State v. Edwards, WD

• Decision Date: 30 January 1996
• Docket Number: No. WD,WD
• Citation: 918 S.W.2d 841
• Parties: STATE of Missouri, Respondent, v. Terry Lee EDWARDS, Appellant. 51078.
• Court: Missouri Court of Appeals

Page 841

918 S.W.2d 841

STATE of Missouri, Respondent, v. Terry Lee EDWARDS, Appellant.

No. WD 51078.

Missouri Court of Appeals,

Western District.

Jan. 30, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 2, 1996.

Appeal from the Circuit Court of Jackson County, Missouri; Charles Shangler, Judge.

Joe Don Butcher, Independence, for appellant.

Philip M. Koppe, Asst. Attorney General, Kansas City, for respondent.

Before FENNER, C.J., P.J., and LOWENSTEIN and HANNA, JJ.

FENNER, Chief Judge.

Terry Lee Edwards appeals from his convictions and concurrent eight and two-year sentences as a class X offender for the sodomy and first degree sexual abuse of K.E., pursuant to §§ 566.060.2 and 566.100, RSMo Supp.1992, ¹ respectively. Appellant contends that the trial court erred in ruling that the defendant could not call two witnesses to testify that the victim "does not know the difference between truth and fantasy" due to the existence of the privilege established in section 337.636, in denying appellant's motion for judgment of acquittal as to the sodomy charge based on insufficiency of the evidence to prove deviate sexual intercourse, and in finding appellant to be class X offender.

The evidence reveals that K.E., who was 13 years old at the time of trial, was living at her mother's house in Independence, Missouri, with the appellant (her uncle), her mother, grandmother, and two brothers prior to October 15, 1993. K.E. often referred to appellant as her father while the family was living in this arrangement.

K.E. testified that appellant had "sexually abused" her when they lived together in Independence from the time she was "five, six, or seven" years old. The last time she remembered appellant "touching" her was in early October 1993 when she was 12 years old, stating that appellant came up to her bedroom and "kind of got on top of [her], and he touched [her] on [her] breast and above [her] panties."

K.E. testified that events like these had occurred on three occasions while she was 11 or 12 years old. K.E. stated that she remembered appellant "touching [her] around [her] vagina" on three occasions, and said that once he touched her "below [her] panties." After these incidents, appellant would threaten to kill her if she said anything.

K.E. eventually told her mother about the incidents and her mother replied that she would "talk to [appellant] about it." On one occasion, K.E.'s mother warned appellant to stay away from K.E. Appellant ignored the warning and did "touch" her again according to K.E.

On October 15, 1993, K.E. told her counselor at school that she had been abused at her home by appellant. The school notified the Division of Family Services ("DFS"), and on the same date DFS counselor Janice Chance was sent to the school to investigate the case. K.E. repeated her statements to Ms. Chance. K.E.'s mother was then contacted along with appellant. K.E.'s mother instructed appellant to find another place to live until the allegations could be looked into.

K.E. was then sent for treatment and admitted to the Independence Regional Health Center. She was released, removed from the home of her mother, and placed in the Evangelical Children's Home where she resided through trial. She received treatment and counseling at the hospital under the supervision of Leanne Wilson, a licensed clinical social worker, and Dr. Jose Menendez, a psychiatrist. Michael Manade and Stacey Beisel, a psychologist and a social worker, respectively, aided Wilson and Menendez in implementing the prescribed treatment for K.E.

The case was also presented to the Independence Police Department for further investigation. On December 8, 1993, Detective Rast interviewed K.E. and her mother, with K.E. relating the same allegations of sexual abuse against appellant. The following day, after being contacted by the detective, appellant voluntarily appeared at Detective Rast's office to discuss the allegations against him. After receiving and waiving his Miranda rights, appellant was questioned by Detective Rast with the questions and answers recorded by the detective in the form of a written statement. Appellant reviewed the written statement after the interview ended, initialed all the answers as being correct, and signed the statement.

In his statement, appellant admitted that he had touched K.E. in an improper way, the first time being when she was five or six years old. Appellant also admitted to an incident where he was laying on top of K.E. to swat roaches off the headboard of her bed and wrestled some with K.E. after he had been drinking, which led to one of the improper touching incidents. Appellant could not deny that he had touched K.E.'s breast or put his hand inside her panties on this occasion. He also admitted that K.E.'s mother had confronted him on occasion about the questionable behavior. Appellant admitted to having touched K.E.'s breasts 20 times over the years, that he had touched her "between the legs," and that he knew it was wrong to touch her in this way.

At trial, appellant testified that K.E.'s allegations were made in retaliation to his grounding her on the morning that she went to her counselor and that no improper conduct occurred. With regard to his statement to the police, appellant claims that he and Detective Rast had a misunderstanding of the term "touching" as it was used in his statement. Appellant states that any "touching" was a playful gesture, and not of a sexual nature. Detective Rast, however, testified that appellant knew he was talking about sexual abuse when he used the term "touching" and that there was no doubt in his mind that appellant meant he had touched K.E. in an improper and sexual manner.

After hearing the evidence and arguments of counsel, the jury convicted appellant of sodomy and first degree sexual abuse. This appeal timely followed.

I. PRECLUSION OF TESTIMONY FROM K.E.'S THERAPISTS

Prior to trial, the State filed a motion in limine to exclude testimony from Michael Manade and Stacey Beisel, alleging that their testimony was protected by the physician/patient privilege under § 491.060(5). Manade is a psychologist who worked with K.E. as a therapist under the supervision of Leanne Wilson, a licensed clinical social worker under the laws of Missouri, and Dr. Menendez, K.E.'s psychiatrist. Beisel is a social worker at the Evangelical Children's Home who also assisted in K.E.'s treatment at the home.

At trial, the objection to testimony from these witnesses was renewed and the court determined that such testimony would constitute privileged information under section 337.636, which reads:

Persons licensed [as clinical social workers] under the provisions of sections 337.600 and 337.639 may not disclose any information acquired from persons consulting them in their professional capacity, or be compelled to disclose such information except.... ²

Appellant claims that Manade would testify that K.E. "does not know the difference between truth and fantasy" and that such testimony is not privileged information under section 337.636. We agree with this assertion. The statutory privilege conveyed by section 337.636 applies to licensed clinical social workers only--nowhere in the statutory chapter are unlicensed therapists brought within the umbrella of the privilege. There is no dispute that neither Manade nor Beisel were licensed clinical social workers, although they may have been working at the direction of such a person. Though the record reveals that Manade was also trained to become a licensed professional counselor as defined by section 337.500(4), he had not received his licensure at the time of his involvement in K.E.'s treatment; consequently, the privilege granted to communications between a licensed professional counselor and a counselee by section 337.540 is also inapplicable. The trial court erred in determining that the testimony proffered by appellant constituted privileged communications.

Though we believe the trial court erred in finding the proffered testimony to be privileged, that does not in and of itself require us to reverse the trial courts ruling and remand this cause for new trial. If a ruling regarding the admission or exclusion of evidence is correct for any reason, it will be affirmed regardless of the reason articulated by the trial judge. First Nat'l Bank of Ft. Smith v. Kansas City S. Ry. Co., 865 S.W.2d 719, 738 (Mo.App.1993).

The State claims that even if the testimony of Manade and Beisel would not consist of privileged communications, the proposed testimony was inadmissible because it constituted an attempt to establish the victim's reputation for truth or veracity based upon specific conduct or statements she made to them. A complaining witness in a sex offense case may be impeached by evidence that her general reputation for truth or veracity is bad, but not by acts of specific conduct. State v. Foster, 854 S.W.2d 1, 4 (Mo.App.1993).

Once the state's motion and objection to the testimony was sustained, it was necessary for appellant to make an offer of proof to adequately preserve the issue for review. Anderson v. Wittmeyer, 895 S.W.2d 595, 601 (Mo.App.1995). The offer must be made at the time of the objection and show: (1) what the evidence will be; (2) its purpose and object; and (3) all facts necessary to establish admissibility. Id. When proffered evidence is denied admission, relevancy and materiality must be shown by specific, sufficiently detailed facts to establish admissibility by the offering party in order to properly preserve the issue for appellate review. Id. Where several facts are included in an offer of proof, it is for the proponent to sever the admissible from the inadmissible. In re Drew, 637 S.W.2d 772, 777 (Mo.App.1982). If an offer of proof is made that contains many facts, some of which ultimately deemed admissible and some inadmissible, then the whole offer, if properly objected to, is...