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State v. Barnes

Court of Appeals of Missouri, Southern District

April 30, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
v.
MAXWELL BARNES, Defendant-Appellant.

          Appeal From the Circuit Court of Crawford County Honorable Kelly W. Parker.

          DON E. BURRELL, P.J.

         Following 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.[1] Because Defendant either acquiesced in or affirmatively waived any objection to the trial court rulings he now attempts to challenge on appeal, we affirm.

         The Evidence

         Defendant 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).

         The two 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").[2]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.

         Sisters 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 Defendant's friend.

         Defendant 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 Younger Sister.

         At 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.

         The 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.[3] 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.

         Analysis

         Points 1 and 2

         We 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.

         We need 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?
[Galloway:] Sure.
[Defense counsel]: Judge, I'm going to object to her describing what the process of disclosure is to this jury. The State ...

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