State of Missouri v. Charles K. King

S
                        In the Missouri Court of Appeals
                                Eastern District
                                                DIVISION TWO

STATE OF MISSOURI,                                     )   No. ED108951
                                                       )
         Plaintiff/Respondent,                         )   Appeal from the Circuit Court
                                                       )   of Franklin County
v.                                                     )
                                                       )
CHARLES K. KING,                                       )   Honorable Ted C. House
                                                       )
         Defendant/Appellant.                          )   Filed: May 4, 2021

                                                    Introduction

         Charles K. King (Appellant) appeals from the trial court’s judgment following a bench

trial finding him guilty of four counts of forcible rape under section 566.030 1, and one count of

forcible sodomy under section 566.060. 2 Appellant raises five points on appeal, challenging the

trial court’s interpretation of the statutes, the sufficiency of the State’s evidence, and the

admissibility of the State’s evidence. We affirm.

                                     Factual and Procedural Background

         Viewed in the light most favorable to the verdict, the evidence at trial showed the

following 3:


1
  All statutory citations are to RSMo Cum. Supp. 2006 unless otherwise noted.
2
  Codefendant Alvin Hunter (Hunter), tried in conjunction with Appellant, has also appealed the court’s judgment.
3
  We note Appellant’s brief fails to comply with Rule 84.04. Appellant’s statement of facts attempts to discredit
M.M. (Victim) and attack her for her alcohol use. Appellant also recites the entirety of the facts in a misleading
manner. Not only does Appellant fail to view the facts in the light most favorable to the verdict, Appellant actually
attempts to show the falsity of Captain Subke’s testimony during his recitation of the facts. In addition, several of

                                                           1
        Victim, codefendant Hunter’s niece by adoption, had a drinking problem during her

twenties. Victim frequently visited Appellant and Hunter’s house on Highway K in St. Clair,

Missouri. She had known Appellant, sometimes referred to as “Kerry,” and Hunter for many

years prior to the time period in question and believed their house to be a safe place to visit and

drink. Significantly, while Victim considered Appellant and Hunter to be her friends, Victim

never agreed to engage in sexual behavior with either man and had no recollection of actually

doing so.

        At some point in 2008, Victim woke up at the codefendants’ house and discovered her

pants had been pulled down and Hunter was at her feet unbuttoning his pants. Victim

immediately jumped up to leave, stating, “Oh, H-E-L-L no.” Victim never returned to the house.

        Eight years later, Jennifer Rahn (Rahn) moved in with Appellant. In August 2016, Rahn

discovered a videotape labeled “Solo” on Appellant’s dresser. Having never heard of the movie,

Rahn put the video into the VCR player. The video showed Appellant attempting to sexually

penetrate an unconscious female. Rahn did not recognize the female and did not know whether

the female was unconscious or dead, but Rahn recognized the location as Appellant’s living

room. Before shutting off the video, Rahn heard Appellant ask another man who was off-camera

if he was ready for his turn.

        Rahn wrapped the videotape in several shopping bags and trash bags and buried it in the

woods behind the house. Three days later, Rahn contacted the Franklin County Sheriff’s

Department and dug up the video to turn it over to them. Captain Charles Subke (Captain Subke)

of the Franklin County Sheriff’s Department received the video and watched it in its entirety.



Appellant’s points on appeal are not in compliance with Rule 84.04(d), making it far more difficult for us to
understand Appellant’s claims. Nevertheless, because we strongly prefer to decide criminal cases on the merits, we
exercise our discretion and review Appellant’s claims. See State v. Johnson, 

456 S.W.3d 497

, 500 (Mo. App. E.D.
2015).

                                                         2
       The video showed two men repeatedly having sexual intercourse with a woman who

appeared to be passed out. At various points in the video, the men also touched their penises to

the woman’s mouth, placed their mouths on her vagina, and put their fingers in her vagina.

During the video, one of the men stated, “Yeah, this is good ol’ Alvin and Kerry f---ing the hell

out of [Victim].” Later, one of the men referred to Victim as a “28-year-old-pussy.” During one

portion of the video, Captain Subke also heard a “60 Minutes” episode playing, which helped

him estimate the date of the video.

       Captain Subke discovered Victim’s identity by searching service call records from

Appellant’s house and finding a record containing Victim’s name. Captain Subke located Victim

and showed her still shots from the video. Victim confirmed she was the woman shown in the

pictures. Captain Subke also showed Victim still shots of the men in the video and Victim

readily identified Appellant and Hunter. Victim stated she had no recollection of any of the

events depicted in the video and never consented to sexual behavior with either man.

       On September 29, 2016, Appellant was indicted. Subsequently, the State filed a

Substitute Information In Lieu of Indictment. After several amendments and motions to dismiss,

the case proceeded based upon the State’s Fourth Amended Information In Lieu of Indictment,

charging Appellant with five counts of forcible rape and one count of forcible sodomy.

       Appellant and Hunter waived jury trial and were tried in conjunction by the court. At

trial, the State presented testimony from Victim, Detective Corporal Kenneth Nix, Rahn, and

Captain Subke. The State also played the video as evidence. Victim testified she never consented

to any sexual behavior with Appellant and Hunter. Detective Corporal Nix, of the Clayton Police

Department, testified to converting the original VHS tape to DVD. He also stated he did not

observe anything that would lead him to believe the original video had been tampered with. Rahn



                                                3
testified she found the videotape in Appellant’s house and stored it temporarily by burying it

before delivering the videotape to Captain Subke. Captain Subke testified as to how he identified

Victim, Appellant, and Hunter. Appellant and Hunter presented testimony from Charles Ryan

King (Appellant’s son), Captain Subke, Appellant, and Hunter.

       Appellant was found guilty on all counts. The court sentenced Appellant to concurrent

sentences of 17 years for each count. This appeal follows.

                                         Points Relied On

       Appellant raises five points on appeal. In his first point, Appellant claims the trial court

erred by interpreting the forcible rape and sodomy statutes to include incapacity due to voluntary

intoxication. In his second point, Appellant argues there was insufficient evidence presented to

establish he used physical force that overcame reasonable resistance. In his third point, Appellant

claims there was insufficient evidence presented to establish a timeframe for the charged actions.

In his fourth point, Appellant argues the trial court erred in denying his Motion to Dismiss

because the State’s Fourth Amended Information failed to establish all of the elements required

under the forcible rape and forcible sodomy statutes. In his final point, Appellant claims the trial

court erred in admitting the videotape into evidence.

                                               Point I

       Appellant’s first point claims the trial court erred by misinterpreting sections 566.030 and

566.060. Specifically, Appellant contends that at the time of the crime, an individual who was

incapacitated due to voluntary intoxication could not be forcibly raped or forcibly sodomized

because there could not be forcible compulsion.




                                                  4
                                              Standard of Review

        Statutory interpretation is a question of law that we review de novo. State v. Smith, 

595

S.W.3d 143

, 145 (Mo. banc 2020). “The primary rule of statutory interpretation is to ascertain

the intent of the General Assembly from the language used and to give effect to that intent. To

determine legislative intent, words are to be given their plain and ordinary meaning.” State v.

Whipple, 

501 S.W.3d 507

, 513-14 (Mo. App. E.D. 2016) (internal quotation marks and citations

omitted). However, we will look past the plain and ordinary meaning of a statute when the

language is ambiguous or would lead to an illogical result. Townsend v. Jefferson Cty. Sheriff's

Dep’t, 

602 S.W.3d 262

, 265 (Mo. App. E.D. 2020). We must interpret statutes to avoid

unreasonable, oppressive, or absurd results.

Id. Additionally, “[w]e must

interpret a statute in

context, not reading any portion of the statute in isolation.”

Id.

Discussion

When the

charged crimes occurred, the statute defining forcible rape stated: 4

        1. A person commits the crime of forcible rape if such person has sexual intercourse
        with another person by the use of forcible compulsion. Forcible compulsion
        includes the use of a substance administered without a victim’s knowledge or
        consent which renders the victim physically or mentally impaired so as to be
        incapable of making an informed consent to sexual intercourse.

§ 566.030.1.

        Similarly, the statute defining forcible sodomy stated:

        A person commits the crime of forcible sodomy if such person has deviate sexual
        intercourse with another person by the use of forcible compulsion. Forcible
        compulsion includes the use of a substance administered without a victim’s
        knowledge or consent which renders the victim physically or mentally impaired so
        as to be incapable of making an informed consent to sexual intercourse.

§ 566.060.1.


4
 Missouri’s forcible rape and forcible sodomy statutes were amended by the legislature in 2013 to expressly include
voluntary and involuntary intoxication.

                                                        5
         Relying upon the language in the forcible rape and forcible sodomy statutes, Appellant

argues forcible compulsion cannot occur when a victim is voluntarily intoxicated. Accordingly,

Appellant believes an individual cannot be found guilty of either crime when a victim is

voluntarily intoxicated.

         Both the forcible rape and forcible sodomy statutes state “[f]orcible compulsion includes

the use of a substance administered without a victim’s knowledge or consent which renders the

victim physically or mentally impaired so as to be incapable of making an informed consent to

sexual intercourse.” See sections 566.030.1 and 566.060.1. Although the statutes do not

explicitly refer to voluntary intoxication or ingestion of any substances rendering the victim

impaired, the legislature uses the word “includes,” which indicates the legislature’s intent to

allow what may be considered forcible compulsion to be expanded beyond merely involuntary

intoxication or impairment. “Includes” is not a limiting term. Instead, the term indicates an intent

to expand. Its use indicates that which follows does not cover the entirety of possibilities. In

such a context, as is the case here, “includes” is not exclusive and other forms of impairment

beyond involuntary intoxication could also be considered in the context of determining whether

there was forcible compulsion. 5 Therefore, by choosing the word “includes,” the legislature

emphasized its desire to broaden rather than restrict actions that constitute forcible compulsion.

         Moreover, because we do not consider sections of a statute in isolation, we find section

556.061(13) to be instructive. Notably, section 556.061(13) defines incapacitated as “that



5
  Crucially, Missouri’s use of “includes,” along with our caselaw, distinguishes Missouri from several other states,
such as Minnesota, which have recently interpreted their statutes to allow only involuntary intoxication to be used to
satisfy the mental incapacitation element of their forcible rape/sodomy statutes. In those states, the statutes used
broad qualifying terms such as “administered to that person without the person’s agreement,” making it clear their
limited definition encompassed all possibilities, including the administration of alcohol. See State v. Khalil, No.
A19-1281, 2021 Minn. LEXIS 126, at *11 (Mar. 24, 2021). In contrast, Missouri’s statutes in effect at the time did
not include broad qualifying terms and instead stated that it includes further examples not necessarily encompassed
within the statutory definition of forcible compulsion.

                                                          6
physical or mental condition, temporary or permanent, in which a person is unconscious, unable

to appraise the nature of such person’s conduct, or unable to communicate unwillingness to an

act.” The legislature made it clear that an individual is incapacitated when they are unconscious

and therefore cannot consent. Similarly, both the forcible rape and forcible sodomy statutes focus

upon whether the victim was capable of providing informed consent to sexual intercourse.

Considering these sections in context, it is apparent the legislature was focused upon consent as

opposed to whether an incapacitated party became unconscious by their own accord.

       Appellant’s interpretation of the statutes results in an absurd and unreasonable result.

According to Appellant, if a victim is incapacitated due to their own voluntary intoxication, they

cannot be forcibly raped or forcibly sodomized. This is an entirely unreasonable result that

undoubtedly runs counter to the legislature’s intent. The legislature was concerned with consent.

Distinguishing between voluntary and involuntary intoxication detracts from the focus upon

consent and is not what the legislature would have intended. Consequently, in order to avoid an

absurd result, we find forcible compulsion can occur while one is incapacitated from voluntary

intoxication under sections 566.030 and 566.060.

       Point I is denied.

                                              Point II

       Appellant’s second point claims the trial court erred in finding him guilty of forcible rape

and forcible sodomy because there was insufficient evidence to establish he used physical force

sufficient to overcome reasonable resistance, as required by the statutes. Specifically, because it

is clear Appellant used force in manipulating Victim’s unconscious body, Appellant’s argument

focuses upon whether Victim reasonably resisted.




                                                 7
                                         Standard of Review

       “In reviewing the sufficiency of the evidence in a court-tried criminal case, the same

standard is applied as in a jury tried case.” State v. Niederstadt, 

66 S.W.3d 12

, 13 (Mo. banc

2002); Rule 27.01(b). We affirm the trial court’s judgment if the State presented sufficient

evidence from which a reasonable fact-finder could have found each element of the crime

beyond a reasonable doubt. State v. Cerna, 

522 S.W.3d 373

, 378 (Mo. App. E.D. 2017). This

Court views all evidence and inferences in a light most favorable to the judgment.

Id. We will

not

reweigh evidence and we will disregard contrary evidence and inferences.

Id. “When the

facts

relevant to an issue are contested, [this Court] defers to the trial court’s assessment of the

evidence; it is only when the evidence is uncontested that no deference is given to the trial

court’s findings.”

Id. Additionally, we give

circumstantial evidence the same weight as direct

evidence.

Id.

Discussion

Reasonable resistance

“is that which is suitable under the circumstances.” State v.

Vandevere, 

175 S.W.3d 107

, 109 (Mo. banc 2005) (internal quotation marks and citations

omitted). Here, Appellant argues Victim could not have provided reasonable resistance because

she was unconscious due to her voluntary intoxication and therefore, he did not forcibly compel

her.

       Our analysis is guided by the Missouri Supreme Court’s ruling in Niederstadt, 

66 S.W.3d

12

. In Niederstadt, the defendant was convicted of forcibly sodomizing a 16-year-old girl who

was temporarily living in his house. The victim testified to having gone to sleep because she was

not feeling well, only to be awoken by a sharp pain caused by the defendant’s finger in her

vagina.

Id. at 14.

The Supreme Court found the defendant’s acts were undoubtedly acts of



                                                  8
deviate sexual intercourse involving physical force. Thus, the sole question on appeal was

whether the defendant’s acts of physical force had overcome reasonable resistance so as to

constitute forcible compulsion.

Id. at 15.

The defendant argued the victim did not reasonably

resist because she was asleep, and therefore he did not forcibly compel her. Our Supreme Court

disagreed, stating when a victim is unconscious, the victim’s inability to resist does not benefit

the accused and “is an additional factor taken into account in determining if the accused

overcame reasonable resistance.”

Id. at 16.

Accordingly, the court held under the totality of the

circumstances, sufficient evidence was presented to find the defendant had deviate sexual

intercourse through the use of forcible compulsion.

Id. Furthermore, our Supreme

Court has

previously found a defendant guilty of rape, then defined as “forcibly ravishing any woman,”

when the defendant penetrated a sleeping woman without consent. State v. Welch, 

89 S.W. 945

,

947 (Mo. 1905). The court explained a woman could not resist while asleep and any resistance

after the act had already commenced could not undo the act.

Id. “In other words,

the court

equated unconsented penetration of a sleeping woman with forcible rape.” Niederstadt v. Nixon,

505 F.3d 832

, 838 (8th Cir. 2007) (analyzing State v. Welch). 6

         Significantly, as explained in Niederstadt, we consider the totality of the circumstances to

determine if the force used was sufficient to overcome reasonable resistance. Among the factors

we consider, the following are particularly relevant here: the extent to which the defendant was




6
  Following our Supreme Court’s decision, Niederstadt petitioned for a federal writ of habeas corpus. See
Niederstadt v. Nixon, 

505 F.3d 832

(8th Cir. 2007). Niederstadt argued the Missouri Supreme Court’s ruling that
forcible compulsion and reasonable resistance can occur while a victim is asleep violated his right to due process
because the decision was “unexpected and indefensible.”

Id. at 836.

Analyzing previous Missouri caselaw, the
Eighth Circuit denied Niederstadt’s petition, stating “it was neither unexpected nor indefensible for the Supreme
Court of Missouri to construe the Missouri rape and sodomy statutes in effect when Niederstadt committed his
offense as applying to the unconsented penetration of a sleeping woman, just as the Court had applied prior rape
statutes for a century, consistent with the general, if not universal, rule.”

Id. at 838.

9

in a position of authority, domination, and control over the victim; and whether the victim was

under duress. 

Niederstadt, 66 S.W.3d at 15

.

       Here, based on the totality of the circumstances, a reasonable fact-finder could have

found Appellant used force which overcame reasonable resistance. First, similar to Niederstadt,

Victim was unconscious during the sexual acts. “The reasonable resistance expected of an

unconscious or sleeping person is extremely low and is all the more easily overcome by a sexual

assailant.” 

Niederstadt, 66 S.W.3d at 16

. Accordingly, the resistance required by Victim was

lower than in situations where a victim is awake and able to resist. “[T]he inability to resist does

not inure to the benefit of the accused. Rather, it is an additional factor taken into account in

determining if the accused overcame reasonable resistance.”

Id.

The evidence established

Appellant was in a position of authority, domination, and

control over Victim. Victim was unconscious and could not take care of herself, and Appellant

was acting as her caretaker. Victim had a drinking problem and relied upon Appellant and

Hunter to provide her with a safe place to drink. Appellant testified he and Hunter were

purposefully quiet and tiptoed around while Victim was unconscious so as not to awaken her.

The video and codefendants’ statements also reveal they used a camera to record the two-hour

incident, which they concealed any time they thought Victim might wake up. These are

indicators of the level of control Appellant exerted to minimize Victim’s ability to resist.

       Victim was also under great duress. As the Southern District found in Lopez-McCurdy, a

victim’s alcohol-impaired condition is a factor contributing to her duress and her ability to

reasonably resist the physical force applied against her. 

266 S.W.3d 874

, 878 (Mo. App. S.D.

2008). Here, Victim’s intoxication was so severe that when Rahn viewed the video, she was

unsure whether Victim was unconscious or dead. Moreover, due to her severe alcohol



                                                  10
intoxication, Victim was unconsciously coughing and choking. Appellant even recognized the

seriousness of Victim’s condition at one point in the video, propping her up after Hunter said she

was choking. Nonetheless, Appellant still continued to sexually assault Victim. Accordingly, the

facts establish Victim was under significant duress.

       In light of the totality of the circumstances including the extent to which Appellant was in

a position of authority, domination, and control over Victim, and the duress Victim was under,

we hold the State presented sufficient evidence to establish Appellant used physical force

sufficient to overcome reasonable resistance by Victim.

       Point II is denied.

                                             Point III

       Appellant’s third point claims there was insufficient evidence to establish a timeframe for

the charged crimes. Appellant argues the State failed to provide any evidence other than

speculation and hearsay regarding the timeframe for the charged crimes.

                                       Standard of Review

       As previously stated in Point II, we will affirm the trial court’s judgment if the State

presented sufficient evidence from which a reasonable fact-finder could have found each element

of the crime beyond a reasonable doubt. 

Cerna, 522 S.W.3d at 378

. Additionally, “[r]easonable

inferences can be drawn from both direct and circumstantial evidence, and circumstantial

evidence alone can be sufficient to support a conviction.” State v. Peeler, 

603 S.W.3d 917

, 920

(Mo. App. E.D. 2020) (internal quotation marks and citations omitted).




                                                11
                                                     Discussion

         Appellant argues the only evidence presented to establish a timeframe for the crimes was

a statement made by one of the codefendants that Victim was 28 years old and a “60 Minutes”

episode playing in the background of the video, which constituted speculation and hearsay.

         When the State charges a crime within a specific date range, evidence must be presented

showing the crime occurred within that timeframe. State v. Bennish, 

479 S.W.3d 678

, 685 (Mo.

App. E.D. 2015). Here, Appellant was charged within a specific timeframe, from May 31, 2007,

to July 31, 2008.

         In the video, one of the codefendants can be heard stating how they don’t normally have

sex with a 28-year-old woman. 7;8 As Hunter’s niece by adoption, Hunter had known Victim all

her life and Appellant had known Victim for many years. Therefore, the trial court could have

reasonably inferred the codefendants knew her age. Victim turned 28 on May 31, 2007, and was

28 years old during the majority of the charged timeframe.

         Additionally, while Victim did not know when the video was made, she did provide a

rough timeframe for when she frequented Appellant’s house. Victim testified she did not visit

Appellant’s house before her daughter was born in 2006 because the first time she drank with

Appellant and Hunter, her daughter was present. Victim also testified to having never gone back

to the house after she woke up to find Hunter unbuttoning his pants after having pulled her pants

down. Victim stated she believed the incident occurred around 2008. Accordingly, Victim’s own

testimony supports the charged timeframe. 9


7
  According to the testimony and the record, at the time of the trial both codefendants were in their mid-to-late
sixties.
8
  The statement was made by one of the codefendants, a party opponent, and does not constitute hearsay. State v.
Eisele, 

414 S.W.3d 507

, 514 (Mo. App. E.D. 2013).
9
  While Appellant emphasizes there were at least two different times of recording, this does not change the fact that
all instances were alleged within the charged timeframe and sufficient evidence existed for the trial court to find the
events occurred within that timeframe.

                                                          12
       The trial court had sufficient circumstantial evidence to reasonably infer the crimes

occurred between May 31, 2007, and July 31, 2008. Under our deferential standard of review, we

will not second-guess the trial court’s decision as it is supported by sufficient evidence. See

Bennish, 479 S.W.3d at 685

.

       Point III is denied.

                                               Point IV

       Appellant’s fourth point claims the trial court erred by failing to grant his Motion to

Dismiss. Specifically, Appellant argues the State’s Fourth Amended Information failed to clearly

state the essential facts constituting the elements of the forcible rape and forcible sodomy

charges.

                                         Standard of Review

       “We review the trial court’s ruling on a motion to dismiss a criminal charge for an abuse

of discretion.” State v. Metzinger, 

456 S.W.3d 84

, 89 (Mo. App. E.D. 2015). An abuse of

discretion occurs when the trial court’s ruling is clearly against the logic of the circumstances

and is so arbitrary and unreasonable as to shock one’s sense of justice and indicate a lack of

careful consideration. State v. Rodgers, 

396 S.W.3d 398

, 400 (Mo. App. W.D. 2013) (internal

quotation marks and citations omitted). “However, whether an information fails to state an

offense is a question of law, which we review de novo.” 

Metzinger, 456 S.W.3d at 89

.

                                             Discussion

       “The purpose of an information is to inform the accused of charges against him so that he

may prepare an adequate defense and to prevent retrial on the same charges in case of an

acquittal. Generally, it is enough to charge the offense in the language of the statute alleged to be

violated if the statute sets forth all the constituent elements of the offense.” State v. Allen, 905



                                                  

13
S.W.2d 874

, 879 (Mo. banc 1995) (internal quotation marks and citations omitted). Appellant’s

challenge reiterates his claim that he could not be convicted of forcible rape or forcible sodomy

because Victim could not have reasonably resisted as required to satisfy forcible compulsion

under both statutes. We have already addressed these challenges at length. Victim reasonably

resisted and Appellant forcibly compelled Victim, satisfying these elements of the forcible rape

and forcible sodomy statutes.

       To the extent Appellant is solely challenging whether the State plainly, concisely, and

definitely stated the essential facts constituting the elements of forcible rape and forcible

sodomy, we hold the trial court did not abuse its discretion in denying Appellant’s Motion to

Dismiss. The information referenced the relevant statutes and tracked their language sufficiently,

informing Appellant of the charges against him and providing him with the ability to prepare an

adequate defense. See State v. Rohra, 

545 S.W.3d 344

, 347 (Mo. banc 2018) (internal citation

omitted). Regarding forcible rape, the State alleged sexual intercourse with forcible compulsion.

Similarly, regarding forcible sodomy, the State alleged deviate sexual intercourse with forcible

compulsion. Moreover, the State sufficiently alleged forcible compulsion for each charge,

claiming Appellant used physical force which overcame Victim’s reasonable resistance. The

State sufficiently alleged all of the elements of forcible rape and forcible sodomy.

       Point IV is denied.

                                               Point V

       Appellant’s fifth point claims the trial court erred in admitting the State’s video evidence

because it lacked proper foundation and lacked a proper chain of custody. Appellant contends the

State did not prove the video is an accurate and faithful representation of what it purports to




                                                 14
show because the State did not present a witness personally familiar with the subject matter of

the video. 10

                                              Standard of Review

        The trial court is granted broad discretion in the admission of evidence. State v.

Anderson, 

76 S.W.3d 275

, 276 (Mo. banc 2002). To preserve an objection for appellate review,

“the objection must be specific, and the point raised on appeal must be based upon the same

theory presented at trial.” State v. Boydston, 

198 S.W.3d 671

, 674 (Mo. App. S.D. 2006)

(internal quotation marks and citations omitted). A general objection will not preserve alleged

errors because it fails to direct the trial court to the specific foundational element claimed to be

deficient.

Id. Therefore, the objecting

party must make the reason for his objection reasonably

apparent to the court to provide the objecting party’s opponent an opportunity to correct any

errors and to allow the court to correctly rule on the issue.

Id. When an issue

is properly

preserved, this Court may reverse only if it is shown the trial court abused its discretion in

admitting the evidence. State v. Williams, 

97 S.W.3d 462

, 468 (Mo. banc 2003).

        As stated by our Supreme Court:

        A trial court has broad discretion to admit or exclude evidence during a criminal
        trial, and error occurs only when there is a clear abuse of this discretion. A trial
        court abuses its discretion only if its decision to admit or exclude evidence is clearly
        against the logic of the circumstances then before the court and is so unreasonable
        and arbitrary that it shocks the sense of justice and indicates a lack of careful,
        deliberate consideration. This Court will reverse the trial court’s decision only if
        there is a reasonable probability that the error affected the outcome of the trial or
        deprived the defendant of a fair trial.

State v. Wood, 

580 S.W.3d 566

, 574 (Mo. banc 2019) (internal quotation marks and citations

omitted).


10
   Appellant dedicates a significant amount of time to showing the video’s foundation could not be established under
the silent witness theory. However, as the State made clear at trial, the video was not being introduced under the
silent witness theory.

                                                        15
         Moreover, in a bench-tried case, we grant the trial court more latitude in the admission of

evidence. State v. Hein, 

553 S.W.3d 893

, 896 (Mo. App. E.D. 2018). “We presume a judge will

not give weight to incompetent evidence, and, as such, it is difficult to base reversible error on

the improper admission of evidence in a court-tried case.”

Id.

Discussion

The party

offering a video as evidence must lay a proper foundation and establish it is an

accurate representation of the person, place, or subject it purports to portray. St. Louis Univ. v.

Geary, 

321 S.W.3d 282

, 289 (Mo. banc 2009). However, a witness testifying to such matters

need not be familiar with the specific circumstances surrounding the creation of the video itself,

nor does the witness need to have observed the exact view of the subject matter depicted in the

video. State v. Brownlee, 

501 S.W.3d 556

, 559 (Mo. App. E.D. 2016).

         At trial, Appellant raised a foundational objection to the admission of the video, which

the court overruled. The State presented testimony from Rahn regarding her discovery of the

video in Appellant’s house. She testified she watched a brief portion of the video and recognized

the room it was recorded in as Appellant’s living room. Rahn also recognized Appellant,

Appellant’s couch, and Appellant’s kitchen in the background. Victim also identified herself,

Appellant, and Hunter in the video at trial.

         Appellant also testified, without challenging the accuracy of the content shown, and

stated the video was missing its ending and included blue screens not originally present on the

tape. Although he stated the video was incomplete, he did not dispute its accuracy. 11 Notably,

Appellant was one of the video’s creators and personally observed and took part in the events



11
  Appellant’s dispute in this regard concerns a challenge to the weight of the evidence rather than its foundational
admissibility. See, e.g., State v. Wallis, 

204 S.W.3d 732

, 737 (Mo. App. S.D. 2006), and State v. Souders, 

703
S.W.2d 909

, 911 (Mo. App. E.D. 1985).

                                                         16
shown on the video. Appellant testified as to the sexual subject matter shown, acknowledging the

video showed him having sex with Victim while she was unconscious, without disputing the

accuracy of what was shown. Appellant did not deny he was depicted in the video or that the

events actually happened. Thus, the trial court did not abuse its discretion in determining there

was sufficient foundation to admit the video based on the testimony regarding its accurate

representation of the place, person, or subject it purports to portray.

       Appellant also raised a chain of custody objection to the DVD, which the court overruled.

The court noted any contradictory evidence regarding whether the video had been altered was a

credibility issue. To establish the proper chain of custody, the State must establish only that the

video is the same article and in the same condition as when the State received it. See State v.

Spears, 

452 S.W.3d 185

, 196 (Mo. App. E.D. 2014).

       As stated in State v. McBenge:

               The chain of custody for an exhibit is considered to be sufficient where the
       State provides evidence showing reasonable assurance that the exhibit offered is
       the same evidence seized and is in substantially the same condition as when seized.
       The purpose of this rule is to prevent an exhibit from being altered, substituted, or
       tampered with—all issues which the trial court is in the best position to determine.
               The reasonable assurance standard does not require proof of hand-to-hand
       custody, a showing that the exhibit was continually watched, or proof of the
       exclusion of every possibility that the evidence has been disturbed. Moreover, the
       trial court may assume, absent a showing of bad faith or tampering, that the officials
       charged with having custody of an exhibit properly discharged their duties and that
       no tampering of the evidence occurred.

507 S.W.3d 94

, 120 (Mo. App. E.D. 2016) (internal quotation marks and citations omitted).

       Here, Rahn delivered the videotape to the Franklin County Sheriff’s Department. Upon

receipt, Captain Subke testified he delivered the video to Detective Corporal Nix. Detective

Corporal Nix testified he converted the videotape to a digital format and burned the digital copy

to a DVD. He stated the videotape and DVD were identical and nothing suggested the videotape



                                                  17
had ever been tampered with or altered. The tape was returned to Captain Subke, who testified he

watched the entirety of both the videotape and the DVD and noticed no differences between the

two.

       Sufficient evidence existed to provide the trial court with reasonable assurance the exhibit

offered had not been altered and was in substantially the same condition as when received. The

State accounted for the chain of custody once the video came into its possession, and Appellant

failed to establish any bad faith or tampering by the State. Absent such evidence, the trial court is

free to assume the officials charged with having custody of the exhibits properly discharged their

duties and did not tamper with the evidence. 

McBenge, 507 S.W.3d at 120

.

       The trial court did not abuse it discretion in admitting the video. Point V is denied.

                                            Conclusion

       We affirm the judgment of the trial court.




                                                      SHERRI B. SULLIVAN, J.

Robin Ransom, P.J., and
Lisa P. Page, J., concur.




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