IN INTEREST OF ELC v. State
| Citation | 202 S.W.3d 738 |
| Decision Date | 10 October 2006 |
| Docket Number | No. WD 65818.,WD 65818. |
| Parties | In the Interest of: E.L.C., III, Appellant, v. State of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Before James M. Smart, Jr., P.J., Edwin H. Smith, and Lisa White Hardwick, JJ.
E.L.C., III, a juvenile, appeals the judgment sustaining allegations that he committed statutory sodomy upon a person under fourteen years of age in violation of section 566.062 RSMo,1 statutory sodomy in the first degree. The judgment is affirmed.
Appellant E.L.C. was charged by a Petition filed November 18, 2004, with two counts: 1, Statutory Sodomy in the First Degree, and 2, Attempted Statutory Sodomy. On December 12, 2004, Count 3, Behavior Injurious to Welfare was added. Count 1 was alleged to have occurred on April 17, 2004.
On June 3, 2005, Counts 2 and 3 were dismissed without prejudice, and a bench trial was conducted on Count 1 before Commissioner Geoffrey Allen (hereafter "the Court").2 Pursuant to section 491.075, the juvenile officer sought to introduce out-of-court statements of the alleged child victim. The juvenile officer presented evidence that in-court testimony would be traumatic for the child victim, and attempted to introduce the out-of-court statements he made to others in lieu of the child's personal testimony. Appellant's attorney objected on the basis that the victim was not present in the courtroom. The court allowed the evidence and ruled that the child victim was unavailable due to the potential for trauma.
At this point, the attorney for the juvenile requested a continuation of the case and a videotaped deposition of the alleged child victim pursuant to section 491.680. The attorney for the juvenile officer argued that the defense attorney had already had opportunity to depose the alleged child victim, but instead chose to informally interview him. The court denied the request based upon its determination that section 491.680 did not apply to juvenile cases.
Both sides then presented evidence regarding the alleged incident involving E.L.C. and the alleged child victim, J.T. Once evidence was presented by both sides and arguments by both sides were made, but before the court made its ruling on the facts of the case, the court gave the defense an opportunity to depose the alleged child victim. This deposition was taken in the presence of the court, but was not videotaped. The defense objected, claiming that section 491.680 required the deposition to be taken before the trial. The objection was overruled.
After the deposition was taken, the court gave the attorney for E.L.C. the opportunity to offer the deposition into evidence and to recall any witnesses that he had previously examined or cross-examined in the trial. The attorney declined to do so.
The court then made his ruling and determined that, based on the evidence, the juvenile had committed the charged offense.
There is no dispute as to the basic procedural facts. Our review, then, is limited to the legal issues. Issues involving the interpretation of statutory language are questions of law and are reviewed de novo. State v. Jones, 172 S.W.3d 448, 450 (Mo. App. 2005)
.
Appellant assigns two points of error to the court's rulings. His first point of error claims that the court did not follow the mandate of section 491.075 in ruling that the alleged child victim was unavailable. His second point of error claims that the commissioner did not follow the dictates of section 491.680, which provides for a videotaped deposition of the alleged child victim to be taken before the trial commences and then allows the defense two more opportunities to depose the child.
The appellant's first point argues that section 491.075 requires that the alleged child victim be present in court when the court rules on whether the child would be traumatized by being forced to testify in court. Section 491.075 reads:
The appellant interprets the phrase "physically available as a witness" in section 491.075.1(2)(c) to mean that the child must be physically present in court when the court makes the determination that the child will be traumatized by being forced to testify, presumably so that the court would have the opportunity to observe and question the child if it desires to do so. We cannot agree with this interpretation of the statute.
The primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, and to give effect to that intent. State v. Carroll, 165 S.W.3d 597, 602 (Mo. App. 2005). The statute provides for three scenarios in which out-of-court statements may be permitted to be introduced. The first instance is when the child is present at the hearing and testifies.
The next instance is when the child is unavailable. "[T]echnical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import." § 1.090. Therefore, the term "unavailable" may be interpreted to mean unavailable in the evidentiary sense (such as the child is deceased, the child has a mental illness, not subject to the court's power to compel attendance, etc.). See, e.g., Fed. R. Evid. 804(a).
The term "unavailable" in (2)(b) has been understood to have the technical evidentiary meaning. See State v. Walker, 903 S.W.2d 636, 639-40 (Mo. App. 1995)
. The phrase "physically available" in (2)(c) could have a correspondingly opposite evidentiary meaning, with emphasis on the physical availability, meaning the child is not deceased, not hospitalized, or out of the jurisdictional power of the court to compel an appearance. Regardless of the precise meaning of "physically available," however, it would be a straining of the language to conclude that the legislature intended the word "available" to mean "present" in the courtroom, as the appellant argues. The word "present" is not synonymous with "available," whether we are talking about technical terms or ordinary language terms. If the statutory point is to allow protection of the child in these instances from the pressure or trauma of the proceedings, which it is, it makes no sense to believe the legislature would have undermined its own purpose by requiring the child to be present in order for the judge to be able to make a determination as to whether the child should be treated as unavailable.
This court addressed this issue in State v. Sanders, 126 S.W.3d 5 (Mo. App. 2003), when it declined to rule that it was necessary for the trial court to personally observe the alleged child victim in making its determination that the child should be declared unavailable due to the potential for trauma. Id. at 17-18. Instead it was enough for the court to have heard the testimony of social workers and other professionals who had observed and worked with the child in therapy. Id. at 17.
Appellant relies on the case of Kierst v. D.D.H., 965 S.W.2d 932 (Mo. App. 1998), to support his point. However, in that case the court stated that it was "uncontested that [the alleged child victim] was available, and present in the courtroom[.]" Id. at 939 (emphasis added). This case is not authority for the proposition that "available" means "present." If that court...
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