Nancy Steffen Rahmeyer, J. — Opinion Author.
In two trials of severed charges, a jury found Lester Deandre Anthony Erby ("Defendant") guilty of sexual assault, deviate sexual assault and attempted deviate sexual assault of Victim A, and a second jury found Defendant guilty of sexual assault of Victim B. Defendant appeals the convictions relating to both victims. As to Victim A, the State agrees to the request in Defendant's point that the sentences imposed by the trial court
Facts and Procedural History
Defendant was charged with forcible rape and, "[i]n the alternative," sexual assault based on events that occurred on July 21, 2012, involving Victim B, an adult female. Prior to the trial concerning Victim B, the State amended the charging instrument to allege Defendant was a prior offender with respect to the charges involving Victim B. The trial court also found that Defendant was a prior offender on the morning of trial before voir dire.
On July 12, 2014, the State filed a motion in limine requesting that Defendant not mention before the jury "[a]ny argument or negative inference that the evidence from [Victim A's] case was destroyed." On July 14, 2014, the trial court denied the State's motion "at this point."
On December 14, 2014, the State filed a motion in limine requesting that Defendant not mention before the jury "[a]ny reference or argument of an adverse inference due to the disposal of physical evidence." Before trial began, Defendant filed a motion to dismiss the counts involving Victim B with prejudice because the State, in violation of Defendant's right to due process, "destroyed and/or `lost' evidence" including a "`rape kit,'" a recording of Defendant's preliminary hearing, photographs of "the alleged scene of the crime," and a "buccal swab of defendant taken on July 26, 2012." In argument before the trial court, defense counsel added a recording of Victim B's statement to a law enforcement officer. The trial court denied Defendant's motion to dismiss.
In defense counsel's closing argument, the following brief exchange occurred:
Defendant's Points II and III
Information Regarding State's Alleged Destruction of Evidence
In a hearing on pretrial motions on July 11, 2014, the State informed the trial court that the State intended to record Defendant's preliminary hearing, but that the recording equipment malfunctioned with the result nothing was recorded at the preliminary hearing other than "static." Defense counsel told the trial court he had no reason to believe the State's explanation was incorrect. In another hearing on pretrial motions on July 14, 2014, the State informed the trial court: (1) the allegations involving Victim B were presented to the prosecutor's office in January 2013, and prosecution was declined and law enforcement was given permission to "release/destroy" evidence relating to the allegations; (2) the evidence that was destroyed included a buccal swab from Defendant, a "sex assault kit," and photographs, but a laboratory report was retained and Defendant's "DNA profile" was entered into "the system;"
The defense at trial was that it was consensual sex. Defendant's counsel, not disputing that Defendant had intercourse with Victim B, stated in closing argument:
The law enforcement officer who allegedly recorded an interview of Victim B testified in an offer of proof at trial that she could not remember if she recorded her interview of Victim B.
Point II — Destruction of Evidence
Defendant contends that the trial court erred in denying Defendant's motion to dismiss the charges involving Victim B because the denial of the motion violated Defendant's right to due process in that the State "intentionally destroyed" "the rape kit, the original buccal swab of [Defendant], photos taken at the scene and [Victim B's] recorded police statement, all of which are exculpatory or impeaching evidence." We reject Defendant's point because Defendant wholly fails to show any of the destroyed evidence was "materially exculpatory" or that the State destroyed the evidence for the "purpose" of depriving Defendant of exculpatory evidence.
A trial court's ruling on a motion to dismiss a charging instrument is reviewed for an abuse of discretion. State v. Cox, 328 S.W.3d 358, 361-62 (Mo.App.W.D. 2010) (grant of a motion to dismiss); State v. Berwald, 186 S.W.3d 349, 366 (Mo.App. W.D.2005) (denial of a motion to dismiss).
Cox, 328 S.W.3d at 362. Our Supreme Court has stated: "[a]bsent a showing of bad faith on the part of the police or prosecutor, the failure to preserve even potentially useful evidence does not constitute a denial of due process." State v. Ferguson, 20 S.W.3d 485, 504 (Mo. banc 2000). Bad faith means the evidence was destroyed "for the purpose of depriving the defendant of exculpatory evidence." Cox, 328 S.W.3d at 364-65 (internal quotations and citations omitted). As the proponent of the motion to dismiss, Defendant had the burden to show the destroyed evidence was materially exculpatory or potentially useful and, if merely potentially useful, destroyed in bad faith. See generally Berwald, 186 S.W.3d at 365, 366-67 (placing burden of proof on the defendant); State v. Ise, 460 S.W.3d 448, 457-58 (Mo. App.W.D.2015) (same).
In this case, Defendant failed to offer any evidence that the destroyed evidence was materially exculpatory, was potentially useful to the defense, or was destroyed with the purpose of depriving Defendant of exculpatory evidence. In closing argument, defense counsel did not dispute that Defendant had intercourse with Victim B, stating: "All right. Now, we, [Defendant], does not dispute that an act of intercourse occurred. The corroborative evidence, the circumstantial evidence shows that. An act of intercourse did occur. The question is: Was it forcible rape, or was it sexual assault, or was it just two people having intercourse?" The rape kit results had no relevance when Defendant's counsel admitted that sexual intercourse took place. The officer who allegedly recorded an interview of Victim B testified in an offer of proof at trial that she could not remember if she recorded her interview of Victim B. The evidence was destroyed for the innocent reason that prosecution of Defendant initially was declined — not to deprive Defendant of exculpatory evidence. In these
Point III — Adverse Inference from Spoliation
In his third point, Defendant asserts the trial court erred "in granting the State's objection and preventing [Defendant] from arguing in closing [at the trial of the charges involving Victim B] an adverse evidentiary inference" from the State's "intentional" destruction of "the rape kit, the original buccal swab of [Defendant], photos taken at the scene and [Victim B's] recorded police statement."
Wilmes v. Consumers Oil Company of Maryville, 473 S.W.3d 705, 718, 719 (Mo. App.W.D.2015) (emphasis in original).
First, as stated above, there was no intentional spoliation giving rise to an inference of fraud and a desire to suppress the truth. The evidence was destroyed after the prosecutor initially declined to pursue charges against Defendant. Next, from defense counsel's closing argument in the trial of the charges involving Victim B, it is not at all clear that, as claimed by Defendant, "defense counsel attempted to argue in closing that the lack of corroborating evidence warranted an adverse inference from the missing evidence." Defense counsel did not complete his thought or use the phrase "adverse inference" before the jury, and did not request an opportunity to proffer to the trial court the content of his intended argument. As a result, it is not clear that Defendant's complaint on appeal is based on an event that actually occurred at trial and was preserved. Finally, Defendant's counsel was allowed to and did argue to the jury that an officer threw away a lot of evidence
The sentences imposed by the trial court on the charges involving Victim A are reversed and the jury's guilty verdicts on those charges are remanded to the trial court solely for resentencing with jury participation in accordance with section 557.036. The remainder of the trial court's judgment is affirmed.
Don E. Burrell, P.J. — Concurs.
Gary W. Lynch, J. — Concurs.