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State v. Irwin

Court of Appeals of Missouri, Eastern District, Second Division

November 19, 2019

STATE OF MISSOURI, Respondent,
v.
DANIEL W. IRWIN, Appellant.

          Appeal from the Circuit Court of St. Francois County Honorable Wendy W. Horn

          PHILIP M. HESS, PRESIDING JUDGE

         Introduction

         Daniel 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[1] 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.

         The 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.

         Factual and Procedural Background

         "We 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).

         The 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 underwear.[2]

         Victim 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.

         491 Hearing

         On 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.

         On 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"[3] 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 vaginal area.

         Mathieson 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?
A: Yes.
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?
A: Yes.

         Defendant told the trial court he had no further questions. The trial court told Mathieson she was "excused."

         Pre-Trial Motion Hearing

         Three 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."

         The 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 Mathieson's transcript.

         Trial

         A jury 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 not true.

         The 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, 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 [the State]."

         Defendant 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.

         The 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.

         Specifically, Instruction 9 read:

         As to Count III, if you find and believe from the evidence beyond a reasonable doubt:

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

(emphasis added).

         Instruction 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 [Victim] ...


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