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State v. Lewis

Court of Appeals of Missouri, Southern District, First Division

March 30, 2017

STATE OF MISSOURI, Plaintiff-Respondent,
v.
ARLIE RICHARD LEWIS, JR., Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY Honorable Robert N. Mayer

         AFFIRMED AND REMANDED WITH DIRECTIONS

         A jury found Arlie Richard Lewis, Jr. ("Defendant") guilty of statutory sodomy, three counts of possession of child pornography, and two counts of possession of more than twenty still images of child pornography. See sections 566.062 and 573.037.2(1)(a).[1] The statutory sodomy offense occurred between May 2009 and October 20, 2011.

         In a single point relied on, Defendant claims the trial court abused its discretion in allowing the admission of out-of-court statements made by Defendant's child ("Child"), the victim of the statutory sodomy offense, because (1) the statements were "prompted by suggestive questioning by" Mother; and (2) "the statements lacked spontaneity and consistency."

         Because Defendant's theory on appeal is different from the one presented to the trial court, and no manifest injustice appears, we affirm Defendant's convictions. We remand the matter, however, and direct the trial court to enter an amended judgment of conviction and sentence that conforms to the court's oral pronouncement at sentencing.

         Governing Law and Applicable Principles of Review

         Section 491.075 provides, inter alia, that "[a] statement made by a child under the age of fourteen . . . relating to an offense under chapter 565, 566, 568 or 573" that is "not otherwise admissible" is nonetheless admissible in a criminal proceeding "as substantive evidence to prove the truth of the matter asserted" under certain circumstances. Section 491.075.1. One such circumstance exists when, after an evidentiary hearing, the trial court determines that "the time, content and circumstances of the statement provide sufficient indicia of reliability[, ] and . . . [t]he child . . . testifies at the proceedings[.]" Section 491.075.1(1) and (2)(a). The trial court is to judge the reliability of the statement based upon the totality of the circumstances. State v. Wadlow, 370 S.W.3d 315, 320 (Mo. App. S.D. 2012). Non-exclusive factors to be considered are: "(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) the lack of a motive to fabricate; and (4) knowledge of subject matter unexpected of a child of similar age." State v. Sprinkle, 122 S.W.3d 652, 661 (Mo. App. W.D. 2003).

         "We review a trial court's decision to admit or exclude a child's out-of-court statements following a § 491.075 hearing for abuse of discretion." State v. Barker, 410 S.W.3d 225, 232 (Mo. App. W.D. 2013).

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. Nelson, 465 S.W.3d 533, 539 (Mo. App. S.D. 2015).

         "On appeal, a defendant may not broaden the objection presented to the circuit court." State v. Tisius, 362 S.W.3d 398, 405 (Mo. banc 2012). "The objection at trial must be specific, and on appeal, the same grounds must be relied upon." Id. If the "[d]efendant's argument on appeal is not based upon the same theory as his objection at trial, [the defendant's point] is not properly preserved and is therefore subject only to plain error review." State v. White, 466 S.W.3d 682, 686 (Mo. App. E.D. 2015). Plain error review is discretionary, State v. Whitaker, 405 S.W.3d 554, 559 (Mo. App. E.D. 2013), and such review is not justified simply because a trial error has been alleged. State v. Valentine, 646 S.W.2d 729, 731 (Mo. 1983). "Errors are plain if they are evident, obvious and clear[, ]" White, 466 S.W.3d at 686, and our first step in deciding whether to engage in plain error review is to determine "whether the claim for review facially demonstrates substantial grounds for believing that a manifest injustice or a miscarriage of justice has resulted." Whitaker, 405 S.W.3d at 559.

         Factual and Procedural Background

         We limit our summary of the relevant evidence to that necessary to decide Defendant's point on appeal, and we view it "in the light most favorable to the verdict." State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). The trial court held a pretrial section 491.075 hearing ("the 491 hearing") in January 2013 in response to the State's motion to permit "hearsay testimony and evidence related to the statements of [Child.]" The following evidence was adduced at that hearing.

         Mother testified that on October 19, 2011, she found "[p]ictures of child pornography" on Defendant's phone. The next day, she left with Child. Mother recalled that before they moved out, Child had displayed "grinding" behavior "[q]uite a few" times by straddling an object and rocking back and forth on it in what appeared to be a sexual manner. There were also "quite a few times" when Child ...


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