State v. Hobbs

• Decision Date: 28 March 2003
• Docket Number: No. WD 60430.,WD 60430.
• Citation: 106 S.W.3d 498
• Parties: STATE of Missouri, Respondent, v. David L. HOBBS, Appellant.
• Court: Missouri Court of Appeals

Page 498

106 S.W.3d 498

STATE of Missouri, Respondent, v. David L. HOBBS, Appellant.

No. WD 60430.

Missouri Court of Appeals, Western District.

March 28, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 27, 2003.

Application for Transfer Denied July 1, 2003.

COPYRIGHT MATERIAL OMITTED

Kent Denzel, Columbia, MO, for appellant.

Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

Before BRECKENRIDGE, P.J., HOWARD and HOLLIGER, JJ.

PATRICIA BRECKENRIDGE, Judge.

A jury convicted David L. Hobbs of the class B felony of abuse of a child, section 568.060.1(1), RSMo 2000.¹ He was sentenced, as a prior and persistent offender, to fifteen years in prison. Mr. Hobbs raises three points on appeal. First, Mr. Hobbs claims that the trial court plainly erred in allowing a section 491.075 hearing to proceed in his absence. Second, he claims that the trial court erred in overruling his motion for acquittal at the close of the evidence and in entering a judgment finding him guilty of the class B felony of abuse of a child because the evidence was insufficient to establish that the victim suffered serious emotional injury. As an alternative to his second point, Mr. Hobbs argues in his third point that the trial court plainly erred in overruling his objection and permitting the treating doctor to express an opinion as to whether the victim suffered serious emotional injury because he was not qualified to express such an opinion. This court finds that Mr. Hobbs waived his right to be present at the section 491.075 hearing, the evidence was sufficient to establish that the victim suffered serious emotional injury, and the trial court did not plainly err in permitting the doctor to express an opinion as to whether the victim suffered serious emotional injury. Accordingly, the judgment is affirmed.

Factual and Procedural Background

In July 2000, Mr. Hobbs was living with his girlfriend, Carla Stephens, and her two daughters, B.S. and A.S. At that time, B.S. was eight years old and A.S. was three years old. Around midnight on July 27, Mr. Hobbs was holding A.S., who sometimes called Mr. Hobbs "Daddy," on his lap and telling her repeatedly to tell him that she hated him. A.S. refused to say that she hated him, and instead said, "I don't hate you, daddy, I love you." Mr. Hobbs told A.S. that she was lying, and if she did not stop lying, he was going to send her to the corner. He then sent her to the corner.

Ms. Stephens, who was present during this encounter, told Mr. Hobbs, "David, she said she loves you. Leave her alone." Mr. Hobbs told Ms. Stephens to "stay out of it." Mr. Hobbs told A.S. to get out of the corner and come to him. She sat on his lap again, and he began punching her in the chest. He also started biting A.S., including biting her on her bottom. At some point, he pulled her by the ears. A.S. was crying, and Mr. Hobbs told her that he was going to tie her to his car and drag her down the street. A.S. began crying hard at this point, and Ms. Stephens tried to get her to stop crying by telling her that Mr. Hobbs was not going to do anything to her. A.S. would not listen to Ms. Stephens, however, and every time she looked at Ms. Stephens or tried to talk to her, Mr. Hobbs would scream at her, "[D]id I say you could look at her, did I say you could talk to her." Mr. Hobbs then told A.S. to tell her mother "bye" because he was going to tie her to the car and drag her down the street. A.S., who was visibly scared and crying hard, told her mother "bye" and went outside. When A.S. came back in, Mr. Hobbs told her that "he was just picking on her and tormenting her because he knew it made her mad."

About 44 hours after this incident, Mr. Hobbs and Ms. Stephens had a fight during which Ms. Stephens tried to run Mr. Hobbs over with her car. Ms. Stephens then left to go to her mother's house. On her way to her mother's house, Ms. Stephens called her mother and told her to call the police.

Officer Harold Chadwick Anderson was the police officer who arrived at Ms. Stephens' mother's house in response to the call. He immediately noticed that A.S. had bruises on her face and chin. When Officer Anderson asked A.S. who had caused the bruises to her face, she responded, "Daddy." He asked if there were any other bruises. A.S. raised her arms and Ms. Stephens showed Officer Anderson more bruises.

A.S. was then taken to the emergency room of the Bates County Hospital. The emergency room physician, Dr. Herbert Hall, III, noticed that A.S. had bruising all over her body, particularly on her buttocks, thighs, face, ears, and the mastoid processes behind her ears. Additionally, Dr. Hall found bite marks on A.S.'s left cheek and left buttock, and a possible bite mark on her right buttock. The width of the bite marks indicated that an adult's mouth, and not a child's mouth, had made them. Dr. Hall also noted that, when he conducted a sexual abuse examination, A.S. showed no hesitation or shyness during the examination. Rhonda Talley, a social worker with the Division of Family Services in Bates County, interviewed A.S. at the hospital. When asked by Ms. Talley what had happened to her, A.S. told her that Mr. Hobbs had bitten and hit her, and described his other actions.

Subsequently, Mr. Hobbs was charged by information with the class B felony of abuse of a child, section 568.060.² On June 8, 2001, the trial court held a pretrial section 491.075³ hearing to determine whether Officer Anderson and Ms. Talley could testify as to hearsay statements made by A.S. Mr. Hobbs was not present at this hearing. At the hearing, the only witnesses were Officer Anderson and Ms. Talley, who testified as to the statements A.S. had made to them. Officer Anderson testified that when he asked A.S. who had put the bruises and marks on her, she answered, "Daddy." Officer Anderson also described how when he asked A.S. if she had any other bruises, she lifted her arms and showed him more bruises. Ms. Talley testified that when she asked A.S. what had happened to her, she answered, "David bite me on my face and my butt," and "[h]e make me stand in the corner. I got out and sit on his lap, and he said he hates me and punched me in the stomach and stuff." Ms. Talley further testified that A.S. told her that Mr. Hobbs "also bite my legs, and he say he would tie me on the car and drag me." When Ms. Talley asked A.S. why he did this to her, she answered, "Because I whine." Defense counsel cross-examined both witnesses and argued against the admission of A.S.'s hearsay statements. At the close of the hearing, the court found "that the element of the statute regarding the statements possibly being admissible as to them being made under circumstances at a time and the content of the statements being such that they provide sufficient indicia of reliability ... is met, at least according to the evidence the Court has heard here today." The court noted that "whether the other standards of [section 491.075] are met at the time those statements are offered at trial, or whether there's other evidence prior to their being offered at trial that might change that position, that will be something we'll address at that time."

A jury trial was held on June 11. At trial, Ms. Stephens, Dr. Hall, Ms. Talley, and Officer Anderson testified for the State. Dr. Hall, Ms. Talley, and Officer Anderson testified about their observations and interactions with A.S. When testifying as to these interactions, Ms. Talley and Officer Anderson testified to statements made by A.S. Dr. Hall also testified that, in his professional opinion, based on a reasonable degree of medical certainty, A.S. suffered a serious emotional injury because of Mr. Hobbs' abuse of her. At the end of the trial, the jury convicted Mr. Hobbs of the class B felony of abuse of a child.

After trial, a hearing was held for the presentation of additional evidence relevant to the admissibility of A.S.'s out-of-court statements under section 491.075, in response to Mr. Hobbs' claim in his motion for new trial that the trial court did not make the required finding under section 491.075.1(2)(c) that A.S. would suffer significant emotional or psychological trauma if she had to testify in Mr. Hobbs' presence. At this hearing, Janice Williams, A.S.'s counselor from August 15, 2000, to May 18, 2001, testified that A.S. would have suffered serious emotional trauma if she had been required to testify at the jury trial. The trial court found that if it had been presented with this evidence at the presentence hearing or during trial, it "would have found at that time that significant emotional or physical [sic] would have resulted from the child testifying in the physical presence of [Mr. Hobbs]." The trial court then overruled Mr. Hobbs' motion for a new trial.

Thereafter, the court sentenced Mr. Hobbs, as a prior and persistent offender, to fifteen years imprisonment, to run consecutively to another sentence Mr. Hobbs was already serving. Mr. Hobbs made numerous complaints about his trial counsel at the sentencing hearing, but he did not object to trial counsel proceeding with the section 491.075 hearing in his absence. This appeal followed.

No Plain Error in Holding the Section 491.075 Hearing in Mr. Hobbs' Absence

In his first point, Mr. Hobbs argues that the trial court plainly erred in allowing the section 491.075 hearing to proceed without him in the courtroom. Mr. Hobbs claims that this violated his constitutional rights to due process of law, to confront witnesses against him, and to a fair trial, because the hearing "was a critical stage of the criminal proceeding where the alleged child victim did not testify at trial."

At the start of the section 491.075 hearing, the court noted that Mr. Hobbs was not present and asked defense counsel whether he wanted Mr. Hobbs there. Defense counsel and the court then had the following exchange:

[Defense counsel]: No. I don't...