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State v. White

Court of Appeals of Missouri, Eastern District, Second Division

May 19, 2015

LARRY WHITE, Appellant

Page 683

Appeal from the St. Louis County Circuit Court. Honorable Tommy W. Depriest, Jr.

FOR APPELLANT: Douglas A. Forsyth, St. Louis Missouri; Kathryn B. Parish, Sindel, Sindel, & Noble, Clayton, Missouri.

FOR RESPONDENT: Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, Missouri.

Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.


Page 684

Philip M. Hess, Judge


Larry White (Defendant) appeals the trial court's judgment, entered after a jury trial, finding him guilty of two counts of first-degree statutory rape, six counts of first-degree statutory sodomy, and one count of incest. On appeal, Defendant claims the trial court erred by admitting the victim's hearsay statements, allowing the police detective to testify about whether Defendant committed a crime, and overruling Defendant's motion for judgment of acquittal. We affirm.

Factual Background

Defendant was J.R.'s stepfather. The two had a close relationship, and J.R. viewed Defendant as her father. During the time that Defendant and J.R.'s mother (" Mother" ) were married, J.R. and Mother lived with Defendant and his other children. Following the couple's separation, J.R. still visited Defendant and her stepsisters often. On August 28, 2010, J.R., then age 10, went to spend the night at Defendant's house. The next day, back at Mother's house, Mother found J.R. crying

Page 685

in the bathroom. Mother asked J.R. what was wrong, and J.R. said nothing. Mother asked J.R. if anyone had touched her, and J.R. first said no, but then told Mother that Defendant had touched her, and specifically that Defendant had " licked [her] vagina." Nine days later, Mother reported the abuse to police.

St. Louis County Police Department Detective Angela Candler Bruno interviewed J.R. When Detective Bruno asked J.R. if anyone had touched her, J.R. started crying. J.R. told Detective Bruno that on August 28, Defendant woke her up, removed her pants, pulled down her underwear, and started licking her vagina, " inserted his private part into her behind," and inserted his penis into her vagina. J.R. said that the abuse had happened more than once and it had started several years prior. After the interview, Detective Bruno referred the case to the Child Advocacy Center (CAC).

At the CAC, Beverly Tucker interviewed J.R and the interview was videotaped. J.R. told Tucker that she was raped by her stepfather. J.R. told Tucker about the same acts of abuse that she told Detective Bruno -- that Defendant had licked her vagina and inserted his penis into her behind and vagina. She also disclosed to Tucker that Defendant had inserted his penis into her mouth and made her touch his penis with her hand. Again, J.R. stated that these incidents had happened more than once and that they had occurred both in the bedroom and on the couch.

Dr. Steven Laffey, an emergency room physician at Cardinal Glennon Children's Hospital, performed a medical examination of J.R. Dr. Laffey reported that the medical examination showed no signs of physical trauma. However, Dr. Laffey also testified that a normal examination may still be consistent with sexual abuse.

The State charged Defendant with two counts of first-degree statutory rape[1], six counts of first-degree statutory sodomy[2], and one count of incest[3]. The case went to trial in March 2014. The State presented the testimony of J.R., Detective Bruno, Dr. Laffey, Beverly Tucker from the CAC, and Tucker's videotaped interview with J.R. Defendant presented the testimony of his two daughters. The jury found Defendant guilty on all counts and he was sentenced to 25 years' imprisonment on each of the statutory rape and sodomy charges and four years' imprisonment on the incest charge, with all sentences to run concurrently. Defendant appeals.


Point I: J.R.'s Hearsay Statements

In his first point, Defendant argues that the trial court erred in allowing Detective Bruno and Beverly Tucker to testify about J.R.'s out-of-court statements because it improperly bolstered J.R.'s testimony at trial. In response, the State asserts that neither witness's testimony improperly bolstered J.R.'s testimony, but rather had independent probative value.

Standard of Review

Defendant contends that this issue is subject de novo review because it involves

Page 686

statutory interpretation. At trial, defense counsel objected to any hearsay evidence admitted under § 491.075 RSMo (Supp. 2012). Defense counsel argued that the statute was " an unconstitutional abrogation of the hearsay rule," and requested that his objection " run as to all witnesses." The trial court overruled the objection. In Defendant's motion for new trial, Defendant simply argued that, " the [c]ourt erred in permitting evidence of prior out of court statements of [J.R.] to be introduced into evidence." On appeal, however, Defendant argues a different theory -- the hearsay statements admitted pursuant to § 491.075 were " wholly duplicative" and improperly bolstered other evidence presented at trial. In order for an objection to be preserved for review, " the objection must be specific, and the point raised on appeal must be based upon the same theory." State v. Knese, 985 S.W.2d 759, 766 (Mo. banc 1999) (internal citations omitted). Because Defendant's argument on appeal is not based upon the same theory as his objection at trial, Defendant's Point I is not properly preserved and is therefore subject only to plain error review.

Rule 30.20 authorizes us to review, in our discretion, plain errors affecting substantial rights if failing to grant relief would result in the miscarriage of justice or manifest injustice. State v. Whitaker, 405 S.W.3d 554, 558-59 (Mo. App. E.D. 2013). Defendant has not requested plain error review on this point, and therefore, it is within our discretion to decline to exercise plain error review. Id. We choose to determine whether plain error review is appropriate in this case. Id.

First, we must determine whether the claim establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). Errors are plain if they are evident, obvious and clear. State v. Reeder, 182 S.W.3d 569, 574 (Mo. App. E.D. 2005). We will only grant relief under the plain error standard if we find that the error substantially affected the defendant's rights such that a manifest injustice or a miscarriage of justice would result if the error is left uncorrected. Id. Plain error can only serve as the basis for granting a new trial if the error was outcome determinative. Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002).


Defendant maintains that his rights to a fair trial and due process of law were violated when the trial court allowed Detective Bruno and Beverly Tucker to testify about J.R.'s out-of-court statements about her abuse. Defendant argues that Detective Bruno and Tucker's testimonies were " totally duplicative" of J.R.'s testimony at trial and J.R.'s videotaped interview at the CAC.

Under § 491.075.1(2)(a), an out-of-court statement made by a child under the age of fourteen relating to an offense under Chapter 566 that would otherwise be inadmissible as hearsay " is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if ... [t]he child ... testifies at the proceedings." Defendant argues that evidence should not be admitted under § 491.075 if it is duplicative of the child's testimony at the proceeding. At the core of Defendant's argument is that the Missouri legislature amended § 492.304[4] after the Missouri Supreme Court ruled that the admission of a recording of a child

Page 687

victim's interview at the CAC was reversible error because the victim had testified to the same information at trial. See State v. Seever, 733 S.W.2d 438 (Mo. banc 1987). Post- Seever, the Missouri legislature amended § 492.304 to include subsection 3, which states that a recording of a child's statements is admissible even if it duplicates the child's testimony at trial. Defendant argues that if the legislature wanted § 491.075 to allow for hearsay statements duplicative of the child's testimony at trial to be admissible, it would have amended the statute accordingly. However, because the statute was not amended, duplicative testimony is not admissible under § 491.075. The State contends that Detective Bruno and Tucker's testimonies did not improperly bolster J.R.'s testimony at trial because the testimony was not offered to " wholly duplicate" J.R.'s testimony. In support of its argument, the State cites State v. Silvey, 894 S.W.2d 662 (Mo. banc 1995). In Silvey, the defendant, relying on Seever, argued that the trial court erred in admitting the victim's out-of-court statements to various witnesses because the statements improperly bolstered the victim's trial testimony. Id. at 672. However, the court found that Seever was inapplicable because the statements were not duplicative and that " the statements, even taken together, did not repeat [the victim's] testimony to the extent that it had the effect of allowing [the victim] to testify twice." Id.

In this case, Detective Bruno's testimony, including her recollection of what J.R. told her in her interview, was not admitted simply to rehash J.R.'s prior testimony at trial. Detective Bruno established the procedures and purpose of the police department's investigatory interview, as well as J.R.'s behavior and emotional reactions during her interview. Beverly Tucker's testimony also included her recollection of her interview with J.R., and established the process and procedures by which children are interviewed at the CAC. Most importantly, the witnesses' testimony served to highlight the various consistencies and changes in J.R.'s statements through time. As a result, each witness's testimony had a value apart from duplicating J.R.'s trial testimony. See State v. Biggs, 333 S.W.3d 472, 478-79 (Mo. banc 2011) ( " A witness's testimony as to his or her own recollection of the child's statements as well as the circumstances surrounding the making of that statement necessarily will be different than that of an alternative witness" ); see also State v. Redman, 916 S.W.2d 787, 792 (Mo. banc 1996) (" Each witness ...

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