Griffith v. Moore et al

Filing 14

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the petition of Robert Griffith for a writ of habeas corpus [#1] pursuant to 28 U.S.C. Section 2254 is denied. IT IS FURTHER ORDERED that the petitioner has not made a substantial showing of a denial of a constitutional right and this Court will not grant a Certificate of Appealability. A separate judgment in accordance with this Memordanum and Order is entered this same date. Signed by District Judge Catherine D. Perry on August 12, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT J. GRIFFITH,
Petitioner,
vs.
JIM MOORE,
Respondent.

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Case No. 4:11CV1153 CDP

MEMORANDUM AND ORDER
Robert Griffith was convicted by jury in a Missouri state court of one count
of first-degree child molestation.1 He received a sentence of five years
imprisonment, which he has presumably served.2 Griffith challenges his
conviction by bringing a petition for a writ of habeas corpus under 28 U.S.C. §
2254. Griffith claims that his conviction violated due process in two ways: first,
that the Missouri Court of Appeals applied the incorrect standard when reviewing

1

R.S. Mo. § 566.067 (―A person commits the crime of child molestation in the first degree if he
or she subjects another person who is less than fourteen years of age to sexual contact.‖). Sexual
contact is defined as ―any touching of another person with the genitals or any touching of the
genitals or anus of another person, or the breast of a female person, or such touching through the
clothing, for the purpose of arousing or gratifying sexual desire of any person.‖ § 566.010.
2
Griffith was sentenced in October 2008. No party has addressed whether Griffith remains in
custody. However, because he challenges his conviction for a sex crime – which has serious and
continuing collateral consequences – and not merely his sentence, the case is not moot. See
Spencer v. Kemna, 523 U.S. 1, 8 (1988) (noting ―in custody‖ requirement is gauged at the time
petition is filed and presumption exists that conviction results in ―continuing collateral
consequences); Carafas v. LaVallee, 391 U.S. 234, 237–38 (1968) (holding released petitioner‘s
cause not moot where conviction precluded serving as a juror).

the sufficiency of evidence, and second, that there is clear and convincing evidence
that Griffith did not commit the crime. I find that the appellate court applied the
correct standard when reviewing the evidence and further find that a rational trier
of fact could have convicted Griffith on the evidence presented. Griffith‘s petition
for a writ of habeas corpus relief will be denied.
I. PROCEDURAL BACKGROUND
After deliberating from September 19–20, 2008, a jury convicted Robert
Griffith of first-degree child molestation. One month later, he was sentenced to
five years of incarceration with the Missouri Department of Corrections. On
appeal, Griffith raised eight points of error, including juror misconduct,
instructional error, and insufficiency of the evidence. The Court of Appeals for the
Southern District of Missouri affirmed the conviction. State v. Griffith, 312
S.W.3d 413, 427 (Mo. Ct. App. 2010). Griffith was denied both rehearing and
transfer to the Supreme Court of Missouri, and he brought no motion in state court
for post-conviction relief.
II. FACTUAL BACKGROUND AND
APPELLATE COURT’S REVIEW OF EVIDENCE
In 2006, Robert Griffin was employed as a pre-kindergarten school bus
driver in Doniphan, Missouri. One of his passengers included Child, a five-yearold girl who rode the bus home each morning.

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Child‘s father (―Father‖) testified at trial. In September 2006, he began
noticing that the bus, which until then had dropped Child off at regular times,
began sporadically running late. In November 2006, Father saw Child exit the bus
crying. She did not want Father to talk to her bus driver. The next day, she
refused to go to school, which was abnormal. Child told Father that she was tired
of being kissed and did not want to ride the bus. Child later told Father that her
bus driver, ―Bob,‖ had touched her on the ―pee-pee‖ and had made her touch Bob‘s
―pee-pee.‖ Father testified further on the interactions reported to him by Child,
including that she and Bob had gotten ―sexy‖ – meaning that they had taken off
their clothes. Father also recalled other changes in his daughter‘s behavior,
including incidents where she would hit herself in the head, saying ―she had a lot
of bad things in her head.‖ Tr. 361, 364.
When deposed, Child corroborated that she had told her father that Bob had
both touched and kissed her on the ―pee-pee.‖ ECF Doc. 1-19, Dep. Sept. 25, 2007
(―Sept. Dep.‖), at 23–24. Child said that the Bob she was talking about is the Bob
that is her bus driver. Sept. Dep. at 25.
The Court of Appeals set forth some of the evidence supporting conviction:
Early in the case, the State successfully moved to have Child declared
unavailable as a witness . . . . Her video depositions were shown to
the jury at trial and included this testimony:
[State]: Did you ride the bus home when you went to
school in Doniphan?
[Child]: Yes.
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[State]: What was your bus driver‘s name?
[Child]: Bob.
[State]: Did Bob do something to you that you didn‘t
like?
[Child]: Yes.
[State]: What did he do?
[Child]: He touched my pee-pee.
[State]: Do you want a tissue?
[Child]: No.
[State]: Did he do anything else that you remember?
[Child]: (Witness nodded head).
[State]: What else did he do?
[Child]: I don‘t want to tell.
[State]: [Child] can you say that again?
[Child]: I don‘t want to tell.
[State]: [Child], we need you to tell us what he did.
[Child]: Touched my titties.
Defendant acknowledged that he was Child‘s bus driver. Also,
Child‘s father so testified and identified Defendant by pointing at him
in court.
Griffith, 312 S.W.3d at 425–26 (internal citations omitted) (quoting Sept. Dep. at
p. 18–19).
The Court of Appeals rejected Griffith‘s arguments that the evidence was
insufficient to convict and that conflicts in Child‘s testimony required
corroboration under Missouri Law:
The foregoing testimony, even if uncorroborated, ordinarily would
support Defendant‘s conviction. Generally, in sexual offense cases
the victim‘s testimony alone is sufficient to sustain a conviction, even
if uncorroborated.
Defendant acknowledges this general rule, but asserts that
corroboration was needed because:
1.
Child gave several statements, but only once said that her
chest had been touched;
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2.
Child twice identified a photo of someone other than
Defendant as being her bus driver; and
3.
According to Defendant, Child recanted ―nearly every
substantive allegation‖ of abuse, said ―‗I don‘t know‘ at least
95%‖ of the time when questioned on details, and gave details
contrary to undisputed evidence.
We consider these arguments in turn.
The State does not deny that in two forensic interviews, Child did not
say that Defendant touched her chest. The jury viewed these
interviews in their entirety and knew what Child said and did not say.
This was just one factor for the jury to consider in deciding whether it
believed Child‘s testimony that Defendant ―[t]ouched my titties.‖
Defendant argues that at two video depositions, his lawyer showed
Child a man‘s photo (not Defendant) and Child said it was her bus
driver. Later, defense counsel showed Child a photo of Defendant
and she did not recognize him.
Griffith, 312 S.W.3d at 426 (quotation marks and citations omitted). The Court of
Appeals quoted from two depositions during which Child was interrogated on the
identity of her abuser:
From Child‘s questioning by defense counsel at an October 2007
video deposition:
Q.
Let me show you what we‘ve marked as Defendant‘s
Exhibit B. Is that your bus driver?
A.
I—yes.
Q.
Is this the person that you call Bus Driver Bob?
A.
Yes.
Q.
Is this the person that you are saying did something to
you?
A.
Yes.
...
Q.
Let me show you what we have marked Defendant‘s
Exhibit D, [Child]. That‘s a picture. Did that person in that
picture ever drive your bus?
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A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

I don‘t know.
You don‘t know whether Exhibit D drove the bus or not?
I don‘t know.
You think so or you don‘t know?
I don‘t know.
You don‘t think this person did?
Huh-uh. I don‘t know.
But, Exhibit B is the person you call Bus Driver Bob?
Yes.

Exhibit D was a photo of Defendant; Exhibit B was not. Later,
defense counsel again questioned Child at a January 2008 video
deposition:
Q.
Let me hand you what we‘ve marked Exhibit F. And
what about this person: Did he drive your bus?
A.
Yes.
Q.
Did he drive the bus pretty much every day, the person in
Exhibit F?
A.
Yeah.
...
Q.
Did the person that you‘ve says—that you say is bob in
Exhibit F, did he drive the bus while you were on it every day
or was sometimes another driver driving the bus?
A.
He drive the bus all day. And except only one day a
different bus driver drove my bus.
...
Q.
Would you recognize a picture of the bus driver that
drove the bus the one day?
A.
No. I don‘t remember.
Q.
Here‘s Exhibit D as in dog. Is that the person who drove
the bus one day?
A.
I don‘t know.
Exhibit F was the same photo as Exhibit B at the prior deposition.
Exhibit D again was Defendant‘s photo.

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Griffith, 312 S.W.3d at 426 n.10 (quoting ECF Doc. 1-20; 1-18). Ultimately, the
Missouri Court of Appeals found that Child‘s misidentifications did not create
reasonable doubt as to Griffith‘s guilt:
There had to be evidence that Defendant was the perpetrator, but incourt identification was not necessary if the jury reasonably could
infer identity from other evidence. There was such evidence, and a
police officer‘s testimony suggested a reason or contributing factor as
to Child‘s error. Thus, Child‘s mistake was a factor for the jury to
consider, but did not compel an acquittal.
The inconsistencies and discrepancies in Child‘s testimony must relate
directly to an essential element of the case to trigger the corroboration
rule. Notwithstanding inconsistencies on other matters, when Child
was told at deposition that she needed to say what Bob did to her, she
did not say, ―I don‘t know.‖ She said that he ―[t]ouched my titties,‖
and she never recanted that statement. The jury did not need
corroboration to find that Defendant touched Child‘s breasts.
In summary, the prosecution‘s case plainly had weaknesses. After
charging Defendant with nine sex offenses against four children, the
State dropped all but four counts involving Child and another
youngster. Following two days of trial, 18 live witnesses, nine videos
and other evidence, and over eight hours of deliberation spanning two
days, the jury found Defendant not guilty on three counts and guilty
on one.
In reaching these verdicts, the jurors were well versed in the
inconsistencies, contradictions, and credibility issues regarding the
State‘s witnesses generally and Child in particular. They viewed five
separate videos of Child being questioned, examined, and crossexamined—sometimes quite persistently—on five separate occasions.
In each such instance, the jurors could judge Child‘s demeanor, see
how she was questioned, and evaluate the way she responded.3 They
3

The Court of Appeals here noted, ―Having watched three videos of defense counsel questioning
Child, jurors could have concluded that one defense tactic was to provoke Child to say ―I don‘t
know‖ as often as possible.‖ Id. at 427 n.11.

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could weigh all the weaknesses and flaws that defense counsel argued
in summation, and which undoubtedly contributed to the three
acquittals.
Yet other inconsistencies and contradictions aside, Child testified that
Bob, her bus driver, ―[t]ouched my titties‖ and never recanted that
claim. The jury was fully aware of the reasons to disbelieve her, yet
unanimously found Defendant guilty on that charge. Each juror, one
by one, agreed that this was his or her verdict.
Defendant‘s insufficiency arguments in this court are essentially those
that he made to the jury, where in a sense they were 75% successful.
Only by reweighing the same evidence—something we cannot do—
could we take away the single guilty verdict. We do not sit as a
―super‖ juror with veto powers. Grim, 854 S.W.2d at 414; State v.
Jones, 296 S.W.3d 506, 509–10 (Mo. App. 2009). Given this jury‘s
many notes and questions and lengthy deliberations, we are reluctant
to suggest that these citizens acted less responsibly, or took their
obligation less seriously, in finding Defendant guilty of one charge
than in acquitting him on three.
Point VIII, in essence, asks that we look at all these circumstances and
find that the victim‘s testimony was so incredible and untrustworthy
that we should disregard it unless corroborated. That is not our role.
We deny the point and affirm the conviction.
Griffith, 312 S.W.3d at 426–28 (internal quotation marks, citations, and footnote
omitted).
III. DISCUSSION
Griffith raises two grounds for relief. First, Griffith argues that the Missouri
Court of Appeals violated his rights to procedural due process by applying the
incorrect threshold to his challenge of the sufficiency of the evidence. Second,

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Griffith argues that there is clear and convincing evidence opposing any factual
determinations made by the appellate court in upholding his conviction.
III.A. Exhaustion
―A petitioner must present ‗both the factual and legal premises‘ of his claims
to the state courts in order to preserve them for federal habeas review.‖ Kilmartin
v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001) (quoting Flieger v. Delo, 16 F.3d
878, 884 (8th Cir. 1994). The petitioner bears the burden of proving either
exhaustion of state remedies prior to filing the federal petition or the satisfaction of
an exception to the exhaustion requirement. Darr v. Burford, 339 U.S. 200, 218
(1950), overruled on other grounds by Fay v. Noia, 372 U.S. 391 (1963).
Applications for transfer to the Missouri Supreme Court are not part of the
standard review process for purposes of federal habeas corpus review. See
Randolph v. Kemna, 276 F.3d 401, 404 (8th Cir. 2002) (citing Mo. S. Ct. R.
83.04). Griffith challenged the sufficiency of his conviction in the court of
appeals, and he alleged that the appellate court applied the incorrect law in
contravention of United States Supreme Court precedent in his applications for
transfer to the Supreme Court of Missouri. Griffith‘s claims for relief were
exhausted. Cf. Randolph, 276 F.3d at 402–03, 405–06.

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III.B. Merits
Under section (d) of the Antiterrorism and Effective Death Penalty Act of
1996 (―AEDPA‖), 28 U.S.C. § 2254, when a claim has been adjudicated on the
merits in state court, an application for a writ of habeas corpus shall not be granted
unless the state court adjudication:
(1)

(2)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding.

28 U.S.C. § 2254(d).
In Shafer v. Bowersox, the Eighth Circuit articulated the standards for
subsection (1) as follows:
The ―contrary to‖ clause is satisfied if a state court has arrived ―at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law‖ or ―confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent‖ but
arrives at the opposite result. A state court ―unreasonably applies‖
clearly established federal law when it ―identifies the correct
governing legal principle from [the Supreme] Court‘s decisions but
unreasonably applies that principle to the facts of the prisoner‘s case.‖
A case cannot be overturned merely because it incorrectly applies
federal law, for the application must also be ―unreasonable.‖
329 F.3d 637, 646–47 (8th Cir. 2003) (quoting Williams v. Taylor, 529 U.S. 362,
405, 411, 413 (2000)).

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Under subsection (2), ―a state court decision involves ‗an unreasonable
determination of the facts in light of the evidence presented in state court
proceedings,‘ only if it is shown by clear and convincing evidence that the state
court‘s presumptively correct factual findings do not enjoy support in the record.‖
Lomholt v. Iowa, 327 F.3d 748, 752 (8th Cir. 2003) (quoting 28 U.S.C. §
2254(d)(2)) (citing 28 U.S.C. § 2254(e)(1); Boyd v. Minnesota, 274 F.3d 497, 501
n.4 (8th Cir. 2001)).
III.B.1. Ground One
In his first ground for relief, Griffith argues that his rights to procedural due
process were violated because the Missouri Court of Appeals analyzed the
sufficiency of the evidence under the outdated ―no set of facts‖ principle, rather
than the ―beyond a reasonable doubt‖ standard set forth in Jackson v. Virginia.
In reviewing a claim of insufficiency of the evidence, ―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.‖ Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original). ―Once a defendant has been found guilty of the crime
charged, the factfinder‘s role as weigher of the evidence is preserved through a
legal conclusion that upon judicial review all of the evidence is to be considered in
the light most favorable to the prosecution.‖ Id. (emphasis in original). In

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applying this standard, the scope of review is extremely limited. The court must
presume that the trier of fact resolved all conflicting inferences in the record in
favor of the state, and the court must defer to that resolution. Whitehead v.
Dormire, 340 F.3d 532, 536 (8th Cir. 2003).
Before Jackson, the Supreme Court in Thompson stated that in order for a
state court conviction to be overturned in a habeas corpus proceeding, there must
be ―no evidence whatever in the record‖ to support conviction. Thompson v. City
of Louisville, 362 U.S. 199, 206 (1979).
Because a federal court can grant habeas relief only if there was an
unreasonable application of clearly established federal law, this court may grant
relief only if it finds the Missouri appellate court‘s conclusion that the evidence
satisfied the Jackson sufficiency of evidence standard was ―both incorrect and
unreasonable.‖ Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir. 2010) (emphases
added); see Skillicorn v. Luebbers, 475 F.3d 965, 977 (8th Cir. 2007) (recognizing
the scope of review of the state court‘s determination of whether evidence was
sufficient is ―extremely limited‖).
Griffith contends that the Missouri Court of Appeals must have followed the
―no set of facts‖ standard of Thompson, rather than the proper standard set forth in
Jackson. Griffith bases this argument on the court‘s decision to cite State v. Jones,

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296 S.W.3d 506 (Mo. Ct. App. 2009), for the proposition that the court is not a
―‗super‘ juror.‖4
Griffith‘s argument misses the mark. At the outset of its sufficiency
analysis, the Missouri Court of Appeals gauged whether it needed to apply
Missouri‘s ―corroboration rule.‖ It ultimately determined that the case at bar did
not require ―a different quantum of evidence‖ ―from the due process standard for
appellate review and the phrase beyond a reasonable doubt.‖ Griffith, 312 S.W.3d
at 425 (internal quotation marks and alteration marks omitted) (quoting State v.
Grim, 854 S.W.2d 403, 405 (Mo. banc 1993)). The Grim court, in turn,
specifically noted that Missouri courts use the same standard for reviewing the
sufficiency of the evidence established in Jackson. Grim, 854 S.W.2d at 405.
Nothing in the record indicates that the appellate court applied the ―no set of facts‖
standard, rather than the standard articulated in Jackson.
Having determined that the state court used the correct federal law, I must
now look to whether the law was applied unreasonably to the facts. Griffith argues
that because Child‘s testimony was internally inconsistent, her testimony could not
have constituted sufficient evidence for the jury to find him guilty beyond a
reasonable doubt.
4

The Jones court described its application of the standard of review: ―[W]e accept as true all of
the evidence favorable to the state, including all favorable inferences drawn from the evidence,
and disregard all evidence and inference[s] to the contrary.‖ Id. at 509 (emphasis added). It is
the emphasized portion that Griffith alleges constitutes error.

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The court of appeals acknowledged that during her deposition crossexaminations, Child identified the wrong man as her bus driver, ―Bob.‖ However,
the court recognized that Child repeatedly stated that the man who inappropriately
touched her was her bus driver. Father identified the defendant, Robert Griffin, as
Child‘s bus driver, and Griffith admitted at trial that he was Child‘s bus driver.
This is sufficient evidence for a trier of fact to determine that Robert Griffin and
―Bob‖ are the same person.
The court of appeals also noted that Child repeatedly responded, ―I don‘t
know,‖ to many of the questions. However, the court also recognized correctly
that ―when Child was told at deposition that she needed to say what Bob did to her,
she did not say, ‗I don‘t know.‘ She said that he ‗[t]ouched my titties,‘ and never
recanted that statement.‖ Griffith, 312 S.W.3d at 427 (alteration in original).
Griffith argues that the inconsistencies in Child‘s testimony are so
detrimental to the prosecution that there must be reasonable doubts as to his guilt.
But inferences must be made in favor of the prosecution. Whitehead, 340 F.3d at
536. ―It is the exclusive province of the jury to determine the believability of a
witness.‖ U.S. v. Kime, 99 F.3d 870, 884 (8th Cir. 1996); see also U.S. v. Peneaux,
432 F.3d 882, 890 (8th Cir. 2005).5 Based on all the evidence, the Missouri Court

5

The jury was free to conclude that Child‘s misidentification and her repeated mantra of ―I don‘t
know‖ resulted from the suggestive manner in which defense counsel presented the photographs,
from the vagaries of memory, from weariness or stress related to being repeatedly deposed and

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of Appeals found that a jury reasonably could have believed that Robert Griffin
touched Child‘s breasts. This court finds that conclusion neither incorrect nor
unreasonable. Ground one of Griffith‘s § 2254 petition is denied.
III.B.2. Ground Two
Griffith‘s second ground for relief asserts the same facts as ground one but
attempts to preserve the issue for appeal under the clear and convincing evidence
standard. Griffith, though represented by counsel, ―finds it difficult to understand
exactly what there must be shown by ‗clear and convincing evidence.‘‖ Likewise,
this court finds it difficult to understand what argument Griffith presents in his
second ground for relief. At one point, Griffith argues, ―[I]t would seem to be the
State‘s burden to enlighten the court on what the State thought it proved.‖ Doc. 1,
p. 20.
So far as Griffith argues that the appellate court‘s decisions are based upon
unreasonable determinations of the facts, it is his burden to show ―by clear and
convincing evidence that the court‘s presumptively correct factual findings do not
enjoy support in the record.‖ Lomholt, 327 F.3d at 752. Griffith does point to
some facts that he believes should leave me clearly convinced of the insufficiency

cross-examined, or from other causes not readily apparent on appellate review. It should be
noted that Child was five when the events allegedly occurred and that the depositions occurred
roughly a year later. It should also be noted that in the time following Child‘s deposition,
Missouri passed the Child Witness Protection Act, which sets forth standards to ―protect all
parties from the risks of a child becoming confused while testifying in a judicial proceeding.‖
R.S. Mo. § 491.725, 2009 H.B. No. 863.

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of the evidence, including testimony from Child that the molestation occurred
when it was dark, her inability to identify Griffith‘s home from a photograph, and
the fact that Griffith drove the daytime bus. To the extent that Griffith makes any
tenable argument on this point, it echoes the reasons set forth under his first
Ground for relief. Griffith fails to carry his burden, and ground two of his petition
for habeas corpus is denied.
III.C. Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from the final order in a 28 U.S.C. § 2254 proceeding unless a circuit justice or
judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant
such a certificate, the justice or judge must find a substantial showing of the denial
of a federal constitutional right. Id. § 2253(c)(2); see Tiedeman v. Benson, 122
F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are
debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). I find that reasonable jurists could not differ on any of Griffith‘s claims, so
I will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that the petition of Robert Griffith for a writ
of habeas corpus [# 1] pursuant to 28 U.S.C. § 2254 is denied.

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IT IS FURTHER ORDERED that the petitioner has not made a substantial
showing of a denial of a constitutional right and this Court will not grant a
Certificate of Appealability.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 12th day of August, 2014.

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