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State v. Nelson

Court of Appeals of Missouri, Southern District, Second Division

July 23, 2015

STATE OF MISSOURI, Plaintiff-Respondent,
v.
ROBERT DAVID NELSON, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY. Honorable John G. Moody, Special Judge.

For Appellant: Andrew E. Zleit, Assistant Public Defender, St. Louis, Missouri.

For Respondent: Chris Koster, Attorney General, and Robert J. Bartholomew, Assistant Attorney General, Jefferson City, Missouri.

OPINION

GARY W. LYNCH, J.

A jury found Robert David Nelson (" Defendant" ) guilty of attempted statutory sodomy in the first degree of C.D., child molestation in the first degree of C.D., sexual misconduct involving a child (C.D.) by indecent exposure, child molestation in the first degree of K.A., sexual misconduct involving a child (K.A.) by indecent exposure, and statutory rape in the first degree of K.A. See sections 566.062, 566.067, 566.083, and 566.032.[1] After he was sentenced on each offense, Defendant appealed, claiming that the trial court erred in failing to timely hold a Faretta[2] hearing, in failing to sua sponte appoint substitute counsel, and in admitting evidence pursuant to section 491.075.[3] 3 Finding no merit in any of Defendant's claims, Defendant's convictions are affirmed.

Factual Background

Defendant does not challenge the sufficiency of the evidence to support his convictions, so we refer only to the evidence necessary to address the issues raised in this appeal. Those facts are set forth in the light most favorable to the verdict. State v. Hampton, 959 S.W.2d 444, 446 (Mo. banc 1997).

The mother of C.D. and K.A. left them with Defendant while she was incarcerated. Defendant is not biologically related to the children. Jessica Tyrell, an investigator with the Children's Division, responded to a hot line call concerning the children's living situation. Because the children made disclosures that Defendant had touched them inappropriately, Tyrell placed the children in a foster home and requested a forensic interview.

Melinda Ingram, a forensic interviewer at Lakes Area Child Advocacy Center, testified that she interviewed C.D. on August 5, 2008. C.D. was seven at the time. Ingram testified that C.D. was comfortable, polite, talkative, and engaging. Ingram did not intend to use leading questions. Ingram also interviewed K.A. on August 5. K.A. was four at the time, and Ingram testified that K.A.'s behavior was age appropriate and not unusual. Both children had a follow-up interview.

Mitzi Huffman, a registered nurse, family nurse practitioner, and sexual assault nurse examiner, conducted C.D.'s second interview on October 6, 2008, following a physical examination. Huffman described C.D. as " relaxed" and " matter of fact" during this interview.

Ingram interviewed K.A. (then five years old) for the second time on October 23, 2008. K.A. told Ingram that her mother was in heaven, but in fact her mother was incarcerated.

In every interview, each child made disclosures that Defendant had committed various sexual acts with them.

Procedural Background

The State originally charged Defendant with eight counts of sexual offenses against three victims. Two counts allegedly occurred in 2005 against a victim unrelated to C.D. and K.A. The remaining six counts, three counts concerning C.D. and three counts concerning K.A., form the subject of this appeal and allegedly occurred in May of 2008. The latter six counts were severed from the earlier offenses. Although represented by a public defender (" Defense Counsel" ), Defendant filed an entry of appearance on March 7, 2011. That same day, the trial judge assigned to the case recused himself on his own motion. The Supreme Court of Missouri ...


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