State v. Hawkins
| Decision Date | 14 April 2020 |
| Docket Number | WD 81946 |
| Citation | 604 S.W.3d 785 |
| Parties | STATE of Missouri, Respondent, v. Frank G. HAWKINS, Appellant. |
| Court | Missouri Court of Appeals |
Gregory L. Barnes, Jefferson City, MO, for respondent.
James C. Egan, Columbia, MO, for appellant.
Before Division One: Lisa White Hardwick, Presiding Judge, Cynthia L. Martin, Judge and Thomas N. Chapman, Judge
Frank G. Hawkins ("Hawkins") appeals his conviction of sodomy in the first degree with a victim less than 12 years old in violation of section 566.060.1 Hawkins contends that the trial court erred in admitting out-of-court statements of a child victim ("Victim") offered by multiple witnesses in violation of section 491.075 and Hawkins's Sixth Amendment right to confront his accusers. Finding no error, we affirm.
Hawkins lived with Victim's grandmother. Victim often visited her grandmother's house where Hawkins would take care of Victim.
In June 2017, several weeks after a visit to Victim's grandmother's house, Victim disclosed to her mother ("Mother") that Hawkins touched her "privates" and "put something inside of her and it hurt." Victim told Mother this happened more than once. The same day, Victim's father ("Father") came home from work and Victim repeated the disclosure. Victim was taken to the hospital and the police were contacted. Several days later, Victim told Mother that Hawkins would take her to get ice cream if she let Hawkins touch her inappropriately.
During a recorded interview at the Northwest Missouri Children's Advocacy Center, Victim disclosed to Trenny Wilson ("Wilson"), a forensic interviewer, that Hawkins had touched Victim inside her vagina while she visited her grandmother's home. This touching would occur in the kitchen and the living room, and was preceded by Hawkins showing Victim pornography on his phone. During therapy sessions, Victim repeated these disclosures to Wendy Hickman ("Hickman"), a therapist at the Young Women's Christian Association.
On March 14, 2018, Hawkins was charged with sodomy in the first degree as a prior and persistent offender for acts committed against a victim under the age of 12 in January and May of 2017.3
On March 29, 2018, pursuant to section 491.075.1(1), the trial court held a hearing to determine the admissibility of statements made by Victim, who was three years old on the date of the charged offenses, to her parents regarding the criminal acts committed by Hawkins. The trial court also considered the admissibility of statements made to Wilson and Hickman.
On May 1, 2018, the trial court entered an order finding that "the content and circumstances" of the statements made by Victim indicated they were "sufficiently reliable to allow for their admissibility at trial." The trial court required the Victim to testify at trial "as a foundation for the admissibility" of Victim's out-of-court statements.
A jury trial was held. During the State's case-in-chief, Victim, who was four years old at the time of trial, was called to the stand, sworn under oath to testify truthfully, and testified as provided:
Hawkins cross-examined Victim, as provided:
The State returned for a brief redirect examination and asked Victim to point at the perpetrator who touched her, but Victim did not respond. At the conclusion of the Victim's testimony, the trial court ordered that a photograph of Victim's drawing on the whiteboard be included in evidence. In addition to Victim's testimony, Victim's parents, Hickman, and Wilson testified as to what Victim disclosed to them regarding Hawkins's abusive conduct.
The jury found Hawkins guilty of sodomy in the first degree. Hawkins was sentenced to life imprisonment. This timely appeal follows.
Hawkins raises two points on appeal. Hawkins's first point argues that the trial court erred by admitting into evidence Victim's out-of-court statements made to her parents, Wilson, and Hickman because Victim failed to sufficiently "testify" for purposes of complying with section 491.075. Hawkins's second point argues that the trial court erred by admitting Victim's video-taped interview with Wilson in violation of his right to effectively confront and cross-examine Victim under the Sixth Amendment and Missouri Constitution Article I, section 18(a), because Hawkins was not afforded an opportunity for effective cross-examination when Victim failed to sufficiently testify. Before addressing Hawkins's points collectively, we first discuss the admission of out-of-court statements by a child witness under section 491.075 within the context of the Confrontation Clause.
The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend VI.4 The Supreme Court of the United States has interpreted the Confrontation Clause as establishing limits on the use of prior out-of-court statements made by accusers when those statements are "testimonial" in nature. See Crawford v. Washington , 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In limiting these testimonial out-of-court statements, the Court has reasoned that "an accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not," and those "testimonial" statements must be tested in the "crucible of cross-examination." Id. at 51 and 61, 124 S.Ct. 1354.5 The Court has concluded that certain prior testimonial statements, such as out-of-court witness statements, are inadmissible at trial unless "the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. 59, 124 S.Ct. 1354. "When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of [her] prior testimonial statements." Id. at 59 n. 9, 124 S.Ct. 1354 ; see also State v. Perry , 275 S.W.3d 237, 242 (Mo. banc 2009) ; State v. Biggs , 333 S.W.3d 472, 477 (Mo. banc 2011).
Section 491.075 governs the admissibility of out-of-court statements made by child witnesses. Section 491.075 provides that a child's, otherwise inadmissible, out-of-court statement made in relation to an offense under Chapter 566 is admissible to prove the truth of the matter asserted when:
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