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State v. Hitchcock

Court of Appeals of Missouri, Southern District, First Division

September 26, 2019


          APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Jennifer R. Growcock, Judge

          WILLIAM W. FRANCIS, JR., J.

         Doyle Edward Hitchcock ("Hitchcock") appeals his convictions of five counts of forcible sodomy, six counts of endangering the welfare of a child, and two counts of forcible rape. Hitchcock presents four points on appeal: points one and two challenge the sufficiency of the evidence; point three challenges the trial court's admission of uncharged misconduct; and point four challenges the admission of testimony relating to substantiation by the Children's Division of the Department of Social Services ("the Children's Division") of allegations against Hitchcock. Finding no merit to these points, we affirm the judgment of the trial court.

         Facts and Procedural Background[1]

         We set forth the evidence in the light most favorable to Hitchcock's convictions. See State v. McKinney, 253 S.W.3d 110, 113 (Mo.App. W.D. 2008). We set out other information as necessary for context.

         At age four, Victim and her two brothers moved from an Indian reservation in South Dakota to Springfield, Missouri, to live with Hitchcock and his wife. They subsequently moved to a house on four acres in Ozark, Missouri. Hitchcock physically, sexually, and emotionally abused Victim from 2006 (at which time Victim was eight years old) until 2013. Victim told her brothers about the sexual abuse, but they "didn't mind anything of it." Victim then disclosed the abuse to Hitchcock's wife, who "slapped [Victim] in the face and called [Victim] a liar and that [Hitchcock] couldn't do anything like that[.]"[2]

         Victim also disclosed the abuse to "a couple of [her] friends." One of these friends encouraged her to talk to that friend's mother, or the school counselor. Victim refused, and told the friend not to tell anyone as Hitchcock "told [her] not to tell anybody[, ]" and threatened to "send us kids back to the Res[ervation] if [Victim] was to tell anybody what he was doing." Victim's friend asked her mother for advice, who recommended Victim talk to the school counselor. Victim later disclosed some of the abuse to her friend's mother.

         Thereafter, law enforcement and representatives from the Children's Division came to Victim's home on several occasions. Children's Division staff would "interview" Victim: i.e., with Victim and Hitchcock in the same room, announce the source and the content of the abuse report to which they were responding, and Victim would deny the abuse. Victim also did not disclose Hitchcock's abuse to law enforcement when they stopped by the house, or to school officials when asked, weighing that "with how rough [Hitchcock] was being, [Victim] didn't want to push it."

         When Children's Division or law enforcement would leave the house, Hitchcock and the rest of the family would accost and blame Victim, and insist that she "lie" to prevent further inquiry.

         In 2014, Victim began acting out and having problems with drugs and stealing medication. A school resource officer referred Victim to the Juvenile Office in April 2014, when allegations surfaced that Victim brought controlled substances to her school and "was distributing those to other students." The record reflects that Victim was charged with a class C felony in connection with this allegation, and that Victim "stipulated to those charges and was placed on formal probation." As a special condition of probation, Victim was to "attend counseling"; obtain "an assessment at CSTAR";[3] and "follow any recommendations" associated therewith.

         The juvenile officer assigned to Victim's case had a distinctive "first impression . . . that's carried with me, " in that he observed Victim with Hitchcock in the hallway, and "she was very much enclosed on herself, eyes to the floor, shoulders in, curled up, which was unusual in my experience with the kids I dealt with." As the juvenile officer went through Victim's probation requirements, Victim voiced no objections. By contrast, Hitchcock strongly resisted "the counseling requirement and the CSTAR requirement, " and "consistently" tried to answer for Victim. This pattern continued at future meetings-Hitchcock would try to answer for Victim "across the board[.]" The juvenile officer referred Victim to a counselor (to which Hitchcock objected, approximately a month after counseling began, "right in the middle of . . . [the] necessary rapport-building" stage).

         Victim began seeing the counselor in May 2014. The counselor observed Victim and Hitchcock in the waiting room at her first appointment-Victim was sitting in a "fetal position[, ]" turned away from Hitchcock. During the session, Victim could not make eye contact, and barely spoke above a whisper. When Victim had difficulty responding, Hitchcock would "hit her . . . on her arm[, ]" startling Victim and making her jump. Victim's responses to a subsequent depression assessment reflected a "very severe" depression score. Meanwhile, Hitchcock's attitude throughout his attendance at these sessions was "sarcastic [and] dismissive."

         The counselor made a hotline call based on a disclosure Victim made in one of her sessions. At the following session, Hitchcock "was very upset, " and (in front of Victim) demanded the counselor "tell him if [counselor] hotlined and who hotlined and what was said and if [counselor] could be trusted." Hitchcock was "[c]onfrontational, sitting forward, his finger pointing, yelling, [and] interrogating."

         On October 29, 2014, Hitchcock "confront[ed] a developmentally delayed client who was waiting in [counselor's] reception room[.]" Counselor observed this and intervened. Hitchcock "got very upset, was yelling, stomping his feet, shaking his arms, wagging his head, telling [counselor] he could say whatever he wanted wherever he wanted[.]" Counselor eventually persuaded Hitchcock to leave.

         At another session, counselor observed a large and untreated wound to the inside of Victim's arm. It appeared to be a severe burn-counselor could see "muscle and tendon[.]" Victim asked counselor if she "had Band-Aids, " and counselor provided the first-aid kit in her office. Counselor reported this to Victim's juvenile officer.

         In March 2015, Victim's juvenile officer and representatives from Children's Division responded to a hotline call (reflecting physical and sexual abuse) and interviewed Victim at her school. Victim made no disclosures as she was fearful that the only result "would just be more hotline[]" calls. Victim called Hitchcock as he had directed her to do if she was ever questioned without him. Hitchcock arrived at the school-Victim's juvenile officer and the school's resource officer heard Hitchcock's voice "from the lobby outside of the office[]" in which they were seated. Hitchcock was "loud" and "demanding, " insisting on an explanation as to why they "were talking to [Victim] without him present."

         In April 2015, Victim's probation was revoked due to another incident at school. Victim was given an indeterminate sentence and committed to the Division of Youth Services.[4] Victim was then placed in Delmina Woods, a group home for girls. Victim participated satisfactorily in the programs at that facility, and disclosed some of her abuse. Victim consented to a forensic interview at CAC, which was held on July 28, 2015. Based on the results of the interview, it was determined that it would be unsafe for Victim to return home, and that Victim would stay at Delmina Woods.

         On September 4, 2015, Victim was released from Delmina Woods, but remained in "aftercare" until October 26, 2015, when she was released by the Division of Youth Services. Victim was placed in a foster home, and never returned to live with Hitchcock. Victim's juvenile officer met with her thereafter, and observed that she was substantially more talkative, upbeat, and made much better eye contact.

         Hitchcock was charged, by third amended information, with five counts of forcible sodomy (Counts I, III, XII, XV, and XVIII), pursuant to section 566.060;[5] or in the alternative, five counts of statutory sodomy in the first degree (Counts II, IV, XIII, XVI, and XIX), pursuant to section 566.062; six counts of the class C felony of endangering the welfare of a child (Counts V, VIII, XI, XIV, XVII, and XX), pursuant to section 568.045; two counts of forcible rape (Counts VI and IX), pursuant to section 566.030; or in the alternative, two counts of statutory rape (Counts VII and X), pursuant to section 566.034.

         A jury trial commenced on June 4, 2018. Victim testified during the State's case in chief, at which time the following colloquy occurred:

[Prosecutor:] Were there times you ever saw [Hitchcock] hurt somebody else?
[Victim:] Yes.
[Prosecutor:] Can you tell me about one of those times?
[Defense]: Judge, may we approach?
(the following proceedings were held at the bench:)
[Defense]: Judge, we just want to renew our objection as to prior bad acts at this point. This is where I'm assuming she's getting into other incidents of abuse; not just towards her, but towards other people, and so we are going to renew our objection that this is more prejudicial than probative. It's one thing to talk about what happened to her and why she is, but to talk about potential evidence, it's -- my clients [sic] aren't charged with any other assault versus anybody else . . . . Especially if its towards [Hitchcock's first wife], we have -- she's not here to even testify to confirm or deny any of the allegations that may be made, and so we want to renew our objection and make that a continuing objection to any what would be considered prior bad acts.
BY THE COURT: [Prosecutor]?
[Prosecutor]: And, Your Honor, so this goes to, again, a reason for a delay in disclosure. It also goes to forcible compulsion. I have asked her specifically if she witnessed him hurt somebody else. I'm not asking her things that she heard about, but things that she personally observed that would have been something that she took into consideration in making a determination whether to disclose or not.
BY THE COURT: All right, thank you. The Court did previously look at all the cases and will overrule your objection at this time. I have looked at the cases and I have weighed the probative versus prejudicial value.
[Defense]: And can we show that as a continuing objection to any of this type of conduct as to any other violence or uncharged acts?
[Defense]: Thank you.
(the proceedings returned to open court)
[Prosecutor:] So again, [Victim], was there ever a time that you saw the defendant hurt someone else?
[Victim:] Yes.
[Prosecutor:] Can you tell me about one of those times?
[Victim:] I have seen him throw things at my mom, I've seen him be mean to my older brother, I've seen him smash a can, like a trashcan, over my little brother's head.

         Later in the State's case in chief, during the testimony of Fallon Givans (a service coordinator with the Division of Youth Services) the following colloquy occurred:

[Prosecutor:] Okay. Was there any discussion about the fact that a hotline call had been ...

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