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State v. Ragland

Court of Appeals of Missouri, Eastern District, Fourth Division

July 26, 2016

STATE OF MISSOURI, Respondent,
v.
JACOB RAGLAND, Appellant.

         Appeal from the Circuit Court of the City of St. Louis Honorable John J. Riley

          KURT S. ODENWALD, JUDGE

         Introduction

         Appellant Jacob Ragland ("Ragland") appeals from the judgment of the trial court entered upon a jury verdict convicting Ragland of six counts of first-degree statutory sodomy, three counts of first-degree child molestation, and two counts of use of a child in a sexual performance for acts committed against J.J. and J.F., both minor children. Ragland was acquitted of five other counts pertaining to a third minor child, SJ. On appeal, Ragland contends that the trial court (1) erred in admitting evidence of J.F.'s out-of-court statements under Section 491.075; (2) erred in admitting evidence of J.J.'s out-of-court statements under Section 491.075; (3) abused its discretion in sending State's Exhibits 7, 9, and 11-videos of J.F., J.J., and S.J.'s Children's Advocacy Center ("CAC") interviews-to the jury during deliberations without supervision or limiting instructions; (4) clearly erred in overruling Ragland's motion for judgment of acquittal with respect to the two counts of use of a child in a sexual performance because the State failed to provide sufficient evidence that Ragland "watched" the performance; and (5) abused its discretion in refusing to allow the jury to take notes during the trial.

         Because the time, content, and circumstances of J.F.'s and JJ.'s out-of-court statements provided sufficient indicia of reliability, the trial court did not abuse its discretion in admitting these statements at trial under Section 491.075. Because the CAC interview videos to which Ragland objects were not testimonial in nature, the trial court did not plainly err in allowing the jury access to the videos during deliberation. Because the State presented sufficient evidence supporting Ragland's conviction on two counts of use of a child in a sexual performance, the trial court did not clearly err in overruling Ragland's motion for judgment of acquittal at the close of all of the evidence. Finally, trial court did not abuse its discretion by prohibiting note-taking by jurors when the request was made after the first prosecution witness had already testified. Accordingly, we affirm the judgment of the trial court.

         Factual and Procedural History

         Ragland was charged with six counts of fust-degree statutory sodomy, three counts of first-degree child molestation, and two counts of use of a child in a sexual performance for acts committed against J J. and J.F. Ragland was charged with five other counts pertaining to S.J.

         On March 23, 2014, the State filed its Notice of Intention to Use Statements pursuant to Section 491.075.3-specifically, out-of-court statements made by J.F. and J.J.[1] The State sought to use statements made by J.F. to his aunt, Carmen Jackson ("Carmen"), his mother, Jasmine Kidd ("Jasmine"), [2] and Connilee Christie ("Christie") of the CAC. The State also gave notice of its intent to use statements made by J J. to his mother, Carmen, and to Pamela Musgrave ("Musgrave") of the CAC. The trial court held a Section 491 hearing ("491 Hearing") on September 22 and 23, 2014.

         I. 491 Hearing

         A. Jasmine's Testimony

         Jasmine's testimony at the 491 Hearing consisted of the following facts. Jasmine testified that Carmen told her J.F. had said something while playing video games that led Carmen to believe Ragland may have touched J.F. inappropriately. At that point, Jasmine and Carmen began questioning J.F. about what happened; Ragland and Jasmine's boyfriend, Marcus Dukes ("Marcus"), were present in the room. Jasmine asked J.F., "did it happen?" and he said "no." Marcus then took J.F. on a walk by himself. When Marcus and J.F. returned, Marcus told Jasmine that she should keep talking to J.F. to uncover the truth, because J.F. made a comment to Marcus that "the first time it happened was at Little Dan's house."[3]

         Jasmine continued to question J.F., again with all four adults present. Jasmine specifically asked J.F. if Ragland had touched him, not if anyone generally had touched him. Jasmine stated that she and the other adults questioned J.F. for thirty minutes. Jasmine asked J.F. if he told Carmen "that [Ragland] had been messing with [him], " and he said "yes." J.F. had a look on his face like he might be lying or scared, so Jasmine had him take off his clothes. Jasmine stated that J.F. answered "yes" prior to taking his clothes off, and that the purpose of having J.F. take off his clothes was to "get the truth out of him, " to "get to the bottom" of things, because J.F. is "scared of whoopings." After telling J.F. to take off his clothes, Jasmine told him "that if he was lying he was going to be in trouble, " and that "[i]f he was not lying that he just needed to keep letting us know, keep telling us the whole story and let us know what happened." Jasmine denied that she threatened to beat J.F. at any point, but stated that she was holding a belt.

         Jasmine testified that she said the following to J.F.: "If you're lying then you're going to get in trouble, but if you're not lying you're not going to get in trouble, and I'm not going to whoop you, but I need to know the truth, because I don't... want to say that this man did something to ... you and he gets in trouble if he didn't do nothing to you." J.F. then began crying and starting to "tell the story, " stating that "[Ragland] made [J.J.] suck on him while they was in the house" on Saloma while Jasmine and Marcus were gone. J.F. pointed to his penis to indicate where Ragland made J.J. suck on him.

         Finally, Jasmine testified that she had a private conversation with J.F. later that same night. J.F. told Jasmine and Marcus that Ragland made J.J. "do the sucking on his private area thing" twice at the house on Saloma. J.F. also told Jasmine and Marcus that Ragland made J.F. and J.J. play a game in the basement of Little Dan's house while everyone else was sleeping, in which Ragland made J.J. touch J.F.'s penis.

         B. Carmen's Testimony

         Carmen's testimony at the 491 Hearing consisted of the following facts. She and J.F. were playing video games when J.F. made a comment about "sucking" at the game, followed by "something in reference to [Ragland] and him sucking."[4] Carmen then asked J.F. if Ragland had touched him; J.F. initially said "no" and then "a few seconds later" put his head down and said "yes." Carmen responded by asking where Ragland had touched J.F., who responded that Ragland had touched him "where he's not supposed to."

         Carmen confirmed that Jasmine questioned J.F. while both she and Ragland were present. Carmen also testified that, after forty-five minutes to one hour of denying that Ragland touched him, J.F. told Jasmine that Ragland had touched him. Carmen stated that Jasmine did not make J.F. take off his clothes, but that Jasmine did "get out a belt." When Jasmine got the belt out, J.F. "kept saying 'Yes, it happened and then no, it didn't happen.'" Carmen testified that Jasmine told J.F. that if he said Ragland did not touch him, and she found out he was lying, "she was going to beat him until he bled."

         Carmen also spoke with her own children, including J.J., after J.F.'s disclosure. Carmen's children told her Ragland had never touched them. However, Carmen later had an individual conversation with J.J. after Ragland was in jail; Carmen asked J.J. if Ragland had ever touched him in a place where he is not supposed to be touched. J.J. responded that Ragland did, stating that Ragland "was sucking on him in his genital areas and had [J.J.] sucking on [Ragland]."

         Finally, Carmen testified that at some point, she learned that S.J. had offered to pay J.J. money to tell the CAC interviewer that Ragland had touched him, although S.J. never actually paid J.J. J.J. later claimed to have told the CAC interviewer that Ragland touched him "because [S.J.] said she was going to pay me to say that."

         C. CAC Interview Evidence

         Musgrave testified that she conducted a CAC interview of J. J., who was nine years old at the time. Musgrave stated that J.J. understood her questions and was able to provide answers. The interview was videotaped and admitted into evidence at the 491 Hearing.

         Christie testified that she conducted a CAC interview of J.F., who was seven years old at the time. Christie stated that J.F. was able to provide answers to her questions but sometimes seemed confused, so she rephrased some questions. Christie had to rephrase her questions more frequently than normal for a seven-year-old, but stated that she was able to do so in a way that was not leading, Christie also testified that when J.F, mentioned his "wee-wee, " she asked him if anyone had ever touched his wee-wee; he responded that Ragland had. Christie stated that in her professional opinion, she would not consider her question to be a leading question. The interview was videotaped and admitted into evidence at the 491 Hearing.

         D. Trial Court's Ruling

         The trial court found that J.F.'s statements to Carmen and Jasmine were sufficiently reliable given the totality of the circumstances, and thus, admissible. The trial court found that J.F.'s statements demonstrated knowledge of subject matter unexpected of a child his age. The trial court also reasoned that Jasmine's behavior, "in a strange kind of way, " did not provide J.F. with a motive to fabricate his statements; instead, Jasmine was insisting that J.F. tell the truth. In support of this conclusion, the trial court found it important that Jasmine did not tell J.F. what to say or pressure him to give her a specific answer, but rather, simply sought whatever the truth was:

But she's not saying-you're saying no, no, no ... she doesn't say if you don't tell me yes I'm going to give you a whooping. She says, "If you tell me-if what you tell me is a lie and I later find out it's a lie then I'm going to give you a whooping, " which I think is her way of saying you should tell the truth.

         Finally, the trial court reasoned that Ragland's presence in the room increased the reliability of J.F.s statements that Ragland had abused him.

         The trial court found that JJ.'s statements to Carmen were admissible, reasoning that the totality of the circumstances demonstrated sufficient reliability. The trial court noted that many of the issues raised by counsel for Ragland at the 491 Hearing could properly be brought up on cross-examination at trial.

         The trial court watched the taped CAC interviews and, based on the content of the interviews and the testimony of Musgrave and Christie, found that the "time, content and circumstances" of J.J. and J.F.'s statements in the CAC interviews provided "sufficient indicia of reliability" to be admissible under Section 491.075.

         II. Trial

         The case proceeded to a jury trial in January, 2015. J.J., J.F., S.J., Musgrave, Christie, Jasmine, Carmen, Marcus, and Ragland all testified at trial. The CAC interview videos for J.J., J.F., and S.J. were each admitted into evidence and played for the jury. The testimony given by Jasmine, Carmen, Musgrave, and Christie largely mirrored their testimony at the 491 Hearing. The following evidence was also adduced at trial based on J.J. and J.F.'s testimony and the CAC interview videos:

J.F. stated that Ragland sucked J.F.'s penis with his mouth, put his penis in J.F.'s mouth, and "humped" or rubbed J.F.'s anus with his penis. J.F. used anatomical dolls in his CAC interview to demonstrate this "humping" and "sucking." J.F. also stated that Ragland made J.J. and J.F. suck each other's penises. J.F. said that Ragland showed J.J. "how to do it" and told J.J. to "hump" J.F. and to "suck it;" that Ragland made J.F. suck J.J.; and that Ragland made J.J. suck J.F. J.F. also stated that something came out of Ragland's "wee-wee" and that it was "white stuff."
J.J. stated that Ragland made J.J. put his hand on Ragland's penis, rubbed his penis between J.J.'s legs, "humped" J.J., placed his hand on J.J.'s penis, and placed his mouth on J.J.'s penis, and made J.J. suck his "privacy." J.J. said that something "white, " "gooey, " and "slimy" came out of Ragland's "hot dog." J.J. also stated that Ragland told him he would kill his mother and sisters if he told anyone.

         After the testimony of the first prosecution witness had concluded, defense counsel requested that the jury be allowed to take notes during trial. The State objected to defense counsel's request because the trial had already begun and extensive testimony had already been heard by the jury without the benefit of taking notes. The trial court denied defense counsel's request, noting its concern "that the first Witness's testimony might not be given equal weight with the testimony [the jury] would hear if they had the notepads."

         Ragland made a motion for judgment of acquittal at close of all the evidence. The trial court denied the motion and the case was submitted to the jury for deliberations.

         During its deliberations, the jury requested various items of evidence, including State's Exhibits 7, 9, and 11, the videotaped CAC interviews of J.F., J.J., and S.J. Defense counsel objected to the videos being given to the jury and stated the following rationale:

Yes, Judge, especially in a case like this where it was five days long, 16 Counts, the Jurors couldn't take notes. I'm worried that, if their memory fails them as to what was said in court, that, watching the Video again: That the Video would have unfairly strong influence on their verdict in that scenario, and I object based on my client's rights to due process and a fair Trial; U.S. ...

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