Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF BARRY COUNTY Honorable Jack A.L.
W. LYNCH, P.J.
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. 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.
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.
1 - No Error in Exclusion of Defendant's Exhibit 6
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."
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.
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.
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.
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.
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
[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).
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.
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.
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. We decline Defendant's invitation.
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
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
State v. Massa, 410 S.W.3d 645, 657 (Mo.App. 2013)
(internal citations omitted).
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 ...