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State v. Selph

Court of Appeals of Missouri, Southern District, Second Division

March 5, 2019

STATE OF MISSOURI, Respondent,
v.
CARL A. SELPH, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF BARRY COUNTY Honorable Robert E. George, Associate Circuit Judge

          WILLIAM W. FRANCIS, JR., P.J.

         Carl A. Selph ("Selph") was convicted, after a jury trial, of four counts of the unclassified felony of statutory sodomy in the first degree, and the class B felony of child molestation. In two points on appeal, Selph asserts the trial court erred in allowing the State to examine the forensic interviewer regarding Victim's "tentative disclosure," and allowing testimony of a detective that Selph objected to as hearsay. Finding no merit to either point, we affirm the judgment of the trial court.

         Factual and Procedural Background

         Selph physically and sexually abused a child ("Victim") for several years. On July 10, 2013, a family member of Victim learned of a recent physical altercation between Victim and Selph. The family member asked Victim whether Selph had ever "touched her or done anything to her that he should not be doing." Victim responded, "Yes." Upon further questioning, Victim recounted some of the physical abuse, but did not disclose the sexual abuse. A hotline call was then made to the Division of Family Services. Victim underwent a forensic examination the next day. In the examination, Victim shared a few details about the sexual abuse-she stated that Selph was touching her in a sexual manner, and Selph was making her touch his genitals.

         Selph was interviewed by police following Victim's forensic interview. Selph admitted that Victim had slept with him in his bed, and he did not feel sexually fulfilled due to a back injury and taking medication, which interfered with sexual relations with his wife. Selph also told police he was abusing his medication, it was a concern that things might have happened that he did not remember clearly because of the medication, he would have a "gut feeling" that he did something wrong, and admitted he told a family member he did not know what he did while on his medication. Selph indicated several times that Victim "[was] not lying" and that Victim "doesn't make these things up." Selph never denied the allegations of sexual abuse.

         In March 2014, while visiting with the prosecutor, Victim disclosed additional details of sexual abuse at the hands of Selph. The prosecutor immediately scheduled Victim for a second forensic interview, where Victim disclosed more incidences of sexual abuse by Selph.

         Selph was charged by second amended felony information with three counts of statutory sodomy in the first degree (Counts I, III, VII);[1] four counts of the class B felony of child molestation in the first degree (Counts II, V, VI, VIII);[2] and one count of felony statutory rape in the first degree (Count IV).[3]

         A jury trial commenced on November 7, 2017. Among those testifying were Victim, forensic examiner Melinda Ingram ("Ingram"), and Detective Brian Landreth ("Detective Landreth"). Selph testified in his own defense.

         Ingram testified that she had worked at the Lakes Area Child Advocacy Center ("CAC") in Branson since 2001, became its director in 2002, and a forensic interviewer in 2003. Ingram testified it was not unusual for a victim to not immediately report that they had been sexually touched or abused due to fear of not being believed, making someone mad or upset with them, or having been threatened. It was also not unusual for it to be days or even weeks before a victim disclosed sexual abuse. Ingram stated it was rare that a victim would "tell every single thing the first time[, ]" that disclosure is a process, not an event-it tends to unfold over time. The following colloquy then took place:

[PROSECUTOR]: In your training and experience does the phrase or words tentative disclosure have a particular meaning?
[INGRAM]: Yes.
[PROSECUTOR]: What is that?
[INGRAM]: A tentative disclosure is - tentative means hesitant or reluctant at first, unsure at first. A tentative disclosure is when - in this context of a child, a child would be feeling like they want to tell, but they're not sure what the reaction of the adults around them, so they might kind of test the waters, as they say, and see - you know, tell just a little bit, see how the adults around them are - what the reaction will be. And either disclose more or withdraw, depending on - you know, if someone is very upset they might back up and withdraw their disclosure. If they see the world is going to continue on they might continue to let that unfold and disclose more.
[PROSECUTOR]: In the course of your employment have you met [Victim]?
[INGRAM]: I have.
. . . .
[PROSECUTOR]: Do you know when the first time you met with her was?
[INGRAM]: Yes.
[PROSECUTOR]: When was that?
[INGRAM]: July 11, 2013.
. . . .
[PROSECUTOR]: [D]id she make some type of disclosure?
[INGRAM]: Yes.
[PROSECUTOR]: And, generally, what was that disclosure?
[INGRAM]: The first time I met her she disclosed that [Selph] made her touch his . . . private area. I think we used the word private area in our interview. On multiple occasions. And that he would touch her breasts on top of her clothing. And that was the gist of the initial disclosure.
[PROSECUTOR]: Would there have been anything that you observed based on your experience that you would have taken that disclosure to be in the nature of a tentative disclosure?
[INGRAM]: I did. I did.
[PROSECUTOR]: And why?
[SELPH'S COUNSEL]: Your Honor, may we approach?
BY THE COURT]: Yes.
(BENCH CONFERENCE ...

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