From the Circuit Court of Crawford County Honorable Kelly W.
a jury trial, Maxwell Barnes ("Defendant") was
convicted of one count of using a child in a sexual
performance and three counts of endangering the welfare of a
child in the first degree. See sections 568.080 and
568.045. Because Defendant either acquiesced in or
affirmatively waived any objection to the trial court rulings
he now attempts to challenge on appeal, we affirm.
does not challenge the sufficiency of the evidence to support
his convictions. Therefore, we address only the evidence
necessary to resolve Defendant's points, and we present
that evidence in the light most favorable to the jury's
verdicts. State v. Hicks, 456 S.W.3d 426, 428 (Mo.
App. S.D. 2015).
child victims in this case are sisters. At the time of the
charged conduct, one sister was five ("Older
Sister") and the other was a one-year-old ("Younger
Sister").Sisters had been removed from their home
and were in foster care due to suspected physical abuse by
their mother, drug use by both parents, and unsanitary living
conditions. Not long after they were placed into their foster
home, Sisters began making allegations that they had been
sexually abused by Defendant, prompting their foster mother
("foster mother") to call Jennifer Hart,
Sisters' caseworker with what was then known as the
Division of Family Services ("DFS"). Older Sister
was forensically interviewed at the Child Advocacy Center
("CAC") by Diane Silman ("Ms. Silman").
Older Sister did not disclose any sexual abuse by Defendant
during that interview.
were also engaging in inappropriate sexual behaviors in their
foster home, leading to continued concern by foster mother
that they had been sexually abused. After the first CAC
interview, foster mother began taking Older Sister to a
counselor, Melissa Meloy. During their counseling sessions,
Older Sister revealed that Defendant had sexually abused her,
which prompted another hotline call to DFS. This time, Older
Sister told a DFS interviewer that Defendant and his friend
had sexually abused her and Younger Sister. Older Sister went
to the CAC for a second interview with Ms. Silman. This time,
Older Sister disclosed details of sexual assaults she had
endured at the hands of Defendant, Sisters' mother, and
was charged with six class-C felonies: one count of using a
child in a sexual performance and three counts of
first-degree endangering the welfare of a child for acts
committed against Older Sister, and one count of using a
child in a sexual performance and one count of first-degree
endangering the welfare of a child for acts committed against
trial, Morgan Galloway ("Ms. Galloway"), another
forensic interviewer with the CAC, testified that she had
conducted nearly a thousand interviews of children who had
made allegations of abuse or neglect. Ms. Galloway had not
interviewed Sisters, but she testified that, in her
experience, the disclosure of child sex abuse is not a single
event, but rather a process that the child goes through. She
testified that children may provide a little bit of
information, to see how it is received, before going into
active disclosure. Ms. Galloway claimed that about one-fourth
of children recant their abuse allegations, only to later
reaffirm them. Ms. Silman similarly testified that disclosure
of sexual abuse is a process for children, and they rarely
disclose everything that happened to them in a single event.
jury found Defendant guilty of all charges related to Older
Sister -- one count of use of a child in a sexual
performance, for which it recommended a seven-year prison
sentence, and three counts of first-degree endangering the
welfare of a child, for which it recommended a three year
sentence on each count. The trial court imposed the sentences
recommended by the jury and ran them consecutively, yielding
a total sentence of 16 years. This appeal timely followed.
1 and 2
address these points together, as each alleges evidentiary
error in allowing substantially similar testimony from the
two CAC forensic interviewers, Ms. Galloway and Ms. Silman.
Point 1 claims:
The trial court abused its discretion in overruling defense
counsel's objections to forensic interviewer [Ms.]
Galloway's testimony about the disclosure process in
alleged abuse victims . . . in that the testimony of [Ms.]
Galloway invaded the province of the jury, was more
prejudicial than probative, and was improperly used to
bolster [Sisters]' credibility.
Point Two presents the same claim in regard to the testimony
of Ms. Silman.
not reach the merits of Defendant's points because he
acquiesced in the trial court's decision at trial about
how the testimony of these witnesses would be handled. During
her direct examination, Ms. Galloway was asked about a
child's initial disclosures of sexual abuse, and the
following colloquy occurred:
[State:] And can you describe to the jury what the protocols
say about the process of disclosure?
[Defense counsel]: Judge, I'm going to object to her
describing what the process of disclosure is to this jury.
The State ...