State v. Bereuter, 53192

• Decision Date: 14 June 1988
• Docket Number: No. 53192,53192
• Citation: 755 S.W.2d 351
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Gerald William BEREUTER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 351

755 S.W.2d 351

STATE of Missouri, Plaintiff-Respondent, v. Gerald William BEREUTER, Defendant-Appellant.

No. 53192.

Missouri Court of Appeals Eastern District.

June 14, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 20, 1988.

Application to Transfer Denied Sept. 13, 1988.

Stormy B. White, Asst. Public Defender, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

CARL R. GAERTNER, Judge.

Defendant appeals his convictions for one count of rape, three counts of sodomy, and one count of sexual abuse first degree. All counts stem from allegations that defendant repeatedly sexually molested his daughter during the two years he lived in Missouri prior to the complaint. We affirm the convictions.

The record on appeal reveals the following facts. The victim was born on December 18, 1974. Defendant and victim's mother were subsequently estranged, and the child lived with the defendant from 1978 to the time of the complaint. Prior to the complaint, the then eleven year old victim sent her mother a letter requesting advice for a "friend" who was being sexually abused by her father. Concerned, the mother forwarded the letter to victim's school, but school officials decided to wait before taking action. Approximately two months later, on April 23, 1986, victim did not have lunch money. Terry Anderson, a teacher, gave victim lunch money and the school called defendant concerning the incident. The next day, Ms. Anderson noticed that victim was acting peculiarly. Upon questioning, victim stated that defendant had struck her. Victim was observed to have a bruise on her arm and a lump on her head and she complained of a sore back. Ms. Anderson then took victim to the school counselor, Diana White. Ms. White confronted victim with the letter and victim admitted that she was the "friend" who was being sexually abused. The counselor called the child abuse hot line and Karen Friedrich, a Division of Family Services (DFS) worker, was dispatched to speak with the victim. The next day, Ms. Friedrich, a second DFS worker, and a juvenile officer jointly questioned victim.

The victim related regular instances of abuse that began when she was five years of age living in Japan and continued at the various locations where she and her father lived during subsequent years. Her descriptions of sexual activity were sufficiently detailed to give credence to her allegations. In fact, Ms. White testified that the sex education offered at victim's school would not have provided the information which victim related. A pediatrician who examined victim on April 29, 1986 found that victim's hymenal ring was abnormally dilated. ¹ The doctor identified this as "positive physical evidence of sexual abuse."

At the close of the evidence, the jury found the defendant guilty of all counts charged and he was sentenced to a total of fifty seven years in prison. Defendant appeals, claiming the trial court erred in: (1) admitting testimony as to the victim's out-of-court statements; (2) permitting the state to introduce rebuttal evidence on defendant's reputation for truth and veracity; (3) allowing improper prosecutorial conduct.

Appellant's first point alleges that the trial court erred in admitting evidence of the victim's out-of-court statements under section 491.075 RSMO 1986 and thus violated defendant's constitutional rights. That statute provides in pertinent part:

1. A statement made by a child under the age of twelve relating to an offense under chapter 565, 566 or 568, RSMo, performed with or on a child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:

(1) The court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness.

* * *

* * *

4. Nothing in this section shall be construed to limit the admissibility of statements, admissions or confessions otherwise admissible by law.

Defendant's attack upon the admission of the evidence concerning the victim's out-of-court statements is diffusively multi- faceted. In his first point relied on defendant contends the admission of the evidence pursuant to section 491.075 deprived him of his constitutionally protected rights of confrontation, effective assistance of counsel and due process. Overlooking the inadequacy of this point under Rule 84.04(d), we note that the Missouri Supreme Court rejected an identical constitutional challenge to the statute in State v. Wright, 751 S.W.2d 48 (Mo. banc 1988). We are constrained to follow this precedent. Constitution of Missouri, Art. V, Sec. 2.

The argument portion of defendant's brief alleges that the trial court erred in failing to make a finding as required by sub-section one of the statute. This argument is undoubtedly predicated upon the trial court's oral statement, set forth in the transcript, which makes no reference to a finding of reliability. However, the trial court simultaneously entered a written order in the legal files stating "the court finds that the time, content and circumstances of the statements provide sufficient indicia of reliability." This obviously satisfies the requirements of the statute.

Next, defendant charges trial court error in admitting the statements as an improper bolstering of the victim's in-court testimony. Defendant relies upon State v. Seever, 733 S.W.2d 438 (Mo. banc 1987), wherein the introduction of a videotaped statement of a child witness pursuant to section 492.304.2 RSMo 1986 was held to be erroneous as a "total repetition" of the victim's trial testimony. Id. at 441. In State v. Wright, at 53, under circumstances similar to those in this case, the Supreme Court found the Seever principle inapplicable. "[O]ut-of-court statements such as those in question are a species of evidence distinct from the declarant's testimony at trial possessing unique strengths and weaknesses." Id. Here, as in Wright, there was no videotape of the victim's statement. The witnesses' testimony regarding the statements was not mere duplication of the victim's trial testimony and, because the witnesses also described the circumstances giving rise to and surrounding the making of the out-of-court statements, their testimony possessed probative value distinct from the child's statement alone.

Defendant also challenges the trial court's finding of reliability and directs our attention to evidence which might support a contrary finding. The statute vests the trial court with discretion to determine the issue of reliability in a hearing conducted outside the presence of the jury. The judge held the required hearing immediately before the commencement of the trial. At this hearing the victim's mother testified about her daughter's letter and about statements made to her. ² Jane Crouch, a deputy juvenile officer, Barbra Voyles and Karen Freidrich, employees of the Missouri Division of Family Services, described the circumstances surrounding their questioning of victim at the juvenile court on April 25, 1986. On that day, the child used anatomical dolls to show what her father had done to her. Ms. Freidrich also testified regarding victim's statements at school on April 24, 1986. She identified a diagram of a female body upon which the victim had drawn arrows in response to questions. The witness recounted the victim's reluctance to verbalize certain words and showed where...