Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Francois County Honorable Wendy
M. HESS, PRESIDING JUDGE
W. Irwin ("Defendant") appeals from the judgment of
the trial court, which was entered upon a jury verdict
convicting him of five separate counts of second-degree child
molestation for acts committed against T.G.
("Victim"), a minor child. Defendant brings two
points on appeal. First, Defendant contends the trial court
abused its discretion and violated his rights under the
Confrontation Clause in admitting the out-of-court prior
section 491.075 hearing ("491 Hearing")
testimony of Heather Nickelson-Mathieson
("Mathieson"), a Children's Division
investigator, because the State failed to prove she was
unavailable and he was denied an effective opportunity to
cross-examine her at the 491 Hearing. Second, Defendant
contends the trial court plainly erred in submitting verdict
directors, Instructions 9, 10, 11, and 12, on Counts III and
IV because they failed to sufficiently differentiate the
sexual contact alleged in each, which violated his right to a
unanimous jury verdict. He further contends the trial court
plainly erred in failing to instruct the jury they could not
convict him twice for a single act.
trial court did not err in declaring Mathieson unavailable
and admitting her 491 Hearing testimony at trial because,
during her 491 Hearing testimony, Mathieson disclosed she
would be living in England at the time of Defendant's
trial and Defendant had an effective opportunity to
cross-examine her at the 491 Hearing. The trial court did not
plainly err in submitting verdict directors, Instructions 9,
10, 11, and 12, on Counts III and IV because the sexual
contact alleged in Count IV was sufficiently differentiated
from the sexual contact alleged in Count III. The trial court
appropriately instructed the jury that each of the five
charged counts constituted a separate offense and must be
considered separately. Accordingly, we affirm the judgment of
the trial court.
and Procedural Background
limit our summary of the relevant evidence to that necessary
to decide Defendant's point[s] on appeal, and we view it
'in the light most favorable to the verdict.'"
State v. Lewis, 514 S.W.3d 28, 31 (Mo. App. S.D.
2017) (quoting State v. Baumruk, 280 S.W.3d 600, 607
(Mo. banc 2009)). Defendant was charged in St. Francois
County by Grand Jury Indictment on June 22, 2017, with five
counts of second-degree child molestation under section
566.068. The charges asserted Defendant had deviate sexual
contact with Victim, a person less than twelve years old, for
the purpose of arousing or gratifying his sexual desire by
"placing his hand on [Victim]'s vagina,"
(Counts I, II, IV, and V) or "placing his fingers on
[Victim]'s vagina" (Count III).
facts underlying Defendant's charges are as follows.
Defendant was a friend of Victim's family and a frequent
visitor at Victim's residence. In April 2017, Victim told
her mother Defendant had touched her vaginal area on seven
instances. Victim told her mother the first incident occurred
while she and Defendant watched Finding Dory on the
living-room couch at her residence. Victim said Defendant
tickled her stomach and put his hand into her pants and
inside her underwear, resting his hand on top of her vagina.
Victim told her mother the second incident occurred in a
motel in Potosi, Missouri. Victim said she was sitting on
Defendant's lap on a recliner when he reached under a
blanket covering her, put his hand in her underwear, and
tapped his fingers near her vagina on the skin. Victim told
her mother the third incident occurred at the same motel in
Potosi, Missouri, a few nights later when Defendant reached
under a blanket covering her and put his hand in her
told her mother the fourth incident occurred while she
watched Lost on the living-room couch at her
residence with Defendant and her family. During that
incident, Defendant reached under a blanket covering Victim
and put his hand in her underwear. Victim told her mother the
fifth incident occurred while she and Defendant watched
Me Again on the living- room couch at her residence.
Victim said Defendant tickled her stomach, rubbed her leg,
slid his hand into her underwear, touched her vagina, and
then removed his hand and licked his fingers one at a time.
Victim told her mother the sixth incident occurred while she
attempted to watch Lost on the living-room couch at
her residence with Defendant and her family, but the Internet
kept "skipping out." Defendant put his hand under a
blanket covering Victim and slid his hand into her underwear.
Victim told her mother the seventh incident occurred at
Defendant's photography studio while she sat on his lap
looking at a computer screen. Defendant tickled Victim's
stomach, slid his hand into her underwear, and placed his
hand on top of her vagina.
December 18, 2017, the State filed a Notice Pursuant to
Section 491.075.3. Specifically, the State intended to
introduce out-of-court statements made by T.G to Mathieson, a
Children's Division investigator, at trial. The trial
court held the 491 Hearing on February 15, 2018.
January 5, 2018, Mathieson was subpoenaed to testify at the
491 Hearing on February 18, 2015. Mathieson lived in the
United States when she was subpoenaed. After she was
subpoenaed but before the 491 Hearing, Mathieson moved to
England. Mathieson testified at the 491 Hearing via Skype
from her home in England. Mathieson communicated with the
trial court through audio only, however, the trial court and
the parties could see Mathieson on a video feed. Mathieson
testified that, in her role as a Children's Division
investigator, she received an investigation listing Defendant
as the alleged perpetrator "for fondling and
touching" Victim. Mathieson met with Victim and
Victim's mother at their home for a "cursory
interview" on April 11, 2017. Mathieson testified she
knew Victim disclosed that Defendant had touched her
"inappropriately" to her mother. Mathieson recalled
that when she asked Victim if Victim knew why Mathieson was
there, Victim said because a family friend had touched her
"inappropriately." Mathieson testified Victim told
her there were at least seven occasions where Defendant had
touched her "inappropriately" on her
"front," which Mathieson later determined was her
testified Victim described three incidents to her during the
cursory interview. The first incident occurred while Victim
and Defendant watched Finding Dory on the
living-room couch at her residence. Mathieson testified
Defendant began "rubbing [Victim's] stomach, like
[Victim's] lower abdomen and then slowly moved down to
actually touching [Victim's] vaginal area"
underneath Victim's clothes. Victim told Mathieson this
incident lasted five to ten minutes. The second incident
occurred at a motel in Potosi, Missouri. Defendant watched a
television show while sitting in a recliner and Victim sat on
his lap. Victim told Mathieson Defendant touched her vaginal
area underneath a cover and licked his fingers after removing
them from her underwear. The third incident occurred at
Defendant's photography business in Park Hills, Missouri.
Defendant cross-examined Mathieson regarding her interview of
Victim. Following Defendant's cross-examination, the
State questioned Mathieson:
Q: [Mathieson], wait, before you leave, let me go ahead and
make this record, if I can? You live in England?
Q: And you - so is it fair to say you will be living in
England in [sic] May 3 and 4, of this year?
A: Yes. I will live here for a long time.
Q: Okay. So since you live in England we can only bring you
back by a treaty. We have to arrest you by treaty and drag
you across the ocean?
told the trial court he had no further questions. The trial
court told Mathieson she was "excused."
days before trial, the trial court held a pre-trial motion
hearing at which it heard argument on Mathieson's
unavailability for trial. The State argued Mathieson was
unavailable because she resided in England at the time of
Defendant's trial. The State argued that, because England
is a sovereign country and part of the United Kingdom, it
could not compel Mathieson's testimony at Defendant's
trial. In response, Defendant said, "I'm objecting,
number one, she was able to appear via Skype at the 491
[Hearing]. And it was my understanding that if she wasn't
here physically, the same could be done at trial."
Defendant also argued that, while his cross-examination of
Mathieson at the 491 Hearing was "extensive . . . [, ]
it was for the purpose of [the] 491 [Hearing] and not for the
. . . same purpose that it would be at a trial."
trial court ruled Mathieson was "clearly unavailable for
trial" and was "made available for
cross-examination for purposes of this case" during the
491 Hearing. In so ruling, the trial judge said, "[A]t
the time she testified over Skype I think that it should have
been and I'm certain that it was anticipated by everybody
that she may not be available for jury trial. So I don't
think this is terribly surprising to anybody." The trial
court ruled Mathieson's testimony from the 491 Hearing
could be read into the record at trial. Following the
pre-trial motion hearing, Defendant prepared a redacted
version of Mathieson's transcript. Defendant and the
State later stipulated to that redacted version of
trial was held on July 23 and July 24, 2018. At a pre-trial
conference on the morning of July 23, 2018, Defendant
objected to introducing the redacted version of
Mathieson's transcript. He said:
I'm objecting to [the reading of Mathieson's 491
Hearing testimony into the record], because I think it's
important for the jury to see how she testifies if she were
on a screen via Skype. So that's my - that's my
objection. In conclusion, I don't think she's
unavailable for the purpose of Skype, but maybe that's
trial court overruled his objection and admitted
Mathieson's 491 Hearing testimony into evidence, finding
Mathieson was "truly unavailable as a witness" and
previously subject to cross-examination by Defendant.
Victim's mother, Victim's father, a CAC forensic
investigator, a licensed professional counselor, a sergeant
in the St. Francois County jail, and a lieutenant with the
St. Francois County sheriff's office testified on behalf
of the State at trial. A video of Victim's interview with
the CAC forensic investigator was admitted into evidence.
Mathieson's testimony from the 491 Hearing was read to
the jury. When the State moved to read Mathieson's
testimony into the record, Defendant renewed his objection,
saying: "I'll just reincorporate what I discussed
with [the trial court] and argued with [the trial court] and
moved for judgment of acquittal at the close of the
State's evidence. The trial court denied the motion.
Defendant presented no evidence. Defendant then moved for
judgment of acquittal at the close of all the evidence. The
trial court denied the motion and the case was submitted to
the jury for deliberations.
trial court instructed the jury on all five charged counts of
second-degree child molestation. Each verdict director
described the charged incident of sexual contact.
Instruction 9 read:
Count III, if you find and believe from the evidence beyond a
First, that on or about during January 2017, in the County of
St. Francois, State of Missouri, at [Victim]'s house
on an occasion they watched "Lost", the
[D]efendant touched the genitals of [Victim], and
Second, that [D]efendant did so for the purpose of gratifying
[D]efendant's sexual desire, and
Third, that [Victim] was a child less than twelve years old,
then you will find the defendant guilty under Count III of
child molestation in the second degree
10 included the same description as to the location and
context of the sexual contact as Instruction 9, however, it
instructed the jury to find Defendant guilty of child
molestation in the third degree if it found "that