State of Missouri v. James Patrick Dodd, Jr.

In the Missouri Court of Appeals Western District STATE OF MISSOURI, ) ) Respondent, ) WD83687 ) v. ) OPINION FILED: November 23, 2021 ) JAMES PATRICK DODD, JR., ) ) Appellant. )

Appeal from the Circuit Court of Jackson County, Missouri The Honorable Justine E. Del Muro, Judge

Before Division Three: Lisa White Hardwick, Presiding Judge, Gary D. Witt, Judge and Edward R. Ardini, Jr., Judge

James Dodd ("Dodd") appeals from the judgment of the Circuit Court of Jackson County, Missouri ("trial court") convicting Dodd of two counts of first-degree child molestation, section 566.067;1 one count of first-degree statutory sodomy, section 566.062; one count of attempted first-degree statutory sodomy, section 566.062; one count of second-degree statutory rape, section 566.034; and three counts of second-degree statutory sodomy, section 566.064. Dodd raises two issues on appeal: (1) the evidence presented at

1 All statutory references are to R.S.Mo. 2016, as currently updated by supplement, unless otherwise noted.

trial was insufficient to support a conviction on counts I-VII; and (2) the offenses against the two separate victims were improperly joined in the indictment and were not severed. Finding no error, we affirm.

Factual and Procedural Background2

This case involves the sexual molestation and rape of two separate child victims: K.J.K. and B.B.3 The sexual molestation of the two victims occurred during different time periods, and the two victims do not know each other.

K.J.K. is the daughter of "Mother" and the niece of "Aunt." Aunt is Dodd's exgirlfriend and is the mother of Dodd's twin boys, who were born in 2005. During the relevant time periods, Dodd and Aunt did not share a residence, but Dodd frequently visited Aunt's home to spend time with the twin boys while they were growing up. K.J.K. also visited Aunt's house frequently with Mother during this time frame.

The charges against Dodd regarding K.J.K. arose from three incidents in 2009, when K.J.K. was six or seven years old. Dodd sexually molested K.J.K. at Aunt's house on three separate occasions. The first incident occurred while K.J.K., Dodd, and K.J.K.'s male cousin, D.K., were watching television together in the living room. When D.K. went to the restroom, Dodd lifted K.J.K. onto his lap, unbuttoned her pants, and put his hands down the front of her pants. Dodd touched and rubbed K.J.K.'s vagina, skin to skin. Dodd also placed his hands up K.J.K.'s shirt to feel her breasts. While being held on Dodd's lap,

2 We consider the testimony in a light most favorable to the verdict, and contrary evidence and inferences are disregarded. State v. Rutter, 93 S.W.3d 714, 720 (Mo. banc 2002). 3 We have used the victims' initials to protect their identity pursuant to section 595.226.1.

K.J.K. could feel Dodd's erect penis through his pants. After a couple of minutes, D.K. came out of the restroom, and Dodd took K.J.K. off his lap without buttoning her pants.

The second incident occurred just weeks later on the first floor of Aunt's house. K.J.K. and two other children were setting up a video game while Dodd sat on a reclined exercise chair. When the children's backs were toward him, Dodd pulled K.J.K. to him. He unzipped his pants and pulled them down slightly, then he pulled K.J.K.'s pants down slightly and placed K.J.K. onto his lap. He moved K.J.K. around on his penis so that his penis touched her vagina without penetration. K.J.K. felt a liquid "shoot up" in between her thighs, on her vagina, and on her buttocks. Dodd then pulled K.J.K.'s pants back up and pulled her off his lap.

The final charged incident between Dodd and K.J.K. occurred at Aunt's home in the living room. Mother dropped K.J.K. off at Aunt's house for the evening while she went to night school. Dodd was the only person present at Aunt's home that evening. Dodd sat on the couch playing a video game, and K.J.K. asked him if she could eat a Nutter Butter snack. Dodd told K.J.K. that she could not have a snack unless she "did something" first. K.J.K. asked what she had to do, and Dodd pulled out his penis and started rubbing it. Dodd asked K.J.K. if she was going to "do it," but she shook her head "no." Dodd grabbed K.J.K.'s hand and put it on his penis. He placed his hand on top of her hand and began moving the two hands together up and down.

During eighth grade, K.J.K. had become rebellious and started acting out at school. Mother had a conversation with her about her behavior problems, and during the conversation K.J.K. began crying and told Mother about the sexual molestation by Dodd. *4 Mother called the police to report the abuse. K.J.K. was then interviewed by law enforcement, the Children's Division, and a forensic interviewer regarding the molestation.

Dodd's and Aunt's relationship ended around 2009 or 2010. Dodd then began dating "Wife," whom he later married. B.B. is Wife's cousin, and B.B. met Dodd at Wife's house when she was thirteen or fourteen years old. Dodd and Wife have four children together, and B.B. frequently visited their home to babysit the children and hang out with Wife and Dodd. B.B. initially enjoyed spending time with Dodd, and he did not make her feel uncomfortable. However, after she turned fifteen years old, Dodd began touching B.B. inappropriately. He tickled her and rubbed up against her body whenever he walked passed her. Ultimately, Dodd's touching led to inappropriate actions and sexual abuse on three separate occasions in 2015.

The first incident occurred in Wife's basement. While Wife and the children were upstairs, Dodd and B.B. were alone smoking marijuana in the basement. Dodd wanted to show B.B. a smoking trick; he blew smoke into B.B.'s mouth for her to inhale. When he blew the smoke, he kissed her on the lips. B.B. did not tell anyone about the incident because she believed it was a one-time incident related to the smoking trick.

The second incident also occurred at Wife's home. After Wife and the other children went to bed, Dodd invited B.B. to the basement to smoke marijuana again. Dodd went down the stairs first, and B.B. followed. Dodd stopped halfway down the stairs and sat down on a step to prevent B.B. from going any farther. Dodd pulled B.B. onto his lap and stuck his hand up B.B.'s shirt to feel her breasts. Dodd and B.B. then went down the stairs to the basement where they began smoking marijuana. Dodd made B.B. smoke more than *5 she wanted, and once she was "past her limit," he showed B.B. a pornographic video on his phone. He then asked to perform oral sex on B.B. When B.B. declined, Dodd sat down next to her on an ottoman and placed her hand on his jeans and told her to "touch it." B.B. pulled her hand away multiple times, so eventually Dodd pulled his penis out of his pants and forced B.B.'s head down toward it until her mouth touched his penis. She performed oral sex on him, and then he took her pants and underwear off while she lay on the ottoman so that he could perform oral sex on her. Then, he put his penis in her vagina and raped her until he ejaculated on her buttocks. Dodd wiped his ejaculate off of her with a t-shirt he found in the basement. The next day, she was sore in her vaginal area.

The final incident between B.B. and Dodd occurred one month later. B.B. continued to visit Wife because she believed that if she stopped going to Wife's house, her parents would become suspicious that something occurred. Believing that Dodd would once again abuse her, B.B. stole a condom from a gas station before going to their house out of fear of becoming pregnant. When she arrived at their home, Wife had to leave to attend a meeting with a wedding planner in preparation for her wedding with Dodd, and the other children were upstairs. Dodd ordered B.B. to go to the basement. Once in the basement, B.B. gave Dodd the condom and asked him to use it because by the way he ordered her to go to the basement she knew what he was going to do to her. Dodd made B.B. bend over the ottoman, and he raped her from behind. He ejaculated on her buttocks and wiped it up with a t-shirt.

One week after the final sexual incident between B.B. and Dodd, B.B. and Wife were speaking on the phone about church, God, and forgiveness. Because B.B. believed *6 she was at fault and needed to be forgiven, she told Wife about the three incidents involving Dodd. Wife informed B.B.'s parents about Dodd's crimes, who then took B.B. to the police station. B.B. spoke to law enforcement, a forensic interviewer, and a doctor about the incidents with Dodd.

Dodd was convicted on Counts I-VII,4 and the court sentenced him according to the jury's recommendations, with the sentences for the crimes against K.J.K. to run consecutively to the sentences for the crimes against B.B., for a total sentence of thirtyseven years. This appeal follows.

Sufficiency of the Evidence

Standard of Review

Dodd's first point argues the trial court erred by overruling his motion for acquittal at the close of evidence because the State's evidence was "uncorroborated, contradictory and/or inherently incredible." "The review of a trial court's denial of a motion for judgment of acquittal is the same as reviewing a claim that there was insufficient evidence to convict the defendant of the charged offense." State v. Bass, 81 S.W.3d 595, 614 (Mo. App. W.D. 2002).

When reviewing the sufficiency of the evidence supporting a criminal conviction, the Court gives great deference to the trier of fact. Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. In applying this standard, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary.

4 One count of second-degree statutory sodomy was dismissed by the State at trial prior to submission.

State v. Weaver, 481 S.W.3d 927, 930 (Mo. App. W.D. 2016) (internal quotations omitted).

Analysis

Dodd argues, in a single point relied on, that the trial court erred in overruling his motion for acquittal at the close of evidence as to all seven counts relating to both victims. In challenging sufficiency of the evidence to support the convictions for all seven charges, involving multiple victims which occurred at separate times in a single point, Dodd's first point is multifarious. "Multiple claims of error in one point relied on renders the point multifarious and as such is a violation of Rule 84.04, made applicable to briefs in criminal appeals by Rule 30.06(c)." State v. Leonard, 490 S.W.3d 730, 736 (Mo. App. W.D. 2016) (internal quotation omitted).

Here, Dodd does not argue trial court error in regard to a specific conviction, or that the failure to sufficiently prove a single element that is common to all seven charges requires reversal; rather, he argues the trial court erred by denying his motion for judgment of acquittal as to all seven counts by pointing to inconsistencies between various statements each separate victim gave at different times and pointing to evidence which he argues should have been found more credible. "Generally, multifarious points preserve nothing for appellate review and are ordinarily subject to dismissal." Id. (internal quotation omitted). Dismissal of Dodd's appeal, therefore, is within our discretion. However, because "we prefer to decide cases on the merits where an appellant's argument is readily understandable--as is the case here" id. at 736-37, we exercise our discretion to review the case on the merits.

Counts I-IV pertain to Dodd's molestation of K.J.K. The convictions of Counts I-IV include two counts of child molestation in the first degree, one count of attempted statutory sodomy in the first degree, and one count of statutory sodomy.

On appeal, Dodd does not argue that the State failed to adduce evidence establishing facts supporting the submission of Counts I-IV, rather Dodd argues "[t]here was significant evidence at trial to contradict and refute the testimony of K.J.K. and other State's evidence." Dodd points to testimony given by defense witnesses that question Dodd's presence at Aunt's house during 2009, where the molestation of K.J.K. occurred. For example, Q.V., a friend of Dodd, testified that Dodd did not have contact with Aunt in 2009. Other defense witnesses testified; 1) that Dodd could not have traveled to Aunt's house because Dodd did not have a car; 2) Aunt had an order of protection against Dodd that would have prevented Dodd from visiting Aunt's home; and 3) that they never saw Dodd at Aunt's house.

Dodd also argues K.J.K.'s testimony should be found not to be credible based on inconsistencies between her prior statements to law enforcement compared to her trial testimony. Officer Pugh testified that K.J.K. only mentioned two acts of molestation, not three. Officer Pugh also testified K.J.K. told him she was fully clothed during the second act of molestation, but K.J.K.'s trial testimony was that Dodd pulled her pants down slightly to place his penis against her vagina. During the forensic interview, K.J.K. did not mention Dodd placed his hands down her pants during the first act of molestation; however, at trial, K.J.K. testified Dodd did put his hands down her pants during the first incident. Dodd also argues K.J.K.'s testimony is not credible due to the time lapse between the crimes (2009) and the reporting of the crimes (2016).

Counts V-VII pertain to B.B.'s sexual abuse. Counts V-VII include two counts of statutory sodomy in the second degree and one count of statutory rape in the second degree.

Dodd argues the State's evidence was insufficient to convict of the charged offenses because the defense offered testimony contradicting the State's evidence. Dodd's witnesses testified that in 2015, B.B. came to Wife's and Dodd's house only a few times and never stayed long enough or had the opportunity to be alone with Dodd. Wife testified that even if B.B. were alone with Dodd, the walls in their home were so thin that she would have been able to hear anything happening downstairs and would have been able to smell marijuana. Wife further testified there was no furniture in the basement, even though B.B. testified that Dodd raped her on the basement furniture. Finally, Dodd himself testified he was never alone with B.B.

Dodd's arguments fail as a matter of law. Dodd essentially asks this Court to either reweigh the credibility of the evidence, which we cannot do, or to apply the Corroboration Rule and Destructive Contradictions Doctrine, both of which the Missouri Supreme Court abolished in State v. Porter, 439 S.W.3d 208, 211, 213 (Mo. banc 2014). While we acknowledge that Dodd never refers to the Corroboration Rule and Destructive Contradictions Doctrine by name, the arguments made in support of the Point Relied On are directly based on these two standards.

The Corroboration Rule and Destructive Contradictions Doctrine were judicially created standards of evidentiary review that were only applicable to sexual offenses. "Under the former Corroboration Rule, corroboration of a witness'[s] testimony was required if the witness's testimony [was] determined to be contradictory or if the appellate *10 court's review of the evidence raise[d] some undetermined level of uncertainty regarding the evidentiary support for the conviction." Weaver, 481 S.W.3d at 931 (internal quotations omitted). "The court completely abolished the rule in Missouri and held that claims regarding the sufficiency of evidence to support a conviction for a sex crime should be reviewed as any other claims alleging insufficient evidence." Id. Similarly, the Destructive Contradictions Doctrine "permitted an appellate court to disregard testimony that it determine[d was] inherently incredible, self-destructive[,] or opposed to known physical facts with respect to an element of the crime." Id. (internal quotations omitted). Porter also abolished this doctrine because "it too require[d] appellate courts to engage in credibility determinations that [were] properly left to judges and juries sitting as triers of fact." 439 S.W.3d at 213. For these reasons, we decline Dodd's request that we apply the now abolished Corroboration Rule and Destructive Contradictions Doctrine and independently determine that the State's evidence was "uncorroborated, contradictory, and/or inherently incredible."

As to the suggestion that we should reweigh the evidence, "[w]e do not reweigh the evidence but, instead, accept as true all evidence and inferences supporting guilt and ignore all contrary evidence and inferences." State v. Garcia, 587 S.W.3d 688, 692 (Mo. App. W.D. 2019). The trier of fact may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances, and other testimony in the case. State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002). "The testimony of a single witness is sufficient to support a conviction even if the testimony of the witness is inconsistent." State v. Bell, 936 S.W.2d 204, 207 (Mo. App. W.D. 1996). The jury is in the best position to *11 resolve credibility issues, such as inconsistencies in the victim's trial testimony and out-of-court statements. Porter, 439 S.W.3d at 213-14. And the Court will not engage in credibility determinations that are properly left to the trier of fact. Id. at 214.

Here, the evidence supports a conviction of each of the charged offenses. Both K.J.K. and B.B. testified regarding Dodd's actions. Both victims detailed the three incidents each experienced in which Dodd either molested or raped them. Their testimony alone is sufficient evidence to convict if the jury believed their testimony and if the elements of the offenses were satisfied. But Dodd does not argue the elements of the offenses were not satisfied; rather, he argues that both the victims' conflicting statements and his own witnesses' testimonies render the victims' testimonies incredible.

The inconsistencies Dodd points to on appeal were thoroughly raised by Dodd's counsel on cross-examination and highlighted in his argument to the jury. The jury was fully aware of the alleged contradictions but clearly found the testimony of K.J.K. and B.B. credible. Dodd also presented evidence that contradicted the victims' testimony regarding Dodd's presence at Aunt's house in 2009 and Dodd's opportunities to be alone with B.B. in 2015. The jury was also aware of the seven-year time lapse between K.J.K.'s abuse and her reporting it. But the jury as the trier of fact remains in the best position to weigh the credibility of the witnesses and determine if the State has proven each element of each charged offense beyond a reasonable doubt. This Court will not second guess the credibility determinations of the jury.

Dodd's point one is denied.

Joinder and Severance

Standard of Review

Dodd's second point argues the offenses against K.J.K. and the offenses against B.B. were improperly joined in the charging instrument and should have been severed, resulting in substantial prejudice to Dodd. Appellate review of claims of improper joinder and failure to sever, if the issue is properly preserved, involves a two step-analysis; first, the appellate court must determine whether joinder was proper as a matter of law, and if not, then prejudice is presumed and severance is mandatory, but if joinder was proper, the appellate court then must determine whether the court abused its discretion in denying the defendant's motion to sever. State v. Holliday, 231 S.W.3d 287, 292 (Mo. App. W.D. 2007).

Analysis

Dodd argues joinder was improper as a matter of law and that the trial court abused its discretion by denying severance. Joinder and severance are separate and distinct issues. State v. Collins, 527 S.W.3d 176, 180 n.4 (Mo. App. W.D. 2017). "Joinder" addresses what crimes can be charged in a single proceeding, while "severance" assumes that joinder is proper and gives the trial court discretion to determine whether substantial prejudice would result if the charges were tried together. State v. Hyman, 37 S.W.3d 384, 393 (Mo. App. W.D. 2001).

Joinder of two or more offenses within a single charging document is proper if the offenses charged are (1) of the same or similar character; (2) based on the same act or transaction; (3) based on two or more acts or transactions connected together; or (4) constitute parts of a common scheme or plan. Section 545.140.2; Rule 23.05. Liberal *13 joinder of offenses is favored to achieve judicial economy. State v. Davis, 825 S.W.2d 948, 953 (Mo. App. E.D. 1992).

Whenever two or more offenses are jointly charged in an indictment or information, the court shall order both or all offenses to be tried together. Section 545.885. If it appears that a defendant or the state is substantially prejudiced by a joinder of the offenses for trial, upon a written motion of the defendant or the state and upon a particularized showing of substantial prejudice, the court may grant a severance of offenses and provide whatever relief justice requires. Id.; Rule 24.07.

As an initial matter, we must first address whether Dodd preserved the issue of improper joinder and severance for appeal. If a defendant fails to object to the joinder of offenses before trial, he waives the right to obligate the State to "elect among the counts" as to which counts it will try. State v. Shubert, 747 S.W.2d 165, 168 (Mo. App. W.D. 1988). Further, an "appellant cannot claim error with respect to action by the court on any motion or request directed to the severance of [the offenses] because he filed no motion and therefore waived the error." Id. at 169. "Any contention [an] appellant may make on this point is therefore reduced to a contention that the trial judge should have acted sua sponte to afford appellant separate trials." Id. (emphasis added). And because Section 545.885 requires that offenses charged together in the indictment be tried together unless a party files a motion for severance, a "court which undertook sua sponte to sever jointly charged offenses would be in direct violation of the statute." Id. (emphasis added). Therefore, "where multiple counts in an information [or indictment] charge two or more *14 offenses and no motion for severance is filed, the court has no alternative but must try all of the offenses to one jury in a single trial." Id.

Here, the record lacks any indication that Dodd moved to sever the offenses or objected to the single trial of the multiple offenses which were charged together in the indictment. Dodd did not file any motion arguing improper joinder, nor did he move the trial court to sever the offenses, regardless of whether they were properly joined or not. Even in his appellate brief, Dodd does not reference any pretrial motion arguing for severance or improper joinder.

Dodd's only pretrial argument regarding the indictment was his Motion to Dismiss Counts II and IV because the counts were "multiplicitous." Dodd argued the counts contained the exact same language without additional facts or details to distinguish the counts. But Dodd's Motion to Dismiss Counts II and IV was not a motion to sever. Dodd's Motion to Dismiss made no mention of improper joinder as a matter of law, nor did it argue for severance due to substantial prejudice of joinder. Moreover, Counts I-IV pertained to K.J.K.'s abuse, and Counts V-VII pertained to B.B.'s abuse, so Dodd's Motion to Dismiss Counts II and IV could not have been a motion to sever K.J.K.'s offenses from B.B.'s offenses. See id. at 167 ("There was no pre-trial objection made to the composition of the information, no motion to sever . . . was filed and the new trial motion did not mention the present claim of error."). Accordingly, Dodd did not properly preserve his claim of improper joinder, and the trial court did not err in failing to sever the charges sua sponte because it was prohibited by Section 585.885 from severing the offenses absent a motion by the defendant.

Even if Dodd had properly preserved his claim by filing a motion to sever, the trial court would not have abused its discretion by denying severance of the offenses. If properly preserved, the appellate court must first determine if joinder was proper as a matter of law. The State only argues one basis for joinder; that is, joinder was proper because the offenses were of the same or similar character. See Section 545.140.2.

The use of similar or comparable tactics is sufficient to show that the offenses are of the same or similar character for purposes of joinder. Holliday, 231 S.W.3d at 293. "[T]he manner in which the crimes were committed, or the connection otherwise between the offenses, must be so similar or so related that the manner or the relationship is pertinent evidence that the same person committed all the charged offenses." Id. The tactics need only resemble or correspond with one another; they do not need to be identical. Id. Nonexclusive factors that show similar tactics include commission of the same type of offenses, victims of the same sex and age group, offenses at the same location, and offenses closely related in time. Id.

Dodd's tactics of abuse against K.J.K. and B.B. were of the same or similar character. Both victims were underage girls. Dodd had penis-to-vagina contact with both victims. Dodd first initiated physical contact with each victim by touching their breasts and genitals before escalating to genital-genital contact. Dodd used his relationship with the victims' relatives to secure alone time with them. Each incident occurred in the house of the victims' relatives. Although a time lapse occurred between the victims' abuse, the character of the crimes was sufficiently similar to satisfy the joinder requirements of Section 545.140.2.

After finding joinder to be proper, appellate courts must next determine whether the court abused its discretion in denying the defendant's motion to sever. Id. at 292. Dodd's argument on appeal must fail because he did not file a written motion to sever as required by the statute. Further, Dodd fails to set forth how the failure to sever resulted in substantial prejudice. Dodd simply states, without support, "The Trial Court placed [Dodd] in an untenable position having to defend against two separate victims with each victim alleging multiple counts or offenses against [Dodd]." Even if his argument were properly preserved, Dodd did not explain how defending against multiple victims led to substantial prejudice. Accordingly, even if Dodd had properly preserved the issue for appeal, he failed to file a motion to sever as required and failed to make a particularized showing of substantial prejudice requiring reversal for the failure to severe the offenses.

Dodd's point two is denied.

Conclusion

For all of the above-stated reasons, we affirm the judgment of the trial court.

__________________________________ Gary D. Witt, Judge

All concur