Court of Appeals of Missouri, Southern District, First Division
APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY. Honorable Kenneth M. Hayden.
Attorney for Appellant - SAMUEL E. BUFFALOE, Columbia, MO.
Attorney for Respondent - GREGORY L. BARNES, Jefferson City, MO.
MARY W. SHEFFIELD, J.
John Scott Cramer (" Defendant" ) appeals from his conviction for one count of first-degree child molestation. See § 566.067. Defendant argues the trial court abused its discretion when it admitted Exhibit 9, which contained swabs used to take DNA samples from Defendant's hands, because there was not a sufficient foundation for that exhibit. We disagree and affirm the trial court's judgment.
Factual and Procedural Background
On October 2, 2010, Defendant and his wife went to spend the night at the home of Defendant's brother, Jason Cramer (" Mr. Cramer" ) in Camden County. Early the next morning, Defendant's wife woke up and saw Defendant coming out of the bedroom used by Mr. Cramer's four-year-old daughter (" Victim" ). Defendant's wife confronted Defendant, and Defendant admitted he had touched Victim.
Defendant was subsequently arrested, and after his arrest, Detective Donald Scott Hines of the Camden County Sheriff's Department collected DNA samples from Defendant's hands using four cotton swabs. DNA found in the crotch of the underwear Victim had worn on the night of the offense was tested, and the results showed that DNA to be consistent with a mixture of Victim's DNA and the DNA on the swabs Detective Hines collected from Defendant's hands. Later, Detective Hines took a buccal swab from Defendant. The DNA analyst at the laboratory used the sample from the buccal swab as a reference standard to develop a DNA profile for Defendant. Testing showed the DNA sample from Defendant's buccal swab was consistent with both the DNA from the previous samples and the DNA found in Victim's underwear.
Defendant was charged with one count of first-degree child molestation. Defendant was tried by a jury on February 3 through February 6, 2014. At trial, the DNA evidence was presented to the jury through several exhibits and the testimony of four witnesses.
First, Detective Hines described taking the DNA samples from Defendant's hands. He stated Exhibit 9 contained what appeared to be the samples he took from Defendant's hands.
Detective Hines next identified Exhibit 10 as the buccal swabs taken from Defendant. Detective Hines stated that after collecting the samples in Exhibit 10 from Defendant, he packaged the buccal swabs and delivered the buccal swabs to the crime laboratory for DNA analysis. The prosecutor then offered Exhibit 9 and Exhibit 10 into evidence.
Defendant objected to the admission of both exhibits based on lack of foundation. Defendant argued there was no testimony explaining how Detective Hines " knew that these items were in fact items that he had taken as far as any identifying marks on the sample specimens." The trial court gave Defendant's attorney an opportunity to voir dire the witness. During that questioning, Detective Hines admitted he did not mark the samples in Exhibit 9 to indicate he was the one who collected the samples or to indicate the swabs were the ones he took from Defendant.
The trial court sustained the objection with respect to Exhibit 9, but indicated he would reconsider the decision if the prosecutor could lay further foundation. The trial court admitted Exhibit 10 over Defendant's objection.
The prosecutor then continued questioning Detective Hines. Detective Hines stated there was " no question" in his mind that the samples in Exhibit 9 were the samples he had taken from Defendant. He further explained that after collecting the Exhibit 9 samples, he took them to the evidence ...