State v. Christianson, SD 37032

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJENNIFER R. GROWCOCK, J.
Citation642 S.W.3d 793
Parties STATE of Missouri, Plaintiff-Respondent, v. Luther John CHRISTIANSON, Jr., Defendant-Appellant.
Decision Date05 April 2022
Docket NumberSD 37032

642 S.W.3d 793

STATE of Missouri, Plaintiff-Respondent,
v.
Luther John CHRISTIANSON, Jr., Defendant-Appellant.

No. SD 37032

Missouri Court of Appeals, Southern District, Division Two.

Filed: April 5, 2022


Attorney for Appellant – Ellen H. Flottman of Columbia, MO.

Attorneys for Respondent – Eric S. Schmitt (Attorney General), Gregory L. Barnes of Jefferson City, MO, and Dakota Paris of Springfield, MO.

JENNIFER R. GROWCOCK, J.

642 S.W.3d 796

Luther John Christianson, Jr. ("Defendant") was charged by felony information with committing the following four offenses: one count of the class D felony of domestic assault in the second degree in violation of section 565.073 (Count 1); one count of the class D felony of endangering the welfare of a child in the first degree in violation of section 568.045 (Count 2); one count of the class A misdemeanor of domestic assault in the fourth degree in violation of section 565.076 (Count 3); and one count of the class D felony of abuse or neglect of a child in violation of section 568.060 (Count 4).1 Following Defendant's waiver of his right to a jury trial, the trial court found Defendant guilty of misdemeanor domestic assault of his Child in the fourth degree (Count 3) and guilty of felony abuse or neglect of his Child (Count 4),2 and sentenced Defendant to concurrent terms of one-year incarceration. Defendant appeals those convictions. Defendant raises one point on appeal. Defendant argues the trial court abused its discretion in overruling his objections and admitting into evidence the recording of a 911 call describing the 2018 domestic disturbance because the recording contained inadmissible hearsay and violated the Confrontation Clause. We affirm because the record supports that the challenged evidence was admissible under hearsay exceptions and that the Confrontation Clause was not violated. We remand to the trial court for it to correct clerical errors in a judgment nunc pro tunc.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his convictions, and we limit our discussion of the facts to the evidence relevant to the 2018 incident involving Wife's 911 call. "We relate the relevant facts in the light most favorable to the verdict." State v. Kleeschulte , 618 S.W.3d 246, 249 (Mo. App. S.D. 2021). Viewed from this perspective, the following evidence was adduced at trial.

Defendant was married to Wife and had Child.3 On December 18, 2018, Defendant and Wife got into an argument as they were getting in their van to go to Walmart. Defendant became frustrated and aggravated, announced that he wanted to go by himself, and told Wife to go back in the house with the children.4 Wife testified that Defendant came back into the house

642 S.W.3d 797

yelling after Wife. At some point, Defendant stepped on Child's arm with his cowboy boot. Defendant grabbed Wife by her sweatshirt and pushed her onto the couch while she was holding Child, who landed near the pillows. Defendant continued to hold Wife down and put more pressure on her chest until she could no longer breathe. There were red marks on Wife's lower neck and collarbone region from Defendant holding her down and applying pressure on her chest area.

Wife called Springfield Greene County 911, identified herself by her first name and later identified herself as Defendant's Wife. A recording of this call was admitted into evidence and played for the trial court. The recording reflected the following. Wife reported to the 911 dispatcher that Defendant put his hands on her throat and slammed her onto the couch. Defendant could be heard coming back into the house in the background of the 911 call, yelling "pack your shit and get out of my house" and "I'm seeing a lawyer, we're getting a divorce. I'm done with you." Wife was shaken, upset, and emotional during the phone call. Wife began to sob as she reported that Defendant had stepped on Child's arm.

Greene County Sheriff's Department Deputy Meggan Hartman ("Deputy Hartman") responded to the scene at Defendant and Wife's home in reference to an ongoing domestic disturbance. Wife told Deputy Hartman that she and Defendant were getting ready to go to Walmart, but they had been arguing when she decided to go back in the house because she did not want to be around Defendant. Wife told Deputy Hartman that Defendant followed her back into the home, placed his hands around her neck, pushed her onto the couch, and choked her to the point that she was unable to breathe. Deputy Hartman testified Wife told her Defendant had stepped on Child's arm. Wife also told Deputy Hartman that Defendant had pushed Wife in September 2018. Deputy Hartman observed red marks around Wife's collarbone and neck region. The red marks on Wife's collarbone and neck region were photographed and admitted into evidence at trial. Deputy Hartman also observed that Child had a "little almost triangular red mark on his shoulder" that appeared to be "fresh or recent[.]" Child was photographed and the photos were entered into evidence.5 Wife signed a statement saying that Defendant stepped on Child's arm and put his hands on her neck. However, at trial while in the presence of Defendant, Wife recanted her statements that Defendant stepped on Child and testified that Defendant did not step on Child, but rather stepped by or near Child's arm.6 Wife also testified that Child did not have that mark on him earlier that day when she dressed him and claimed at trial that she did not know how Child got the mark. Wife also testified at trial that Defendant did not choke her, but rather he pushed her down and applied pressure to her chest at the bottom of her throat. Wife testified that Defendant did push hard enough on her chest to restrict her ability to breathe and that the scratch

642 S.W.3d 798

marks in her neck area were due to Defendant's long nails.

Prior to trial, Defendant filed a Motion in Limine to exclude admission of the 911 recording. The trial court denied the motion. At trial, Defendant renewed his objection that the 911 recording was inadmissible hearsay, that he did not believe that it qualified as an excited utterance exception to the hearsay rule, and that the contents of the recording contained testimonial statements constituting inadmissible hearsay. The trial court overruled Defendant's objection and admitted the 911 recording.

Defendant testified in his own defense at trial that the December 2018 incident began when he and Wife were arguing and getting ready to go to Walmart. Defendant testified that he got mad, frustrated, and aggravated with Wife and told her to stay home. Defendant claimed that Wife ripped Child out of his car seat, slammed the side door closed, hit the passenger window, and started punching the windshield. Defendant followed her into the home claiming he was upset with Wife as she could have shattered the windshield and hurt Child. Defendant admitted that he told Wife "she needs to calm the fuck down" upon entry into the house. Defendant denied Wife was holding Child, but did not remember where Child was in the commotion. Defendant testified that as the "frustration got higher" Wife pushed him, so he grabbed Wife's sweatshirt, pushed Wife onto the couch, and held her there to calm her down and get her to quit hitting him. He denied ever grabbing Wife's throat.

Defendant testified he was wearing square toe cowboy boots on the night of the incident, but denied stepping on Child. When asked whether it was possible that he stepped on Child without knowing it, Defendant replied, "I don't know."

Defendant also admitted in his testimony that he left the house right after the incident, came back shortly thereafter, and could be heard on the 911 call telling Wife to leave his house, that he was getting a lawyer, and that he wanted a divorce.

The trial court found Defendant guilty of Count 3, domestic assault in the fourth degree, for stepping on Child in December 2018, and Count 4, abuse or neglect of a child, for striking Child in December 2017. The trial court found Defendant not guilty of Count 1, domestic assault in the second degree, and Count 2, endangering the welfare of a child in the first degree. The court sentenced Defendant to concurrent terms of one-year incarceration for both Counts 3 and 4. Defendant appeals his convictions of Counts 3 and 4.

Standard of Review

The trial court's decision to admit evidence is reviewed for abuse of discretion. State v. Williams , 548 S.W.3d 275, 287 (Mo. banc 2018). The trial court's evidentiary ruling " ‘will not be disturbed unless it is clearly against the logic of the circumstances.’ " Id. (quoting State v. Prince , 534 S.W.3d 813, 818 (Mo. banc 2017) ). Defendant bears the...

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