State v. Hillman

• Decision Date: 04 February 2014
• Docket Number: No. SC 93435.,SC 93435.
• Court: Missouri Supreme Court
• Parties: STATE of Missouri, Respondent, v. Nicholas R. HILLMAN, Appellant.

417 S.W.3d 239

STATE of Missouri, Respondent,

v.Nicholas R. HILLMAN, Appellant.

No. SC 93435.

Supreme Court of Missouri,

En Banc.

Dec. 10, 2013.

Rehearing Overruled Feb. 4, 2014.

N. Scott Rosenblum, Erin R. Griebel, Rosenblum, Schwartz, Rogers & Glass, St. Louis, for Hillman.

Jennifer A. Rodewald, Attorney General's Office, Jefferson City, for the State.

GEORGE W. DRAPER III, Judge.

Nicholas R. Hillman (hereinafter, “Defendant”) appeals the trial court's judgment and sentence entered after a jury found him guilty of unlawful distribution of a controlled substance to a minor, section 195.212, RSMo 2000,¹ and attempted statutory sodomy in the second degree, section 566.064. Defendant raises four issues on appeal, challenging: (1) the lack of a complete transcript; (2) the exclusion of defense witnesses due to a discovery violation; (3) the failure to suppress evidence; and (4) the constitutional validity of section 559.115, RSMo Supp.2010. This Court has jurisdiction because the case involves the validity of a state statute. Mo. Const. art. V, sec. 3. There was no error. The judgment of the trial court is affirmed.

Factual and Procedural Background

Defendant is Victim's first cousin. In January 2011, Defendant was twenty-eight years old, and Victim was fifteen years old. On January 29, 2011, Victim spent the day with Defendant and her brother (hereinafter, “Brother”). Defendant asked Victim to baby sit his three children that evening, so that he could go out drinking with Brother and another friend. Victim agreed.

Before leaving for the evening, Defendant offered Victim marijuana, and Victim smoked it. After Defendant and Brother left, Defendant's children and Victim fell asleep in the living room.

When Defendant and Brother returned, Defendant woke Victim by rubbing her legs and asking, “Do you want to be cousins with benefits?” Victim said, “No.” Victim looked for Brother and found him at the kitchen table. Victim attempted to talk to him, but he did not want to talk. Brother then went into the living room and passed out on the couch.

Victim remained in the kitchen. Defendant joined her, got a beer from the refrigerator, and offered one to Victim. Victim declined. Defendant then got some marijuana and smoked it. Defendant and Victim talked for three to four hours, including a conversation about Victim's prior suicide attempt. Defendant stated he understood Victim's feelings because he also had suicidal thoughts, and he subsequently assured Victim that her family loved her.

During their conversation, Defendant lifted Victim onto the kitchen counter and stood directly in front of her. Victim began crying because she was uncomfortable with Defendant. Defendant began touching Victim's breasts and her buttocks over her clothing. Defendant kissed Victim. Defendant then moved his hands under Victim's pants and touched her bare buttocks. Victim attempted to push Defendant away, but he did not stop touching her. Defendant began to move his hands toward her vagina. Victim shoved Defendant away. Defendant then pulled down his pants and underwear, exposing his penis, and telling Victim to “touch it.”

Victim refused and went to the bathroom. Defendant followed her and waited outside the bathroom door. When Victim came out of the bathroom, she told Defendant he needed to go to bed. Defendant was intoxicated and had difficulty walking or standing. Victim assisted Defendant in walking to his bedroom, and in doing so, Victim entered Defendant's bedroom with him, and Defendant laid in bed. Victim attempted to leave, but Defendant grabbed her and pulled her onto the bed with him. Defendant rolled on top of Victim. Defendant told Victim she could not tell anyone what happened. Victim pushed Defendant off of her and returned to the living room to sleep in a chair.

The next morning, Victim left the house without talking to Defendant. Victim did not tell anyone what happened because she was worried Defendant would get into trouble.

Eventually, Victim wrote about her experience in a school writing assignment. After her teacher read the assignment, the teacher passed it to a guidance counselor who spoke with Victim. Victim told the counselor what happened with Defendant. The counselor called the police.

Lieutenant Scott Schoenfeld (hereinafter, “Lieutenant”) contacted Victim, arranging for her to speak with Defendant while he listened to their conversation. During the conversation between Victim and Defendant, Victim reminded Defendant that he had asked to be “cousins with benefits.” Defendant responded, “Well, do you want to? ... I said that? That's awesome.” Defendant stated he remembered kissing, hugging, and holding Victim.

Thereafter, Lieutenant contacted Defendant at his residence. Lieutenant arrived at Defendant's residence with three additional officers because Lieutenant was concerned Defendant might harm himself. Defendant refused to allow the officers into his home, so he spoke with them on the porch. When Defendant requested to go inside to retrieve his cell phone, Lieutenant only allowed him to do so if an officer accompanied him. Defendant agreed, allowing Lieutenant several steps inside the house to watch him retrieve his phone. They both then returned to the front porch and continued talking.

Lieutenant advised Defendant of his Miranda² rights. Defendant indicated he understood his rights and would speak with the officers. Defendant admitted he kissed Victim. Defendant admitted there was marijuana in his home, and he gave Victim marijuana, which she smoked. After questioning by Lieutenant, Defendant admitted he exposed himself to Victim.

Defendant then consented to a search of his home. The officers located marijuana rolling papers and a marijuana pipe in the location Defendant stated it would be. Lieutenant placed Defendant under arrest.

Following the trial, the jury found Defendant guilty and recommended a sentence of five years' imprisonment for distribution of a controlled substance to a minor and four years' imprisonment for attempted second-degree statutory sodomy. On August 6, 2012, the trial court imposed the sentence recommended by the jury and ordered Defendant to serve the sentences consecutively for a total of nine years' imprisonment. The court placed Defendant in the Sex Offender Assessment Unit (hereinafter, “the SOAU”) program pursuant to section 559.115.

Defendant filed his notice of appeal on August 16, 2012. On November 8, 2012, the trial court denied Defendant's release on probation and ordered the nine-year sentence to be executed. This appeal follows.

1. Incomplete Transcript

Defendant claims he is denied meaningful appellate review because the transcript from his trial is incomplete. Defendant asserts there are portions of the transcript missing. Accordingly, Defendant believes he is entitled to a reversal of his conviction and sentence.

While an appealing party is entitled to file a full and complete transcript for appellate review, an incomplete or inaccurate record does not warrant automatic reversal of a conviction. State v. Shockley, 410 S.W.3d 179, 186 (Mo. banc 2013); State v. Middleton, 995 S.W.2d 443, 466 (Mo. banc 1999). A defendant may be granted a new trial only if the defendant “exercised due diligence to correct the deficiency in the record and he was prejudiced by the alleged defects.” Shockley, 410 S.W.3d at 186 (emphasis in original); see also Middleton, 995 S.W.2d at 466.

Defendant asserts there were twenty-one instances in the trial transcript that were labeled as being indiscernible. Accordingly, Defendant believes there can be no meaningful review of this case. The State concedes there are multiple instances wherein the transcript was indiscernible.

Rule 30.04(h) provides that if there is a material omission from the record on appeal, the parties may stipulate to the omission or misstatement in order to correct the record. Defendant states that despite his due diligence, he did not receive a complete transcript. However, Defendant's only act of “due diligence” was to request the transcript. There is no indication in the record that Defendant made any attempt to supplement the record in any way “to obtain by stipulation or motion the substance of the missing testimony or argument.” State v. Borden, 605 S.W.2d 88, 92 (Mo. banc 1980); see also Middleton, 995 S.W.2d at 466.

Further, many of the instances where the transcript is indiscernible do not thwart appellate review because Defendant has not raised a related issue on appeal. Defendant does not allege that most of these instances were relevant to the issues that he presents on appeal. Accordingly, any of those gaps have not prejudiced Defendant.

The only issue that Defendant claims is relevant to his appeal is a discussion regarding the exclusion of Defendant's witnesses. Defendant asserts that the applicable indiscernible part of the transcript is where defense counsel attempted to preserve the trial court's ruling for appeal. Fundamentally, Defendant inartfully attempts to argue that defense counsel's offer of proof ³ was excluded from the transcript. However, the record that Defendant presents to this Court does not support this assertion.

Defendant directs this Court's attention to a portion of the transcript wherein defense counsel, the State, and the trial court had a discussion about the witnesses who were excluded from testifying at trial. This discussion occurs after Defendant questioned the witnesses he called and prior to the jury instruction conference. The discussion centers around whether defense counsel should make an offer of proof. The trial court clearly states that it will not prevent defense counsel from making an offer of proof, but that its decision to exclude the witnesses was due to a discovery violation of a late endorsement and not relevancy. The transcript further clarified:

The court: (indiscernible) relevant not be without reason, absolutely make an offer of proof and show...