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State v. Thomas

Court of Appeals of Missouri, Southern District, First Division

December 17, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
JON DENVER THOMAS, Defendant-Appellant.


          GARY W. LYNCH, P.J.

         Following a jury trial, Jon D. Thomas ("Defendant") was found guilty of six counts of first-degree statutory sodomy (Counts 1, 2, 11, and 12-14), one count of attempted first-degree statutory sodomy (Count 4), three counts of second-degree statutory sodomy (Counts 3, 5, and 15), one count of first-degree child molestation (Count 7), one count of sexual misconduct involving a child (Count 8), and one count of victim tampering (Count 9). See sections 566.062, 566.064, 566.067, 566.083, and 575.270, respectively.[1] Following the jury's recommendations, the trial court sentenced Defendant to imprisonment terms of life for each conviction under Counts 1, 2, 4, 7, and 11-14; seven years for each conviction under Counts 3, 5, 9, and 15; and four years for the conviction under Count 8, with all sentences to run consecutively.

         Defendant appeals, raising four points relied on. Defendant's first and second points challenge the exclusion and admission, respectively, of certain evidence pertaining to A.H., the victim of the crimes charged in Counts 1-3 and 11-15. Defendant's third and fourth points challenge his sentence for a class A felony under Count 7. Finding merit in Defendant's third and fourth points only, we vacate his sentence on Count 7, remand for resentencing on that count, and affirm the judgment in all other respects.


         Point 1 - No Error in Exclusion of Defendant's Exhibit 6

         In his first point, Defendant contends that "[t]he trial court abused its discretion overruling [Defendant]'s offer of proof and excluding Defendant's Exhibit 6, the forensic interview DVD of A.H."

         The following facts are relevant to this point. A.H. is one of Defendant's victims. When allegations of sexual abuse against Defendant involving other victims were first reported, A.H. initially denied that Defendant had committed acts of abuse against her. One such denial occurred in 2013 during a recorded Child Advocacy Center interview ("the CAC interview"). [Tr. 408, 445]. Following the CAC interview, A.H. received counseling and, for two years, denied that Defendant had touched her in any way. In 2015, when she was 18 years old and seeing her third counselor, A.H. disclosed sexual abuse to the counselor after a year of building up enough trust to tell her about it.

         During her trial testimony, A.H. testified to the multiple acts of sexual abuse committed against her by Defendant. She also testified that she initially denied that sexual abuse had taken place, specifically testifying that she "denied everything" when questioned by the authorities and during the CAC interview.

         Later in the trial proceedings, Defendant attempted to admit Defendant's Exhibit 6, a DVD recording of the CAC interview, into evidence. Defendant argued that the recording "is not only a prior inconsistent statement it is clearly impeachment." The State objected, arguing that A.H. had fully admitted during her testimony to initially having "denied everything" and, therefore, the exhibit was not inconsistent with her testimony.

         The trial court ultimately sustained the State's objection and excluded the CAC interview from evidence, expressly finding only that "there was no inconsistency with her testimony." Defendant asserts that he "included this allegation of error in his motion for new trial," and the State does not challenge that assertion.

         On appeal, Defendant does not deny that the CAC interview is hearsay but asserts, as he did in the trial court, that it was admissible as a prior inconsistent statement. He also asserts, however, that it was admissible as a past recollection recorded. The State claims that only the first of these assertions is preserved for appellate review. We agree.


[t]o properly preserve a matter for appellate review, the objection at trial must be specific, and the point raised on appeal must be based on the same theory as that presented at trial. It is incumbent on the objecting party to make the basis of his objection reasonably apparent to the trial court in order to provide the opponent an opportunity to correct the error and for the court to correctly rule on it. Missouri courts strictly apply these principles because a trial judge should be given an opportunity to reconsider his or her prior ruling against the backdrop of the evidence actually adduced and in light of the circumstances that exist when the questioned evidence is actually proffered. Consequently, the alleged error is not preserved where the basis for the specific objection is not readily apparent. Further, a party is not permitted to broaden the objection presented to the trial court, and cannot rely on a theory on appeal different from the one offered at trial.

State v. Sykes, 480 S.W.3d 461, 465 (Mo.App. 2016) (internal citations omitted). In the context of preserving for appellate review alleged error in the trial court's exclusion of proffered evidence, a defendant's theory of admissibility "must be presented to or decided by the trial court." State v. Blurton, 484 S.W.3d 758, 778 (Mo. banc 2016).

         Neither of Defendant's arguments addressing preservation of his past-recollection-recorded theory of admissibility, asserted in his reply brief, demonstrate that he either presented that theory to the trial court or that the trial court decided or ruled upon it. Defendant first argues that "[a]lthough trial counsel did not specifically say [the CAC interview] was a prior recollection recorded, the theory on appeal is the same offered at trial: A.H.'s 2013 forensic interview was admissible for its truth as substantive evidence under any exception to the general prohibition against hearsay." This argument is refuted by the record. Defendant did not claim below that the CAC interview was admissible "under any exception" to the hearsay rule. He repeatedly argued, rather, that it was specifically admissible as a prior inconsistent statement.

         Defendant's second argument relies on his claim below that the CAC interview was admissible because "it is clearly impeachment." Citing State v. Payne, 126 S.W.3d 431, 442 (Mo.App. 2004), Defendant argues that "the notion of impeachment is inherent in the prior recollection recorded exception to hearsay and trial counsel's argument that A.H.'s interview was 'clearly impeachment' evidence contemplated this hearsay exception." Nothing in Payne, however, supports this broad proposition. Contrary to Defendant's argument otherwise, impeachment evidence can take the form of any of the hearsay exceptions or none of them at all. Because there is nothing about the prior recollection recorded exception, in particular, that uniquely inheres it to serve as a vehicle for the admission of hearsay impeachment evidence, Defendant's mention of impeachment in general did not present this specific theory of admissibility to the trial court.

         Accordingly, because Defendant did not present the prior recollection recorded theory of admissibility to the trial court and has failed to demonstrate that the trial court otherwise decided or ruled on that theory, it was not properly preserved for appellate review. See Blurton, 484 S.W.3d at 778. Defendant alternatively requests, in his reply brief, that we exercise our discretion to review for plain error under Rule 30.20.[3] We decline Defendant's invitation.

         Outside of simply reciting the plain-error standard of review, Defendant provides no support for his plain-error review request with any allegations or argument applying that standard of review to the underlying facts. As this Court has previously stated:

A plain-error analysis requires an examination of the facts and circumstances of the case that arguably give rise to a manifest injustice or miscarriage of justice determination. If we were to engage in a manifest-injustice or miscarriage-of-justice analysis, in the absence of Defendant providing us such an argument in his brief, we would have to scour the record and devise arguments on his behalf, thereby becoming his advocate. This is not an appropriate function for an appellate court and is something we cannot and will not do.

State v. Massa, 410 S.W.3d 645, 657 (Mo.App. 2013) (internal citations omitted).

         We, therefore, are limited in our review to Defendant's preserved claim that the trial court abused its discretion in rejecting Defendant's claim that the CAC interview was admissible as a prior inconsistent statement.

Generally, a trial court's decision to exclude testimony is reviewed for an abuse of discretion, granting substantial deference to the trial court's decision. When reviewing allegations of improperly excluded testimony the focus is not on whether the evidence was admissible but on whether the trial court abused its discretion in excluding the evidence. This discretion is abused only when the ruling is clearly against the logic of the circumstances, or when it is arbitrary and unreasonable. Even if the exclusion of testimony is erroneous, we will not reverse the judgment absent a finding that the error materially affected the merits of the action.

State v. Mort, 321 S.W.3d 471, 483 (Mo.App. 2010) (internal quotation marks and citations omitted). "While not the ultimate focus of our review, determining that the proffered evidence is admissible is a necessary prerequisite to any finding of an abuse of discretion in its exclusion." State ...

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