State v. Chapman, s. 67368

• Decision Date: 05 November 1996
• Docket Number: 70044,Nos. 67368,s. 67368
• Citation: 936 S.W.2d 135
• Parties: STATE of Missouri, Respondent, v. Howard CHAPMAN, Appellant. Howard CHAPMAN, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 135

936 S.W.2d 135

STATE of Missouri, Respondent, v. Howard CHAPMAN, Appellant.

Howard CHAPMAN, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 67368, 70044.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 5, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 8, 1997.

Gary E. Brotherton, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.

RHODES RUSSELL, Presiding Judge.

Howard Chapman ("Defendant") appeals the judgment upon his conviction by a jury of five counts of rape in violation of § 566.030 RSMo 1994 ¹, three counts of sodomy in violation of § 566.060, and two counts of sexual assault in the first degree in violation of § 566.100. Defendant was sentenced, in accordance with the jury's recommendations, to eight terms of life imprisonment on each of the rape and sodomy counts, and five years imprisonment and a $5,000 fine on each of the first degree sexual abuse counts, with all sentences to be served consecutively. Defendant also appeals from an order denying, without a hearing, his Rule 29.15 motion for post-conviction relief. Both appeals have been consolidated. We affirm both appeals.

Defendant was accused of sexually assaulting T.H., the daughter of his former girlfriend, during a three year period in which Defendant lived with T.H. and her mother. T.H. testified at trial that Defendant began molesting her when she was in the first grade. She testified that initially Defendant touched her vagina through her clothes. During T.H.'s second grade year, however, the abuse escalated into forced vaginal and anal intercourse.

Defendant's first point on appeal asserts the trial court erred in admitting certain testimony of Pam Byington, a Division of Family Services ("DFS") employee who was assigned by DFS to interview T.H., who was then twelve years old. Defendant contends his rights of confrontation, due process, and fair trial were violated. Defendant further maintains that Byington's testimony was hearsay and did not fall within the exception granted in § 491.075 ², that it improperly bolstered T.H.'s testimony, and that it was clearly prejudicial to his case.

Byington testified regarding the course and procedure of her investigation. Defendant complains that Byington's statements describing her interview with T.H. were hearsay. The following questioning took place:

Q. And did the child give you a statement concerning abuse?

A. Yes she did

Q. What did you do then?

A. (no response)

Q. What was the next thing you did?

A. I interviewed the child, and she described to me sexual abuse.

MS. WEXLER: Objection to hearsay according to what the child said.

THE COURT: Your answer I don't think was really responsive to the question.

Q. (By Mr. Orzel): I'll try to be clearer. When you talked with the child, what did you talk about?

A. What did we talk about?

Q. Yes.

A. About the alleged report. I told her who I was and that we had received a report.

Q. Did she seem surprised by the fact that you were there?

A. No.

Q. What did she tell you regarding this incident?

MS. WEXLER: Again, I'm going to make an objection now to hearsay statements of the child.

MR. ORZEL: Again, it's not offered for the proof or the truth of the matter. It's being offered to show the continued course of conduct of the investigative officer and why they proceeded to do further items that they will be testifying about doing.

THE COURT: Objection is overruled.

Q. (By Mr. Orzel): You may answer the question.

A. Will you ask it again?

Q. What did she tell you about that?

A. She described sexual abuse by Howard Chapman.

Hearsay evidence is in-court testimony of an extrajudicial statement offered to prove the truth of the matters asserted therein, resting for its value upon the credibility of the out-of-court declarant. State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981).

Byington's testimony did not offer any details of the incidents of sexual abuse. The testimony was not hearsay because it was not offered to prove the truth of the statements, that Defendant sexually abused T.H., but rather was offered to explain the catalyst for Byington's investigation.

Testimony of what another said, offered in explanation of conduct, rather than as proof of the facts in the other's statement, is not inadmissible hearsay. State v. Murray, 744 S.W.2d 762, 773 (Mo.banc 1988), Murray v. Missouri, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988).

Furthermore, even if the disputed testimony was considered to be hearsay, Defendant has not and cannot show how the admission of the testimony prejudiced his case. Hearsay evidence is objectionable in law because the person who makes the statement is not under oath and is not subject to cross-examination. State v. Hankins, 612 S.W.2d 438, 440 (Mo.App.1981). In Hankins, the defendant was charged with the rape of a 10 year old girl. At trial the physician who treated the child was allowed to testify about certain comments the child made during his treatment of her concerning what had occurred. The Southern District ruled that the testimony did not constitute hearsay and, even if it had, the defendant had failed to prove any prejudicial effect given that the victim was present in court, had been sworn as a witness, had testified fully with respect to the details of the crime, was available for cross-examination, and was in fact thoroughly cross-examined by the defendant. Id. at 440.

The present case presents a nearly identical fact pattern. T.H. was present in court, testified in great detail concerning the allegations, and was extensively cross-examined by the Defendant. Defendant had the opportunity to reveal any discrepancies between Byington's testimony and that of T.H. The possibility for prejudice was excluded by T.H. testifying. Under these circumstances, no prejudice occurred by the admission of Byington's testimony.

Defendant relies on State v. Tyler, 676 S.W.2d 922 (Mo.App.1984), for the proposition that admission of hearsay testimony as to statements made by T.H. of the crime, even though made in court, may be prejudicial error. Our court noted, however, that there was no prejudice where the testimony of the court witness was consistent with the hearsay statements of the same witness. Tyler, 676 S.W.2d at 925.

In the present case, T.H. had testified in detail as to the sexual abuse she suffered from Defendant. Byington offered no such details. The extent of her testimony was that T.H. "described sexual abuse by Howard Chapman." Such testimony was entirely consistent with T.H.'s in-court testimony. Under the standard set forth in Tyler, there was no prejudice.

Defendant contends, for the first time on appeal, that he was prejudiced in that Byington's testimony improperly bolstered T.H.'s testimony when Byington described the information she received from T.H. as "consistent." Byington also testified that T.H. was upset and gave "little bits of information at a time, which kids normally do," and stated that T.H.'s actions were "not unusual at all."

Defendant's counsel did not make an objection for improper bolstering at trial. An objection made for the first time on appeal will not be reviewed when not presented to and ruled on by the trial court. Vaughn v. Ems, 744 S.W.2d 542, 549 (Mo.App.1988). Even if it was unnecessary for Defendant to raise the bolstering issue at trial, the testimony was not bolstering.

Defendant relies on two cases for his contention that he was prejudiced by improper bolstering of T.H.'s testimony: State v. Maxwell, 502 S.W.2d 382 (Mo.App.1973), and Tyler, 676 S.W.2d 922. The defendant in State v. Murray, 744 S.W.2d 762 (Mo.banc 1988) relied on the same cases. Our Supreme Court noted in Murray, that in both of the cases relied upon by the defendant, the testimony as to what the victim told a police officer included what was said about the details of the crime. In contrast, here, as in Murray, only what T.H. told Byington which was needed to explain the DFS's subsequent actions was offered in her testimony. In Murray, the officer's testimony was held not to have improperly bolstered T.H.'s testimony. Id. at 773. Byington's testimony, likewise, did not serve to improperly bolster T.H.'s testimony. Point denied.

Defendant's second point claims the trial court erred in failing to declare a mistrial sua sponte during the prosecution's closing and rebuttal arguments. Defendant argues that several of the prosecutor's statements, although not objected to at trial, nor in his motion for new trial, injected such prejudice in the jurors' minds that manifest injustice occurred and relief under plain error is necessary.

Plain errors are errors affecting the defendant's substantial rights and result in manifest injustice or miscarriage of justice. Rule 30.20. Although we do not approve of the arguments which were made without objection, we find no plain error occurred. None of the arguments were matters of what the evidence proved.

An appellate court should rarely grant relief on assertions that the trial court erred in not sua sponte taking remedial action during closing argument. State v. Sumlin, 915 S.W.2d 366, 369 (Mo.App.1996). Substantial latitude is allowed during closing argument and, under plain error review, improper argument does not justify relief unless the defendant has demonstrated that the argument had a decisive effect on the jury. Id. For the challenged comments to have had a decisive effect, there must be a reasonable probability that, in the absence of these comments, the verdict would have been different. State v. Roberts, 838 S.W.2d 126, 132 (Mo.App.1992) . Defendant failed to meet that burden. There was substantial evidence that Defendant would have been convicted of the sexual assault, rape, and sodomy charges absent the challenged remarks made by the prosecutor in his closing argument.

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