State v. Griffin

• Decision Date: 22 August 2006
• Docket Number: No. WD 63968.,WD 63968.
• Citation: 202 S.W.3d 670
• Parties: STATE OF MISSOURI, Respondent, v. CLYDE E. GRIFFIN, Appellant.
• Court: Missouri Court of Appeals

202 S.W.3d 670

STATE OF MISSOURI, Respondent, v. CLYDE E. GRIFFIN, Appellant.

No. WD 63968.

Missouri Court of Appeals, Western District.

August 22, 2006.

Before Breckenridge, P.J., Howard and Holliger, JJ.

PATRICIA BRECKENRIDGE, Judge

Clyde E. Griffin appeals his convictions for one count of statutory rape in the first degree, under section 566.032, RSMo 2000,¹ three counts of incest, under section 568.020, two counts of statutory sodomy in the first degree, under section 566.062, and two counts of child molestation in the first degree, under section 566.067. Mr. Griffin raises two points on appeal. First, Mr. Griffin claims that he was denied his constitutional right to confront and cross-examine the witnesses against him because the trial court admitted hearsay statements of the child victim. Second, Mr. Griffin claims that the trial court plainly erred in failing to address the prosecutor's closing arguments, in which Mr. Griffin asserts the prosecutor personalized his argument and argued matters not in evidence. This court finds that because Mr. Griffin had the right to cross-examine the victim during her videotaped deposition, Mr. Griffin was not denied his constitutional right to confront and cross-examine the witnesses against him. Further, this court finds that the trial court did not plainly err in failing to address the prosecutor's comments during closing arguments. Consequently, the judgment of the trial court is affirmed.

Factual and Procedural Background

On May 9, 2001, five-year-old L.G. told her kindergarten teacher, Cara Campbell, that her father, Mr. Griffin, "had been doing some nasty things to her." Ms. Campbell took L.G. to the principal's office and informed Dr. Barbara Fields, the principal, of L.G.'s statement. Dr. Fields called L.G. into her office and asked her about her statements to Ms. Campbell. L.G. told Dr. Fields that Mr. Griffin had hurt her. Specifically, L.G. told Dr. Fields that Mr. Griffin had "poked [her] with his stick." When asked where Mr. Griffin hurt her, L.G. pointed to her "privates." Dr. Fields contacted the Division of Family Services (DFS).

Mia Banks, the DFS worker assigned to L.G.'s case, and two law enforcement officers were sent to the school. Ms. Banks spoke with Dr. Fields and interviewed L.G. in a private room with the two police officers present. Ms. Banks asked L.G. about whether she knew the difference between a "good touch" and a "bad touch." L.G. demonstrated that she knew the difference and told Ms. Banks that her father touched her in a bad way. L.G. told Ms. Banks that she sat on her father's lap and that he had sex with her. L.G. also demonstrated to Ms. Banks that Mr. Griffin had touched her vaginal area. When asked what sex was, L.G. was able to demonstrate sex between two anatomically correct dolls. L.G. told Ms. Banks that her clothes were off during these incidents and that it hurt. Following this interview, L.G. and her brother were taken into protective custody.

Dr. Lisa Schroeder performed a SAFE examination on L.G. Dr. Schroeder did not question L.G. about her allegations. L.G. was cooperative until Dr. Schroeder attempted to perform a genital exam, at which point L.G. became apprehensive. Dr. Schroeder performed a genital exam, but her findings were inconclusive. Dr. Schroeder discovered some redness around the vaginal area and a small amount of vaginal discharge. Dr. Schroeder also noted that L.G. "had a variation in her hymenal opening that can be a very normal variation." Dr. Schroeder noted, however, that, frequently, examinations of sexually abused children fail to uncover physical signs of abuse. Ultimately, Dr. Schroeder could not conclusively determine whether her findings were the result of abuse or whether there was another cause, such as poor hygiene.

Julie Donelon, a social worker for the Child Protection Center (CPC), also interviewed L.G. This interview was videotaped. L.G. identified the male and female sexual organs. L.G. described Mr. Griffin performing sexual acts on her. L.G. told Ms. Donelon that both she and Mr. Griffin were unclothed when the events took place. L.G. said that Mr. Griffin had sex with her. L.G. indicated that Mr. Griffin touched her private place with his hand over her clothes. She also indicated that Mr. Griffin placed his penis in her vagina, mouth, and anus. L.G. told Ms. Donelon that "pee" had come out of Mr. Griffin's penis. L.G. said that this tasted like "poop." L.G. also said that she couldn't breath when Mr. Griffin placed his penis in her mouth. L.G. said that she told Mr. Griffin to stop. She said that Mr. Griffin told her not to tell anyone or that he would do it again.

DFS placed L.G. in foster care with James and Cheryl Darby. Both foster parents observed inappropriate sexual behavior by L.G. For example, when L.G. first came to the Darby's home, "her hand would go to [Mr. Darby's] groin" when she approached him. L.G. would also frequently attempt to sit in Mr. Darby's lap. When questioned about this, L.G. explained that she always sat on her father's lap. On one occasion, Ms. Darby was told by another girl that L.G. was "on the side of the house with her pants down" and that L.G. was masturbating. When Ms. Darby asked L.G. about this, L.G. told her that her father used to do this to her.

While in the care of the Darbys, L.G. underwent counseling with Deborah Rhinehart, a licensed clinical social worker. In the course of this counseling, L.G. told Ms. Rhinehart that her father had touched her. When asked where she was touched, L.G. pointed "to her private area between her legs." L.G. also told Ms. Rhinehart that her father had touched her with his hand and "with his private part." When Ms. Rhinehart discussed the possibility of L.G. having to testify, L.G. became more anxious and upset and her behavior problems increased.

Mr. Griffin was charged with one count of statutory rape in the first degree, three counts of incest, two counts of statutory sodomy in the first degree, and two counts of child molestation in the first degree. Prior to trial, the State filed a motion to permit L.G. to testify by videotaped deposition in accordance with section 491.680. The State also filed a motion to exclude Mr. Griffin from the deposition proceedings under section 491.685. The trial court found that "significant emotional or psychological trauma would result to child from testifying in [the] personal presence of the defendant" and granted both motions. On August 21, 2003, L.G.'s testimony was videotaped.

Mr. Griffin's case went to trial on November 12, 2003. At trial, over Mr. Griffin's objection, the trial court permitted the State to introduce L.G.'s videotaped testimony of August 21, 2003, in lieu of live testimony, in accordance with section 491.680.² The State filed a motion, in accordance with section 491.075, to introduce L.G.'s statements about Mr. Griffin's sexual abuse that she made to Ms. Campbell, Dr. Fields, Ms. Banks, Ms. Darby, Ms. Rhinehart, Willie Hough,³ and L.G.'s videotaped interview with Ms. Donelon. Mr. Griffin filed a brief in opposition to the introduction of L.G.'s prior statements regarding Mr. Griffin's sexual abuse and a motion to exclude the statements on the ground that the statements were hearsay and violated Mr. Griffin's "right to confrontation and cross-examination of witnesses" afforded by the United States Constitution and the Missouri Constitution. Mr. Griffin also objected to the introduction of this evidence at trial. The trial court overruled Mr. Griffin's motions and objections and the statements were admitted into evidence.

Mr. Griffin, Mr. Griffin's sister, and Mr. Griffin's sister-in-law testified on Mr. Griffin's behalf. The jury found Mr. Griffin guilty on all charges. Mr. Griffin filed a motion for judgment of acquittal, or in the alternative, for a new trial, which the trial court denied. The trial court sentenced Mr. Griffin to ten years in prison for the charge of statutory rape and ten years in prison for each of the two counts of statutory sodomy in the first degree. The trial court ordered Mr. Griffin to serve his sentence for statutory rape consecutively with his sentence for the first count of statutory sodomy. The trial court ordered Mr. Griffin to serve his sentence for the second count of statutory sodomy concurrently with his sentence for statutory rape and his sentence for the first count of statutory sodomy. On the other five counts, the court followed the recommendation of the jury and ordered Mr. Griffin to pay fines, totaling $8335. Mr. Griffin appeals.

Jurisdiction

In his brief, Mr. Griffin asserts that his first point on appeal does not challenge the constitutionality of section 491.075, the statute under which the trial court found the hearsay statements of L.G. to be admissible. The State agrees. Nevertheless, this court must examine its jurisdiction, sua sponte. State v. Miller, 172 S.W.3d 838, 843 (Mo. App. S.D. 2005). If Mr. Griffin's claim challenges the validity of a statute and the claim is real and substantial and brought in good faith, then the Missouri Supreme Court would have exclusive jurisdiction. Mo. Const. art. V, sec. 3; Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 51 (Mo. banc 1999). Although Mr. Griffin does not expressly challenge the validity of section 491.075, his claim on appeal is that the trial court's admission of L.G.'s hearsay statements, as permitted by section 491.075,⁴ violates the constitutional requirements for the admission of testimonial hearsay statements established by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). His claim certainly implicates the validity of section 491.075 and, if resolution of the case necessitated addressing the statute's validity, the case would be transferred. "However, the courts should refrain from deciding constitutional issues when the case can be resolved without reaching those issues." Jackson County Bd. of...