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State v. Tillitt

Court of Appeals of Missouri, Western District, Second Division

January 9, 2018


         Appeal from the Circuit Court of Macon County, Missouri Honorable Frederick Paul Tucker, Judge

          Before: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Gary D. Witt, JJ.

          Thomas H. Newton, Judge.

         Ms. Melinda Tillitt appeals from her conviction following a jury trial for five counts of first-degree statutory sodomy, § 566.062, and one count of first-degree child molestation, § 566.067.[1] The Macon County Circuit Court sentenced her to six consecutive fifteen-year terms of imprisonment for a total of ninety years. She challenges the trial court's decision to overrule her motion to suppress her purportedly involuntary statements to police and her objection to certain testimony of a forensic interviewer, and she seeks plain-error review of the trial court's sentence of consecutive terms of imprisonment under section 558.026. We affirm in part and reverse in part.

         Factual and Procedural Background

         Ms. Tillitt was initially charged in May 2015 with four counts of first-degree statutory sodomy for deviate sexual intercourse involving one of her daughters, K.B.T. The information was later amended to add one count of first-degree statutory sodomy for deviate sexual intercourse and one count of first-degree child molestation for sexual contact involving another daughter, K.D.T. The girls had been removed from the home in August 2014 after their church pastor reported that they had been physically abused. K.B.T. did not disclose that Ms. Tillitt had sexually abused her until March 2015. Ms. Tillitt was arrested at her workplace on March 14, 2015, and taken to the police station. There, over the course of a recorded one-hour, twenty-minute interview, Ms. Tillitt ultimately made statements admitting some of the allegations as to K.B.T and indicated that "there might be some issues" with K.D.T. She then prepared a written statement admitting that she had sexually abused both daughters. Following arraignment in Shelby County, the case was transferred on a change of venue to Macon County.

         Before trial, Ms. Tillitt filed a motion to suppress "evidence of statements taken from defendant by law enforcement agents" purportedly obtained in violation of her constitutional rights against self-incrimination, right to counsel, and due process. Without distinguishing between the audio recording and written statement, Ms. Tillitt claimed that (1) her police custody and interview were "inherently coercive, " (2) "[t]he statement" did not accurately reflect her conversation with the interviewing officers, (3) the statement was obtained by threats and promises made before and during the interview, and (4) any alleged statements were "the result of an unlawful arrest." The trial court held a suppression hearing and denied the motion.

         Thereafter, Ms. Tillitt filed several motions in limine including one to prohibit the State from adducing testimony or evidence from the girls' forensic interviewer, Ms. Faith Wemhoff, about "the process of disclosure among victims of sexual abuse, specifically concerning the reasons why a victim may not initially disclose." Another motion in limine sought to exclude a redacted, twenty-minute audio recording of Ms. Tillitt's police interview. She claimed that it was not a complete and accurate representation of the interview and that, if the State sought to introduce a recording of the interview, it should use the entire recording "or not introduce it at all." The trial court indicated before trial that the State was entitled to present the redacted version of the audio recording during its case in chief, while Ms. Tillitt could then present the entire recording in her defense.

         K.D.T. and K.B.T. were 17 years old when they testified during trial. Because the family had moved often over the years, they were able to relate their ages and the specific sexual acts allegedly perpetrated by their mother to the homes in which they had lived. K.D.T. testified that her earliest memory of inappropriate touching was when she was about 5 or 6 years old and the family was living in a trailer home. Her mother touched K.D.T.'s chest and her vagina, putting her fingers inside of her. K.D.T. also testified that her mother joined her in the bathtub when the family lived on Walnut Street, when she was about 7, 8, or 9, and forced K.D.T. to touch her mother's vagina with her fingers and her mouth. During this incident, K.D.T. recalled that her mother touched K.D.T.'s vagina with her mouth and fingers and forced K.D.T.'s head under the water. K.D.T. testified about other similar touching and oral-contact incidents occurring in her mother's bedroom and in her bedroom and that her mother would put her tongue in K.D.T's vagina and move it around inside. According to K.D.T., such abuse happened more times than she could count. And it happened when they lived in other homes.

         K.B.T.'s earliest memory was about an incident that occurred when she was about 5 or 6 years old and her mother came into her bedroom and put her hand down K.B.T.'s pants and up her shirt to touch her vagina and breasts. K.B.T. also testified that her mother entered the bathroom while she was taking a bath, got into the tub with her and forced K.B.T. to lick her vagina and then licked K.B.T.'s vagina. K.B.T. testified that this happened more than once, and she also recalled similar touching and oral-contact incidents in her bedroom and her mother's bedroom when the family lived in other houses. K.B.T. also testified that her mother put her fingers inside K.B.T.'s vagina and had K.B.T. do the same to her. K.B.T. further testified that her mother touched her vagina inside and outside while they were in the living room in the presence of other people and K.B.T. and her mother were covered by a blanket. Ms. Tillitt also allegedly showed K.B.T. magazines with pictures of naked people and showed her sex toys and how to use them.

         During trial, the State moved to admit the full one-hour, twenty-minute audio recording of Ms. Tillitt's police interview. Ms. Tillitt's counsel stated that the defense did not object to its admission.[2] The State also sought to admit the twenty-minute, redacted version of the police interview of Ms. Tillitt, and she renewed the objection made in her motion in limine, i.e., challenging its completeness and accuracy. The court overruled the objection and accorded Ms. Tillitt a continuing objection. The State played the shorter version of the audio for the jury. While questioning the police officer who conducted the interview, the State asked about the written admission signed by Ms. Tillitt and moved to admit it. Ms. Tillitt then renewed her motion to suppress as to her "confession" on the ground that it violated her right not to incriminate herself and violated her right to a fair and impartial jury under the U.S. and Missouri constitutions. The court overruled the objection and admitted the written confession into evidence. Ms. Tillitt also objected to the testimony of the witness who had conducted the girls' forensic interviews; among other matters, the State had called Ms. Faith Wemhoff to testify generally about how children disclose sexual abuse, i.e., "the process of disclosure." Ms. Tillitt claimed that the admission of such testimony would violate her right to a fair trial and her rights under the U.S. and Missouri constitutions . The court overruled the objection. Ms. Wemhoff testified that children go through a process that is often delayed and takes place over time due to elements of secrecy, fear, guilt, shame, and embarrassment. Ms. Tillitt filed motions for acquittal at the close of the State's evidence and at the close of all the evidence, which the court overruled.

         The jury deliberated for about two-and-one-half hours and returned a guilty verdict on all counts. The trial court denied Ms. Tillitt's motion for judgment of acquittal notwithstanding the jury's verdict or motion for new trial. Among other matters, she had claimed as error the court's overruling of her motions in limine regarding the admission of testimony about the process of disclosure and the redacted audio recording of her police interview. She had also challenged the court's overruling of her motion to suppress statements and its renewal at trial, and her renewed objections at trial to testimony about the process of disclosure and to the redacted audio recording.

         At sentencing, the State requested the maximum sentence on all counts and stated that the minimum possible sentence would be forty-five years given that "the statutory sodomy first has to run consecutively with one another." The court then asked, "You're saying that no matter what sentence she gets it has to be consecutive." The prosecutor replied, "For the statutory sodomy first, those have to run consecutive." Ms. Tillitt's counsel agreed, stating, "That's 558.026. It is the consecutive concurrent statute and lists which offenses must be run consecutively. They are largely sex crimes and statutory sodomy first is on that list. They must be run consecutive to one another and anything else on that list." The court took a recess, and, before sentencing Ms. Tillitt, the court expressed its understanding of the statute as follows: "Thank you everyone. Please be seated. Okay, so I've been trying to understand the legislative reasoning for consecutive sentences. And once I sort of opened my mind to it it kind of makes sense." The court sentenced Ms. Tillitt to consecutive terms of imprisonment as indicated above, and this timely appeal followed.

         Legal Analysis

         In the first point, Ms. Tillitt argues that the trial court erred in overruling her motion to suppress statements and in admitting her statements to the police officers into evidence over her objection. She claims that the statements were taken in violation of her right to due process and her privilege against self-incrimination under the U.S. and Missouri constitutions, in that "the statements were involuntary under the totality of the circumstances, which included [Ms. Tillitt's] mental state and the officers' actions."[3] She does not distinguish among the full audio recording of her interview, the shorter, redacted version, or the written admission she made following the interview, each of which the trial court admitted into evidence.

         Because a ruling on a motion to suppress is interlocutory, a defendant must make "an objection at the time the evidence is offered for admission at trial" to preserve the issue of its admissibility for review. State v. Barriner, 210 S.W.3d 285, 296 (Mo. App. W.D. 2006). Where an objection is made at trial, the issue is properly preserved for our review, and we review the trial court's ...

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