State of Missouri v. David Bennish , 2015 Mo. App. LEXIS 1055 ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
STATE OF MISSOURI, ) No. ED101370
)
Appellant, ) Appeal from the Circuit Court of
) the City of St. Louis
vs. )
)
DAVID BENNISH, ) Honorable Jack Garvey
)
Respondent. ) Filed: October 20, 2015
I. INTRODUCTION
David Bennish (“Defendant”) appeals the judgment of the Circuit Court of the City of St.
Louis convicting him of three counts of statutory sodomy in the second degree, in violation of
section 566.064, RSMo (2000),1 one count of endangering the welfare of a child in the first
degree, in violation of section 568.045, and one count of incest, in violation of section 568.020.
Defendant asserts three points on appeal. In his first two points, Defendant contends the trial
court plainly erred in excluding testimony from two witnesses, Frank and Betty Bennish,
regarding victim D.R.’s truthfulness. In Defendant’s third point, he argues the trial court erred in
denying Defendant’s motions for acquittal at the close of the State’s evidence and at the close of
all evidence. We affirm the trial court’s judgment.
1
All statutory references are to RSMo (2000) as supplemented unless otherwise indicated.
1
II. FACTUAL AND PROCEDURAL BACKGROUND
Viewed in a light most favorable to the verdict, the evidence adduced at trial revealed the
following: Defendant’s daughter, D.R., was born on October 23, 1996. During kindergarten,
D.R. moved in with her paternal grandfather and step-grandmother, Frank and Betty Bennish,2
and their daughter, A.B. The Bennish’s home was located in the City of St. Louis. Defendant
did not live with them.
When D.R. was thirteen or fourteen years old, she went swimming at the home of
Defendant’s friend, Raymond Williams. Williams lived one or two blocks away from Frank and
Betty Bennish in the City of St. Louis. After she went swimming, D.R. was in the bathroom
changing. Defendant came in and performed anal intercourse on her.
On another occasion, Defendant was staying at Frank and Betty’s home to watch D.R.
while his father and stepmother were out of town. Defendant entered D.R.’s bedroom and
performed anal intercourse on her.
A third incident took place when D.R. was riding with Defendant in his van. The van was
stopped at a light and Defendant pulled D.R.’s head down to his penis and forced her to perform
oral sex on him. After the light changed, the van started moving again and D.R. raised her head
up, leaned out the window and spit.
In October of 2011, an investigator from the Department of Child Services was sent to
investigate an allegation that A.B. had been abused at school. The investigator spoke to A.B. and
then spoke with D.R., who disclosed the abuse by Defendant. Defendant was formally charged
with six counts of various sexual crimes against D.R. At trial, the State presented D.R.’s
2
Throughout the opinion, we often refer to Frank and Betty Bennish only by their first names.
We intend no disrespect to either individual, but because they share the same last name, we
utilize the first to avoid repetition and for the ease of understanding.
2
testimony. She recounted the two incidents of anal sodomy. She also testified to the third
incident in Defendant’s van. D.R. was unable to remember exactly where the van was located
when the incident occurred.
Frank Bennish testified as a witness for the defense. Frank explained that he generally
only interacted with D.R. on weekends because he was gone most of the week as an over-the-
road trucker. Defense counsel then questioned Frank about D.R.’s reputation for honesty. The
State objected and the court sustained its objection. Defendant did not make an offer of proof.
The defense also presented the testimony of Betty Bennish. Defense counsel asked her
about D.R.’s reputation for truthfulness. Betty stated D.R. “liked to tell stories occasionally” and
then she began to describe a specific instance where D.R. was untruthful. The State made an
objection which the court sustained. Again, Defendant did not make a detailed offer of proof,
but did include the issue in his motion for new trial.
After deliberations, the jury found Defendant guilty of three counts of statutory sodomy
in the second degree, one count of endangering the welfare of a child in the first degree, and one
count of incest.3
Defendant waived jury sentencing prior to trial. The court sentenced him to a total of
fifteen years’ imprisonment. The sentence consisted of consecutive terms of seven years’
imprisonment on two of the counts of statutory sodomy in the second degree and one year’s
imprisonment on the third count of statutory sodomy in the second degree, and concurrent terms
of seven years’ imprisonment for endangering the welfare of a child in the first degree and four
years’ imprisonment for incest. Defendant appeals.
3
One count was subject to a directed verdict.
3
III. DISCUSSION
A. POINTS I AND II
We will address Defendant’s first two points on appeal together as they involve common
questions of law. In his first and second points, Defendant asserts the trial court abused its
discretion in sustaining the State’s objections and refusing to allow Frank and Betty Bennish to
testify regarding D.R’s character for truthfulness as well as her specific acts of untruthfulness in
the past. We disagree.
As with any witness who testifies at trial, a victim in a sex offense case places her
reputation for truthfulness at issue by taking the stand, and the defense may impeach the victim’s
testimony by evidence of her poor reputation for truthfulness and veracity. State v. Smith, 314
S.W.3d 802, 810 (Mo. App. E.D. 2010) (citing State v. Trimble, 638 S.W.2d 726, 735 (Mo. banc
1982)). The testimony of a character witness may be offered to show the victim has a poor
community reputation for truthfulness and veracity. See State v. Durham, 371 S.W.3d 30, 36
(Mo. App. E.D. 2012).
A person is qualified to testify as to another witness’s reputation for truthfulness and
veracity if it is shown that the person is familiar with “the general reputation of the witness in the
neighborhood or among the people with whom the witness associates . . . .” Smith, 314 S.W.3d at
810 (quotation omitted). In particular, the witness providing character testimony “must have had
an opportunity to observe continuously and with some frequency the person whose reputation he
describes; and the witness must have knowledge of how others in the community view the
individual.” Cantrell v. Superior Loan Corp., 603 S.W.2d 627, 639 (Mo. App. E.D. 1980).
“Conversely, it is irrelevant what the person personally knows of the general conduct of
the witness to be impeached because personal opinion as to a witness’s truthfulness and veracity
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is immaterial and not admissible.” Smith, 314 S.W.3d at 810 (citing State v. Schell, 843 S.W.2d
382, 384 (Mo. App. E.D. 1992)). Moreover, a witness called to testify as to another witness’s
character for truthfulness and veracity may typically only provide testimony regarding general
reputation in the community and not testimony of specific acts. Durham, 371 S.W.3d at 36.
Frank Bennish testified he generally only interacted with D.R. on weekends because he
was gone during the week. Defense counsel then asked him the following:
DEFENSE COUNSEL: And what was [D.R.]’s reputation within your household for
being honest and telling the truth?
THE STATE: Objection, foundation.
THE COURT: Sustained.
Defendant did not make an offer of proof. Defendant’s counsel then asked Frank his
involvement in the day-to-day life of D.R. Frank responded that “[o]ccasionally [he] would have
a little bit to do with [D.R.].”
Betty Bennish also testified for the defense. She stated that she was around D.R. nearly
all of the time that D.R. was not in school. The following exchange then occurred:
DEFENSE COUNSEL: All right. And in these years with her living under your roof, the
daily speaking with –– or seeing her, daily speaking with her, knowing her well, in all of
your opportunities to observe and witness, what would you say – what is – what is – what
is [D.R.]’s reputation, from what you’ve learned, about her truthfulness?
THE STATE: Objection, foundation.
THE COURT: Overruled.
DEFENSE COUNSEL: You can go ahead and answer.
A. She liked – she liked to tell stories occasionally when she didn’t want to do something
to get out from doing things that she didn’t want to do. For instance, she would tell me at
one point she –
THE STATE: Objection, this –
THE COURT: Sustained.
DEFENSE COUNSEL: So –
THE COURT: Limited on this type of inquiry.
...
DEFENSE COUNSEL: And, in your interactions, what things would you have learned
from observing [D.R.], or would you see her exhibit if you believed her not being
truthful?
5
THE STATE: Objection.
THE COURT: Sustained.
Defendant did not make an offer of proof.
At the outset, we will address whether Defendant’s first two claims of error were
properly preserved for appeal. Once the State’s motions and objections to the testimony were
sustained, it was necessary for Defendant to make an offer of proof to adequately preserve the
issue for review. See Anderson v. Wittmeyer, 895 S.W.2d 595, 601 (Mo. App. W.D. 1995);
Smith, 314 S.W.3d at 811. An offer of proof must be made at the time of the objection and
show: (1) what the evidence will be; (2) its purpose and object; and (3) all facts necessary to
establish admissibility. Id. When proffered evidence is denied admission, relevancy and
materiality must be shown by specific, sufficiently detailed facts to establish admissibility by the
offering party in order to properly preserve the issue for appellate review. Id. Because
Defendant failed to make the necessary offers of proof, we find his claims are unpreserved.
We review unpreserved claims only for plain error. Smith, 314 S.W.3d at 811 (citing
State v. Washington, 260 S.W.3d 875, 879 (Mo. App. E.D. 2008)). Plain error review involves
two steps: (1) the trial court must have committed “evident, obvious and clear error that affected
substantial rights”; and (2) the error resulted in “manifest injustice or a miscarriage of justice.”
Smith, 314 S.W.3d at 811 (citing Washington, 260 S.W.3d at 879).
Here, we find no “evident, obvious and clear error” by the trial court in sustaining the
State’s objections. No evidence was presented that Frank Bennish was familiar with D.R’s
reputation for truthfulness in the community. His testimony revealed he was home mainly on the
weekends, and occasionally had “a little bit” to do with D.R. Thus, Defendant did not establish
the necessary foundation−that Frank had the opportunity to observe D.R. continuously and had
knowledge of how others in the community viewed her. Accordingly, the trial court did not err
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in sustaining the State’s objection as Frank Bennish was not qualified to testify as to D.R’s
reputation for truthfulness.
Likewise, we find no clear error by the trial court in excluding Betty Bennish’s
testimony. Although she was permitted to testify as to D.R.’s reputation for truthfulness, the trial
court sustained the State’s objection when she began to describe her personal knowledge of an
instance where D.R. “[told] stories.” The trial court properly excluded this evidence as Betty’s
personal knowledge of D.R.’s character for truthfulness and veracity was irrelevant and
inadmissible. See Smith, 314 S.W.3d at 810.
Furthermore, impeaching a witness’s character for truthfulness with evidence of specific
acts is typically impermissible. Durham, 371 S.W.3d at 36. Nevertheless, Defendant maintains
Betty should have been permitted to testify regarding D.R.’s specific act of untruthfulness as it
was highly relevant to her credibility and essential to his defense. Defendant, however, failed to
make an offer of proof, detailing the exact nature of the testimony Betty would have provided
and specifically demonstrating its relevance and materiality. Moreover, the record merely
reflects Betty stated that D.R. told stories to “get out from doing things that she didn’t want to
do.” Then, she tried to offer a specific instance of this type of behavior. It is not readily
apparent to us that D.R telling a story to avoid doing something−such as a chore or school
work−would be highly probative of whether she told the truth about being sexually abused by
her father to an investigator.
Based on the record we have before us and the absence of an offer of proof, we cannot
conclude the trial court committed evident, obvious and clear error in sustaining the State’s
objections. The trial court did not plainly err in excluding Frank and Betty Bennish’s testimony.
Points I and II are denied.
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B. POINT III
In his third point on appeal, Defendant argues the trial court erred in denying his motions
for judgment of acquittal at the close of the State’s evidence and the close of all evidence.
Specifically, Defendant contends the State failed to prove beyond a reasonable doubt that he
committed statutory sodomy under Count III within the State of Missouri. Under Count III,
Defendant allegedly subjected D.R. to deviate sexual intercourse in a van. Defendant maintains
the State elicited no evidence the van was located in Missouri at the time of the offense. The
State responds that it presented sufficient circumstantial evidence to permit the jury to
reasonably infer the crime occurred in Missouri. We agree.
We review the denial of a motion for judgment of acquittal under the same standard of
review used in reviewing a challenge to the sufficiency of the evidence to support a jury's guilty
verdict. State v. Abbott, 412 S.W.3d 923, 927 (Mo. App. S.D. 2013). In reviewing a challenge
to the sufficiency of the evidence, this Court must determine whether sufficient evidence permits
a reasonable juror to find guilt beyond a reasonable doubt. State v. Belton, 153 S.W.3d 307, 309
(Mo. banc 2005). We view the evidence and all reasonable inferences therefrom in the light most
favorable to the verdict, disregarding evidence and inferences contrary to the jury's verdict. Id.
Evidence is sufficient if any reasonable inference supports guilt, even if other equally valid
inferences do not. State v. Breedlove, 348 S.W.3d 810, 814 (Mo. App. S.D. 2011).
Count III of the amended information alleged Defendant committed the offense of
statutory sodomy in the second degree in the City of St. Louis when he had deviate sexual
intercourse with D.R. in a vehicle located near a 711 convenience store. In order for Missouri to
have jurisdiction over an offense, some part of the criminal transaction must have occurred
8
within the geographical boundaries of Missouri. State v. Kleen, 491 S.W.2d 244, 245 (Mo.
1973).
Defendant argues the State must prove jurisdiction in Missouri beyond a reasonable
doubt. However, the standard of proof necessary to establish jurisdiction in a criminal case in
Missouri has not yet been resolved definitively. See State v. Williams, 455 S.W.3d 1, 6-7 (Mo.
App. S.D. 2013). We need not decide at this time what the applicable standard of proof is, in that
we find the evidence adduced was sufficient under the highest standard−beyond a reasonable
doubt−to establish Missouri has jurisdiction.
The record reveals Defendant forced D.R. to perform oral sex on him while they were
stopped at a light in his van. D.R. testified the oral sex ended when the light turned green and
Defendant drove off. D.R. also testified she did not know if the incident occurred reasonably
close to her grandparents’ house and she did not remember where they were going in the van.
Defendant takes issue with this evidence, arguing the State did not meet its burden to
show where the van was at the time of the alleged offense. The State, however, may prove its
case by presenting either direct or circumstantial evidence connecting the defendant to each
element of the crime. State v. Jones, 296 S.W.3d 506, 509 (Mo. App. E.D. 2009). Circumstantial
evidence is given the same weight as direct evidence and the jury is free to make reasonable
inferences from the evidence presented. Id.
Here, the State adduced sufficient circumstantial evidence for a reasonable factfinder to
infer and thereby conclude beyond a reasonable doubt that the alleged crime occurred in
Missouri. At trial, D.R. testified about three separate allegations of abuse, including when
Defendant forced her to perform oral sex on him in his van. The other two incidents occurred
during a similar time frame at homes located within blocks of each other in St. Louis. There is
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no evidence D.R. or the Defendant lived anywhere other than Missouri. In the light most
favorable to the verdict, the jury could have reasonably inferred the incident in the van also
occurred within Missouri.
Additionally, even though D.R. could not remember where they were going when the
crime occurred, a jury could reasonably infer that it was an everyday, routine drive in the City of
St. Louis as opposed to an out-of-the ordinary trip to another State. Further, no evidence was
presented at trial that D.R. and Defendant left Missouri together. Moreover, even assuming an
inference the crime occurred outside of Missouri is equally valid, this inference is contrary to our
standard of review as it is unfavorable to the verdict. Accordingly, the trial court did not err in
denying Defendant’s motions for judgments of acquittal as we find sufficient evidence to infer
beyond a reasonable doubt the crime occurred in Missouri. Point III is denied.
IV. CONCLUSION
We affirm the judgment of the trial court.
__________________________________
Angela T. Quigless, Judge
Philip M. Hess, P.J., and
Gary M. Gaertner, Jr, J., Concurs.
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