State v. Durbin , 834 S.W.2d 837 ( 1992 )

KAROHL, Chief Judge.

After a jury trial defendant was sentenced to serve four years’ imprisonment on the charge of sexual abusé in the first degree. Section 566.100 RSMo 1986. A motion court also denied defendant’s post conviction motion pursuant to Rule 29.15 without an evidentiary hearing. We consider an appeal from the sentence and denial of post conviction relief.

Points I and III claim error requiring a new trial. If preserved, we would find these claims regarding error in admission of evidence intended for purposes of corroboration and improper closing argument to be without merit. They were not preserved and are not matters of plain error. We also find Point IY which argues ineffective assistance of counsel on the ground defendant waived his right to testify at trial “without full and fair explanation of his options” without merit. An extended consideration of these points would have no precedential value. Accordingly, they are denied. Rule 84.16(b).

The surviving claim of error is that the evidence was insufficient to support the conviction “because the victim repeatedly denied, during direct examination, any sexual contact until, by way of improper leading questions, she eventually answered the way the state wanted her to. A.S. was improperly led by the state and her testimony was inconsistent and was therefore unconvincing.”

For purposes of this opinion, we accept defendant’s argument made in Point I of the brief that there was no substantial corroborating evidence to support the testimony of A.S. that defendant did on February 19, 1989, enter a bedroom which she shared with her mother, kiss her on the neck and touch her anus through her clothing. The state offered evidence of witnesses which was probative only if A.S.’s change in behavior and moods was the result of defendant’s acts. Other undisputed evidence could account for any unusual behavior witnessed by a school teacher and other relatives. We therefore assume there was no corroborating testimony. In sexual abuse cases a victim’s testimony will ordinarily sustain a conviction in the absence of corroborating evidence. State v. Hill, 808 S.W.2d 882, 890 (Mo.App.1991). The issue is whether the uncorroborated testimony of A.S. was sufficient to sustain the conviction.

We review the issue of submissibility by viewing the evidence in the light most favorable to the state. State v. Baldwin, 571 S.W.2d 236, 239 (Mo. banc 1978). The scope of our review is limited to whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged. State v. Hill, 808 S.W.2d 882, 890 (Mo.App.1991). A.S. was eight years of age at the time of the charged crime. She was nine and one-half years old when she gave the following testimony which bears on the issue of submis-sibility.

A.S. testified she was in bed when defendant came into the room, started kissing her on her neck and touched her “behind and stuff.” She told him to stop. In response to questions from the prosecuting attorney she gave the following testimony:

Q. Okay. After you went to bed did anybody come in the bedroom?

A. After awhile when I was asleep I woke up and I was hungry and I went and got a hot dog and then I went back in and Roger came in.

Q. Okay. Were you back in bed when Roger come in?

A. Yes.

Q. Were you laying down?

A. (Nods head).

Q. And what happened then?

A. He came in and started kissing on my neck and was touching my behind and stuff.

Q. Were the lights on or off?

A. Off.

Q. Did you cry out?

A. No.

Q. Did you say anything to him?

A. No. I told him to stop it.

Q. You told him to stop?

A. Yes.

Q. After you told him to stop, did he?

A. No.

Q. Did he remove any clothing?

A. No.

Q. Did he do anything with his fingers?

A. Just squeezed me.

Q. Did he touch your bottom?

A. Yes.

Q. Did he poke inside?

A. No.

Q. Did he poke through your clothing?

A. No.

Q. Did he hurt you?

A. Yes.

MRS. MONAGHAN: Your Honor, I object to the leading questions.

THE COURT: Overruled. You are leading but I'm going to let you.

Q. (By Mr. Lockenvitz) How did he hurt you, A-?

A. He squeezed me real tight and I told him to stop it but he wouldn’t.

Q. Did he ever wiggle his finger?

A. No.

Q. Is Roger here today?

A. Yes, he is.

Q. Do you know how long this lasted?

A. About five or ten minutes.

Q. Okay. Did you tell anybody what happened?

A. Not for a long time.

Q. Why not?

A. Because he told me not to tell or I’d be in a lot of trouble.

Q. A_, I’m going to ask you about some more things that happened that night. Okay? I know it’s not very easy for you. Did he ever touch your underwear?

A. Yes.

Q. And where at on your underwear?

A. My behind.

Q. Did he place his fingers near the area where you go to the bathroom?

A. No.

Q. Okay, I’m not talking about the front side, talking about the back side. Did he ever place his fingers there?

A. Yes.

Q. Okay. Is that when it hurt?

A. Yes.

Q. Was that through your underwear— I don’t mean inside but from the outside?

A. Yes.

Q. And did it poke inside you a little ways?

A. Yes.

Defendant relies on earlier testimony that defendant did not “poke inside,” did not poke through clothing and did not place his fingers “near the area where [she] go[es] to the bathroom.” The question then becomes whether these answers and the quoted testimony is “inherently contradictory or such as to leave the court clouded with doubt” so that the conviction cannot stand without corroborating evidence. State v. Hill, 808 S.W.2d at 890. Did these answers deny defendant touched the anus?

Ordinarily the question of credibility is a matter for the jury. Id. Moreover, “imprecise expression by a young child regarding the date, time or exact details of a sexual experience is not self-destructive. It may affect the fact-finder’s evaluation of credibility, but where the testimony includes a description of the elements essential to the offense, the prima facie case is made.” State v. White, 674 S.W.2d 551, 553 (Mo.App.1984). Repeating, A.S. was nine and one-half years old at the time she testified. Sexual contact prohibited by § 566.100 RSMo 1986 is defined to include a touching of the anus. Section 566.010.-1(3). A poking or a poking inside is not an element. Nor is pain or injury an element. The negative answers on these two matters are of no consequence. A.S.’s testimony was sufficient to describe the elements essential to the offense. See White, 674 S.W.2d at 553. We find any arguable inconsistencies insufficient to be held self-destructive. In the nature of this case there was no testimony which conflicted with the physical or surrounding circumstance or with common experience. On the contrary any inconsistency in the testimony of a child of tender years was a matter of credibility for the jury. Moreover, the point on appeal implicitly concedes the answers required for submissibility were ultimately given. In this case, A.S.’s testimony did not require corroboration.

We affirm the conviction and sentence and denial of post conviction relief.

AHRENS, J., concurs. SMITH, P.J., dissents in separate opinion.