Court of Appeals of Missouri, Western District, First Division
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.
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.
and Procedural Background
does not challenge the sufficiency of the evidence to support
his convictions. Viewed in the light most favorable to the
convictions,  the evidence at trial established the
("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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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]." [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,  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
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. 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.
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.
filed this timely appeal. Additional facts relevant to the
issues on appeal are addressed as necessary.
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.
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.
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)).
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
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.
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.
The rule of completeness as applied to confessions or
admissions of a criminal defendant
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.'" 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)).
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.
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 . . . .").
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.").
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))).
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
Id. (emphasis added) (quoting Beatty, 849
S.W.2d at 59 (quoting Boggs v. Commonwealth, 331
S.E.2d 407, 419 (Va. 1985))).
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 ...