Opinion
WD 83350
12-08-2020
STATE of Missouri, Respondent, v. Arthur NORMAN, Appellant.
Eric S. Schmitt, Attorney General, and Michel Trapasso, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent. Kathryn Merwald, Assistant Public Defender, Kansas City, MO, Attorney for Appellant.
Eric S. Schmitt, Attorney General, and Michel Trapasso, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.
Kathryn Merwald, Assistant Public Defender, Kansas City, MO, Attorney for Appellant.
Before Division One: Thomas N. Chapman, Presiding Judge, and Mark D. Pfeiffer and W. Douglas Thomson, Judges
Mark D. Pfeiffer, Judge
Mr. Arthur Norman ("Norman") appeals from the judgment entered by the Circuit Court of Jackson County, Missouri ("trial court"), following a bench trial in which he was found guilty of rape in the first degree and armed criminal action. The trial court sentenced Norman to a term of life imprisonment for the rape count and ten years’ imprisonment for the armed criminal action count, the sentences to be served consecutively. On appeal, Norman fairly criticizes the admission of certain evidence at trial; however, because he fails to overcome the presumption that the trial court did not rely upon the inadmissible evidence in this bench -tried matter, we affirm.
"We view the facts in the light most favorable to the conviction[s]." State v. Barac , 558 S.W.3d 126, 128 n.1 (Mo. App. W.D. 2018).
After rehabilitation from a "cerebellum stroke," Victim entered the internship program at Hope Faith Ministries in 2016 to transition from homelessness. As an intern, Victim was given jobs within the operations of the organization and was one of a select few who met the criteria to receive housing and a weekly stipend. Hope Faith Ministries operated three three-story transitional housing units located at 8th and Troost in Kansas City—one house was for women and two of the houses were for men. In Victim's house, a kitchen was on the first floor, and her room was on the third floor. On August 3, 2016, Victim worked in the Hope Faith Ministries cafeteria and returned to her locked room about 2:00 p.m. She took a shower, got dressed, and went to the kitchen to start a roast in a crockpot. She went to bed about 10:00 p.m. At 1:00 a.m., she got up to check on the roast; then she went back to her room and went back to sleep.
Pursuant to section 595.226.1 RSMo 2016, we refer to the victim of the rape as "Victim" so as to protect her identity.
Later that night, she awoke a second time. There was a hand over her mouth and a knife at her throat. A black, bald-headed, sweaty male was standing over her, wearing ripped-up shorts with a blue cloth over half of his face. She screamed into his hand. He told her, "Shut up, bitch." When she still made a sound, he said, "Didn't I tell you to shut up?" She cried, shook her head "yes," and said, "Please don't. Don't." The man said, "If you comply with what I say, you'll live. So just listen to my instructions and if you do what I say, you may survive this."
Next, he asked her to take off her gown. She said, "Please don't. Don't do this. No. Please don't." She felt the knife more intensely on her throat, so she complied and started taking off her gown because she did not want to die. After she took off her gown completely, he pulled off his jean shorts, got on top of her, and, with the knife up to her throat, placed his penis in her vagina and raped her. After approximately three to five minutes, the man ejaculated; he was not wearing a condom. After the man was done raping Victim, he asked her to put on her gown, and she complied. He told her, "Didn't I say you would live?" He got dressed and before he left he told her, "Do not call the police. If you call the police, I will be back and when I come back, I promise you that you will not survive this."
After the man left, Victim waited three to five minutes. Then she grabbed her cell phone from under her mattress, ran and hid in the closet, and very quietly called her friend Jake Robinson, who lived in one of the Hope Faith Ministries men's homes. She explained to Robinson that a black male had just raped her. She asked Robinson to look out the window to see if the man was there, and if he saw the man to please help her call the police. Robinson instructed her to get off the phone with him and call the police, which she did.
When the police arrived, they "swept" Victim's room and "rescued" her from the closet. Victim spoke with Officer Craig Leach. The officer observed that Victim was upset and "scattered a little bit, on her thought process." She told the officer that the man who raped her was "a black male, no shirt, a bandana over his face and blue jean shorts." Victim did not mention a knife or that the attacker was bald. The officer did not notice any signs of forced entry.
Victim then went by ambulance to Saint Luke's Hospital to get a SANE exam. Nurse Jennifer Green, the clinical forensic care program manager for the Saint Luke's Health System, supervised the SANE exam of Victim by another nurse. Nurse Green's body map of Victim's injuries recorded a four-centimeters-by-four-centimeters area of redness on Victim's neck, about which Victim told the nurse: "I had a knife to my neck there."
An examination performed by a Sexual Assault Nurse Examiner.
Nurse Green also created a body map of Victim's external genital area, and a small black piece of debris was collected from Victim's left labia. Then, Nurse Green's internal body mapping for the genital area noted a moderate to significant amount of white fluid, which was consistent with recent sexual interaction. Nurse Green collected cervical swabs and vaginal swabs, which were placed inside the sexual assault kit that was sealed with tape and sent to the crime lab. Nurse Green was with victim from between 4:00 or 5:00 a.m. until 10:30 or 11:00 a.m.
After a nine-month period of investigative inactivity because the police were unable to contact Victim, as she had been "bouncing back and forth between shelters," Victim contacted the police, and the case was assigned to Detective Bradley Thomas. During Detective Thomas's formal interview of Victim, she was excitable and upset, but her statements were consistent with the statements she had previously provided. Victim told Detective Thomas that the perpetrator was a black male, wearing a bandana over his face, shorts, and no shirt. After taking Victim's statement, Detective Thomas made a lab submission for her sexual assault kit and received a "CODIS hit" from the DNA database, which identified Norman as the match.
CODIS is an acronym for the Combined DNA Index System, which is a database of DNA profiles that enables federal, state, and local forensic laboratories to exchange and compare DNA profiles electronically.
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Detective Thomas contacted Norman, and he agreed to be interviewed. The detective told him very early on in the interview that he had been accused of rape and that there was DNA evidence. The detective asked Norman if he knew who Victim was and showed him her photograph. Initially, Norman said that he did not recognize her; but, later in the interview he said, "Oh, wait. No. I actually—I do recognize her." When the detective asked Norman if he had sex with Victim his answer was, "I never ever touched that girl in any way sexually or otherwise. That is the honest-to-God truth." Detective Thomas collected a buccal swab from the inside of Norman's cheek. Norman's DNA profile matched that of the profile developed by the crime lab from Victim's vaginal swab.
Norman was charged as a prior offender and a persistent sexual offender with rape in the first degree, in that on or about August 3, 2016, he knowingly had sexual intercourse with Victim by the use of forcible compulsion while displaying a knife. In exchange for Norman's waiver of his right to jury trial, the State agreed to not seek prior offender penalty enhancement. The State filed an amended information charging Norman with rape in the first degree, for knowingly having sexual intercourse with Victim by the use of forcible compulsion and in the course of such offense displaying a dangerous instrument in a threatening manner, and adding an armed criminal action charge.
At trial, Norman testified in his own behalf. Since 2004, he had worked as an intern at Hope Faith Ministries. Norman testified that he had consensual sex with Victim once in exchange for getting crack cocaine for her. He explained that he told Detective Thomas that he had not had sex with Victim "[b]ecause I was kind of scared, you know, of the question that he was asking me, you know, and I didn't want to get myself in trouble." Norman denied pulling out a knife or raping Victim on August 3, 2016, claiming instead that any sexual intercourse was consensual.
The trial court found Norman guilty of rape in the first degree and armed criminal action and sentenced Norman to consecutive terms of life imprisonment for the rape count and ten years’ imprisonment for the armed criminal action count.
Norman appeals.
Standard of Review
"Our standard of review in addressing the admission or exclusion of evidence at trial is for abuse of discretion." State v. Taylor , 588 S.W.3d 632, 637 (Mo. App. W.D. 2019) (internal quotation marks omitted). "If we find an abuse of discretion, our role on direct appeal is to review for prejudice, not mere error, and [we] will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." Id. (internal quotation marks omitted).
"Trial court error in the admission of evidence is prejudicial if the error so influenced the [fact finder] that, when considered with and balanced against all of the evidence properly admitted, there is a reasonable probability that the [fact finder] would have reached a different conclusion without the error." State v. Dixon , 586 S.W.3d 304, 316-17 (Mo. App. W.D. 2019) (internal quotation marks omitted). "In a bench trial, error in admitting evidence is generally not prejudicial, unless the trial court relies on the inadmissible evidence in making its findings." Id. at 317 (internal quotation marks omitted). "On appeal, we presume that any improper or inadmissible evidence admitted in a bench-tried case was not prejudicial and that the trial court was not influenced by it in reaching its judgment unless it is apparent from the record that the trial court considered and relied on the improper or inadmissible evidence." Id. (internal quotation marks omitted). "Absent some showing that the evidence inflamed the fact-finder or diverted its attention from the issues to be resolved, the receipt of evidence even though irrelevant and immaterial, cannot constitute prejudicial or reversible error." State v. Taylor , 504 S.W.3d 116, 123 (Mo. App. E.D. 2016) (internal quotation marks omitted). "As a result, it is nearly impossible to obtain a reversal based upon the improper admission of evidence in a court-tried case." Id. (internal quotation marks omitted).
Analysis
In Norman's sole point on appeal, he asserts that the trial court abused its discretion in admitting Nurse Green's testimony recounting what Victim told her about the attack during the SANE examination. Specifically, Norman contends that Victim's statements to Nurse Green were not admissible as prior consistent statements to rehabilitate Victim because: (1) they exceeded the scope of any impeachment of Victim, and (2) they were made after the statements used to impeach Victim.
"Hearsay is any out-of-court statement that is offered into evidence to prove the truth of the matter asserted." State v. Reed , 282 S.W.3d 835, 837 (Mo. banc 2009). Hearsay statements are inadmissible unless they fit within an exception to the hearsay rule. State v. Garretson , 598 S.W.3d 643, 654 (Mo. App. W.D. 2020). "Missouri courts have held that where a witness is impeached by proof of inconsistent statements, then proof of a statement made by the witness prior to the inconsistent statement, which is consistent with the trial testimony, is admissible to rehabilitate the witness." State v. Mueller , 872 S.W.2d 559, 563 (Mo. App. E.D. 1994).
"[P]rior consistent statements may be admissible for the purpose of rehabilitating a witness whose credibility has been called into question." State v. Holmquest , 243 S.W.3d 444, 449 (Mo. App. W.D. 2007) (citing State v. Ramsey , 864 S.W.2d 320, 329 (Mo. banc 1993) ). "The use of the prior consistent statement is limited, however, to the extent necessary to counter the subject on which the witness was impeached." State v. Bell , 936 S.W.2d 204, 206 (Mo. App. W.D. 1996). "If the use of a prior consistent statement exceeds the scope of the impeachment, it is inadmissible." Id. Additionally, "when a witness has been impeached by proof of [her] statements inconsistent with [her] trial testimony, prior consistent statements are admissible into evidence for the purpose of rehabilitation if, and only if, the prior consistent rehabilitating statement was made prior to the impeaching statement. " State v. McClendon , 895 S.W.2d 249, 252 (Mo. App. E.D. 1995).
At trial, Victim testified on direct examination that when she awoke, there was a hand over her mouth and a knife at her throat. She described her assailant as "a black, bald-headed individual, very dark skinned, sweaty, ripped up shorts with a blue cloth ... that was over half of his face." On cross-examination, the following colloquy took place:
Q. [Defense Counsel]: [O]n the ... night you were alleging that you were raped, you said the man was wearing shorts?
A. [Victim]: Yes....
Q. [N]ow, these shorts were ripped, right?
A. They were jean shorts that were cut and they had, like, strings on the bottom. Like when you cut jean shorts and you wash them or something and they do a frilly at the bottom, cuts.
Q. Now, you also saw that the man was black?
A. Yes.
Q. Okay. Do you recall on—at Saint Luke's Hospital talking to a nurse?
A. Yes.
Q. And describing to the nurse the attacker?
A. Yes.
....
Q. Okay. Now, let me talk about the night of this attack that you're alleging. Correct me if I am wrong, you woke up feeling a knife on your throat; correct?
A. Yes.
Q. And I believe you pointed to the middle of your throat?
A. Yes.
Q. And this is where the attacker pressed the knife against your skin?
A. Yes (indicating).
Q. This was—the knife was at the middle of your throat during the rape as well?
A. Yes. Similar—right in this area.
Q. Now, again, do you remember talking to a nurse about the attack the night of this incident?
A. Yes.
Q. Okay. And do you remember telling the nurse that the man held the knife to the side of your neck?
A. I believe so, yes.
Q. And correct me if I am wrong. I thought I heard you during the direct examination state that you did not talk to any officers the night of this incident.
A. No. Spoke with officers.
....
Q. [D]o you recall giving a description of the rapist to the officer?
A. Yes.
Q. And the night of this incident you didn't tell the officer that this attacker was bald; right?
A. I don't know. I don't recall. I believe I did, though.
Q. You believe you did tell the officer he was bald?
A. Yes. That was the most important part of his identity, along with his eyes.
Q. Okay. And you didn't tell the officer that the attacker used a knife in that incident, or did you?
A. Yes, I did.
Q. So you did tell the officer that the attacker used a knife?
A. I explained to the nurse ... and everyone that was in that room, and one of them was an officer, yes.
....
Q. Now, again, referring to when you were talking to the nurse at Saint Luke's Hospital that night, not only did you describe where the knife was placed, but do you recall describing what the person looked like?
A. Yes.
Q. Okay. And you didn't tell the nurse—the nurse that night that the attacker was bald?
A. Wow you're getting me mixed up with even that I can't—I don't recall.
....
Q. [O]n the night you were—you alleged to have been raped, did you talk to any of the police at the scene?
A. I don't recall. Alls I know is they swept the place. As they swept, they led me to the ambulance very quickly. I just—I was on 911.
From this exchange, it is clear that the scope of defense counsel's impeachment of Victim was limited to the inconsistency between her trial testimony as to where on her throat her assailant placed the knife and what she told Nurse Green, whether she told Officer Leach that her assailant had a knife, and whether she told Officer Leach and Nurse Green that her assailant was bald. As to Victim's trial testimony regarding the latter two matters, she either was unsure or did not recall or remembered inaccurately. Thus, the only inconsistent statement that Victim made during defense counsel's impeachment was where her assailant placed the knife on her throat.
Nurse Green also testified at trial, and on redirect examination by the prosecutor, the following exchange took place:
Q. [Prosecutor]: Ms. Green, can you detail for us what [Victim] told you about the assault?
A. [Nurse Green]: She said that she had woken up—she went to bed at 8 and then she woke up to put a pot roast on the stove because she was trying to stay on top of her life. She went back upstairs to go to bed and she woke up feeling the knife against her throat, she had the verbal exchange where he had threatened to—
[Defense Counsel]: Excuse me. I believe this is hearsay. I believe [Victim] already testified.
THE COURT: [Prosecutor]?
[Prosecutor]: Your Honor, these are prior consistent statements after the victim's statements were tested on cross-examination. Her inconsistencies were tested on cross-examination.
[Defense Counsel]: I believe it's a lot of what she's testifying to is outside the scope of what I asked.
[Prosecutor]: Your Honor, I'm allowed to rehabilitate the prior consistent statements of the victim.
The trial court overruled Norman's objection. Nurse Green continued her testimony:
She had mentioned that he held the knife to her throat and threatened to kill her. He asked for her to take off her clothing, she had a nightgown on, and which she did in compliance. She—he asked her, because he had the knife in his hand, to put his penis in her vagina, which she did. He went up and down a few times.
He put the knife next to her head so he could stab her skull, and after he was finished and completed and ejaculated, he got off, they put their clothes back on. He told her not to call anyone, but he knew that place better than she did
and that he would kill her. So she waited approximately 30 minutes before she called for help and I believe she called her boyfriend and the 911.
The prosecutor asked Nurse Green what physical description Victim gave of her assailant.
A. That it was a male. That he was wearing cutoff jean shorts and he was wearing, like, a cloth over his face.
Q. And did she state to you whether or not she knew this individual?
A. She said she did not know this individual. It was a stranger.
In addition to Nurse Green testifying that Victim told her that "she woke up feeling the knife against her throat" and "that he held the knife to her throat," Nurse Green also testified that:
Victim went to bed at 8:00 p.m.;
Victim cooked a pot roast that night;
Victim had a verbal exchange with her assailant, and he threatened to kill her;
Victim's assailant asked her to take off her nightgown, and she complied;
Victim's assailant asked her to put his penis in her vagina, and he went up and down a few times and then ejaculated;
Victim's assailant put the knife next to Victim's head so he could stab her skull;
Victim's assailant told her not to call anyone;
Victim waited approximately thirty minutes before she called her "boyfriend" and then 911 for help;
Victim's assailant was male and wore cutoff jean shorts and a cloth over his face;
Victim did not know this individual; he was a stranger.
Because the only inconsistent statement that Victim made during defense counsel's cross-examination impeachment of Victim's testimony was where her assailant placed the knife on her throat, Victim's statements to Nurse Green beyond Victim's assailant's use of a knife that the trial court admitted as prior consistent statements went well beyond the scope of impeachment.
Furthermore, Nurse Green met with Victim after she had previously met with Officer Leach. Hence, on the topic of what Victim had told (or had not told) Officer Leach before meeting with Nurse Green, the nurse's testimony could not constitute a prior consistent statement and, instead, would be more akin to a post consistent statement that was used by the State to bolster Victim's trial testimony. See McClendon , 895 S.W.2d at 252 (A statement made after an impeaching statement is only "consistent" with the witness's trial testimony and, hence, constitutes improper bolstering of trial testimony.).
Hence, for multiple reasons, we agree with Norman that the trial court should not have admitted the complained-of testimony of Nurse Green. However, our analysis does not stop there. Norman acknowledges in his appellate brief to this Court that:
Missouri courts have not explicitly recognized that a defendant can rebut the presumption that a trial court disregarded inadmissible evidence in a bench trial when the trial court makes a specific finding of admissibility on the record and does not expressly state that the inadmissible evidence did not contribute to the final judgment or determination.
Nevertheless, Norman invites this court to do just that. He argues in his appellate brief that "because the trial court specifically found [Victim's] statements to Ms. Green to be admissible and did not later indicate in any way that it had disregarded that evidence, this Court should not assume the trial court disregarded it when reaching its verdict." However, established precedent presumes that in a bench trial that the trial judge was not confused or misled by any allegedly irrelevant or inadmissible evidence. See State v. Sladek , 835 S.W.2d 308, 313 (Mo. banc 1992) ("In a jury-waived case a certain amount of latitude in the admission of evidence is allowed, and even where an error is made in the admission of some evidence, except where the trial court relied on that evidence in arriving at its findings of fact and conclusions of law, such error is ordinarily held to be non-prejudicial. This is so because the rules of exclusion in the law of evidence as applied in a court of law are largely as a result of the jury system and serve the purpose of keeping from the jury all irrelevant and collateral matters which might tend to confuse them or mislead them from a consideration of the real question in issue; when an action is to the court sitting without a jury, the rules of exclusion are less strictly enforced."); Worthington v. State , 166 S.W.3d 566, 573 (Mo. banc 2005) ("In court-tried cases judges are given great latitude in the admission of evidence because of the presumption that they will not give weight to incompetent evidence.").
"Missouri appellate courts are constitutionally bound to follow the last controlling decision of Missouri's Supreme Court, regardless of how many years have passed since that decision [w]as rendered." State v. Miller , 536 S.W.3d 374, 379 (Mo. App. W.D. 2018) (internal quotation marks omitted). Thus, we decline Norman's invitation as it would require us to defy established precedent.
The trial court did not explain upon what evidence it based its finding that Norman was guilty of rape in the first degree and armed criminal action. "In a bench trial, error in admitting evidence is generally not prejudicial, unless the trial court relies on the inadmissible evidence in making its findings." Dixon , 586 S.W.3d at 317 (internal quotation marks omitted). "On appeal, we presume that any improper or inadmissible evidence admitted in a bench-tried case was not prejudicial and that the trial court was not influenced by it in reaching its judgment unless it is apparent from the record that the trial court considered and relied on the improper or inadmissible evidence." Id. (internal quotation marks omitted). "Absent some showing that the evidence inflamed the fact-finder or diverted its attention from the issues to be resolved, the receipt of evidence even though irrelevant and immaterial, cannot constitute prejudicial or reversible error." Taylor , 504 S.W.3d at 123 (internal quotation marks omitted). The record does not clearly demonstrate the trial court considered and relied upon any inadmissible evidence in this case.
Moreover, Norman has not shown that there is a reasonable probability that, absent the erroneously admitted evidence of the statements of Victim to which Nurse Green testified to on redirect, the trial court would have found him not guilty. See Dixon , 586 S.W.3d at 316-17. For example:
Demonstrating that Norman had lied to the investigating officer about never having had sex with Victim, there was properly admitted evidence at trial directly contradicting Norman's "honest-to-God truth." A forensic specialist with the Kansas City, Missouri, Police Department crime laboratory developed Norman's DNA profile from the buccal swab collected by Detective Thomas. Another forensic specialist with the crime laboratory developed a DNA profile from Victim's vaginal swab. When he compared the two DNA profiles, they matched. The forensic specialist testified that the genetic profile developed from the DNA on Victim's vaginal swab was "ten octillion times more likely to preserve that Arthur Norman is a contributor than some other unknown individual." Additionally, "[a] permissible inference of guilt may be drawn from acts or conduct of an accused subsequent to an offense if they tend to show a consciousness of guilt by reason of a desire to conceal the offense or role therein." State v. Webb , 569 S.W.3d 530, 541 (Mo. App. W.D. 2018) (internal quotation marks omitted). During Norman's interview with Detective Thomas, the detective told him very early on in the interview that he had been accused of rape and that there was DNA evidence, but when the detective asked him if he had sex with Victim his answer was, "I never ever touched that girl in any way sexually or otherwise. That is the honest-to-God truth." However, after being faced with the compelling DNA evidence at trial, Norman changed his story and admitted having sex with Victim and even admitted having sex with Victim on August 3, 2016, the day she was raped. "[E]xculpatory statements, when proven false, evidence a consciousness of guilt[.]" Id. (internal quotation marks omitted). "And [g]uilt may be inferred when an accused attempts to deceive the police, as in making a false exculpatory statement." Id. (internal quotation marks omitted). Norman's false exculpatory statements to Detective Thomas are evidence of a consciousness of guilt, and the trial court could infer that Norman was guilty from the fact that he lied to police about having sex with Victim.
Further, consistent with the fact that the investigating officers found no sign of forced entry, there was evidence at trial that Norman was a custodian and had a master key to the Hope Faith Ministries administrative office building, including the upstairs where the manager and administrators had their offices and where the keys for all of the facilities were kept. Jeffrey Lee, the operations director at Hope Faith Ministries when Victim was raped, testified that although Norman had a direct supervisor, he was not watched while performing his custodial duties. Lee testified that although Norman did not have direct access to the keys of the facility, including the keys for the housing facilities, all of which were kept on the second level of the executive offices, "he possibly could get a hold of them."
Finally, though Norman's impeachment efforts were focused on Victim's description of where the knife was positioned during the rape, there is no question that Victim had consistently stated both on the day of the rape and during trial that a knife had been used during the rape by Norman—irrespective of its location on her neck—whether front or side.
Simply put, Norman has not established that he was prejudiced by any improper admission of evidence in this bench-tried proceeding. He has not shown that the trial court considered and relied upon any inadmissible evidence in reaching its judgment; in fact, the record reflects that there was properly admitted and overwhelming evidence of Norman's guilt for the trial court to consider.
Accordingly, Norman's point on appeal is denied.
Conclusion
The trial court's judgment is affirmed.
Thomas N. Chapman, Presiding Judge, and W. Douglas Thomson, Judge, concur.