STATE OF MISSOURI, Respondent v. RAMSEY KADE COSTA, Appellant

In Division S TATE OF MISSOURI, Respondent, v. RAMSEY KADE COSTA, Appellant.

No. SD38704

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle L. Crane, Judge AFFIRMED IN PART; REVERSED AND REMANDED IN PART WITH INSTRUCTIONS A jury found Appellant Ramsey Costa guilty of two counts of first-degree statutory sodomy and three counts of first-degree child molestation. On appeal, Costa challenges the sufficiency of the evidence to support the convictions for statutory sodomy and argues the trial court erred in allowing the State to present the testimony of a propensity witness. Because we agree that the State did not present sufficient evidence to support the two statutory-sodomy convictions beyond a reasonable doubt, we reverse the

2 judgment on Counts I and III and direct the trial court to enter a judgment of acquittal on those counts. While we conclude that the trial court erred in admitting some testimony of the propensity witness, the error was not outcome determinative. Thus, in all other respects we affirm the judgment and convictions. Factual Background 1

The victim ("Victim") was born in June 2005. In 2015 or 2016, when Victim was eleven years old, her uncle, Costa, lived with her family. He usually slept on the couch. Victim described two incidents of sexual assault by Costa during that time. When Costa initiated the first incident, Victim was asleep in her bedroom. She testified as follows: I was sleeping and I felt someone start touching me. And he went into my T-shirt and was rubbing on my chest and made his way up to my throat and started, like, kind of choking me. And pushed his penis up onto my butt and was, like, groping on me. I started moving away, like, to the wall, like move [sic] myself towards the wall. And then once I got to the wall I started scooting down and I got to the point where I was getting off the bed and I took off into the other room. Victim testified that, after the assault, she ran into her sister's ("Propensity Witness") room, woke her up, and asked her to stay awake with Victim.

1 We accept as true all evidence and reasonable inferences favorable to the verdict, disregarding contrary inferences unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. We do not weigh the evidence or decide the credibility of witnesses, but defer to the trial court. The trier of fact may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances, and other testimony in the case. State v. Robinson, 711 S.W.3d 921, 926 (Mo.App. E.D. 2025) (citation modified).

3 The second incident occurred at Victim's grandmother's home. Victim testified: I fell asleep on [Costa's] bed because I was in there watching movies. And I woke up and my pants were pulled down and he was rubbing his penis on my butt until he [ejaculated]. And his hand was in my T-shirt on my breast. .... I just laid there. I didn't know how to react. .... He just pulled up my pants and I just laid there and he rolled over and I got up and went into my grandma's bathroom. Testimony of Propensity Witness Over Costa's objection, the trial court admitted Propensity Witness' testimony. She testified that in 2017 or 2018, when she was fifteen or sixteen years old, she moved into Victim's family's home. 2 Propensity Witness testified that, when she lived with Victim's family, Costa would sometimes sleep in Victim's family's home on their living room couch, although he did not permanently live there. Propensity Witness further testified that, one night when she was living there, she awoke after Victim climbed into Propensity Witness' bed and shook her. Propensity Witness described Victim as looking "like she just ran a 10k[;] she had a lot of adrenaline," and "[s]he was freaked out." Propensity Witness recounted that she once went to her grandmother's house, where Costa then lived, to "get something from him." She sat on his bed. She explained:

2 Victim and Propensity Witness are half-sisters who share a biological mother. Costa is the uncle of Propensity Witness.

4 [H]e was reaching behind me but as he did so, he then started reaching up my legs, up my thighs. And he started going around my vagina. And then somebody in the room said my name and said we had to run – well, not run but hurry up and leave, you know, and grab whatever. So, I left. Propensity Witness further recounted that Costa kissed her on an earlier occasion. She testified: "He would shove his tongue stuck [sic] down my throat[,] and he tasted disgusting, like old, nasty cigarettes[,] and he never brushed his teeth." The State charged Costa with five counts involving conduct against Victim in the amended information. 3 The State charged Costa with two counts (Counts I and III) of first-degree statutory sodomy "by touching [Victim's] genitals with his hand." The State also charged Costa with two counts of first-degree child molestation for hand-to-breast contact, and a final count of first-degree child molestation for touching Victim with his genitals. Verdict, Sentence, and Appeal The jury found Costa guilty of each of the five charges against him involving Victim. The trial court sentenced Costa to consecutive twenty-year terms of imprisonment on the two statutory sodomy charges (Counts I and III of the amended information), one consecutive fifteen-year term on one child molestation charge (Count V of the amended information), and two concurrent terms of fifteen years imprisonment on the other two child molestation charges (Counts II and IV of the amended information).

3 Other charges involving a different victim were severed on Costa's motion.

5 On appeal, Costa challenges the sufficiency of the evidence supporting the two statutory-sodomy convictions, (Points I and II) and asserts that the trial court erred by admitting Propensity Witness' testimony (Point III). Legal Standards Sufficiency of the Evidence "This Court reviews whether there is sufficient evidence to support the charged crime, based on the elements of the crime as set forth by statute and common law and the evidence adduced at trial." State v. Jackson-Bey, 690 S.W.3d 181, 186 (Mo. banc 2024) [as modified on denial of reh'g (July 9, 2024)]. The elements of a crime are found only in the statute creating that crime. [Section] 556.026, RSMo[.] 2016 ("No conduct constitutes an offense unless made so by this code or by other applicable statute."). The reference to "common law" in Jackson-Bey was merely to judicial constructions given those statutory elements when necessary. The standard of review for sufficiency claims has oft been repeated and remains unchanged. In considering whether the evidence is sufficient to support the jury's verdict, we must look to the elements of the crime and consider each in turn. The Court does not act as a 'super juror' with veto powers, but gives great deference to the trier of fact. Nor does this Court weigh the evidence but rather accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignores all contrary evidences and inferences. In conducting such a review, however, this Court may not supply missing evidence, or give the State the benefit of unreasonable, speculative[,] or forced inferences. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Winter, 719 S.W.3d 738, 745-46 (Mo. banc 2025) (citation modified). The State bears the burden of proving every element of a criminal case, and its failure to do so will result in reversal. State v. Simmons, 233 S.W.3d 235, 238 (Mo.App. E.D. 2007).

6 Statutory Sodomy At the time of the alleged offenses, the relevant statute provided that "[a] person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old." Section 566.062.1. 4

The code defines "deviate sexual intercourse" as "any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person or for the purpose of terrorizing the victim[.]" Section 566.010(1). Discussion Points I and II Points I and II challenge the sufficiency of the evidence supporting Costa's convictions of two counts of statutory sodomy in the first degree in Counts I and III. Victim testified that during the first incident Costa touched her breast while he rubbed his penis on her "butt." She testified that during the second incident she awoke to Costa touching her breast and rubbing his penis on her "butt" until he ejaculated. The State argues sufficient evidence supports the verdict on Count I, positing that Victim's testimony that Costa was "like, groping on me" in describing the first incident was sufficient to allow the jury to infer that Costa touched Victim's genitals with his hand. The State argues sufficient evidence also supports the conviction on Count III,

4 Unless otherwise indicated, all statutory citations are to RSMo. (2006).

7 suggesting it was reasonable for the jury to "infer that hand-to-genital contact was made when [Costa] removed Victim's pants, and that genital-to-anus contact was made when [Costa] 'rubb[ed] his penis on [Victim's] butt' until ejaculation." These arguments fail. We first address the State's contention that genital-to-anus contact can be inferred from Victim's testimony that Costa rubbed his penis on her "butt." 5 Such an inference has been upheld only in cases that included additional, specific, supporting evidence. State v. Tolen, 295 S.W.3d 883, 887 (Mo.App. E.D. 2009); (citing State v. Copeland, 95 S.W.3d 196, 200 (Mo.App. S.D. 2003) ("sufficient evidence to infer defendant had contact with the victim's 'anus' where the victim told investigators that defendant rubbed his 'butt' with his hand 'almost all the time' and that this activity 'stung' and where the physical examination revealed 'abnormalities' of the anus"); State v. White, 873 S.W.2d 874, 878 (Mo.App. E.D. 1994) ("sufficient evidence to infer defendant had contact with the victim's 'anus' where there was testimony of several witnesses that the victim told them defendant put his penis 'up his butt' and did 'push-ups' on him and where victim had difficulties controlling his bowels immediately after returning from defendant's home"); State v. Durbin, 834 S.W.2d 837, 839 (Mo.App. E.D. 1992) ("sufficient evidence to infer defendant had contact with the victim's 'anus' where the victim testified defendant hurt her, placed his finger near the area where she goes to the bathroom

5 "Anus" is defined as "the posterior opening of the alimentary canal." "Butt" is defined as "buttocks." A "buttock" is defined as "either of the rounded parts at the back of the hips; either half of the rump." State v. Tolen, 295 S.W.3d 883, 887 (Mo.App. E.D. 2009) (citation modified).

8 through her underwear, and that it poked inside her); State v. Moore, 721 S.W.2d 141, 143 (Mo.App. E.D. 1986) ("sufficient evidence to infer defendant had contact with the victim's 'anus' where victim testified the defendant tried to force his penis up the victim's 'behind' and where an emergency room physician found abnormal redness around the victim's anus"); State v. O'Neal, 651 S.W.2d 634, 637 (Mo.App. S.D.1983) (sufficient evidence to infer defendant had contact with the victim's "anus" where there was evidence that victims "almost yelled" and "tried not to cry" because "it hurt '[p]retty bad,'" when defendant touched their "bottoms")). No such additional, specific, supporting evidence is present in this case. Victim was an adult when she testified at trial and demonstrated an adult's awareness of anatomical and sexual terms. She testified that Costa "pushed his penis up onto my butt" on one occasion and "was rubbing his penis on my butt until he [ejaculated]" on another occasion. She further testified that Costa ejaculated "on my butt." Victim's consistent use of the word "butt" and the prepositions "onto" and "on," rather than "into" or "in," indicates that Costa's penis was in contact with Victim's buttocks and does not suggest penetration or specifically support the inference that Costa's penis came into contact with Victim's anus. No other evidence supported an inference of contact with Victim's anus. Without more, "[e]vidence that a defendant touched a victim's "butt" or "buttocks" is insufficient to show the defendant touched the victim's "anus."" Tolen, 295 S.W.3d at 887 (quoting State v. Hahn, 35 S.W.3d 393, 395 (Mo.App. E.D. 2000)). The State's argument that genital-to-anus contact can be inferred from the evidence fails.

9 We next consider whether the evidence supports any inference of hand-to-genital contact. In State v. Johnson, which involved a second-degree statutory sodomy charge based on hand-to-genital contact, the victim testified that the defendant removed the victim's underwear and performed oral sex on her, but did not affirmatively indicate hand-to-genital contact occurred. 479 S.W.3d 762, 763-64 (Mo.App. E.D. 2016). When asked where the appellant's hands were during the encounter, the victim testified, "On the floor. I'm not sure." Id. at 764. Relying on Simmons, the court held that when no affirmative evidence supported a hand-to-genital touching, "the evidence was insufficient to support second-degree sodomy." Johnson, 479 S.W.3d at 768, 770 (citing Simmons, 233 S.W.3d at 239). In Johnson, as in this case, the State argued that the jury could reasonably infer the defendant touched the victim's genitals with his hand while removing the victim's underwear. Id. at 769. The Johnson court specifically rejected this argument, calling any such inference unacceptably forced and based on unreasonable speculation. Id. at 769-70. "Close proximity between a defendant's body part and a victim's body part is insufficient to reasonably infer actual contact without additional evidence." Id. at 769. Similarly, in McAllister v. State, involving a charge of first-degree statutory sodomy based on hand-to-genital contact, the appellant argued that he received ineffective assistance of counsel when neither trial nor appellate counsel raised an argument that the State offered no affirmative evidence of hand-to-genital contact. 643 S.W.3d 124, 128 (Mo.App. E.D. 2022). After the State asked the victim, "[a]t any point did he use his hand to touch you?" she replied, "[h]e only used his hand to rub on my

10 chest and my butt. Other than that, it was mostly his penis that was touching me." Id. at 129 (first alteration in original). The court held that the record lacked affirmative evidence of hand-to-genital contact, therefore there was insufficient evidence to support the conviction on the statutory sodomy count based on hand-to-genital contact. Id. at

1. The court further held, citing Johnson, that it was not reasonable for the jury to

infer that hand-to-genital touching occurred. McAllister at 133. The court stated that the State's argument to the contrary "strains credulity and requires a speculative, forced inference that we cannot and will not supply." Id. at 133-34. In State v. Ralston, involving a charge of second-degree statutory sodomy based on hand-to-genital contact, the victim's testimony did not specify that hand-to-genital contact occurred. 400 S.W.3d 511, 513 n.2, 517 (Mo.App. S.D. 2013). In Ralston, the victim testified that appellant "put his penis inside her vagina and also touched her vagina with his mouth." Id. at 514. Unlike in Johnson, Simmons, and McAllister, the evidence in Ralston also included the testimony of a registered nurse and forensic interviewer who testified that the victim reported "digital penetration" by appellant. Ralston at 514-15. The court held that "[t]he jury could reasonably infer from a combination of the testimony provided by [the victim] and [the nurse] that the 'who,' 'what,' and 'when' challenged by [appellant] had been sufficiently proven." Id. at 518. Here, like Johnson, Simmons, and McCallister, and unlike Ralston, no additional evidence of hand-to-genital contact between Costa and Victim was presented to the jury. Victim did not specify hand-to-genital contact in her testimony regarding either incident. Her only testimony about Costa's hands was that he touched her breasts during both

11 incidents. She made no mention of hand-to-genital contact occurring during either incident. We "may not supply missing evidence, or give the State the benefit of unreasonable, speculative[,] or forced inferences." Winter, 719 S.W.3d at 746 (citation omitted). It was not reasonable for the jury to infer that "groping," without more specifically descriptive testimony, constituted hand-to-genital contact. Nor was it reasonable, as argued by the State on appeal, for the jury to infer that penis-to-buttocks contact was sufficient to demonstrate deviate sexual intercourse. The State had the opportunity to ask Victim specific questions to clarify what she meant by "groping" when she described the first incident, but the State chose not to follow up. When Victim testified that Costa touched her breast during the second incident, the State again opted not to ask Victim to clarify or elaborate on the position of Costa's hands. 6 The State was required to provide evidence supporting each element of the crime. Simmons, 233 S.W.3d at 238. The State failed to present any evidence that Costa had deviate sexual intercourse with Victim, thus the State failed to prove its case for Counts I and III of the amended information. Therefore, we must grant Costa's

6 We note that despite the lack of testimony or other evidence demonstrating hand- to-genital contact, the State asserted in closing argument that Victim described Costa "reaching down her pants and touching her vagina," and Costa "reaching his hand up under her shirt, pressing his penis up against her butt, and reaching his hand down her pants and touching her vagina." "[S]tatements made by the prosecutor during ... closing argument are not evidence to be considered by the jury." State v. Billings, 694 S.W.3d 556, 579 (Mo.App. E.D. 2024).

12 Points I and II on appeal and vacate the convictions for first-degree statutory sodomy (Counts I and III of the amended information). 7

Point III In Point III, Costa argues that the trial court erred by admitting Propensity Witness' testimony. As detailed above, we have already determined that reversal is required on Counts I and III. We evaluate Point III in regard to the remaining counts only. Trial courts have broad discretion in admitting or excluding evidence during a criminal trial. State v. Wood, 580 S.W.3d 566, 574 (Mo. banc 2019). We will overturn an evidentiary ruling "only when there is a clear abuse of this discretion." State v. Watson, 697 S.W.3d 44, 52 (Mo.App. W.D. 2024) (quoting State v. Ratliff, 622 S.W.3d 736, 744 (Mo.App. W.D. 2021)). "[A] trial court abuses its discretion when its 'ruling admitting or excluding evidence is clearly against the logic of the circumstances then

7 When a conviction is not supported by sufficient evidence, we may reverse and remand for entry of a conviction on a lesser offense if the evidence was sufficient for the jury to find each of the elements of the lesser offense. State v. Peeples, 288 S.W.3d 767, 771 (Mo.App. E.D. 2009). We have considered other offenses and determined that this course of action is not available here. Second-degree statutory sodomy differs from first- degree only in the ages of the persons involved, so the evidence was not sufficient to prove that offense, either. Other offenses, as defined at the time, had different elements the jury was not asked to consider. Child molestation and sexual abuse required the State to prove "sexual contact," a defined term that passing testimony of "groping" does not satisfy. Domestic assault offenses required the jury to find a qualifying relationship existed between Costa and Victim. For third-degree assault, the lowest assault classification at that time, "groping" may have qualified as knowingly causing physical contact with another person, but the jury was not asked to decide whether Costa knew Victim would regard such contact as offensive or provocative.

13 before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.'" Id. (quoting State v. Loper, 609 S.W.3d 725, 731 (Mo. banc 2020)). We review "for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." Id. (quoting State v. Prince, 534 S.W.3d 813, 818 (Mo. banc 2017)). "Propensity evidence is evidence of uncharged crimes, wrongs, or acts used to establish that defendant has a natural tendency to commit the crime charged." State v. Pierce, 678 S.W.3d 115, 121 (Mo.App. S.D. 2023) (quoting State v. Shockley, 410 S.W.3d 179, 193 (Mo. banc 2013)). In 2014, Missouri voters amended article I, § 18(c) of the Missouri Constitution to provide as follows: [I]n prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. (E mphasis added.) Costa's alleged conduct toward Propensity Witness occurred approximately one to two years after the offenses charged against Costa in this case. By the plain terms of the constitutional provision, only "relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged." Missouri Constitution, art. I, § 18(c) (emphasis added). Thus, art. I, § 18(c) does not render admissible the Propensity Witness' testimony about Costa's

14 conduct toward her that was alleged to have occurred after the charged conduct. The trial court abused its discretion in admitting it as propensity evidence under the constitutional provision. Having found error in the trial court's admission of the propensity testimony pursuant to the constitutional amendment, we must determine whether the error warrants reversal in regard to Counts II, IV, and V. "[E]rror alone will not justify reversal." State v. Emery, 701 S.W.3d 585, 601 (Mo. banc 2024) (citation modified). We review "for prejudice, not mere error." State v. Pilkington, 726 S.W.3d 46, 52 (Mo.App. S.D. 2025) (quoting State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016)). When a trial court erroneously admits evidence in a criminal case, "the test for prejudice is whether the error was outcome-determinative." Id. (quoting State v. Matlock, 717 S.W.3d 277, 283 (Mo. App. E.D. 2025)). Outcome-determinative prejudice occurs when "erroneously admitted evidence so influenced the jury that, when considered with and balanced against all evidence properly admitted, there is a reasonable probability that the jury would have acquitted but for the erroneously admitted evidence." Id. (quoting Matlock, 717 S.W.3d at 283). To continue our analysis, we must parse Propensity Witness' testimony into two parts. First, Propensity Witness testified as a fact witness about her observations of Victim's behavior on the evening of one of Costa's alleged attacks on Victim. Specifically, Propensity Witness testified that one night she awoke after Victim climbed into Propensity Witness' bed and shook her. Propensity Witness described Victim as looking "like she just ran a 10k[;] she had a lot of adrenaline," and "[s]he was freaked

15 out." This testimony was not propensity evidence and Costa raised no other objection to its admission. It was properly admitted as corroborating, non-hearsay, factual testimony. Propensity Witness also testified about Costa kissing Propensity Witness and touching her genitals after the charged conduct allegedly occurred. This testimony was offered as propensity evidence. Since art. I, § 18(c) does not provide an exception in this case, this testimony falls under the common law exclusionary rule generally barring testimony offered for the purpose of demonstrating a propensity to commit the crime charged. See Emery, 701 S.W.3d at 604. Having determined that the trial court erred by allowing this testimony, we must examine the record to determine whether the verdict would have been different without it – in other words, was the erroneous admission of this testimony outcome determinative? Pilkington, 726 S.W.3d at 52. It was not. We cannot say, when considered with and balanced against the properly admitted evidence— that being Victim's testimony and Propensity Witness' admissible factual testimony corroborating Victim's testimony—there is a reasonable probability that the jury would have acquitted Costa on Counts II, IV, and V but for the erroneously admitted evidence. See id. Stated conversely, the evidence in the case, even without Propensity Witness' erroneously admitted testimony, was sufficient for the finder of fact to find Costa guilty on these counts. Thus, the trial court's error in admitting the propensity evidence was not outcome determinative, and reversal of Counts II, IV, and V on Point III is unwarranted. See id. Point III is denied.

16 Conclusion Costa's convictions for first-degree statutory sodomy on Counts I and III are reversed and the trial court is directed to enter a judgment of acquittal on those counts. The judgment and remaining convictions are affirmed in all other respects. JACK A. L. GOODMAN, J. – OPINION AUTHOR JEFFREY W. BATES, J. – CONCURS JENNIFER R. GROWCOCK, C.J. – CONCURS