State of Missouri, Respondent, v. Ivron Butler, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Respondent, v. Ivron Butler, Appellant. Case Number: 53344 Handdown Date: 03/31/1998 Appeal From: Circuit Court of Clay County, Hon. Victor Howard Counsel for Appellant: Kevin L. Jamison Counsel for Respondent: John M. Morris Opinion Summary: Ivron Butler was jury-tried and convicted of one count of felonious restriant and two counts of armed criminal action and sentenced as a prior and persistent offender to consecutive terms of life, one hundred years, and seven years on each of the armed criminal action judgments. On appeal, Butler argued that: (1) the state's expert testimony regarding hair samples found on one of the victims was insufficient to sustain a conviction; (2) that the trial court erred in failing to grant a mistrial for evidence as to uncharged crimes, and (3) that the state failed to prove that the weapon used looked like a real gun, rather than a B.B. gun. AFFIRMED. (1) Under the standard of review, the expert's testimony was sufficient evidence from which a juror might have found the defendant guilty beyond a reasonable doubt. (2) There was no abuse of discretion for the failure to grant a mistrial. (3) The fact that the victims thought that the weapon used was a real gun was sufficient to submit the charge of armed criminal action.

this case is insufficient to support Mr. Butler's convictions for sodomy, felonious restraint and armed criminal action. The

evidence connecting Mr. Butler with these crimes is the fact that he lived in the trailer park where the crime occurred and two hairs recovered from the clothing of one of the victims, both of which matched Mr. Butler's hair samples according to the state's forensic expert. However, this expert admitted that she could not state that the hair was from Mr. Butler beyond a reasonable doubt. In light of the uncertainty of this hair comparison evidence and the weak corroborating evidence, there is insufficient evidence to provide proof beyond a reasonable doubt that Mr. Butler committed these crimes. Citation: Opinion Author: Harold L. Lowenstein, Presiding Judge Opinion Vote: AFFIRMED. Judge Breckenridge dissents in separate opinion. Judge Hanna concurs with

Opinion: Ivron Butler was convicted by a jury of one count of sodomy, one count of felonious restraint and two counts of armed criminal action. This was the second trial of Butler, the first having resulted in a mistrial because the jury was unable to reach a verdict. Butler was sentenced by the court as a prior and persistent offender to consecutive terms of life, one hundred years, and seven years on each of the armed criminal action judgments. On appeal, Butler questions the sufficiency of the evidence as well as the failure of the trial court to grant a mistrial for evidence as to uncharged crimes. On August 31, 1993, at a mobile home park in Clay County, the two male victims, N.E. age thirteen, and J.L. age sixteen were idly spending time at a lake which served the residents. In the evening, after dark, and near the locked boat dock and storage area, a man walked by several times and asked the boys if they had seen someone waiting around to help him take his boat out of storage. When the boys said no, he went away and returned to ask them if they would, for money, help him move the boat. He told them he did not have the combination for the lock and was going to go home and find the combination. He left, presumably to go to his trailer, and within five to ten minutes returned saying he could not find the correct numbers, but he knew a spot they could get over the fence. The man followed the boys and then suddenly asked, "who was going to be the hero." The boys turned around to find the man holding a gun. He told them to cooperate and they would not be hurt. He had N.E., lie on the ground with J.L. on top. He tied them both. Although there was lighting nearby, N.E. testified it was not "high lighted," while J.L. testified they were "pretty much under a light." Neither boy, however, got a good look at the man's features. In fact, they never could by sight or voice, identify Butler as the assailant. With both boys on the ground, the man had anal intercourse with J.L., and while he was still on top of J.L.,

N.E. managed to escape. The man gave a brief chase, then came back and told J.L. not to say anything, and then ran away. The police recovered head and pubic hair from J.L.'s clothing. The boys said the man was about five feet seven or eight, 170 lbs, with brown curly hair that came down from under a dark baseball cap, he was wearing a dark tee shirt, shorts and tennis shoes, and was unshaven. Butler, who also lived in the mobile home park, became a suspect. Head and pubic hair samples were taken from Butler. As stated earlier, the boys have never been able to identify Butler as the attacker. Butler denied committing the crime and offered evidence that he did not fit the description of the assailant. The primary point on appeal concerns the state's expert testimony with regard to unknown head hair recovered from J.L.'s shirt, and the unknown pubic hair recovered from J.L.'s underwear. Ms. Duvenci, who is a forensic chemist testified the unknown hair came from the same person. She compared the unknown hair to the samples taken from Butler. She acknowledged it was not possible to positively identify individuals based on hair comparison. She stated there are not as many distinguishing characteristics in hair as, say DNA samples or fingerprints, so an expert could not tell "what percent of the population could have contributed that hair," and thus the opinion would be "subjective but it's based on experience and judgment . . . ." She did state that she could not distinguish between the pubic or the head hair samples of Butler and the unknown samples found on the victim's clothing. As to the head hair samples she stated: "I feel there is a very strong probability that those two hairs came from the Defendant." That opinion was based in part on an unusual spot on a certain part of the hair found on the victim, which also appeared in the same spot on Butler's hair. The prosecutor asked: "So within a reasonable degree of certainty you believe the unknown hairs are in fact from the Defendant." She answered in the affirmative. The status of the witness as an expert was never in question, and all of her testimony came in without objection. Butler argues the above evidence, though admissible, is not conclusive, and absent an identification or any direct evidence, the state did not make a case of his guilt beyond a reasonable doubt. As just stated, Butler asserts the circumstantial evidence of the match between his head and pubic hair with those taken from the victim's clothing is insufficient, and without other evidence of the defendant's involvement, the state's case must fail. Again, the issue raised does not concern admissibility of the above cited evidence -- it is the lack of certainty of hair examination and the inability of an expert to quote figures, such as one in a million or five million, and standing without an eyewitness identification or some other circumstantial evidence will not be sufficient support a conviction. Although he says the expert testimony did not conclude a match existed beyond a reasonable certainty, Butler does acknowledge the opinions in State v. Kleypas, 602 S.W.2d 863 (Mo. App. 1980) and State v. Sager, 600 S.W.2d 541 (Mo. App. 1980). These cases dealt with admissibility questions (under the now outdated scientific test of Frye v. United

States, 293 F. 1013, 1014 (D.C. Cir. 1923) of expert comparisons of bite marks found on the victim's bodies and the dental characteristics of the accused. In Kleypas and Sager, the defendants stressed to the court and jury, as well as to the appellate court, the lack of certainty the expert's acknowledged regarding their opinions. In both those cases, the experts, while acknowledging the fewer number of distinguishing characteristics found in bite marks left by teeth, still testified with a reasonable degree of medical certainty that the bite marks were made by the defendant. Kleypas, 602 S.W.2d at 868; Sager, 600 S.W.2d at 563 - 64. The Supreme Court in State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993), repeated the due process standard of State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989) that a reviewing court accepts as true all the evidence and inferences favorable to the state and disregards evidence and inferences to the contrary, and a challenge to the sufficiency of the evidence is limited to a determination of "whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." In a case such as this, where the only evidence of guilt is circumstantial, the issue becomes whether the state needs corroborating evidence to sustain a guilty verdict. The court in Grim determined there was no reason to consider circumstantial evidence any differently or require a greater quantum of proof to support a conviction based on circumstantial evidence. Id. at 406. This court is mindful of Butler's contention the only thing linking him to this crime is the opinion evidence of the state's forensic expert, but, as the Court found in Grim, that evidence is sufficient to sustain the verdict reached by the jury. The jury here was free to reject Butler's assertion he had been at the park's swimming pool the afternoon in question and the hairs could have been picked up by the victim during the afternoon when he may have been swimming at the same pool. The expert's testimony was admitted into evidence, and was sufficient to allow the jury to find that the head and pubic hairs found on the victim, which contained the same characteristics and unusual mark as those of Butler, were Butler's hairs, and conclude that Butler was the assailant. Butler's next point raises the issue of uncharged crimes. When asked at what point Butler became a suspect in this case, one of the police witnesses stated, "Back when he was identified in a separate investigation." Defense counsel immediately objected on the basis of uncharged acts saying, "[T]hey've just said he's a suspect pervert in other matters." The court refused a mistrial and advised the jury to disregard the statement. The drastic remedy of mistrial was not warranted on these facts. The matter was dropped, and this review must conclude there was no abuse of discretion for the failure to grant the mistrial. State v. Young, 701 S.W.2d 429, 434 (Mo. banc 1985). The final point attacks the armed criminal action submissions for failure to prove the weapon looked like more than a B.B. gun. This point is without merit. Both boys thought the weapon was a real gun. State v. Hillis, 748 S.W.2d

694, 697 (Mo. App. 1988). As such, the testimony of the victims that the culprit brandished a gun, which is a dangerous and deadly weapon, was sufficient evidence to submit on this charge. State v. McCoy, 748 S.W.2d 809, 811 (Mo. App. 1988). The judgments of conviction are affirmed. Separate Opinion:

insufficient to support Mr. Butler's convictions for sodomy, felonious restraint and armed criminal action. The only evidence connecting Mr. Butler with these crime is the fact that he lived in the trailer park where the assault occurred and two hairs recovered from J.L.'s, one of the victims, clothing, both of which matched Mr. Butler's hair samples according to Darvine Duvenci, the state's forensic expert. However, Ms. Duvenci also admitted that she could not state that the hair was from Mr. Butler beyond a reasonable doubt. The question then is whether this evidence is sufficient to provide proof beyond a reasonable doubt that Mr. Butler committed these crimes. It is clear in Missouri that hair comparison evidence is admissible in a criminal trial. State v. Hoard, 715 S.W.2d 321, 325 (Mo. App. 1986). However, it is not clear whether a criminal conviction may be based on hair comparison evidence purporting to identify the defendant as the perpetrator of the crime. Although no Missouri case has addressed this specific issue, the greater weight of authority in other jurisdictions is persuasive that hair evidence, by itself, is insufficient to provide proof beyond a reasonable doubt. The Florida District Court of Appeal has considered whether hair comparison testimony results in identifications of absolute certainty. In Jackson v. State, 511 So.2d 1047, 1050 (Fla. App. 1987), the District Court of Appeal, Second District, reversed the defendant's convictions of first-degree murder and armed criminal action on the basis that there was insufficient evidence to support the convictions. In Jackson, the state presented evidence concerning head hairs taken from the victim's pajama top. Id. at 1048. The state's expert in hair and fiber analysis testified that two of the head hairs taken from the victim were indistinguishable from the defendant's head hair sample. Id. However, the state's expert indicated that "hair will never get unique enough to be like a fingerprint" and admitted that "hair comparisons do not constitute a basis for positive personal identification." Id. at 1049. In reversing the defendant's conviction, the Jackson court held that although hair comparison testimony is admissible, it cannot provide an identification of absolute certainty by itself. Id. In People v. Gomez, 574 N.E.2d 822, 823 (Ill. App. 1991), the Appellate Court of Illinois also reversed a first-

degree murder conviction because there was insufficient circumstantial evidence to establish the defendant's guilt beyond a reasonable doubt. There was evidence of the defendant's fingerprint at the murder scene, a place where he paid his monthly rent, as well as samples of blood and paint taken from murder scene and the defendant's residence. The state also introduced, as part of its case in chief, hairs found on the victim's body which shared some similarity with the defendant's hair. Id. at 824. The court held that hair samples "do not possess the necessary unique qualities of fingerprints to allow positive identification." Id. at 828. "The mere physical probabilities inferred from . . . hair . . . samples alone are insufficient to sustain a conviction beyond a reasonable doubt." Id. See People v. Brown, 461 N.E.2d 71, 74 (Ill. App. 1984). Because the court found that the circumstantial evidence was insufficient to prove guilt, the court reversed the defendant's conviction. The Court of Appeals of North Carolina has also addressed this issue on more than one occasion. In State v. Stallings, 334 S.E.2d 485, 486 (N.C. App. 1985), the defendant was convicted of armed robbery solely on the basis of hair comparison evidence which indicated that his hair was microscopically consistent with the hair found in the mask used during the robbery. The court held that "[u]nlike fingerprint evidence . . . comparative microscopy of hair is not accepted as reliable for positively identifying individuals. Rather it serves to exclude classes of individuals from consideration and is conclusive, if at all, only to negative identity." Id. Therefore, the Stallings court reversed the defendant's conviction. Id. at 487. This position has been restated by the court in two subsequent cases. See State v. Faircloth, 394 S.E.2d 198, 202-03 (N.C. App. 1990) and State v. Johnson, 338 S.E.2d 584, 587 (N.C. App. 1986). The reluctance of these courts to proceed solely upon the results of hair comparison evidence is supported by the testimony of Darvine Duvenci, the expert forensic witness in this case. Ms. Duvenci testified that hair comparisons are not conclusive like fingerprints and that she could not state with absolute certainty that the hair found on J.L. was that of Mr. Butler. She stated that she could not be certain because there are not enough individual features in human hair to provide conclusive identifications. On cross-examination, Ms. Duvenci admitted that hair comparison analysis cannot identify individuals but can reduce the possible group of suspects by eliminating an individual. This is in accord with the position stated in Stallings. 334 S.E.2d at 486. She also stated that her analysis was only "subjective opinion" and not objective proof. Despite these scientific principles acknowledged by Ms. Duvenci, she concluded her testimony by stating on re- redirect examination that "within a reasonable degree of certainty" the hairs found on the victim were those of Mr. Butler. One of the bases for her conclusion that Mr. Butler was the source of the two hairs found on J.L.'s clothing was the fact that both Mr. Butler's pubic hair sample and the pubic hair found in J.L.'s underwear had distinctive black spots which she considered "very unusual." She opined that such spots were unique based upon the infrequency of her own

observation of the characteristic. In State v. Jones, 777 S.W.2d 639, 641 (Mo. App. 1989), the expert witness testified that hair taken from the victim and that of the defendant both contained "big black spots" which were not common, but the expert witness did not testify that the hair found on the victim came from the defendant. In contrast, Ms. Duvenci infers in her testimony that the spots are so unique that they would serve as a basis for a positive identification of Mr. Butler. The State does not demonstrate, and this court is unaware, that the scientific community recognizes an exception to the principle that hair comparisons cannot produce a conclusive positive identification if the hair samples contain specific characteristics, such as black spots. The majority cites two cases holding that expert comparisons of bite marks found on the victims' bodies and the dental characteristics of the accused are admissible. It is correct that State v. Kleypas, 602 S.W.2d 863, 870 (Mo. App. 1980), and State v. Sager, 600 S.W.2d 541, 573 (Mo. App. 1980), stand for the proposition that bite mark comparison testimony is relevant and material evidence even though the experts acknowledged a lack of certainty in their opinions. These cases can be distinguished from this case, however, in that there was overwhelming evidence of the defendants' guilt besides the bite mark comparison testimony. In Kleypas, the other evidence of guilt was that footprints in fresh snow led from the back door of the home of the defendant to the home of the victim and from the home of the victim to the back door of the home of the defendant. 602 S.W.2d at 865. The tread on the defendant's boots matched the tracks in the snow. Id. And, defendant admitted that a vodka bottle found along the route of the footprints was his. Id. In Sager, the evidence other than bite marks was that two witnesses saw the defendant's vehicle near where the victim was kidnapped and the defendant told someone that he was the last person to see the victim alive. 600 S.W.2d at 547-48. In addition, the defendant made incriminating statements to police in that he knew the victim was bitten on the breast and he told the police that they would never find the knife used to stab the victim. Id. at 549-50. In light of their facts, Kleypas and Sager are not authority for the proposition that bite mark comparison testimony, despite its uncertainty, is itself sufficient to support a criminal conviction. The majority also cites the Supreme Court's opinion in State v. Grim, 854 S.W.2d 403 (Mo. banc 1993), for the proposition that circumstantial evidence is sufficient to sustain a guilty verdict and that no greater quantum of proof is required to support a conviction based on such circumstantial evidence. This is a correct statement of the holding of Grim. However, in Grim, the circumstantial evidence of the defendant's guilt was a bloody fingerprint which was made in the victim's blood. Id. at 412. Because of the reliable and unique quality of an individual's fingerprint, fingerprint evidence, alone, is sufficient to support a criminal conviction. State v. Bland, 757 S.W.2d 242, 245-46 (Mo. App. 1988); State v. Anderson, 671 S.W.2d 383, 385 (Mo. App. 1984). But, as has already been noted, hair comparison evidence is

not nearly as reliable as fingerprint evidence. As a result, Grim is not persuasive authority that hair comparison evidence is sufficient circumstantial evidence to support a criminal conviction. This assessment of the limited value of hair comparison evidence is supported by Missouri's test for the admissibility of scientific evidence. Missouri adheres to the Frye rule in determining the admissibility of expert testimony concerning scientific techniques. Bray v. Bi-State Development Corp., 949 S.W.2d 93, 98 (Mo. App. 1997). According to this test, in order for expert testimony to be admissible, the testimony must be based on scientific principles that are generally accepted in the relevant scientific community. Schumann v. Mo. Highway & Transp. Com'n, 912 S.W.2d 548, 554 n. 8 (Mo. App. 1995). As is apparent from Ms. Duvenci's testimony, although hair comparison analysis is accepted in the scientific community, the scientific community also recognizes the limited value and inconclusiveness of such analysis. See McCormick on Evidence section 207 at 639 (3d ed. 1984). Furthermore, it is important to note that there is very little corroborating evidence. Neither N.E. or J.L. were able to identify Mr. Butler by sight or voice as the assailant. Nor was there any DNA or fingerprint evidence linking Mr. Butler to the scene of the crime. In addition, the description of the assailant given by J.L. does not describe Mr. Butler. While both N.E. and J.L. described the assailant as a man of average height wearing a baseball cap with beard stubble on his face, J.L. also indicated that the individual had brown curly hair which fell on his forehead underneath the bill of the baseball cap. All the evidence concerning Mr. Butler indicates, however, that he never had brown curly hair and, in fact, had a rather severe receding hair line. Mr. Butler did live in the trailer park where the assault occurred. The majority opinion recites the fact that the perpetrator left the boys for five or ten minutes to ostensibly retrieve the combination to the lock on the storage area and "presumably" went to his trailer during this time. The actual testimony of J.L. was that the perpetrator said the combination was at home and "he started heading back I guess to his trailer." (Emphasis added). This evidence is speculative and I do not think it is sufficient to prove that the perpetrator actually lived in the trailer park. The only evidence implicating Mr. Butler in the crimes charged is circumstantial evidence of the hair comparison and the fact that he lived in the trailer park. This evidence only raises a suspicion or conjecture that Mr. Butler was the perpetrator of these crimes and does not prove such beyond a reasonable doubt. See Stallings, 334 S.E.2d at 486-87. On the basis of the inconclusiveness of the hair comparison evidence, and the State's inability to present sufficient corroborating evidence to identify Mr. Butler as the man who assaulted the victims, I would reverse Mr. Butler's convictions. There is not proof beyond a reasonable doubt that he committed these crimes.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.