State v. Fraction, s. 54921
| Decision Date | 05 December 1989 |
| Docket Number | Nos. 54921,56195,s. 54921 |
| Citation | 782 S.W.2d 764 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Lisslie W. FRACTION, Defendant/Appellant. Lisslie W. FRACTION, Plaintiff/Appellant, v. STATE of Missouri, Defendant/Respondent. |
| Court | Missouri Court of Appeals |
Application to Transfer Denied Feb. 13, 1990.
Charles M. Shaw, James J. Knappenberger, Stormy B. White, Barbara Greenberg, Asst. Public Defenders, Clayton, for defendant-appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant was found guilty by a jury of two counts of sodomy, § 566.060 RSMo.1986, and sentenced to concurrent terms of five and seven years. His Rule 29.15 motion was dismissed without evidentiary hearing. He appeals both judgments. We affirm.
Since defendant makes no challenge to the sufficiency of the evidence, we need only briefly set forth those facts supportive of the verdict. Defendant and his wife have two adopted children. In March of 1987, the Moline Acres Police Department received a report of child abuse through the state hotline system. The report was instigated by the eleven-year old nephew of defendant's wife, who lived with defendant's family for several years before returning to Maryland to live with his mother. In response to that report, Suzanne McCune, a social worker for the Missouri Division of Family Services, along with an officer of the Moline Acres Police Department, went to a nearby elementary school to interview the defendant's two adopted children.
McCune testified that she told the children--a girl age seven, and a boy age six--that their cousin had been hurt while he lived with their family. Through the use of anatomically correct dolls, the boy, named L.F., demonstrated that he saw defendant place his penis into his cousin's mouth and anus. He also demonstrated that defendant had done the same to him. Several days later, after a reported recantation, L.F. retold Suzanne McCune and Barbara Voyles, both social workers from the Missouri Division of Family Resources, that defendant had performed oral and anal intercourse on him, and that this occurred in their home prior to "Valentine's Day," February 14, 1987. McCune further testified that she had never experienced a child of that age indicating that he had been sexually abused when indeed he had not.
Both children told several health and social service professionals of sexual abuse by the defendant. Their testimony is summarized below:
Barbara Voyles, a social worker from the Missouri Division of Family Services, was present during the interview of the children by McCune and corroborated McCune's testimony.
Dr. Emel Sumer, a child psychiatrist at DePaul Hospital, observed while treating L.F. that his overcuriosity and preoccupation with sexuality, in combination with his nightmares and stories of his cousin's abuse, are all symptomatic of sexual abuse.
Randy Romanchek, a therapist with Family Resource Center, counselled the children on protective techniques to prevent sexual abuse. Romanchek testified that after she told the children to tell an adult if abused, L.F. said that they had told their mother, and yet, the abuse continued. Soon afterwards, their mother terminated therapy.
Tish La Rock, a pediatric nurse at Cardinal Glennon Children's Hospital, counselled the children at the hospital's Sexual Abuse Management Unit. There, La Rock recorded a videotape, later shown to the jury, asking the children whether they had been sexually abused. Taped individually, both children indicated that defendant had sexually abused them and that afterwards, their mother had told them to deny to the authorities that any abuse occurred.
Dr. Anthony Scalzo, a pediatrician at Cardinal Glennon Children's Hospital, examined the defendant's daughter, P.F. During her physical, Dr. Scalzo noted a .7 millimeter scar in her genital area that was highly correlative with sexual abuse. Dr. Scalzo testified to his findings and concluded that the scar resulted from sexual abuse occurring after P.F.'s adoption by the defendant.
At trial, both children denied any sexual improprieties by defendant.
Defendant was charged with and convicted on two counts of sodomy, § 566.060 RSMo.1986, with L.F. A third count of sodomy, with the eleven-year old nephew of defendant's wife, was dismissed at the close of evidence when he failed to appear and testify at trial.
Defendant's assertion of constitutional challenges to § 491.075 RSMo.1986 and § 492.304 RSMo.1986, do not divest this court of jurisdiction because contentions identical to those asserted by defendant have previously been ruled upon and rejected. In State v. Wright, 751 S.W.2d 48, 52 (Mo. banc 1988) the Missouri Supreme Court upheld § 491.075 against a contention that the statute violated the accused's right to confront the witnesses against him. The reasoning of Wright was found equally applicable to a contention that § 492.304 violated the confrontation clause in State v. Tansil, 754 S.W.2d 18, 20 (Mo.App.1988). Defendant's additional contention that § 492.304 is unconstitutionally vague and overbroad in that it authorizes the admission of a child's statement "relating to" any sexual offense is also misdirected. In upholding the "rape shield" statute, § 491.015 RSMo.1986, against an identical contention the Missouri Supreme Court stated: "The doctrine of vagueness in criminal law is directed at statutes which specify the criminal conduct on which charges are based, and holds that a criminal statute must be sufficiently definite and clear so that the potential violators know what standards of behavior they must adhere to." State v. Madsen, 772 S.W.2d 656, 659 (Mo. banc 1989). Therefore, a constitutional challenge to a statute relating to the admission of evidence "on the basis of indefiniteness and overbreadth is without legal foundation." Id. 1
Defendant alleges trial court error in the admission of the testimony of the various witnesses concerning extra judicial statements of the children. In particular, defendant complains of the failure of the trial court to make a finding of reliability after a hearing as required by § 491.075.1(1) and of the prosecutor's failure to give notice of intent to offer the statements sufficiently in advance of the proceedings to provide him with an opportunity to meet the statements, as required by § 491.075.3.
As to the requirement of notice, the State has met its burden. Six months before trial, the State filed a "Notice to Offer Statements of Children Under RSMo. 491.075 ." The two page notice set forth the prosecutor's intention to offer the children's statements and the particulars of those statements. Furthermore, the defendant was informed of the children's statements to the State's witnesses through police reports, medical reports, and the Missouri Department of Family Services' reports--all made available to the defense prior to trial. The record shows that the witnesses in question were endorsed by the State in advance of trial; there was no element of surprise or concealment. Additionally, four months before trial, Suzanne McCune's testimony was held to be admissible in a pretrial hearing. It is clear from the record before us that the defendant received notice of the children's statements sufficiently in advance of trial to have a fair opportunity to prepare to meet the statements.
Second, defendant claims that the trial court erred in failing to hold a proper hearing to determine whether the statements had a sufficient indicia of reliability. The purpose of a hearing, under § 491.075.1, is to determine outside the presence of the jury whether the time, content, and circumstances of the statements provide a sufficient indicia of reliability. Here, five of the six witnesses defendant objects to, received a hearing outside the presence of the jury at, or before, trial. " '[I]ndicia of reliability' must be considered in the context of the particular case and the factors prescribed by statute." State v. Wright, 751 S.W.2d 48, 52 (Mo. banc 1988). In this case, the State's six witnesses are health or social service professionals from four unrelated institutions all testifying to similar statements of sexual abuse of the children entrusted in defendant's care. The trial court conducted a careful and thorough hearing for the purpose of determining indicia of reliability and then allowed the witnesses to testify before the jury. Although an expression on the record of the court's finding of reliability would have been preferable, such a finding is implicit in the overruling of defendant's objection and in permitting the witnesses to testify before the jury.
The only witness not receiving a hearing pursuant to § 491.075 and permitted to testify was Tish La Rock. Defendant failed to object to La Rock's testimony as violating the procedural safeguards set forth in § 491.075. To preserve error for appeal, objections to evidence must be timely. State v. Brown, 749 S.W.2d 448, 451 (Mo.App.1988). Moreover, Ms. La Rock testified after the children had denied any abuse by defendant, denied that their mother had told them to lie about it and said Ms. La Rock had told them what to say. Ms. La Rock's testimony was a direct refutation of the children's testimony. Her testimony related primarily to the identification of her videotaped interviews of the children in which they described with the use of dolls what their father had done and in which they admitted their mother had told them to lie about it. This testimony was admissible pursuant to § 491.074 RSMo.1986 which provides:
Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of an offense under chapter 565, 566 or 568, RSMo, shall be received as...
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