State v. Sprofera , 372 S.W.3d 17 ( 2012 )

JOSEPH M. ELLIS, Judge.

Joseph Sprofera appeals from his conviction of one count of statutory rape in the second degree, § 566.034. For the following reasons, the judgment is affirmed.

Appellant and his wife, Cynthia Sprof-era, adopted the victim, B.S., on January 21,1998, when the B.S. was four years old. The couple also adopted B.S.’s older brother, T.S., who had special needs and an I.Q. of 72.¹

In February 2008, during a medical exam when B.S. was fourteen years old, it was discovered that she was pregnant. At that time, B.S. maintained that T.S. was the father. The pregnancy was aborted shortly after it was discovered.

In 2009, Appellant and Mrs. Sprofera separated, and Mrs. Sprofera filed for a divorce. In August 2009, B.S. told Mrs. Sprofera that she had been sexually abused by Appellant and that Appellant had been the one that had impregnated her. Mrs. Sprofera contacted the Child Protection Center and reported what B.S. had told her.

Following an investigation by the Lafayette County Sheriffs Department, on January 19, 2010, Appellant was charged by indictment with one count of statutory rape in the second degree. Appellant was tried by jury and found guilty as charged. On November 12, 2010, the trial court sentenced Appellant, in accordance with the jury’s recommendation, to a term of seven years imprisonment. Appellant brings four points on appeal from his conviction and sentence.

In his first point on appeal, Appellant claims that the trial court abused its discretion in allowing B.S. to testify that Appellant began touching her breasts and her vagina over her clothes starting when she was in pre-school and that his sexual fondling of her continued to progress over the years until they ultimately had sexual intercourse when she was in seventh grade. Appellant contends that this testimony constituted improper evidence of other, uncharged crimes and should have been excluded from evidence.

“A trial court has broad discretion to admit or exclude evidence at trial, and its ruling will only be disturbed if the court clearly abused its discretion.” State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006) (internal quotation omitted). “That discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” Id. “Additionally, on direct appeal, this Court reviews the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” Id. at 223-24 (internal quotation omitted).

“A defendant has the right to be tried only on the offense for which he is charged.” State v. Davis, 226 S.W.3d 167, 170 (Mo.App. W.D.2007). Accordingly, “[a]s a general rule, evidence of uncharged misconduct is inadmissible for the purpose of showing the propensity to commit such crimes.” Id. “However, evidence of the defendant’s prior misconduct is admissible when it is logically relevant — it has some legitimate tendency to directly establish the accused’s guilt of the charges for which he is on trial, and when it is legally relevant — its probative value outweighs its prejudicial effect.” State v. Uptegrove, 330 S.W.3d 586, 593 (Mo.App. W.D.2011). “Missouri courts have admitted evidence of prior sexual misconduct for purposes other than propensity, such as establishing motive or intent.” Id. “In addition, evidence of uncharged crimes that are part of the circumstances or sequence of events surrounding the offense charged may be admissible to present a complete and coherent picture of the events that transpired.” State v. Primm, 347 S.W.3d 66, 70 (Mo. banc 2011) (internal quotation omitted).

In the case at bar, Appellant’s progressive pattern of sexually groping B.S. from the time she was in preschool until she was thirteen was certainly relevant to determining whether he eventually had intercourse with her. “Numerous courts have held that prior sexual conduct toward the victim is admissible as it tends to demonstrate the sexual desire for the victim, thereby establishing motive.” Uptegrove, 330 S.W.3d at 593; see also Primm, 347 S.W.3d at 70; State v. Thompson, 341 S.W.3d 723, 731-32 (Mo.App. E.D.2011). Moreover, this testimony served to present a complete picture of the events that transpired.

The trial court did not abuse its discretion in determining that the probative value of this evidence outweighed its prejudicial effect. Point denied.

In his second point, Appellant claims that the trial court abused its discretion in refusing to strike B.S.’s unsolicited testimony that, on one occasion, she had seen Appellant push Mrs. Sprofera against a wall and break a mirror. Appellant claims that this testimony should also have been excluded as evidence of prior, uncharged misconduct.

At trial, B.S. offered the following testimony:

Q: Did you ever see [Appellant] angry?

A: Yes.

Q: And what would usually happen when you saw him angry?

A: He would get really aggressive. There is one time that he got aggressive and pushed Mom against the wall and broke a mirror.

Appellant objected to this testimony based on relevancy and asked the trial court to strike it. The State responded by claiming that the testimony was relevant to explain B.S.’s delay in reporting Appellant’s sexual abuse of her. The trial court then denied Appellant’s relevancy objection.

Prior bad acts may be “admissible to explain that a witness’s fear of the defendant led to a delay in reporting a matter to the police.” State v. Hitchcock, 329 S.W.3d 741, 750 (Mo.App. S.D.2011). Certainly, a defendant’s abuse of others in the presence of a child victim, especially abuse of a sibling, mother, or other relative, may be probative in explaining the victim’s fear of the defendant and delay in reporting the sexual abuse. Id. The trial court did not abuse its discretion in finding the probative value of B.S.’s testimony outweighed its prejudicial effect.

Moreover, additional, more egregious evidence that Appellant physically abused Mrs. Sprofera and B.S.’s brother, J.S., was admitted into evidence and is not challenged on appeal. Accordingly, even had the trial court erred in admitting the testimony related to the broken mirror, we would be unable to find sufficient prejudice to warrant reversal of Appellant’s conviction. Point denied.

In his third point, Appellant contends that the trial court abused its discretion in allowing Detective Swearingin, one of the arresting officers, to testify, over Appellant’s objection, that Appellant was agitated and used profanity as they transported him to jail. Specifically, at trial, after describing how Appellant was placed under arrest, Detective Swearingin offered the following testimony:

Q: Did [Appellant] make any direct comments to you as you were in the squad car within [sic] transporting him?

A: Yes, he did.

Defense counsel: Objection relevancy.

The court: Overruled.

Q: Go ahead.

A: He said, “Fuck you, fuck you, fuck you.” Another statement he made was, “I’m tired of you Lafayette County motherfuckers.”

Q: Did you have any other conversation with him?

A: Yes. I told him to calm down or I was going to have to jerk him out of the car and mace him. And he said, “I know you would, you little bitch.”

Q: What was his facial expression as he was making these remarks to you?

A: I couldn’t see that, he was in the front seat and I was behind him.

Q: And was it fair to say he was agitated?

A: Yes.

Q: Did he calm down after your threat to mace him?

A: Yes. We didn’t have any further problems.

Appellant argues that this testimony was evidence of uncharged bad acts and was irrelevant to the charges against him.²

Generally, under Missouri law, where relevant, “evidence of the circumstances surrounding a defendant’s arrest ... is admissible and may be considered by the jury on the issue of the defendant’s guilt.” State v. Ondo, 232 S.W.3d 622, 626 (Mo.App. S.D.2007). The detective’s testimony afforded a narrative of the events surrounding Appellant’s arrest and reflected statements voluntarily made by Appellant while in custody immediately following his arrest. The trial court did not abuse its discretion in admitting Detective Swearingin’s testimony into evidence. Point denied.

In his final point on appeal, Appellant claims that the trial court abused its discretion in allowing the State ask him on cross-examination whether he recalled previously “standing in a courtroom and calling a prosecutor a cunt.” Appellant claims that this testimony was irrelevant and violated his right to be tried for the crime with which he was charged.

The State argued at trial and now on appeal that this testimony was relevant to impeach Appellant’s prior testimony in cross-examination that he was “pretty much” a calm parent and the general inference from the totality of his testimony that he denied having a significant temper. While noting the inflammatory nature of the language contained in the question, the trial court allowed the question and Appellant’s affirmative response into evidence for that limited purpose.

We fail to perceive any logical relevance a profane outburst made to a prosecutor could have in proving the elements of the case against Appellant or in impeaching his testimony about his parenting. Given that the testimony was wholly irrelevant to any issue in the case and could have had some prejudicial effect, the prosecutor should not have asked such an inappropriate question, and Appellant’s objection to the question should have been sustained.

On the record before us, however, we are simply not left with the impression that the admission of this testimony into evidence was so prejudicial that it deprived Appellant of a fair trial. It is difficult to see on the record before us how this testimony could have carried any weight in the jury’s assessment of whether Appellant had sexual intercourse with B.S. Moreover, the nature of the testimony was exceedingly similar to the properly admitted testimony related to Appellant’s profane outbursts towards the arresting officers. The erroneous admission of the State’s question and Appellant’s affirmative response was not sufficiently prejudicial to warrant reversal of Appellant’s conviction.

The judgment is affirmed.

HARDWICK, C.J., concurs. DEL MURO, Sp. J., dissents in separate opinion filed.

1 . The couple had two other adopted children.

2 . Appellant failed to object to the testimony related to Appellant being agitated; moreover, Detective Clarence Bums had previously testified, without objection, that Appellant got belligerent once in the police car. Accordingly, Appellant’s claim related to testimony about his general agitated state is not preserved for appeal, and our review related thereto would be limited to plain error. State v. Perdue, 317 S.W.3d 645, 652 (Mo.App. S.D. 2010). We find no plain error in the admission of any of the testimony challenged in this point.