State v. Blue, Nos. 55728

• Citation: 811 S.W.2d 405
• Decision Date: 11 June 1991
• Docket Number: 59280,Nos. 55728
• Parties: STATE of Missouri, Respondent, v. Cedric BLUE, Appellant. Cedric BLUE, Appellant, v. STATE of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 405

811 S.W.2d 405

STATE of Missouri, Respondent, v. Cedric BLUE, Appellant.

Cedric BLUE, Appellant, v. STATE of Missouri, Respondent.

Nos. 55728, 59280.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 11, 1991.

Jeannie Arterburn, Deborah B. Wafer, St. Louis, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

CRIST, Judge.

Defendant appeals his conviction by a jury of rape and sodomy of a ten-year-old girl (victim) and the denial of his post-conviction relief motion without an evidentiary hearing. We affirm the convictions and reverse and remand for an evidentiary hearing on the amended Rule 29.15 motion.

Viewed in a light most favorable to the verdict, the evidence reveals defendant started dating victim's mother (mother) sometime in 1983 when defendant was 15 and mother was 23. Two years later, in 1985, defendant moved in with mother and her two daughters at mother's residence.

On August 1, 1987, defendant was residing with mother and her two daughters. Victim was 10 at the time; victim's sister (sister) was 8. Mother had a job working at the St. Louis City Post Office. That day her shift was from 2:30 p.m. to 11:00 p.m. Defendant often cared for the mother's daughters while mother worked. Mother left for work about 1:00 p.m., leaving her two daughters in defendant's care.

Defendant fed the two girls dinner and after dinner they were allowed to play outside. Sometime after they came in from playing across the street, defendant told the girls to get ready for bed. After they changed into their nightgowns, the three, defendant and the two girls, laid down on a blanket in the living room to watch T.V. Eventually sister got up to go to the bathroom. When she came back she laid down on the couch. After a time, defendant touched sister's toes to see if she was awake. Sister pretended to be asleep and did not respond to defendant's touch. Thereafter, when defendant thought sister was asleep, defendant asked victim to "suck his dick." Victim refused. Defendant said he would "buy [victim] a gift" if she complied. Sister testified she saw victim get on top of defendant and saw that victim's nightgown was "pulled all the way down." After the incident defendant told victim not to tell anyone what had happened or he would "hurt her mother."

Mother returned home from work after midnight finding her two daughters and defendant still awake watching T.V. in the living room. They all went to sleep that night without incident but the next day when mother and her two daughters were on the porch and defendant was in the bathroom, victim told her mother: "After [defendant] leaves, mamma, I got something to tell you and you won't want to see [defendant] again after I tell you this." However, victim refused to say anymore until after defendant left.

Later that day, mother and defendant had an argument. Defendant left to take the bus to his grandmother's house. Thereafter, victim and sister told mother that defendant had "done something bad" to victim. Sister told mother, "[victim] got touched in places that she should never be touched." Mother immediately ran across the street to use the neighbor's phone to call the police. When the police officer arrived, mother and police officer went to the bus stop to pick up defendant. Victim was also taken to St. Louis Children's Hospital. She was given a physical exam by Dr. George Tiller (doctor) and spoke with Karen McEwere (nurse), a nurse and a member of the Sexual Abuse Management Team. Victim also spoke with Police Detective Sheila Simmons-Kleinecke (detective).

At trial, victim, sister, mother, nurse, detective and doctor testified for the State. Defendant and a criminalist for the St. Louis Police Department testified for the defendant. Out-of-court statements made by victim to mother, nurse and detective that the victim was raped and sodomized by defendant were admitted into evidence pursuant to § 491.075, RSMo 1986. The medical testimony revealed evidence that the victim's injuries were consistent with those of a ten-year-old who had had sexual intercourse with an adult male.

Defendant was convicted by a jury of rape and sodomy and he appeals. Defendant's first three points allege the trial court erred in (1) admitting as substantive evidence out-of-court statements of victim that defendant had sexual intercourse with her because the admissions deprived him of a meaningful opportunity to confront the victim with regard to the rape and the statements did not provide sufficient indicia of reliability to allow their admission under § 491.075; (2) permitting victim's out-of-court statement three different times from three different sources where § 491.075 does not authorize repetition and duplicative evidence; and (3) denying defendant's motion for judgment of acquittal because the evidence was insufficient to sustain a conviction of rape because the victim's testimony was inconsistent and contradictory and there was insufficient corroborating evidence. We will address defendant's first three points together.

There is no question but that the out-of-court statements were admissible. Section 491.075, RSMo 1986 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 ... not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings ... as substantive evidence ... if:

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

(2) the child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness....

Here, the victim was 10 years old at the time of the incident and 11 years old when she testified at trial. The trial court held a pre-trial hearing to determine the reliability of the out-of-court statements. At the hearing mother, nurse and detective testified to what the victim told them, when and under what circumstances. Mother testified as to how her two daughters initially approached her the morning after the incident and told her they needed to tell her something. Mother described victim as scared and crying when the two daughters approached her later to describe what happened the night before. The nurse testified she interviewed the victim at the hospital. The nurse was allowed to look at her records from her interview with the victim and recited quoted excerpts of the victim. Also, the police detective testified, relaying the circumstances under which the victim told her what had occurred. All three witnesses were cross-examined.

The trial court has considerable discretion in determining the reliability and admissibility of a child victim's out-of-court statements. State v. Potter, 747 S.W.2d 300, 305 (Mo.App.1987). In this case two of the three State's witnesses were from unrelated institutions--one a nurse from the hospital and the other a police detective. Both were professionals, trained in dealing specifically in child sexual abuse cases. All three had similar testimony of what victim said the events were that took place between victim and defendant on the evening of August 2, 1987. The trial court conducted a thorough hearing outside the hearing of the jury. It did not abuse its discretion in determining the out-of-court statements provided sufficient indicia of reliability so as to allow those witnesses to testify in front of a jury. State v. Fraction, 782 S.W.2d 764, 767 (Mo.App.1989). This point is denied.

Defendant further contends the admission of the out-of-court statements deprived him of a meaningful opportunity to confront the victim with regard to the rape. In State v. Wright, 751 S.W.2d 48, 53 (Mo.banc 1988), our supreme court determined that the statute does not prevent the introduction of evidence pertinent to the defense or deprive him of a meaningful opportunity to defend against the charges; rather, it merely allows the jury to consider certain relevant evidence offered by the State. Id. Here, the victim testified at trial and defendant had the opportunity to cross-examine her. Defendant had a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issues. Id. This point is denied.

Defendant also contends the trial court erroneously permitted the victim's out-of-court statement three different times from three different witnesses which produced repetitive and duplicative evidence. Mother's testimony described the circumstances which surrounded her two daughters telling her about the incident. The nurse and the detective testified to not only the victim's out-of-court statements to them at the hospital but the victim's attitude, reactions and emotions during her interview with them. Because each of the three witnesses described the circumstances giving rise to and surrounding the making of the out-of-court statements, their testimony also possessed probative value distinct from the victim's statement alone. State v. Bereuter, 755 S.W.2d 351, 352 (Mo.App.1988). This point is denied.

Defendant contends it was erroneous to deny his motion for judgment of acquittal because the evidence was insufficient to sustain a conviction of rape because the victim's testimony was inconsistent and contradictory and there was insufficient corroborating evidence.

Viewing the evidence most favorable to the State, there is little question but that defendant sodomized victim. Furthermore, there is little question but that the victim's out-of-court statement that she had been raped by defendant was admissible under § 491.075, RSMo 1986. We also have sufficient medical testimony which determines the victim's injuries were such as to be consistent with sexual intercourse in a girl her age.

However, we have a unique situation. Here, the victim at trial denied she was raped...