## IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT

STATE OF MISSOURI , ) ) Respondent , ) ) v. ) WD 77684 ) ALAN JOHN GORMAN , ) Opinion filed: August 18, 2015 ) Appellant

. )

APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY , MISSOURI

The Honorable William B. Collins , Judge

Before Division One: Cynthia L. Martin , Presiding Judge , Joseph M. Ellis , Judge and James E. Welsh , Judge Appellant Alan Gorman appeals from his convictions for one count of statutory sodomy in the first degree , § 566.062 , 1 and one count of child molestation in the first degree , § 566.067. Appellant contends that the trial court abused its discretion when it excluded evidence that the victim had been molested by her biological father. For the following reasons , the judgment of conviction is affirmed.

In 2014 , Appellant was charged by superseding indictment with one count of first

degree statuto ry sodomy , one count of first

- degree child molestation , and one count of

second

- degree child molestation. The charges arose in 2012 after Appellant ' s stepdaughter , T.B. , told her grandparents that Appellant had molested her.

1 Unless otherwise noted, all statutory citations are to RSMo 2000.2

At trial , T.B. testified th at Appellant first touched her when she was seven or eight years old while she was sleeping in her bunk bed. She explained that she woke up to Appellant touching her vagina with his hand followed by him grabbing her hand and making her touch his penis. T .B. testified that the second incident occurred when she was twelve years old. She explained that she was sleeping in her mother and Appellant ' s bed when Appellant rolled over , put his hand down her shorts , and touched her vagina over her underwear. When T.B. turned to face Appellant , Appellant stopped touching her and said , " Oh , sorry. " T.B. further testified to a third incident that occurred the day before she told her grandparents about the molestation. She explained that Appellant touched her breast over her clothing while she was sleeping on the couch. Following T.B. ' s direct examination , Appellant requested he be allowed to make an offer of proof. Counsel for Appellant indicated that he believed the proffered testimony " would be admissible and necessary relating to a potential diagnosis for false projection and other issues regarding prior sexual abuse. " During the proffer , T.B.

testified that , in 2011 , she was told by her mother and Appellant that Appellant was not her biological father. At the same time , T.B. was told that she had been molested by her biological father. T.B. further testified that she had no conscious recollection of the

molestation by her biological father but has had one or two " flashes. " Following the proffer , Appellant explained that he believed the testimony was relevant to his defense that T.B. was falsely projecting the abuse by her biological father onto Appellant. The State objected to the admission of such evidence as hearsay and further objected that the evidence was inadmissible under the rape shield statute. The

trial court concluded that the evidence was inadmissible.3

Appellant also testified at the trial. He denie d having ever touched T.B. ' s vagina. He further testified that he may have accidentally touched T.B. ' s breast while waking her up that day she was sleeping on the couch. The jury subsequently convicted Appellant of the first

- degree statutory sodomy

and t he first

- degree child molestation charges but acquitted Appellant of the second

degree child molestation charge. 2 The trial court sentenced Appellant to ten years in the Missouri Department of Corrections on each of the two charges and ordered the

sentenc es to run concurrently. Appellant now raises two points of error on appeal. In his first point , Appellant contends that the trial court abused its discretion by relying on the rape shield statute to exclude evidence that T.B. had previously bee n molested by her biological father. Appellant asserts that he did not intend to use such evidence to impugn Appellant ' s character but rather to demonstrate that T.B. was falsely projecting the molestation by her biological father onto Appellant. Thus , A ppellant avers

that the evidence was relevant to his defense.

" Trial courts retain broad discretion over issues of relevancy and admissibility of

evidence , and we will not interfere with those decisions unless there is a clear showing

of abuse of discretion. " State v. Smith , 314 S.W.3d 802 , 807 (Mo. App. E.D. 2010) (internal quotation omitted). " A trial court abuses its discretion when its ruling is clearl y against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. " Id. Appellant contends that the trial court erroneously used the rape shield statute to

exclud e evidence that T.B. had been molested by her biological father. However , the

2 The second

- degree child molestation charge arose from T.B.’s testimony that Appellant had touched her breast while she was asleep on the couch in 2012.4

record does not definitively establish that the trial court excluded such evidence on the basis of the rape shield statute. Following the direct examination of T.B. , Appellant requested he be allowed to make an offer of proof. Appellant ' s counsel explained that " the testimony this witness [T.B.] would offer would be admissible and necessary relating to a potential diagnosis for false projection and other issues regarding prior sexual abuse. " During the offer of proof , the defense elicited testimony from T.B. that , in November of 2011 , she was told that Appellant was not her biological father and that she had been molested by her biological father. Further testimony from T.B. indicated that she has " no conscious recollection of the molestation by [her] biological father " but has had one or two

" flashes " that are incomplete and " don ' t reference one specific instance. "

At the offer ' s conclusion , the trial court asked " what [the evidence] was being

offered for. " Appellant explained that it was the defense ' s belief that issues regarding false projection existed due to T.B. being made aware of the molestation by her biological father. Defense counsel further argued that , alth ough such evidence " is subject to the Rape Shield ," the defense believed " it ' s relevant to the credibility of the

witness , especially towards influences on her testimony. " The State then argued that

the evidence should be excluded under the rape shield st atute and as inadmissible hearsay

. Following counsel ' s argument , the trial court stated it was " trying to come up with

how [the offer of proof] moves this case forward. " Appellant argu ed that the evidence

went to T.B. ' s credibility and that " the jury kn owing that [T.B.] had learned recently about5

some other incident of sexual allegation of touching is directly relevant. " The trial court

then ruled: [W]e ' re not getting into this. It ' s not admissible. This has no relationship to it , it ' s not

– I am loa the [sic] to even come up with an idea of how this comes even close when we ' re talking about something that nobody even knows if it really happened. I mean , that ' s the problem I am having here is I don ' t know that anything ever really happened. It doesn ' t make any sense. . . . [Y]ou have talked about projection and things like that , and I am not even sure that there has been any false projection which is one of the things you indicated this is to indicate[.] . . . And [T.B. ' s] own testimony is she doesn ' t even know , A , if it happened; and B , she hasn ' t talked to any professional person about it or knows no indication of that. After a discussion regarding T.B. ' s memory of the molestation and the origin of the allegations against her biological father , the trial court stated it had made its ruling.

Therefore , although the parties discussed the rape shield statute during the offer of proof , the trial court did not expressly exclude the evidence on that basis. Rather , the

trial court ' s comments suggest the evidence was excluded on relevancy grounds. " To

be admissible , evidence must be logically and legally relevant. " State v. Baker , 422

S.W.3d 508 , 513 (Mo. App. E.D. 2014). " Evidence is logically relevant if it tends to

make the existence of a materi al fact more or less probable. " Id. at 513

- 14 (internal quotation omitted). " Legal relevance weighs the probative value of the evidence against

its costs

– unfair prejudice , confusion of the issues , misleading the jury , undue delay , waste of time , or cum ulativeness. " Id. at 514 (internal quotation omitted). Appellant argued that the offer was relevant to establish that T.B. was falsely projecting acts of molestation to him . However , as the trial court ' s comments suggest , the fact that T.B. had been told she was molested by her biological father did little to

establish whether su ch a projection had occurred. T here was most certainly no testimony from anyone that a single statement to T.B. of an undescribed act of6

molestat ion by her biological father would have prompted her to describe , in detail , specific acts of sexual abuse by Appellant occurring in specific rooms of the house.

Thus , the fact that T.B. had been molested by her biological father , in and of itself , does

n ot make it any more or less probable that Appellant committed the charged offenses. 3

Moreover , to the extent the trial court ' s exclusion of the evidence could be attributed to the rape shield statute , it is not erroneous. In order to establish his

theor ized defense , Appellant would necessarily have to elicit testimony that T.B. had previously been molested. " Section 491.015 , commonly referred to as the ' rape shield '

statute , creates a presumption that evidence of a victim ' s prior sexual conduct is

irrel evant. " McIntosh v. State , 413 S.W.3d 320 , 331 (Mo. banc 2013). Section 491.015.1 provides: In prosecutions under chapter 566[ , ] . . . evidence of specific instances of the complaining witness ' prior sexual conduct or the absence of such instances or c onduct is inadmissible , except where such specific instances are: (1) Evidence of the sexual conduct of the complaining witness with the defendant to prove consent where consent is a defense to the alleged crime and the evidence is reasonably contempora neous with the date of the alleged crime; or (2) Evidence of specific instances of sexual activity showing alternative source or origin of semen , pregnancy or disease;

3 On appeal, Appellant argues that the proffer was relevant especially in light of T.B.’s testimony t hat Appellant first molested her in her bunk bed and the conflicting testimony from T.B.’s mother that T.B. had slept in a bunk bed only when T.B. was “really little,” before they lived with Appellant. Appellant asserts that such testimony suggests that T .B. slept in a bunk bed when she lived with her biological father, not Appellant, and, therefore, supports his contention that T.B. is falsely projecting the abuse by her biological father onto Appellant. First, we note that, despite Appellant’s reliance on T.B.’s mother’s testimony, T.B.’s sister testified that she and T.B. had bunk beds while they lived with Appellant on High Drive, which is the home in which T.B. testified the first incident of abuse occurred. More importantly, Appellant never argued t o the trial court that the offer of proof was relevant in relation to credibility issues arising from the bunk beds testimony; nor did he attempt to renew his offer of proof following T.B.’s mother’s testimony about the bunk beds. Thus, he is precluded fr om raising such relevancy arguments for the first time on appeal. See State v. Hindman , 446 S.W.3d 683, 686 n.3 (Mo. App. W.D. 2014) (“The defendant is bound by the arguments made and the issues raised at trial and may not raise new and totally different arguments on appeal.”) (internal quotation omitted).7 (3) Evidence of immediate surrounding circumstances of the alleged crime; or (4) Evi dence relating to the previous chastity of the complaining witness in cases , where , by statute , previously chaste character is required to be proved by the prosecution.

" If proffered evidence falls within one of the statutory exceptions , it is ' admissible only to the extent that the [trial] court finds the evidence relevant to a material fact or issue. '"

Smith , 314 S.W.3d at 808 (quoting § 491.015.2 ). Appellant concedes that evidence regarding T.B. ' s biological father molesting her

does not fall under any of the statutory exceptions to the rape shield statute.

Nevertheless , Appellant avers that the evidence is still relevant and should have been admitted to ensure his right to a fair trial. In doing so , Appellant relies upon this Court ' s opinion in S tate v. Douglas , 797 S.W.2d 532 (Mo. App. W.D. 1990).

In Douglas , the defendant was charged with sexually assaulting the victim in the

summer of 1987. Id. at 534. At trial , a pediatrician testified that an examination

conducted on the victim in 1988 re vealed the absence of the victim ' s hymen , which the pediatrician explained would be an unusual finding on an individual who had not engaged in sexual intercourse. Id. On cross

- examination , the defendant sought to question the victim regarding her sexual activity between the summer of 1987 and the

time of the examination in 1988. Id. In particular , the defendant pointed to the pediatrician ' s report , which noted that the victim had been sexually active with her boyfriend in the months leading up to the e xam. Id. The trial court used the rape shield statute to exclude evidence that the victim was sexually active with her boyfriend8

between the summer of 1987 and the time of the examination in which the absence of the hymen was noted. Id. On appeal , we determined that the trial court erred in excluding such evidence because allowing the State to show that the victim ' s " hymen was absent , with the clear and calculated implication that its absence was caused by intercourse with the

defendant , then to fo rbid the defendant to show that [the victim] had had intercourse

with another , was violative of [the] defendant ' s right to a fair trial. " Id. at 535

- 36. In doing so , we rejected the State ' s argument that the rape shield statute requires the

exclusion of all evidence of the victim ' s prior sexual conduct that does not fall within one of the four statutory exceptions. Id. at 535. Instead , we concluded that " the rape shield statute may not be applied so strictly as to deprive the defendant of the fair trial comprehended by the concept of due process. " Id. In subsequent cases , this Court has indicated that it is necessary to " consider

both the defendant ' s constitutional rights as well as the prohibitions of the rape shield

statute " in determining whether evidence was properly excluded. State v. Sales , 58

S.W.3d 554 , 558 (Mo. App. W.D. 2001); see also State v. Samuels , 88 S.W.3d 71 , 81 (Mo. App. W.D. 2002). But in doing so , we have interpreted Douglas narrowly to hold: [ I ] f the State seeks to introduce e vidence to prove a defendant ' s guilt or draw for the jury an inference from which to show a defendant ' s guilt , the rape shield statute may not be used to prohibit the defendant from introducing contrary evidence without violating a defendant ' s constitutional right to a fair trial.

Sales , 58 S.W.3d at 559. In fact , since Douglas , the only other situation in which a

court has found a trial court ' s exclusion of evidence under the rape shield statute

violated a defendant ' s constitutional rights is where the defendant sought to introduce9

evidence of prior sexual abuse to contradict the State ' s evidence inferring that the defendant could be the only source of the victim ' s precocious sexual knowledge. See

Samuels , 88 S.W.3d at 82

. This case does n ot present a situation in which the rape shield statute prevented Appellant from countering State ' s evidence that inferred his guilt. The State never elicited any medical tes timony implying that T.B. ' s sexual interaction was limited to Appellant; nor did the State offer evidence suggesting Appellant was the sole source of

T.B. ' s precocious sexual knowledge. Rather , Appellant sought to introduce evidence that T.B. had been molested by her biological father to argue mistaken identity by contending that T.B. had mistakenly attribut ed that molestation to Appellant. We recognize that " [a] defendant in a criminal case has a constitutional right to present a complete defense. " State v. Walkup , 220 S.W.3d 748 , 757 (Mo. banc 2007);

see also State v. Jones , 716 S.W.2d 799 , 802 (Mo. banc 1986) (Blackmar , J. , dissenting) ( " [T]here is a serious constitutional problem if a statute deprives a criminal defendant of the opportunity to introduce evidence which is relevant and material in his

defense. " ). As previous ly explained , however , the offer , in and of itself , does little to

establish mistaken identity . Furthermore , to the extent the proffer suppo rts Appellant ' s theory , he would be asking the jury to conclude that T.B. was falsely attribut ing the

a buse by her biological father to Appellant solely from the fact that T.B. had been told that her biological father molested her. Without more , such an offer is too speculative

and remote to warrant admission. See State v. Harvey , 641 S.W.2d 792 , 798 (Mo. App. W.D. 1 982) (finding that the trial court did not abuse its discretion in excluding evidence of an unrelated sexual assault on the victim where the offer of proof was too0 10 speculative to support the defense ' s desired inference that the victim believed she could

ch arge anyone with rape with impunity because the prior assault did not result in a conviction). Accordingly , in light of the facts and circumstances of this case , we cannot say

the trial court ' s exclusion of the evidence was so arbitrary and unreasonable as to

constitute an abuse of discretion. Point denied. In his second point , Appellant contends that the trial court plainly erred in sustaining the State ' s objection to its offer of proof and excluding evidence that T.B. had previously been molested by her biological father because § 491.015 bars evidence only of the complaining witness ' s prior sexual conduct. Appellant avers that , when

viewed in the context of his defense of mistaken identity , evidence that T.B. ' s biological

father molested her was not prior sexual conduct but , instead , the same sexual conduct

as described in the information. Appellant concedes that he failed to preserve this argument at trial and requests plain error review. " Rule 30.20 authorizes this Cou rt , in its discretion , to review ' plain errors affecting substantial rights . . . when the court finds that manifest injustice or miscarriage of justice has resulted therefrom. '" State v. King , 453 S.W.3d 363 , 375 (Mo. App. W.D. 2015). However , " [w]hile plain error review is discretionary , an appellate court should not use it to impose a sua sponte duty upon a trial court to

correct mistakes of a defendant ' s own making. " State v. Shockley , 410 S.W.3d 179 , 201 (Mo. banc 2013).

The record indicates that Appellant injected the issue of the rape shield statute about which he now complains. Prior to trial , Appellant filed a " Notice of Intent to Illicit1 11 [sic] Information From the Complaining Witness Pursuant to 491.015 RSMO. " 4 At a pretrial conference , Appellant again intimated to the court that it would seek to introduce evidence regarding T.B. that would be subject to the rape shield. Most telling , following the offer of proof , defense counsel stated: " I know that [the offer] is subject to Rape

Shiel d. " Given Appellant ' s repeated assertions that the rape shield statute applied , we will not use plain error to impose a sua sponte duty on the trial court to correct what Appellant now perceives to be error. Point denied. Judgment affirmed.

________________________________ Joseph M. Ellis , Judge All concur.

4 The § 491.015 notice is not included in the legal file provided to this Court. The record also indicates that issues pertaining to the rape shield statute were raised in the parties’ motions in limine and in one of Appellant’s motions for a continuance. Those motions, likewise, were not provided to this Court.