State v. Ellis, 122716 MOCAW, WD78436

Docket Nº:WD78436
Opinion Judge:Cynthia L. Martin, Judge.
Party Name:STATE OF MISSOURI, Respondent, v. MARION CLYDE ELLIS, Appellant.
Judge Panel:Before: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge.
Case Date:December 27, 2016
Court:Court of Appeals of Missouri

STATE OF MISSOURI, Respondent,

v.

MARION CLYDE ELLIS, Appellant.

No. WD78436

Court of Appeals of Missouri, Western District, First Division

December 27, 2016

Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Patrick K. Robb, Judge.

Before: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge.

Cynthia L. Martin, Judge.

Marion Clyde Ellis ("Ellis") appeals his convictions of statutory sodomy in the first degree pursuant to section 566.062 and of the class B felony of child molestation in the first degree pursuant to section 566.067. Ellis argues that the trial court erred in refusing to admit his entire statement to the police after the State admitted an edited version of his statement; in admitting expert testimony that Ellis claims improperly commented on his alleged victim's credibility; and in refusing to order the release of certain school counseling and medical records during discovery which could have been relevant on the issue of credibility. Finding no error, we affirm.

Factual and Procedural Background

Ellis does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the convictions, 1 the evidence at trial established the following:

M.H. ("Mother") had two daughters, V.W. (born in 2003) and M.W. (born in 2005). Mother met Ellis shortly after M.W. was born. Mother and Ellis married in 2008. While married, Ellis was very involved in caring for V.W. and M.W.

Mother and Ellis divorced in 2011. After the divorce, V.W. and M.W. occasionally spent time with Ellis, including overnight visits. During the 2013 school year, V.W. and M.H. spent weekends with Ellis on a regular basis. V.W. was beginning the fifth grade. Mother told Ellis that the girls needed to take showers if they were spending the weekend with him.

On February 26, 2014, V.W., who was then ten years of age, told friends at school that Ellis had been touching her inappropriately. The friends told Robert Miller ("Miller") that V.W. claimed she had been raped. Miller spoke privately with V.W. who reported "I don't like staying over there. He keeps touching me and I don't like it." V.W. told Miller she was referring to her "stepdad." Miller reported the conversation to his supervisor. The school nurse, Jennifer Smith ("Smith"), and the acting principal, Amanda Saxton ("Saxton"), were told of V.W.'s reports.

Smith and Saxton met with V.W. V.W. reported that Ellis touched her private areas, got in the shower with her, and made her rub back and forth on him. V.W. also mentioned an incident that occurred on the couch, and reported that when she laid on the floor at night, Ellis would remove her bra and underwear and push her up against him. V.W. claimed that Ellis's conduct had been ongoing since she was five years old. V.W. said she had never told Mother because she was afraid Ellis would beat her up. The Division of Family Services ("Division") was contacted.

Division employees Taylor Goodson Beard ("Beard") and Brett Spitzer ("Spitzer") came to the school to meet with V.W. V.W. appeared nervous and asked Spitzer to leave the room. V.W. told Beard that two weeks earlier, Ellis got into the shower with her and made her touch his private area. V.W. claimed this had happened more than once.

Detective Quentin Abbott ("Det. Abbott") of the St. Joseph Police Department's family crimes unit received the report about V.W.'s allegations and set up an interview with V.W. at the Children's Advocacy Center. V.W. told Det. Abbott that Ellis had touched her on her private parts and on her chest with his hands under her clothes while she was trying to sleep in the living room. V.W. said that three weekends prior, Ellis came into the shower with her and rubbed her chest and the inside of her private parts with his hands. V.W. said that one week prior, Ellis laid down next to her on the floor as she tried to sleep and pulled her close and tried to put his hands on her chest, but she moved his hands to her belly. V.W. claimed that Ellis's conduct began when she was five, and that Ellis told her to never tell Mother.

Ellis met voluntarily with Det. Abbott at the police station on April 4, 2014. His interview was videotaped, and lasted approximately one hour and twenty-one minutes. The jury, however, heard only fifty-eight minutes of Ellis's interview. In the edited videotaped interview, Ellis reported that during the period of time between August 2013 and late February 2014, Ellis would see that the girls were bathed if they stayed at his house. Ellis reported that the girls often came to his home filthy, and that they loved to take baths or showers at his house. Ellis reported that the girls had not been taught how to bathe themselves properly, and that he tried to educate them how to do so using a sponge and soap. Ellis said that on one occasion while teaching V.W. how to bathe herself properly, he brushed against her vaginal area, and apologized. Ellis reported that he always washed the girls' hair whenever they took a bath or a shower at his house, and would do so by reaching in from outside the bathtub. Ellis reported that on two or three occasions (with the last being before Christmas in 2013), V.W. had walked into the bathroom while he was showering and had gotten into the shower with him. On these occasions, Ellis was concerned, but did not want to over-react in front of V.W., so he would get out of the shower and dry off, and let V.W. continue with her shower. Ellis also reported that the girls would sometimes run through his house undressed or only partially dressed. Ellis claimed that he spoke with Mother regarding his concerns about the girls' showing up at his house filthy, their lack of modesty, and about V.W. getting into the shower with him.2

In the edited version of the interview played for the jury, Ellis told Det. Abbott that he did not understand how V.W. turned something normal like helping the girls take baths into something sexual. Ellis expressed sorrow that he had not appreciated that V.W. was no longer a little child, but was instead a big child that he should have handled differently with respect to bathing. Ellis denied any inappropriate contact with V.W.

Mother set up counseling for V.W. at the Children's Advocacy Center with Susan Drake ("Drake"). V.W. told Drake that Ellis touched her vagina with his hands and that it hurt, and that this had happened more than once. V.W. said that when she was showering, Ellis would come into the bathroom and turn off the light before getting into the shower with her, and that he would wash her with a washcloth and touch her private parts.

Ellis was charged with first degree statutory sodomy based upon his touching of V.W.'s genitals with his hand in the living room (Count I); first degree statutory sodomy based upon his touching of V.W.'s genitals with his hand in the shower (Count II); and the class B felony of child molestation based upon his touching of V.W.'s breasts with his hand in the shower (Count III); with all conduct alleged to have occurred between August 1, 2013 and February 27, 2014.

Before Ellis's trial, the State filed a motion in limine generally seeking to exclude any reference to denials of wrongdoing by Ellis. In addressing the motion in limine, Ellis's counsel argued that if the State intended to introduce any portion of Ellis's videotaped interview into evidence, Ellis would insist on the entire recording being admitted into evidence, including denials of wrongdoing by Ellis. The State advised that it had no intention of playing Ellis's videotaped interview at trial. However, the State argued that Ellis's admissions during the interview about being in the shower with V.W. and about touching V.W., albeit for the purpose of bathing, were inconsistent with Ellis's earlier statements to a Division employee. The trial court stated that Ellis's inconsistent statements would be admissible at trial, but that if the State used the videotaped interview to establish the inconsistent statements, Ellis would be allowed to admit the entire interview into evidence.3

At trial, the trial court revisited the subject of admission of the videotaped interview following voir dire and off-the-record discussions with counsel. The trial court explained that it had reviewed the entire videotaped interview "to deal with the objections from the State regarding the [interview]."4 [Tr. 409] The trial court expressed its belief that "it would be better for the jury to actually see what the defendant stated and the circumstances surrounding his statement regarding relevant matters as opposed to Detective Abbott testifying to that." [Tr. 409] However, the trial court stated "there is [sic] a lot of objectionable statements made by the defendant that don't need to be testified to, are not relevant, and so should be excluded." [Tr. 410] The trial court thus granted all but one portion of the State's specific objections to segments of the interview, and ruled that an edited version of the videotaped interview could be admitted into evidence by the State. Specifically, the trial court directed that the videotaped interview should begin at 10:19:20, 5 stop at 10:41:40, start again at 10:43:56, stop at 11:06:22, start again at 11:07:20, and play out to its conclusion. The effect of the trial court's order was to tailor the portion of Ellis's interview which the jury was permitted to see from one hour and twenty-one minutes to fifty-eight minutes.

During this same discussion, the trial court acknowledged Ellis's request to admit the entire videotaped interview into evidence. Ellis's counsel argued that the rule of completeness requires a defendant's entire statement to be...

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