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State v. Ellis

Court of Appeals of Missouri, Western District, First Division

December 27, 2016

STATE OF MISSOURI, Respondent,
v.
MARION CLYDE ELLIS, Appellant.

         Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Patrick K. Robb, Judge.

          Before: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge.

          Cynthia L. Martin, Judge.

         Marion Clyde Ellis ("Ellis") appeals his convictions of statutory sodomy in the first degree pursuant to section 566.062 and of the class B felony of child molestation in the first degree pursuant to section 566.067. Ellis argues that the trial court erred in refusing to admit his entire statement to the police after the State admitted an edited version of his statement; in admitting expert testimony that Ellis claims improperly commented on his alleged victim's credibility; and in refusing to order the release of certain school counseling and medical records during discovery which could have been relevant on the issue of credibility. Finding no error, we affirm.

         Factual and Procedural Background

         Ellis does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the convictions, [1] the evidence at trial established the following:

         M.H. ("Mother") had two daughters, V.W. (born in 2003) and M.W. (born in 2005). Mother met Ellis shortly after M.W. was born. Mother and Ellis married in 2008. While married, Ellis was very involved in caring for V.W. and M.W.

         Mother and Ellis divorced in 2011. After the divorce, V.W. and M.W. occasionally spent time with Ellis, including overnight visits. During the 2013 school year, V.W. and M.H. spent weekends with Ellis on a regular basis. V.W. was beginning the fifth grade. Mother told Ellis that the girls needed to take showers if they were spending the weekend with him.

         On February 26, 2014, V.W., who was then ten years of age, told friends at school that Ellis had been touching her inappropriately. The friends told Robert Miller ("Miller") that V.W. claimed she had been raped. Miller spoke privately with V.W. who reported "I don't like staying over there. He keeps touching me and I don't like it." V.W. told Miller she was referring to her "stepdad." Miller reported the conversation to his supervisor. The school nurse, Jennifer Smith ("Smith"), and the acting principal, Amanda Saxton ("Saxton"), were told of V.W.'s reports.

         Smith and Saxton met with V.W. V.W. reported that Ellis touched her private areas, got in the shower with her, and made her rub back and forth on him. V.W. also mentioned an incident that occurred on the couch, and reported that when she laid on the floor at night, Ellis would remove her bra and underwear and push her up against him. V.W. claimed that Ellis's conduct had been ongoing since she was five years old. V.W. said she had never told Mother because she was afraid Ellis would beat her up. The Division of Family Services ("Division") was contacted.

         Division employees Taylor Goodson Beard ("Beard") and Brett Spitzer ("Spitzer") came to the school to meet with V.W. V.W. appeared nervous and asked Spitzer to leave the room. V.W. told Beard that two weeks earlier, Ellis got into the shower with her and made her touch his private area. V.W. claimed this had happened more than once.

         Detective Quentin Abbott ("Det. Abbott") of the St. Joseph Police Department's family crimes unit received the report about V.W.'s allegations and set up an interview with V.W. at the Children's Advocacy Center. V.W. told Det. Abbott that Ellis had touched her on her private parts and on her chest with his hands under her clothes while she was trying to sleep in the living room. V.W. said that three weekends prior, Ellis came into the shower with her and rubbed her chest and the inside of her private parts with his hands. V.W. said that one week prior, Ellis laid down next to her on the floor as she tried to sleep and pulled her close and tried to put his hands on her chest, but she moved his hands to her belly. V.W. claimed that Ellis's conduct began when she was five, and that Ellis told her to never tell Mother.

         Ellis met voluntarily with Det. Abbott at the police station on April 4, 2014. His interview was videotaped, and lasted approximately one hour and twenty-one minutes. The jury, however, heard only fifty-eight minutes of Ellis's interview. In the edited videotaped interview, Ellis reported that during the period of time between August 2013 and late February 2014, Ellis would see that the girls were bathed if they stayed at his house. Ellis reported that the girls often came to his home filthy, and that they loved to take baths or showers at his house. Ellis reported that the girls had not been taught how to bathe themselves properly, and that he tried to educate them how to do so using a sponge and soap. Ellis said that on one occasion while teaching V.W. how to bathe herself properly, he brushed against her vaginal area, and apologized. Ellis reported that he always washed the girls' hair whenever they took a bath or a shower at his house, and would do so by reaching in from outside the bathtub. Ellis reported that on two or three occasions (with the last being before Christmas in 2013), V.W. had walked into the bathroom while he was showering and had gotten into the shower with him. On these occasions, Ellis was concerned, but did not want to over-react in front of V.W., so he would get out of the shower and dry off, and let V.W. continue with her shower. Ellis also reported that the girls would sometimes run through his house undressed or only partially dressed. Ellis claimed that he spoke with Mother regarding his concerns about the girls' showing up at his house filthy, their lack of modesty, and about V.W. getting into the shower with him.[2]

         In the edited version of the interview played for the jury, Ellis told Det. Abbott that he did not understand how V.W. turned something normal like helping the girls take baths into something sexual. Ellis expressed sorrow that he had not appreciated that V.W. was no longer a little child, but was instead a big child that he should have handled differently with respect to bathing. Ellis denied any inappropriate contact with V.W.

         Mother set up counseling for V.W. at the Children's Advocacy Center with Susan Drake ("Drake"). V.W. told Drake that Ellis touched her vagina with his hands and that it hurt, and that this had happened more than once. V.W. said that when she was showering, Ellis would come into the bathroom and turn off the light before getting into the shower with her, and that he would wash her with a washcloth and touch her private parts.

         Ellis was charged with first degree statutory sodomy based upon his touching of V.W.'s genitals with his hand in the living room (Count I); first degree statutory sodomy based upon his touching of V.W.'s genitals with his hand in the shower (Count II); and the class B felony of child molestation based upon his touching of V.W.'s breasts with his hand in the shower (Count III); with all conduct alleged to have occurred between August 1, 2013 and February 27, 2014.

         Before Ellis's trial, the State filed a motion in limine generally seeking to exclude any reference to denials of wrongdoing by Ellis. In addressing the motion in limine, Ellis's counsel argued that if the State intended to introduce any portion of Ellis's videotaped interview into evidence, Ellis would insist on the entire recording being admitted into evidence, including denials of wrongdoing by Ellis. The State advised that it had no intention of playing Ellis's videotaped interview at trial. However, the State argued that Ellis's admissions during the interview about being in the shower with V.W. and about touching V.W., albeit for the purpose of bathing, were inconsistent with Ellis's earlier statements to a Division employee. The trial court stated that Ellis's inconsistent statements would be admissible at trial, but that if the State used the videotaped interview to establish the inconsistent statements, Ellis would be allowed to admit the entire interview into evidence.[3]

         At trial, the trial court revisited the subject of admission of the videotaped interview following voir dire and off-the-record discussions with counsel. The trial court explained that it had reviewed the entire videotaped interview "to deal with the objections from the State regarding the [interview]."[4] [Tr. 409] The trial court expressed its belief that "it would be better for the jury to actually see what the defendant stated and the circumstances surrounding his statement regarding relevant matters as opposed to Detective Abbott testifying to that." [Tr. 409] However, the trial court stated "there is [sic] a lot of objectionable statements made by the defendant that don't need to be testified to, are not relevant, and so should be excluded." [Tr. 410] The trial court thus granted all but one portion of the State's specific objections to segments of the interview, and ruled that an edited version of the videotaped interview could be admitted into evidence by the State. Specifically, the trial court directed that the videotaped interview should begin at 10:19:20, [5] stop at 10:41:40, start again at 10:43:56, stop at 11:06:22, start again at 11:07:20, and play out to its conclusion. The effect of the trial court's order was to tailor the portion of Ellis's interview which the jury was permitted to see from one hour and twenty-one minutes to fifty-eight minutes.

         During this same discussion, the trial court acknowledged Ellis's request to admit the entire videotaped interview into evidence. Ellis's counsel argued that the rule of completeness requires a defendant's entire statement to be admitted once the State introduces a part of the statement, even if the remaining portions of the statement are self-serving. The trial court held that the rule of completeness did not apply because Ellis's statement was not a confession, and because the excluded portions of the videotaped interview were "irrelevant" because they did not "add context to the relevant statement that is admissible." [Tr. 415-16] Ellis's counsel made an offer of proof of the unedited videotaped interview.[6] Ellis repeated his request to admit the entire videotape later during trial, after Det. Abbott testified in the State's case-in-chief, and laid foundation for the videotaped interview. The trial court again denied Ellis's request.

         The jury acquitted Ellis on Count I involving the alleged conduct in the living room, but found Ellis guilty on Counts II and III involving the alleged conduct in the shower. Ellis was sentenced to fifteen years' imprisonment on Count II and five years' imprisonment on Count III, with the sentences to run concurrently.

         Ellis filed this timely appeal. Additional facts relevant to the issues on appeal are addressed as necessary.

         Analysis

         Ellis raises three points on appeal. In his first point, Ellis claims that it was error to exclude the unedited version of his videotaped interview from evidence pursuant to the rule of completeness. In his second point, Ellis claims that it was error to admit certain testimony from expert witness Joyce Estes that commented on V.W.'s credibility. In his third point, Ellis argues that the trial court erroneously deprived him of discovery of school counseling and medical records which could have been relevant on the issue of V.W.'s credibility. We address the points in turn.

         Point One

         Ellis complains in his first point on appeal that the trial court violated the rule of completeness when it overruled his request to admit the whole of his videotaped interview into evidence after the State was permitted to admit portions of the interview. Ellis argues that he "is entitled to a new trial, in which his whole statement, . . . not only the portion the State wanted the jury to hear, will be presented." [Appellant's Brief, p. 39] (emphasis in original). Ellis preserved this particular claim of error at trial, and by raising the same claim in his motion for new trial.

         Our standard of review in addressing the admission or exclusion of evidence at trial is for abuse of discretion. State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005) ("A trial court has broad discretion to admit or exclude evidence at trial."). "[T]hat discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration." State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006) (quoting State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005)). If an abuse of discretion is found, our role on direct appeal is to review "for prejudice, not mere error, and [we] will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." Id. at 223-24 (quoting State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999)).

         Our review to determine prejudice varies depending upon whether evidentiary error involves the admission or the exclusion of evidence in a criminal trial.

Trial court error in the admission of evidence is prejudicial if the error so influenced the jury that, when considered with and balanced against all of the evidence properly admitted, there is a reasonable probability that the jury would have reached a different conclusion without the error.

State v. Miller, 372 S.W.3d 455, 472 (Mo. banc 2012) (emphasis added) (citing State v. Walkup, 220 S.W.3d 748, 757 (Mo. banc 2007)). However, "the erroneous exclusion of evidence in a criminal case creates a rebuttable presumption of prejudice." Id. (emphasis added) (citing Walkup, 220 S.W.3d at 757). That is because "[a] defendant in a criminal case has a constitutional right to present a complete defense." Id. (citing Walkup, 220 S.W.3d at 757 (citing California v. Trombetta, 467 U.S. 479, 485 (1984))). "The state may rebut this presumption [of prejudice] by proving that the error was harmless beyond a reasonable doubt." Id. (citing Walkup, 220 S.W.3d at 757); see also State v. Schnelle, 398 S.W.3d 37, 45 (Mo. App. W.D. 2013). "In assessing whether the exclusion of evidence was harmless beyond a reasonable doubt, the facts and circumstances of the particular case must be examined, including the nature of the charge, the evidence presented, and the role the excluded evidence would have played in the defense's theory." State v. Sanders, 126 S.W.3d 5, 23 (Mo. App. W.D. 2003) (quoting Felder v. State, 88 S.W.3d 909, 914 (Mo. App. S.D. 2002)). "The exclusion of evidence is harmless beyond a reasonable doubt where the excluded evidence is cumulative of other evidence which was admitted at trial." Schnelle, 398 S.W.3d at 45.

         We therefore examine whether exclusion of Ellis's entire unedited videotaped interview was an abuse of discretion, and if so, whether the State has sustained its burden to rebut the presumption of prejudice by demonstrating that the error was harmless beyond a reasonable doubt. To resolve this issue, we first address the rule of completeness as applied to criminal confessions or admissions.

         A. The rule of completeness as applied to confessions or admissions of a criminal defendant

         "The rule of completeness provides that 'where either party introduces part of an act, occurrence, or transaction, the opposing party is entitled to introduce or inquire into other parts of the whole.'"[7] State v. Jackson, 313 S.W.3d 206, 211 (Mo. App. E.D. 2010) (quoting State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 50 (Mo. banc 2006)). "This rule seeks to ensure that an exhibit is not admitted out of context." Id. (citing State v. Skillicorn, 944 S.W.2d 877, 891 (Mo. banc 1997), overruled on other grounds by Joy v. Morrison, 254 S.W.3d 885 (Mo. banc 2008)).

         The rule of completeness has two attributes. The rule of completeness "only applies when the item sought to be introduced is part of a greater whole." William A. Schroeder, 22 Missouri Practice, Missouri Evidence, section 106:1 (4th ed. 2012). In addition, the rule of completeness only applies where "[t]he parts introduced to complete the whole . . . relate to the same subject matter" as that which has been admitted. Id.

         Though the rule of completeness is simply stated, its application to criminal confessions or admissions introduced in part by the State has been fraught with confusion, particularly with respect to application of the second attribute of the rule. Some cases have suggested a "bright-line" principle of admissibility, such that "[i]f a confession is admitted into evidence, the whole of the confession is in evidence, " as a matter of law. State v. Beatty, 849 S.W.2d 56, 59 (Mo. App. W.D. 1993); see also State v. Quinn, 461 S.W.2d 812, 816 (Mo. 1970) ("There is no question that where part of a confession or admission is introduced by the state, the defendant is entitled to introduce the remainder, even though self-serving . . . ."); State v. Easley, 662 S.W.2d 248, 252 (Mo. banc 1983) (quoting Quinn for the aforesaid proposition); State v. Martin, 28 Mo. 530, 538 (1859) ("A party has a right to insist upon the whole of his statements going before a jury, if any portion of them is offered against him . . . .").

         At the same time, other cases have held that the admissibility of omitted portions of a criminal confession or admission remains subject to determining whether the purpose of the rule of completeness is served, such that omitted portions must relate to the subject matter of the portions the State has introduced. State v. Williams, 448 S.W.2d 865, 868-69 (Mo. 1970) ("Where a witness has been cross-examined as to a part of a conversation [with a defendant] the whole thereof, to the extent that it relates to the same subject matter and concerns the specific matter opened up, may be elicited on redirect examination.") (quotation omitted); State v. Perkins, 92 S.W.2d 634, 638 (Mo. 1936) ("[I]t is . . . well settled that where declarations of the defendant are put in evidence against him he has a right to insist that the whole thereof bearing on the matter under investigation be presented to the jury.") (emphasis added); State v. Sibley, 207 S.W. 806, 808 (Mo. 1918) (holding no error occurred in excluding portion of statement offered by defendant because "[t]he rejected portion of the conversation in no manner explains or modifies that portion of the conversation" which came into evidence); State v. Hodges, 575 S.W.2d 769, 774 (Mo. App. K. C. D. 1978) ("The law . . .recognize[s] the right of a defendant to inquire about and place in evidence all additional parts of a statement which will tend to explain a partial excerpt which has first been introduced by the prosecution. . . . But to come within the reason of this exception, the additional portion which is sought to be introduced must be reasonably related to and explanatory of the portion already admitted.").

         Confusion on this point was resolved in State v. Collier, 892 S.W.2d 686 (Mo. App. W.D. 1994). In Collier, this court acknowledged the seemingly bright-line rule referred to in Quinn and Easley, noting that "when the State introduces part of a confession or admission into evidence, the defendant is authorized to introduce the remaining portion, although it may be self-serving." Id. at 695 (citing Quinn, 461 S.W.2d at 816; Easley, 662 S.W.2d at 252). Collier explained that this general principal of admissibility recognizes that "[a] confession . . . must be used in its entirety so that the person affected thereby may have the benefit of any exculpation that the whole statement may afford." Id. (quoting Beatty, 849 S.W.2d at 59 (quoting State v. Clay, 441 So.2d 1227, 1234 (La.App. 1983))).[8]

         At the same time, Collier recognized that "[t]he purpose of the rule of completeness is to ensure that a statement is not admitted out of context." Id. Thus, the excluded portions of a defendant's confession or admission are not per se admissible, but must instead satisfy a threshold standard of relevance:

[R]elevant exculpatory statements made during a confession are admissible if other portions of the confession are used by the prosecution. "The ancient rule . . . is that the prosecution has no right to introduce selected portions of a defendant's confession and exclude those which tend to mitigate, justify, or excuse the offense charged."

Id. (emphasis added) (quoting Beatty, 849 S.W.2d at 59 (quoting Boggs v. Commonwealth, 331 S.E.2d 407, 419 (Va. 1985))).

         To reconcile the seemingly absolute right to admit the whole of a confession or admission alluded to in Quinn and Easley with the tempering effect on admissibility of the rule of completeness, Collier announced a scenario-specific template for applying the rule of completeness to criminal confessions or admissions admitted in part by the State. Collier held that although the State's introduction of part of a defendant's confession or admission will generally authorize the defendant to introduce the whole of the confession or admission, even if self-serving, the general rule of completeness "is violated only when admission of the statement in an edited form distorts the meaning ...


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