Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis Honorable
John J. Riley
S. ODENWALD, JUDGE
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.
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.
and Procedural History
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.
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. The State sought
to use statements made by J.F. to his aunt, Carmen Jackson
("Carmen"), his mother, Jasmine Kidd
("Jasmine"),  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.
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."
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.
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.
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
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." 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."
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
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]."
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."
CAC Interview Evidence
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
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.
Trial Court's Ruling
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.
the trial court reasoned that Ragland's presence in the
room increased the reliability of J.F.s statements that
Ragland had abused him.
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
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.
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
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.
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
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.
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. ...