Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF DUNKLIN COUNTY Honorable Robert N.
AND REMANDED WITH DIRECTIONS
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). The statutory sodomy offense occurred
between May 2009 and October 20, 2011.
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."
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.
Law and Applicable Principles of Review
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).
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.
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
and Procedural Background
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
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 ...