State v. Bohanon

• Court: Missouri Court of Appeals
• Writing for the Court: MAUS; PREWITT, P.J., and FLANIGAN; HOGAN
• Citation: State v. Bohanon, 747 S.W.2d 294 (Mo. App. 1988)
• Decision Date: 09 February 1988
• Docket Number: No. 15114,15114
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Daniel R. BOHANON, Defendant-Appellant.

Page 294

747 S.W.2d 294

STATE of Missouri, Plaintiff-Respondent, v. Daniel R. BOHANON, Defendant-Appellant.

No. 15114.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 9, 1988.

Motion for Rehearing and Transfer

Denied and Overruled

March 1, 1988.

Application to Transfer Denied April 19, 1988.

Nancy A. McKerrow, Columbia, for defendant-appellant.

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

MAUS, Judge.

The defendant was charged as a persistent offender under § 558.016 with two counts of sexual abuse in the first degree by subjecting a person less than 12 years old to sexual contact. § 566.100. A jury found him guilty on each count. The court determined he was a persistent offender and sentenced him to imprisonment for consecutive terms of 10 years each. He states three points on appeal.

The defendant does not question the sufficiency of the evidence to sustain his convictions. The following is a brief summary of the evidence sufficient to place his points in context in the proceeding.

On March 14, 1986, the mother of the victims, her cousin Maxine, and the defendant, accompanied by the victims were driving. The victims were C.K., a female child 10 years old and L.D.K., a female child 7 years old. The mother and Maxine decided to go to a tavern. They took the defendant and the victims to the mother's home. The defendant was to act as the victims' "baby-sitter."

In an upstairs room the defendant pushed C.K. onto a bed and touched her vagina and her lips. When C.K. fled, the defendant went downstairs where he accosted L.D.K. C.K. ran out of the house and called the police. The defendant touched the vagina of L.D.K. He scratched her with his fingernail. The police quickly arrived at the home. They were met by C.K. As they approached the house, L.D.K. emerged. Her clothes were in disarray, her bluejeans were pulled down around her ankles, and her pullover top and sweater type jacket were tied around her waist. Both little girls were very frightened and excited. They were taken to a hospital. Examination of L.D.K. showed blood on her inner thighs, a point of bleeding near the vaginal opening, and a small tear. The examination of C.K. did not reveal any physical injury in the vaginal area.

The incident was reported to the mother at a tavern. She unsuccessfully tried to find the defendant. She then went to the hospital. L.D.K. was overheard to tell her mother "Danny raped me, Danny got me." The police were unable to locate the defendant. He was later apprehended in Illinois.

On March 15, 1986, the day following the incident, a social worker, with the aid of anatomically correct dolls took the statements of the victims. In those statements they related the incidents outlined above.

On June 9, 1986, the state filed in the associate division of the circuit court a motion for a videotape deposition pursuant to § 491.680 to be taken June 10, 1986. The motion did not specify the proposed deponents.

On June 10, 1986, the associate circuit court summarily sustained the motion. On June 10, 1986, the social worker referred to above interviewed the victims. Those interviews were recorded on videotape. The preliminary hearing upon the charges against the defendant was held on June 13, 1986.

The case was tried on January 27, 1987. The state presented the testimony of the mother, a police officer who arrived at the home, the examining physician, and the social worker. Testimony relating the statement of L.D.K. at the hospital that the defendant got her was admitted. Further, the social worker testified extensively concerning the content of the victims' statements taken the following day. A transcript of those statements was admitted in evidence. The videotape interviews were shown to the jury. The videotape in general corroborated the events described in the statements taken March 15, 1986. However, the videotape interviews also contained certain inconsistencies.

The defendant's first point is that by admitting the videotaped interviews, the trial court erroneously denied him "his constitutionally guaranteed rights of due process and confrontation in that neither alleged victim was called to testify at trial and appellant was never afforded the opportunity to cross-examine them either before or during trial." He cites the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. He also cites Art. I, §§ 10 and 18(a) Const. of Missouri (1945).

It must first be noted that the assertion the defendant was never afforded the opportunity of cross-examination is not supported by the record. The defendant's motion for a new trial includes this cryptic allegation:

That at the time of trial, and at the time of preliminary and pursuant to the provisions of Section 491.680 RSMo, a videotape deposition was conducted of the two alleged victims, to wit: L.D.B. and C.B., said videotape was used at the time of the preliminary hearing, was also used by the State at the time of trial, and prior to the admission of the videotape at the time of trial, and in response to a timely objection by counsel on behalf of Defendant, alleging that Section 491.680(4) had been violated, whereby the attorney for the Defendant shall have at least two opportunities to cross examine the deposed alleged child victim; once prior to the preliminary hearing which was done, and at least one additional time prior to trial, which was not afforded to the Defendant, and therefore in violation of the provisions of Section 491.680(4). (emphasis added).

The record does not establish whether or not the victims were in the courthouse at the time of trial. However, the record does demonstrate that at the time of trial the victims lived with their mother in the county in which the case was tried. Section 492.304, hereafter discussed, makes it clear they were subject to being called and cross-examined by the defendant.

A further discussion of the merits of the defendant's first point is not required. It is a well-established principle that "[t]o preserve a constitutional question for review here it must be raised at the first opportunity." Magenheim v. Board of Education of School District of Riverview Gardens, 340 S.W.2d 619, 621 (Mo.1960). That principle finds frequent application in respect to attacks upon the constitutionality of a statute. State v. Bailey, 659 S.W.2d 559 (Mo.App.1983).

As hereafter developed, the defendant's first point is in reality an attack upon the constitutionality of § 492.304. In general, that section conditionally permits the presentation to a jury of an ex parte videotape interview of a child under the age of twelve alleged to be a victim of an offense defined in chapters 565, 566 or 568. One of the conditions is that "the child is available to testify." § 492.304.1(8). In State v. Seever, 733 S.W.2d 438 (Mo. banc 1987), the Supreme Court of Missouri found it unnecessary to pass upon the constitutionality of § 492.304. It decided the case upon the following basis:

The state did not fully avail itself of the privilege, accorded it by the statute, of introducing the videotape and then leaving it to the defendant to call the victim for cross-examination. It first introduced the videotape, and then called her to the stand where she gave testimony covering all the elements of the case. The defendant argues that this procedure resulted in an improper enhancement and rehabilitation. We agree.

State v. Seever, supra, at 441.

In the recent case of State v. Bowman, 741 S.W.2d 10 (Mo. banc 1987), the Supreme Court determined that § 491.074 does not deny a defendant the right of confrontation as guaranteed by the Sixth Amendment to the Constitution of the United States and Art. I, § 18(a) Mo. Const. (1945). That section provides that a prior inconsistent statement of any witness testifying in the trial of an offense defined in Chapter 565, 566 or 568 shall be received as substantive evidence. In so holding, the court noted the witness was subject to cross-examination and the federal constitutional question was ruled by California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). On a similar basis, the court found the statute did not violate the cited provision of the constitution of this state. Statutes similar to § 492.304 have been found to be valid in other states. State v. Johnson, 240 Kan. 326, 729 P.2d 1169 (1986), cert. denied, 481 U.S. 1071, 107 S.Ct. 2466, 95 L.Ed.2d 874 (1987); State v. Feazell, 486 So.2d 327 (La.App. 3 Cir.1986); Whittemore v. State, 712 S.W.2d 607 (Tex.App.1986). Contra Long v. State, 694 S.W.2d 185 (Tex.App. 5 Dist.1985).

The defendant's sole objection to the presentation of the videotaped interviews of the victims was by an oral motion in limine. That objection was that contrary to § 491.685(3), the defendant and his attorney had not been afforded an opportunity to review the videotape in private and in the presence of each other. Even if § 491.685(3) was applicable, this objection did not preserve the defendant's claim of a deprivation of constitutional rights for review. State v. Taylor, 735 S.W.2d 412 (Mo.App.1987).

To avoid this conclusion, the defendant insists he did not waive his constitutional rights and cites Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). In that case a defendant's lawyer agreed to a trial before the court in which the state was required to present only a "prima facie case" of guilt. That procedure was not clearly defined. It was compared to a plea of nolo contendre. Under that procedure the defendant was not permitted to call witnesses or to cross-examine witnesses presented by the state. The Supreme Court of the United States found the procedure tantamount to a plea of guilty. It further found the agreement by the lawyer was contrary to the desire of the defendant which had been expressed in open court. Upon this determination the...