comported with the
evidence adduced at trial.

                                                        12
reasonable inferences. Id. (citation omitted). Contrary evidence and inferences are

disregarded. Id. (citation omitted). "The trial court is free to believe or disbelieve all,

part or none of the testimony of any witness." Zink v. State, 278 S.W.3d 170, 192 (Mo.

banc 2009). The fact-finder determines the credibility of witnesses, resolves conflicts in

testimony, and weighs the evidence. State v. Williams, 313 S.W.3d 656, 660 (Mo. banc

2010) (citation omitted).

                                        Discussion

       Canaday argues that the trial court erred when it overruled his motion for acquittal

at the close of evidence because there was insufficient evidence to convict him of

statutory rape and intentional exposure to HIV. He claims that there was no physical

evidence presented that he had sexual intercourse with the seven-year-old victim such

that he should not have been convicted.

       Generally, [our] review of the sufficiency of the evidence is limited to
       whether the State has introduced sufficient evidence for any reasonable
       [fact-finder] to have been convinced of the defendant's guilt beyond a
       reasonable doubt. This is not an assessment of whether [we] believe[] that
       the evidence at trial established guilt beyond a reasonable doubt but rather a
       question of whether, in light of the evidence most favorable to the State,
       any rational fact-finder could have found the essential elements of the crime
       beyond a reasonable doubt. . . . When reviewing the sufficiency of evidence
       supporting a criminal conviction, [we do] not act as a 'super juror' with veto
       powers, but give[] great deference to the trier of fact.

State v. Nash, 339 S.W.3d 500, 508-09 (Mo. banc 2011) (citations and internal quotation

marks omitted).

       The trial court heard testimony from four witnesses who were among the first to

have contact with A.B. within minutes of the assault. The witnesses were Canaday's


                                            13
roommate, Darden, who was first to find A.B. hugging a telephone pole and crying

hysterically; A.B.'s adult sister-in-law, Lambert, who was next to see A.B. while she was

being brought back home by Darden; A.B.'s mother, Taylor, who immediately came

home from work after receiving a call from Lambert; and Officer Smith, who was the

first policeman to have spoken with A.B. after arriving on the scene. All testified that

A.B. told them that Canaday had touched her vagina or put his penis inside of her vagina.

The victim herself testified that Canaday put his penis inside of her vagina. Even though

on cross-examination A.B's testimony changed to say that his penis was next to her

vagina but not inside of it, the fact finder is free to believe either account.

       Eight other witnesses testified regarding evidence found at the crime scene and

subsequent interviews with A.B., all of which was consistent with Canaday's penis

having entered her vagina, even if slightly. Certainly the evidence of bruising at the base

of A.B.'s hymen supports an inference of penetration.

       Canaday further argues that, absent sufficient evidence of penetration of A.B.'s

vagina by his penis, there is insufficient evidence to support his conviction under Count

III of intentional exposure to another to HIV. Canaday, however, makes no argument

that, with evidence of penile penetration of A.B.'s vagina, while knowing he was HIV

positive, the evidence would be insufficient to support a conviction under Count III.

Indeed, having intercourse while knowing you are infected with HIV and not informing

even a consenting partner about the infection, are the only two elements required to prove

intentional exposure. State v. Wilson, 256 S.W.3d 58, 64 (Mo. banc 2008) (abrogated on

other grounds). "The state does not have to prove that [a defendant] purposely caused his

                                               14
semen to
       o come into
                 o contact with
                           w [victim]." Id. Thhis is consisstent with thhe statute's own

admonittion that thee wearing of       m (thereby ppotentially preventing an exchangge of
                              o a condom

bodily fluids)
       f       is no                    harge. § 1991.677.4. IIn other woords, Canaday's
                   ot a defense to the ch

knowled
      dge that hee was HIV positive ass he forcedd his peniss into the yyoung victiim is

sufficien
        nt to supporrt a fact fin
                                nder's concllusion that Canaday kknowingly eexposed A.B
                                                                                      B. to

HIV.

           Because
           B       theere was suffficient eviidence befoore the triaal court thaat Canadayy had

penetrated A.B. wiith his peniis and that A.B. was lless than foourteen yeaars of age, tthere

was suffficient evid
                   dence beforre the courrt to convict him of statutory raape. Likew
                                                                                   wise,

because the court found suffficient evidence thatt, knowing he was H
                                                                   HIV positivve, a

penetration with his penis had
                             d occurred, the convicttion of intenntional expposure to HIIV is

also foun
        nded on suffficient evid
                               dence. Thiss point is deenied.

                                                  CON
                                                    NCLUSION
                                                           N

           T judgment of the trrial court iss affirmed aas to Counnts I and IIII, statutory rape
           The

and inteentional exp
                   posure to HIV.
                             H    The court's
                                      c       judggment and sentence iss reversed as to

Count III, child mollestation, beecause the amendment
                                            a       t at the closse of evidennce significantly

changed
      d the factuall basis for th          uch that Caanaday was prejudicedd.12
                                he charge su



                                                         _____________________________
                                                                                    _________
                                                         Gary D. W
                                                                 Witt, Judge
All conccur.

      12
        Beccause the senteence as to Counnt II was concu
                                                       urrent with the sentences for the other offennses, we trust thhat
the State will
          w seriously co  onsider the trau
                                         uma of anotherr trial on the viictim before chhoosing to retryy Canaday on tthis
count.

                                                            15
