State v. Antle
| Decision Date | 11 May 2021 |
| Docket Number | WD 83333 |
| Citation | 657 S.W.3d 221 |
| Parties | STATE of Missouri, Respondent, v. Thomas Eugene ANTLE, Appellant. |
| Court | Missouri Court of Appeals |
James C. Egan, Columbia, for appellant.
Gregory L. Barnes, Jefferson City, for respondent.
Before Division Two: Mark D. Pfeiffer, P.J., and Alok Ahuja and Karen King Mitchell, JJ.
Following a jury trial, Thomas Antle was convicted in the Circuit Court of Randolph County of one count of statutory sodomy in the first degree and one count of child molestation in the first degree. Antle appeals. He argues that the circuit court abused its discretion by admitting the minor victim's out-of-court statements to four adults under § 491.075.1 Antle also contends that the circuit court erred by excluding the testimony of his retained expert, who had concluded that flaws in the techniques used during Victim's forensic interview rendered that interview unreliable.
We reject Antle's argument that the circuit court erred by excluding his proffered expert testimony. We conclude, however, that the court applied an incorrect legal standard in determining whether Victim's extrajudicial statements were admissible under § 491.075. We remand for the court to conduct the inquiry required by § 491.075. If the circuit court determines that Victim's statements were erroneously admitted, it should then consider whether a new trial is warranted. If the court determines that Victim's statements were properly admissible under § 491.075, or that a new trial is unwarranted despite the erroneous admission of some or all of Victim's extrajudicial statements, it should certify a supplemental record to this Court to permit us to finally dispose of the issue.
Antle was charged and convicted of first-degree statutory sodomy and first-degree child molestation for putting his penis in the mouth of his three-year-old victim, and for touching her vaginal area through her clothes. (Antle was charged with two additional sexual offenses involving a different child victim, but was acquitted of those charges.)
Victim, who was eleven years old at the time of trial, testified that she was not "able to remember today what happened to [her] when [she was] three." She could not remember Antle babysitting her, or anything that happened at his home. She did remember talking to "a lady" about Antle and seeing "a lady" for counseling, but not what she may have said to anyone about Antle. Victim remembered making a t-shirt in counseling "to keep [her] bad dreams away," but could not remember what the bad dreams were about.
Prior to trial, the circuit court conducted a hearing pursuant to § 491.075. It ruled that the State could introduce out-of-court statements concerning Antle's alleged abuse made by Victim to her Father, to her Grandmother, to forensic interviewer Holly Calvert, and to counselor Debbie Danner.
At trial, Victim's Father testified that during the summer of 2011, he was sitting at the kitchen table while Victim and her older sister were playing in their adjoining bedroom. Father overheard Victim, who was then three years old, tell her sister that "her uncle Tommy had put his thing in her mouth." Father testified that Victim and her sister referred to Antle as "Uncle Tommy," although he is not their uncle.
Father immediately called Victim into the kitchen and asked her to repeat what she said. Victim "acted a little shy about it but she repeated" what she had said to her sister. Victim's sister entered the kitchen "shortly after and basically confirmed it."
Once Victim's Mother got home from work, Father told Mother what Victim had said. Father and Mother "decided to give it a little time and then [Father] would ask" Victim about it again. When Mother asked Victim about the incident, Victim "repeated the exact same thing a couple more times to [Father], her mother and her grandma."
Grandmother testified that on one occasion she had picked up Victim and her sister in her car. While they were driving, Grandmother asked the girls how things were going. Victim's sister responded that Antle had put his privates in Victim's mouth. Grandmother then asked Victim, who replied that "Tommy put his privates in my mouth." Grandmother asked if Victim had spoken to her parents, and Victim responded, "I don't want to talk about it."
Grandmother also testified that she saw Victim in her "nightmare shirt," which Victim had created with the assistance of her counselor "to keep Tommy out of her dreams." Victim's counselor had written on the shirt, at the Victim's suggestion:
Grandmother, Mother, and Victim went to the police within a week of Victim's disclosure to Grandmother. Forensic interviewer Holly Calvert interviewed Victim at the Moberly Police Department. Calvert videotaped the interview, and the recording was played for the jury during trial.
During the interview, Calvert asked if anyone had touched Victim "someplace on her body that is bad or you don't like or makes you feel weird?" Victim said, "Uncle Tommy." Calvert asked where Antle had touched Victim, and she responded by pointing to her "girl parts." Victim stated that Antle had touched her "girl" with his hand, over her clothes, and that it had made her feel "funny." Victim told Calvert that this occurred when she was at Antle's house, in his bedroom, laying on his bed. No one else was there, as Victim's older sister and Antle's two children were at the park.
When Calvert asked if Antle said anything to Victim "about why he was doing that," Victim replied that he said "don't tell anybody." Calvert asked if Victim did tell anybody, and she responded that she had told Mother and Father.
Calvert asked Victim if Antle had done anything else to her that day. Victim responded, "he just did the same thing," and that "he does it all the time."
Victim told Calvert that Antle had not asked her to touch any part of his body, and that no part of his body had touched her beside his hand. The only contact was when he touched her "girl" with his hand. Calvert asked Victim what she had told her mother that Antle had done; Victim responded, "he touched me right there," referencing her vaginal area.
Calvert asked if Victim had ever seen Antle with his clothes off. Victim responded affirmatively. When asked what she had seen, Victim referenced the penis on a diagram of the male body. Victim then stated that Antle "put his private in my mouth," and that it had happened more than once. While Victim said she could not remember what it felt like, she remembered thinking she needed to tell somebody. Victim testified that she was choking and scared, and could not breathe, while Antle's penis was in her mouth. She drew a picture of a penis, and told Calvert that Antle's penis was blue. Victim stated that afterward Antle got her a soda and a snack. Victim said she told her sister and her sister's friend what Antle had done.
Debbie Danner, Victim's counselor, was deceased at the time of trial; her deposition was read into evidence. In her deposition, Danner stated she started seeing Victim in 2011 when Victim began experiencing behavioral changes after disclosing the abuse, including tantrums, nightmares, difficulty following orders, and changes in the way Victim played with other children. Victim indicated to Danner that Antle had asked her to put her mouth around his penis.
Victim also described to Danner certain activities "consistent with grooming behaviors," which Danner explained makes it more difficult for a child to disclose abuse. Antle would give Victim "special treat[s]," such as candy or soda; treats she would not be allowed at home. Danner testified that Victim was afraid to tell Mother about the alleged sexual abuse because she thought Mother would be angry at her for accepting treats from Antle. Victim also expressed concern that her friendship with Antle's daughter would be affected by her disclosure of the abuse.
Danner also discussed the "anti-nightmare sleeping shirt" she made with Victim to help combat her recent nightmares, which was a major focus of Victim's counseling. Victim had told Danner the words to put on the shirt.
Danner related a specific occasion in June 2012 in which Victim stated that Antle
Antle retained Dr. Ann Duncan-Hively, a clinical psychologist, to testify as an expert in his defense. Dr. Duncan-Hively had reviewed the forensic interview of Victim conducted by Holly Calvert. Dr. Duncan-Hively was prepared to testify that, during Calvert's interview of Victim, only 26% of her questions were properly "open-ended." By comparison, Dr. Duncan-Hively concluded that 64% of Calvert's questions were improperly "leading". Dr. Duncan-Hively testified that other questions Calvert asked "inserted" facts into the interview which Victim had not previously offered, and that Calvert had given Victim improper "affirmations," which praised or positively reinforced Victim when she gave responses which revealed abuse. Dr. Duncan-Hively concluded that Calvert's interview techniques were "clearly problematic" and rendered her interview of Victim "highly contaminated."
Following a testimonial offer of proof from Dr. Duncan-Hively, the circuit court excluded her testimony, based on its conclusion that she lacked adequate facts and data to support the scoring system she had applied to Calvert's forensic interview, and the conclusions she had drawn from that scoring system.
The jury convicted Antle of the two counts involving abuse of Victim: statutory...
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State v. Antle
...to the circuit court for a determination whether the Victim's statements were admissible when the proper legal standards were applied. Id. at 231-32. remand, the circuit court once again concluded that the Victim's extrajudicial statements satisfied the standards for admissibility under § 4......