State of Missouri v. Andrew Canaday , 2015 Mo. App. LEXIS 1272 ( 2015 )

In
I the
Misssouri Court
C off Appeaals
Westeern Disttrict
STATE OF MISSO
OURI, )
)
Resp
pondent, ) D77585
WD
)
v. ) OPIINION FIL
LED: Deceember 8, 2015
)
EW CANA
ANDRE ADAY, )
)
Appellant. )
Appea
al from thee Circuit Court of Jacckson Coun nty, Missou
uri
The Ho
onorable Paatrick W. Caampbell, Juudge
Beforre Division Four: Alokk Ahuja, Ch
hief Judge, Presiding, GGary D. Wiitt, Judge annd
Kaathleen A. Forsyth,
F Speecial Judge
INTR
RODUCTIO
ON
Following
F a bench triial, Andrew
w Canadayy ("Canadayy") was coonvicted inn the
Circuit Court
C unty of onee count of sstatutory raape, in violation of section
of Jaackson Cou
566.032,1 one coun
nt of child molestation
m in violationn of sectionn 566.067 aand one couunt of
intention V virus2 in vviolation off section 191.677. Thee trial
nally exposing anotherr to the HIV
court sen
ntenced Can
naday to liffe in prison on the firstt count andd to fifteen yyears on eacch of
the remaaining coun
nts, to run co
oncurrently
y with the life sentencee.
1
All statutory refereences are to RS
SMo 2000 cum
mulative as suppplemented unlless otherwise nnoted.
2
Humman Immunodeeficiency Viruss.
On direct appeal, Canaday argues that the trial court erred in overruling his motion
for acquittal because (1) he was prejudiced when the court allowed the State to amend the
factual basis for the child molestation charge at the close of the evidence, and (2) there
was insufficient evidence that he had sexual intercourse with the victim such that the
findings of guilt as to the statutory rape and intentional HIV exposure charges were
erroneous. We affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
Viewed in the light most favorable to the verdict,3 the following evidence was
adduced at trial:
On June 1, 2012, seven-year-old A.B.4 was playing hide-and-seek outside her
home with other children. Canaday lived across from A.B. As A.B. and another child sat
near Canaday's home, Canaday grabbed A.B. and took her inside his house to the
bedroom on the second floor. Canaday removed A.B.'s underwear, touched her vagina
and then penetrated her vagina with his penis.
Canaday's roommate, Dominique Darden ("Darden"), returned home from running
errands. Canaday met her halfway up the stairwell wearing a robe. He then asked her to
leave again and get a pizza. Darden came back about ten or twenty minutes later, to find
children gathered in front of her residence, one of whom told her excitedly that Canaday
had "touched the little girl." Darden found A.B. up the street crying hysterically and
hugging a telephone pole. A.B. told her that Canaday touched her vagina.
3
State v. Brooks, 446 S.W.3d 673, 674 (Mo. banc 2014) (citation omitted).
4
We refer to the child victim using only her initials to protect her privacy. § 566.226.
2
Latasha Lambert's ("Lambert") daughter, who had been playing outside with A.B.,
came inside hysterical and out of breath. Lambert went outside and found A.B. up the
street crying. A.B. told Lambert that Canaday put his penis in her vagina and that he
touched her vagina. A.B. also stated that Canaday gave her a dollar so that she would not
tell anyone. Lambert called 911.
Officer Joe Smith ("Officer Smith"), along with three other officers, responded to
the scene. A.B. told Officer Smith that Canaday "put his private part inside of her private
part." Officers located Canaday walking away from the neighborhood and placed him
under arrest. A.B. was then taken by ambulance to Children's Mercy Hospital where she
was examined by Lisa Robinson ("Robinson"), a certified Sexual Assault Nurse
Examiner. A.B. had bruising at the base of her hymen consistent with penile penetration.
When police searched Canaday's residence, they found A.B.'s underwear hidden
under the mattress on Canaday's bed. The police also found a pair of men's boxer shorts
underwear on the floor. There was a mixture of DNA5 on A.B.'s underwear and the
major profile matched Canaday's DNA. There was also a mixture of DNA identified on
the men's boxer shorts; the major profile matched Canaday's DNA and the minor profile
matched A.B.'s DNA.
A.B. was interviewed at the Child Protection Center by Brandy Hodgkin
("Hodgkin"). A.B. stated that Canaday put "the thing that you pee with" in her vagina.
A.B. testified at trial that Canaday touched her "front private" with his hand. A.B. further
5
The type of DNA found is sometimes referred to as "touch" DNA which can be obtained from skin cells as
opposed to bodily fluids. This type of DNA is very specific to an individual, with an expected frequency of 1 in 460
billion in unrelated persons.
3
testified that Canaday's "private part, what he pees out of," touched the inside of her
vagina. On cross-examination, A.B. testified that Canaday tried to "put his private part
into [her] private part," but "it didn't happen".
Sharon Kathrens ("Kathrens"), a registered nurse at the infectious disease clinic at
Truman Medical Center, testified that she had been treating Canaday for HIV since May
of 2004.
At the close of all the evidence, the State moved to amend the child molestation
count by changing the factual allegation of how Canaday committed the crime. The
original charge contained the factual allegation that he had committed child molestation
by placing his mouth on A.B.'s breast; the amended charge was that he committed the
same crime by placing his hand on her vagina. Over Canaday's objection, the court
allowed the amendment.
The court found Canaday guilty on all three counts. On May 21, 2012, the court
sentenced Canaday, whom it found to be a prior and persistent offender, to concurrent
sentences of life in prison for statutory rape, fifteen years for child molestation in the first
degree, and fifteen years for recklessly exposing another person to HIV infection. This
appeal follows.
Point I
In his first point, Canaday argues that the trial court erred when it allowed the
State to amend Count II, the charge of child molestation after the close of all evidence "in
that [his] substantial rights were prejudiced because his planned defense and evidence
was no longer available after the amendment."
4
Standard of Review
"This Court reviews a trial court's decision to allow an amendment of a charging
document for abuse of discretion." State v. Seeler, 316 S.W.3d 920, 925 (Mo. banc 2010)
(citing State v. Smith, 242 S.W.3d 735, 742 (Mo. App. S.D. 2007)). "An abuse of
discretion occurs when the trial court's ruling is clearly against the logic of the
circumstances then before the court and is so arbitrary and unreasonable as to shock the
sense of justice and indicate a lack of careful consideration." State v. Fassero, 256
S.W.3d 109, 115 (Mo. banc 2008) (internal quotations and citations omitted).
Analysis
At the close of all of the evidence, but just before closing arguments, the State
moved to amend the factual allegation supporting Count II and, over Canaday's objection,
the court granted the motion to amend. Rule 23.086 allows a charging document to be
amended or substituted during the trial. The rule provides:
Any information may be amended or an information may be substituted for
an indictment at any time before verdict or finding if:
(a) No additional or different offense is charged, and
(b) A defendant's substantial rights are not thereby prejudiced.
No such amendment or substitution shall cause delay of a trial unless the
court finds that a defendant needs further time to prepare a defense by
reason of such amendment or substitution.
Canaday concedes that the amendment did not charge a different offense under
Rule 23.08(a); indeed, the offense of child molestation in the second degree may be
6
All rule references are to Missouri Court Rules (2015).
5
committed by many different means, including touching the victim's vagina or female
breast. Canaday alleges error instead under Rule 23.08(b), arguing that he was
prejudiced by the amendment, which changed the factual allegation by which the offense
was alleged to have been committed without charging a different offense. See State v.
Folson, 197 S.W.3d 658, 661 (Mo. App. W.D. 2006) (citation omitted). Canaday argues
that he was prejudiced by the amendment as the change affected his defense to the
charge, and therefore the trial court erred under subsection (b) of the rule. We agree.
The test for prejudice is whether 1) the planned defense to the original charge
would still be available after the amendment, and 2) whether the defendant's evidence
would be equally applicable after, as well as before, the amendment.7 Seeler, 316 S.W.3d
at 926; State v. Taylor, 375 S.W.2d 58, 63 (Mo. 1964) (setting forth the test for prejudice
following an amendment).
"A person commits the crime of child molestation in the first degree if he or she
subjects another person who is less than fourteen years of age to sexual contact." §
566.067.1. "Sexual contact" is defined as "any touching of another person with the
genitals or any touching of the genitals or anus of another person, or the breast of a
female person, or such touching through the clothing, for the purpose of arousing or
gratifying sexual desire of any person." § 566.010(3).
7
Canaday does not argue in his brief that this test applies to evidence or planned defenses applicable to other
counts other than the one which was amended. Thus, we focus our analysis on the evidence and defenses applicable
only to the charge which was amended.
6
With regard to Canaday's planned defense to the child molestation count, his
counsel, in explaining how Canaday was prejudiced, argued the following to the trial
court:
[M]y whole trial strategy, the whole entire case, has been that this is a case
of digital penetration, not a case of statutory rape.[8] Why would I concede
that? Because I know that statutory rape, child molestation, is not a lesser
included offense. So they have never charged anything to do with digital
penetration. So if I argue digital penetration the whole entire way through
the trial and argue that there is no statutory rape, I know that they can't
amend down to molestation in regards to count one, because it's not a lesser
included offense and there is case law on point that says they can't do that.
The reason we are prejudiced is because all of our lines of questioning and
the whole entire trial strategy we've had throughout this trial has to do with
that line of defense. Now at the end of trial, when evidence is closed, they
decide to amend. All the witnesses are gone. I wasn't prepared to ask those
questions or to close on that manner or to cross-examine people in regards
to that count. We were doing only a statutory rape charge. I think that's
why it causes prejudice. It violates my client's due process rights and it
also, I mean, it messes up our trial strategy and I think that's why it's
prejudicial.
In considering whether Canaday would be prejudiced by the amendment, the court
stated:
[I]t's not as if the Defendant has not been on notice since the case began
that there were allegations having to do with the girl's vagina. This is not a
case where the only thing that had ever been mentioned was, so to speak,
above the waist, the lips, mouth on the breast, and now they want to amend.
I mean, this whole case has been directed by-- I don't want to say the whole
case, but certainly a significant portion of the case has been about Count I
and the statutory rape charge. So I don't find that there is prejudice to the
Defendant with regards to preparation.
8
Statutory rape is codified in section 566.032, which states as follows: "1. A person commits the crime of
statutory rape in the first degree if he has sexual intercourse with another person who is less than fourteen years old.
2. Statutory rape in the first degree or an attempt to commit statutory rape in the first degree is a felony . . . ."
Sexual intercourse is defined as "any penetration, however slight, of the female sex organ by the male sex organ,
whether or not an emission results." § 566.010(4).
7
The court then granted the State's motion to amend the information. As noted
above, in order for there to be prejudice, the "planned defense to the original charge"
must become unavailable and the evidence "no longer applicable after the information
was substituted." Seeler, 316 S.W.3d at 926. Canaday argues that his planned defense to
the child molestation charge was that "he never touched [the victim's] breast." He then
argues that the defense of not touching her breast "in turn shaped his defense" to the
statutory rape and intentional exposure to HIV charges. Indeed, he argues that "every
question that defense counsel asked was geared toward that defense and that strategy."
In short, Canaday argues that his defense to the child molestation charge was that
he never touched the victim's breast and his defense to the statutory rape charge and
exposure to HIV charges was that he penetrated her vagina with his finger but not with
his penis. Thus, he argues that he was not guilty of statutory rape. Likewise, he argues
that if there was only digital penetration, there would be no exchange of fluids and he
could not be convicted of exposing A.B. to HIV. By amending the child molestation
charge to allege digital penetration, he lost the defense he intended to use as to that
charge and had to, in fact, admit to the child molestation charge in order to use his
planned defense to the remaining two counts.
Canaday contends that the facts here are analogous to those of State v. Seeler,
requiring reversal. 316 S.W.3d 920. In Seeler, "the indictment charged that Seeler acted
while under the influence of alcohol and/or a controlled substance causing the death of
Gavin Donahue by striking him with a motor vehicle while operating a motor vehicle
with criminal negligence in that defendant was driving in a closed construction zone,
8
thereby leaving said highway's right-of-way . . . ." Id. at 923. Seeler was charged with
the class B felony of involuntary manslaughter which is defined as to "cause the death of
any person not a passenger in the vehicle operated by the defendant, including the death
of an individual that results from the defendant's vehicle leaving a highway . . . or the
highway's right-of-way . . . ." Id. at 924 (citing § 565.024.1(3)(a)). All of Seeler's
evidence was geared towards proving that he never left the highway or the highway right-
of-way. "Seeler came to trial to defend by showing that he did not leave the highway's
right-of-way, and that if he did leave the right-of-way, the choice was not negligent."
Seeler, 316 S.W.3d at 925. "After the close of the state's evidence, the defense moved for
acquittal because the evidence did not show that Seeler's car had left the highway's right-
of-way." Id. at 922. In response, the State requested leave to amend the information by
replacing "leaving the highway's right-of-way" with "drove into a lane closed to traffic."
Id. Leaving the right-of-way was "a necessary part of the case."9 Id. at 927. Seeler's
defense had been that although he did drive into a lane closed to traffic (the center lane),
the center lane was still within the highway's right-of-way due to other lanes being closed
for construction.
The amended charge in the information shifted the focus of the
evidence to the question of whether Seeler's driving in the center lane was
in a lane closed to traffic instead of a right-of-way. Therefore, Seeler's
evidence that the center lane was still part of the right-of-way was no longer
applicable.
9
Another point raised in Seeler was whether a closed lane would still be considered the right-of-way, as that
term is undefined in the statute. Further, the State argued that Seeler's defense of staying within the right-of-way
was merely a technical defense. The Court resolved the issue by stating that since "the indictment treated the
allegation as to the highway or its right-of-way as a necessary part of the case," his defense was not a technical
defense. 316 S.W.3d at 927. A technical defense is one that "is immaterial or does not affect substantial rights." Id.
at 927 n.8.
9
Id.
Staying within the right-of-way, then, was central to Seeler's defense. At the time the
State amended the information, the evidence had been closed and the witnesses were
gone. The State had chosen its factual theory, and the defense had developed and
presented its theory accordingly. The defense in Seeler was not a general one but rather
relied quite heavily and quite specifically on the way the State had worded its charging
instrument. This was key in Seeler, as is evident in the Court's finding that the defendant
was prejudiced: "the prosecution must pick its factual theory and stick with it." Id.
Therefore, at that late juncture, there was no way to view the facts in the amended
information as a mere "technical defense," which the Seeler Court noted is defined in part
as one that is "immaterial or does not affect substantial rights." Id. at 927, n.8 (quoting
BLACK'S LAW DICTIONARY 1463 (6TH ED. 1990)).
Here, amending the factual basis for the charge of child molestation from
molesting by placing his mouth on A.B.'s breast to molesting by touching her vagina with
his hand significantly changed the factual support for the charge, making Canaday's line
of questioning throughout trial inapplicable because no witness had ever testified that
Canaday touched A.B.'s breast with either his hand or his mouth. Indeed, the trial court
recognized this and stated that "going from placing a mouth on a breast to a hand on or in
the victim's vagina" is a "significant change." Without evidence in any report or from
any witness that Canaday had touched A.B.'s breast, the charge of molestation by
10
touching the breast simply could not be proven.10 Knowing that there was an absence of
such testimonial evidence, Canaday argued that although damage to A.B.'s vagina was
found, the damage was caused by digital penetration rather than penile penetration,
making the evidence insufficient to prove the statutory rape charge. Being aware that
digital penetration was not a lesser-included charge of statutory rape, Canaday felt it was
a safe, strategic decision to essentially admit digital penetration, as opposed to penile
penetration. Because digital penetration was not charged by the State, this defense was
applicable to all three counts. By changing the factual support for the child molestation
charge to digital penetration, Canaday was left with no defense to the charge of child
molestation. In other words, his planned defense became inapplicable. This is confirmed
by the fact that, after the amendment was allowed, Canaday conceded the child
molestation charge. Under Seeler, changing the key facts of the information after the
State has presented its case, the defense has relied on the information with a specific
defense, the evidence has been submitted, and the witnesses gone, results in prejudice.
The summary sentence from Seeler is applicable here: Canaday "was prejudiced because
the defenses he prepared for trial—which were relevant to the original specification in the
indictment—were no longer relevant." Id. at 927-28.
10
The State argues that because there was nothing in any of the discovery which reflected that Canaday had
touched the child's breast, with his mouth or otherwise, Canaday was not prejudiced in that he should have predicted
that the State would amend the charge to conform to the facts adduced in pretrial discovery (i.e. that he touched her
vagina with his hand, rather than her breast with his mouth). It was the State who investigated the charge, it was the
State who brought the charge, it was the State who had the burden of proving the charge it brought, beyond a
reasonable doubt, and it was the State's sloppiness which resulted in it filing a charge for which there was no
evidence anywhere in its file to support. Yet, the State wishes to fault Canaday for not predicting the State's
incompetence.
11
Because Canaday's planned defense to the child molestation charge was no longer
available after the amendment, we find an abuse of discretion in the trial court's ruling
allowing the charge to be amended after the close of all of the evidence.11 "Trial court
error is not prejudicial unless there is a reasonable probability that it affected the outcome
of the trial." State v. Williams, 420 S.W.3d 713, 721 (Mo. App. W.D. 2014) (citation
omitted). In so holding, we find that there was a "reasonable probability" that, had the
charge not been amended, Canaday could not have been convicted of child molestation as
there was absolutely no evidence produced at trial that he touched the victim's breast with
his mouth or with his hand. Thus, we agree with Canaday that he was prejudiced by the
timing together with the content of the amendment. Point I is granted.
Point II
In his second point, Canaday contends that the evidence was insufficient that he
had sexual intercourse with the victim, thus making his convictions of statutory rape and
intentionally exposing another to HIV erroneous.
Standard of Review
Appellate review of the sufficiency of the evidence is limited to whether the State
has introduced sufficient evidence from which a reasonable fact-finder could have found
each element of the crime beyond a reasonable doubt. State v. Hunt, 451 S.W.3d 251,
257 (Mo. banc 2014) (citation omitted). This court does not reweigh the evidence but,
rather, considers it in the light most favorable to the verdict and grants the State all
11
Because Canaday has admitted before this court that the "credible evidence against [him] was that he had
inserted his finger in [victim's] vagina," there is no dispute as to whether the amendment comported with the
evidence adduced at trial.
12
reasonable inferences. Id. (citation omitted). Contrary evidence and inferences are
disregarded. Id. (citation omitted). "The trial court is free to believe or disbelieve all,
part or none of the testimony of any witness." Zink v. State, 278 S.W.3d 170, 192 (Mo.
banc 2009). The fact-finder determines the credibility of witnesses, resolves conflicts in
testimony, and weighs the evidence. State v. Williams, 313 S.W.3d 656, 660 (Mo. banc
2010) (citation omitted).
Discussion
Canaday argues that the trial court erred when it overruled his motion for acquittal
at the close of evidence because there was insufficient evidence to convict him of
statutory rape and intentional exposure to HIV. He claims that there was no physical
evidence presented that he had sexual intercourse with the seven-year-old victim such
that he should not have been convicted.
Generally, [our] review of the sufficiency of the evidence is limited to
whether the State has introduced sufficient evidence for any reasonable
[fact-finder] to have been convinced of the defendant's guilt beyond a
reasonable doubt. This is not an assessment of whether [we] believe[] that
the evidence at trial established guilt beyond a reasonable doubt but rather a
question of whether, in light of the evidence most favorable to the State,
any rational fact-finder could have found the essential elements of the crime
beyond a reasonable doubt. . . . When reviewing the sufficiency of evidence
supporting a criminal conviction, [we do] not act as a 'super juror' with veto
powers, but give[] great deference to the trier of fact.
State v. Nash, 339 S.W.3d 500, 508-09 (Mo. banc 2011) (citations and internal quotation
marks omitted).
The trial court heard testimony from four witnesses who were among the first to
have contact with A.B. within minutes of the assault. The witnesses were Canaday's
13
roommate, Darden, who was first to find A.B. hugging a telephone pole and crying
hysterically; A.B.'s adult sister-in-law, Lambert, who was next to see A.B. while she was
being brought back home by Darden; A.B.'s mother, Taylor, who immediately came
home from work after receiving a call from Lambert; and Officer Smith, who was the
first policeman to have spoken with A.B. after arriving on the scene. All testified that
A.B. told them that Canaday had touched her vagina or put his penis inside of her vagina.
The victim herself testified that Canaday put his penis inside of her vagina. Even though
on cross-examination A.B's testimony changed to say that his penis was next to her
vagina but not inside of it, the fact finder is free to believe either account.
Eight other witnesses testified regarding evidence found at the crime scene and
subsequent interviews with A.B., all of which was consistent with Canaday's penis
having entered her vagina, even if slightly. Certainly the evidence of bruising at the base
of A.B.'s hymen supports an inference of penetration.
Canaday further argues that, absent sufficient evidence of penetration of A.B.'s
vagina by his penis, there is insufficient evidence to support his conviction under Count
III of intentional exposure to another to HIV. Canaday, however, makes no argument
that, with evidence of penile penetration of A.B.'s vagina, while knowing he was HIV
positive, the evidence would be insufficient to support a conviction under Count III.
Indeed, having intercourse while knowing you are infected with HIV and not informing
even a consenting partner about the infection, are the only two elements required to prove
intentional exposure. State v. Wilson, 256 S.W.3d 58, 64 (Mo. banc 2008) (abrogated on
other grounds). "The state does not have to prove that [a defendant] purposely caused his
14
semen to
o come into
o contact with
w [victim]." Id. Thhis is consisstent with thhe statute's own
admonittion that thee wearing of m (thereby ppotentially preventing an exchangge of
o a condom
bodily fluids)
f is no harge. § 1991.677.4. IIn other woords, Canaday's
ot a defense to the ch
knowled
dge that hee was HIV positive ass he forcedd his peniss into the yyoung victiim is
sufficien
nt to supporrt a fact fin
nder's concllusion that Canaday kknowingly eexposed A.B
B. to
HIV.
Because
B theere was suffficient eviidence befoore the triaal court thaat Canadayy had
penetrated A.B. wiith his peniis and that A.B. was lless than foourteen yeaars of age, tthere
was suffficient evid
dence beforre the courrt to convict him of statutory raape. Likew
wise,
because the court found suffficient evidence thatt, knowing he was H
HIV positivve, a
penetration with his penis had
d occurred, the convicttion of intenntional expposure to HIIV is
also foun
nded on suffficient evid
dence. Thiss point is deenied.
CON
NCLUSION
N
T judgment of the trrial court iss affirmed aas to Counnts I and IIII, statutory rape
The
and inteentional exp
posure to HIV.
H The court's
c judggment and sentence iss reversed as to
Count III, child mollestation, beecause the amendment
a t at the closse of evidennce significantly
changed
d the factuall basis for th uch that Caanaday was prejudicedd.12
he charge su
_____________________________
_________
Gary D. W
Witt, Judge
All conccur.
12
Beccause the senteence as to Counnt II was concu
urrent with the sentences for the other offennses, we trust thhat
the State will
w seriously co onsider the trau
uma of anotherr trial on the viictim before chhoosing to retryy Canaday on tthis
count.
15