State v. Hannon

• Decision Date: 07 May 2013
• Docket Number: No. ED 96915.,ED 96915.
• Citation: State v. Hannon, 398 S.W.3d 108 (Mo. App. 2013)
• Parties: STATE of Missouri, Respondent, v. Nathan HANNON, Appellant.
• Court: Missouri Court of Appeals

398 S.W.3d 108

STATE of Missouri, Respondent,

v.Nathan HANNON, Appellant.

No. ED 96915.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 7, 2013.

Daniel E. Diemer, Clayton, MO, for appellant.

Timothy A. Blackwell, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Nathan Hannon (Defendant) appeals the judgment of conviction entered by the Circuit Court of the City of St. Louis after a jury found him guilty of two counts of first-degree statutory sodomy against T.S. Defendant claims the trial court erred in: (1) overruling his hearsay objection and allowing T.S.'s grandmother to testify concerning T.S.'s out-of-court statements; (2) allowing T.S.'s sister to testify as to T.S.'s out-of-court statements; and (3) not admitting T.S.'s school attendance records at the Rule 29.07(b)(4) inquiry and not allowing Defendant to file a new motion for new trial. Defendant also filed a motion to remand the case to the trial court for consideration of newly discovered evidence, and we ordered the motion taken with the case. We deny Defendant's motion to remand and affirm the trial court's judgment.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the evidence at trial revealed that on October 3, 2005, T.S., then eight years old, was absent from school due to illness. T.S. was home alone when Defendant, a friend of T.S.'s mother (Mother), arrived at T.S.'s home and entered his bedroom. Defendant touched T.S.'s penis and inserted his penis in T.S.'s anus. The next day, Mother suffered a heroin overdose, and T.S. and his siblings moved in with their grandmother. In 2009, T.S. informed his grandmother about the incident with Defendant. T.S. also described the event in a 2009 interview with Beverly Tucker, an employee of the Children's Advocacy Center (CAC).

The State charged Defendant with two counts of first-degree statutory sodomy against T.S. “on or about October 3, 2005.” The trial court scheduled the matter for a jury trial.

Prior to trial, the State filed a notice pursuant to section 491.075.3 that it planned to offer in evidence the out-of-court statements of T.S. to his sister, his grandmother, and Ms. Tucker, among others. The trial court conducted a pre-trial hearing to determine the admissibility of the statements. Ms. Tucker testified at the hearing that she made a video recording of her interview with T.S. The State introduced the video and played it for the trial court. In the CAC interview, T.S. stated that he was home alone when Defendant entered his bedroom and touched his “stuff,” or what he used to “pee.” T.S. also advised Ms. Tucker that he remembered “screaming” because Defendant's “stuff” was “in [his] butt” and it hurt. T.S. stated that the next day, Mother overdosed and T.S. went to live with his grandmother. When Ms. Tucker asked T.S. whether he was going to return to live with Mother, T.S. responded that he hadn't decided yet and that it was his decision. T.S. informed Ms. Tucker that Mother “want[ed] [T.S. and his siblings] back.”

T.S.'s grandmother testified at the hearing that in 2009, T.S. and his sister attended a church program on sexual assault of children. T.S.'s grandmother stated that after the program, T.S. approached her and said, “Nanna, I have something I want to tell you.” The grandmother testified that T.S. “looked sad and teary-eyed” and informed her that Defendant molested him “the day before [his grandmother] got [them].” According to T.S.'s grandmother, T.S. advised her that when he was home alone, Defendant entered his bedroom. T.S.'s grandmother testified: “I asked him did he make him do oral sex on him, and he told me he put it in his bottom” and that it hurt. The grandmother stated that when she asked T.S. why he had not previously reported the incident, T.S. responded that he was scared and ashamed and did not think anyone would believe him. The trial court found “sufficient indicia of reliability for the statements to be admissible pursuant to section 491.075.1 with regard to the two witnesses who testified, and the statements the child made to those two witnesses.”

At trial, the State presented the testimony of T.S. T.S. stated that during the time period he lived with Mother, “when [he] came home at night, [he] came home sometimes by [himself].” T.S. testified that Defendant came to their house every other day to take drugs with Mother. T.S. stated that on October 3, 2005, when T.S. was absent from school, Defendant touched T.S.'s penis and inserted his penis in T.S.'s anus.

The State offered the testimony of T.S.'s sister. The sister stated that T.S. informed her that Defendant “touched him.” T.S.'s sister testified that she never asked T.S. for details about the occurrence.

The State also introduced Mother's testimony. Mother testified that prior to her heroin overdose in October 2005, she consumed drugs and got “high” every day. Mother stated that she would leave her children unattended for periods of time. Mother also testified that Defendant visited their home every day.

The State presented the testimony of T.S.'s grandmother, who stated that T.S. informed her in 2009 that Defendant had “touched” and “molested” him on October 3, 2005, the day before Mother's overdose. T.S.'s grandmother stated that she asked T.S., “how, what did he do?” Defendant's counsel objected on the ground of hearsay, asserting that T.S. had already testified and “the purpose of 491 is to fill in where the child can't.” The trial court overruled the objection. The grandmother testified that T.S. advised her that he was home alone when Defendant arrived, entered his room, and “stuck it in his behind.”

The State offered the testimony of Dana Pickett, a sex crimes detective with the City of St. Louis Police Department. Detective Pickett testified that while she was investigating the alleged incident, she learned that T.S. had reported that the event occurred the day before Mother's drug overdose. Detective Pickett stated that according to a report she located, Mother's overdose occurred on October 4, 2005.

The State presented the testimony of Ms. Tucker. The State also played for the jury the video recording of her interview with T.S.

Defendant testified at trial that prior to August 2005, he was at Mother's home “a whole lot” and that “sometimes [he] wouldn't go down there maybe for a day.” Defendant stated that he went to their home to acquire and use heroin with Mother. Defendant denied going to Mother's home after having an argument with her about heroin in August 2005. Defendant denied committing the charged offenses.

The verdict director for each count provided that to find Defendant guilty, the jury must find that Defendant committed the charged acts “on or about October 3, 2005.” The jury found Defendant guilty on both counts. Defendant moved for a new trial, and the trial court denied the motion. The trial court sentenced Defendant to concurrent terms of twelve years' imprisonment for each count.

After pronouncing the sentence, the trial court conducted an inquiry of Defendant pursuant to Rule 29.07(b)(4). The trial court advised Defendant of his right to file a Rule 29.15 motion for post-conviction relief. The trial court asked Defendant whether counsel failed to do anything that Defendant requested him to do. Defendant responded: “I wanted him to check to see if the kid was actually in school instead of home sick during the time this supposed incident happened.” The trial court found no probable cause to believe that Defendant received ineffective assistance of counsel.

Defendant hired a new attorney, who filed a document titled “Request to Re–Open the Rule 29.15 Motion.” In the motion, Defendant alleged that trial counsel's “feckless efforts” in filing a “completely ineffective” motion for new trial demonstrated ineffective assistance of counsel. Defendant also asserted that trial counsel was ineffective for failing to file a timely notice of appeal. Defendant maintained that he could not have addressed these issues at the Rule 29.07(b)(4) examination and therefore requested that the trial court reopen the inquiry. After a hearing on Defendant's motion, the trial court determined that Defendant's trial counsel was ineffective for failure to file a timely notice of appeal. The trial court granted Defendant's motion to reopen the Rule 29.07(b)(4) inquiry, scheduled the matter for a hearing, and set aside the judgment and sentence.

At the reopened Rule 29.07(b)(4) inquiry, the trial court instructed Defendant's trial counsel to address Defendant's allegation during the initial examination that counsel failed to determine whether T.S. was in school on October 3, 2005. Trial counsel denied that Defendant requested T.S.'s school attendance records. Trial counsel acknowledged that he contacted the school and school officials advised him that “one of the children had no record of having been there that year, or that period, that semester.” Trial counsel stated that he subsequently assessed the situation and decided that because T.S. was “constantly absent,” the records would not necessarily exonerate anyone. In addition, trial counsel determined that obtaining the records would not aid the defense theory that Defendant could not have committed the offenses because he “wasn't anywhere near that home during that time period.” Trial counsel stated that he therefore concluded that T.S.'s presence at school on October 3, 2005 was “insignificant.”

Defendant's post-trial counsel sought to introduce T.S.'s attendance records for the 2005–2006 school year for the purpose of impeaching trial counsel's testimony concerning the existence of the records. The prosecutor objected on the grounds of lack of foundation as a business record and lack of testimony as to the authenticity of the records. The trial court sustained the State's objection on the basis of lack of foundation.

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