Court of Appeals of Missouri, Southern District, Second Division
Not Final until expiration of the rehearing period. See MO R RCP Rule 84.16 regarding unpublished opinions.
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable Calvin R. Holden, Circuit Judge.
For Appellant: Samuel Buffaloe of Columbia, MO.
For Respondent: Chris Koster (Attorney General), Daniel N. McPherson of Jefferson City, MO.
Nancy Steffen Rahmeyer, J., Opinion Author. Gary W. Lynch, J., Concurs. William W. Francis, Jr., J., Concurs.
Nancy Steffen Rahmeyer,
A jury found Brett Sanders (" Defendant" ) guilty of two counts of statutory sodomy in the first degree of A who was less than twelve, and one count of statutory sodomy in the first degree of B who was less than twelve, two counts of child molestation in the first degree (one of A and one of B), and one count of sexual misconduct by indecent exposure to A. The jury assessed punishment at life on each count of statutory sodomy, ten years on each count of child molestation, and four years on the count of sexual misconduct. The trial court imposed the punishment assessed by the jury. Defendant appeals claiming (1) the trial court " abused its discretion" in admitting A and B's recorded statements under section 491.075 because the " time, content, and circumstances" of A and B's statements " did not provide a sufficient indicia of reliability" in the absence at the section 491.075 hearing of the person who conducted the interviews; and (2) the trial court erred in admitting A and B's recorded statements because the absence at the section 491.075 hearing and at trial of the person who interviewed A and B violated Defendant's constitutional " right to confront" the interviewer. We reject Defendant's claims and affirm the trial court's judgment.
Standard of Review
This Court reviews the trial court's decision regarding the admission of a child's out-of-court statements under section 491.075 for an abuse of discretion. State v. Wadlow, 370 S.W.3d 315, 320 (Mo.App.2012). . . . The trial court abuses its discretion only where the trial court's findings are not supported by substantial evidence in the record, State v. Thompson, 341 S.W.3d 723, 729 (Mo.App.2011), and the decision to admit evidence is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that the decision shocks the sense of justice and indicates a lack of careful, deliberate consideration, State v. Kennedy, 107 S.W.3d 306, 310 (Mo.App.2003). If reasonable persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion. State v. Hawkins, 328 S.W.3d 799, 808 (Mo.App.2010).
The trial court decides whether to admit the victim's out-of-court statements based on the information provided at the 491 hearing. State v. Sprinkle, 122 S.W.3d 652, 661 (Mo.App.2003). Based upon that evidence,
t]o determine the reliability of a child's out-of-court statements for the purposes of section 491.075, Missouri courts look to the totality of the ...