State v. Johnstone

Decision Date19 January 2016
Docket NumberWD 78199
Citation486 S.W.3d 424
Parties State of Missouri, Respondent, v. Robert Johnstone, Appellant.
CourtMissouri Court of Appeals

Chris Koster, Attorney General, Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Casey A. Taylor, Assistant Public Defender, Columbia, MO, Attorney for Appellant.

Before Division Three: Joseph M. Ellis, Presiding Judge, and Karen King Mitchell and Gary D. Witt, Judges
Karen King Mitchell
, Judge

Robert Johnstone appeals, following a jury trial, his conviction of first-degree child molestation, under § 566.073,1 for which he was sentenced to five years' imprisonment. Johnstone argues that the trial court erred in both excluding the victim's deposition from evidence and overruling his motion for new trial based upon alleged juror misconduct. Finding no error, we affirm.

Background

During the summer of 2013, Victim (then eight years old) spent the night at a friend's house. Unbeknownst to either Victim or her mother, the friend's mother left the home during the night, leaving Johnstone—a stranger to both Victim and her family—alone to supervise the children. At some point during the night, Victim was awakened by Johnstone running his hand up her leg and touching her vagina with his fingers. Victim later reported this incident to her grandmother, who relayed the information to Victim's mother. Johnstone was eventually arrested and tried for one count of first-degree child molestation.

After the incident and before trial, Victim was interviewed and questioned by several individuals, including Johnstone's counsel during a deposition conducted on Johnstone's behalf. Various details in Victim's recitation of events left it unclear how many times Johnstone touched her and where in the house the touching occurred. At trial, Johnstone sought to admit Victim's deposition in its entirety to demonstrate the various inconsistencies and impeach her credibility. Johnstone's argument was two-fold: (1) that the deposition was admissible under § 491.075 as a statement of a child under fourteen; and (2) that the deposition was admissible under the “rule of completeness.” The court rejected both arguments, but allowed Johnstone to use any portions of the deposition he wished to introduce in order to impeach Victim. The jury found Johnstone guilty as charged and recommended a sentence of five years in prison.

After Johnstone was convicted, but before sentencing, Johnstone filed a motion for new trial, claiming that Juror 15 had engaged in intentional nondisclosure by failing to advise the court during voir dire that: (1) she knew Johnstone; and (2) she had close family members that had been victims of sexual abuse. The court received testimony from Juror 15, but denied Johnstone's motion without any findings of fact. The court sentenced Johnstone to five years' imprisonment. Johnstone appeals.

Analysis

Johnstone raises three claims on appeal. In Points I and II, Johnstone challenges the trial court's decision to sustain the State's objections to admission of Victim's deposition when Johnstone sought to admit it in its entirety. In Point III, Johnstone argues that the trial court erred in overruling his motion for new trial because Juror 15 engaged in intentional nondisclosure when she failed to advise the court during voir dire that: (1) she knew Johnstone; and (2) she had close family members that had been victims of sexual abuse. We will address Points I and II together.

A. The trial court did not err in sustaining the State's objections to admission of Victim's deposition in its entirety.

Before trial, Johnstone filed a notice of his intent to use Victim's statement at trial pursuant to § 491.075.2 Johnstone sought to admit Victim's deposition, in its entirety, under the statute as a statement of a child under the age of fourteen. Johnstone advised the court that he wanted the deposition admitted as an exhibit so that the jury could review it during deliberations if they wished. The trial court denied Johnstone's request to admit the deposition, in its entirety, but ruled that he could use the deposition for impeachment purposes:

[The] court overrules defendant's request to admit into evidence its entire deposition of the minor child at issue; rather the deposition shall be used for impeachment purposes during any cross examination of the minor child.

During trial, Johnstone first mentioned the deposition during cross-examination of Victim's mother by asking her a question about something Victim said during the deposition. The prosecutor then also referred to the deposition during redirect examination of Victim's mother, asking specific questions about testimony Victim provided. Following redirect, Johnstone again sought to admit Victim's deposition, in its entirety, as an exhibit, under the authority of § 491.075. The court denied the request. Johnstone then sought to admit the deposition under the “rule of completeness,” arguing that, because parts of the deposition had been read during cross and redirect examination, he was entitled to have the entire deposition admitted. The court again denied admission under the alternative theory. Johnstone now claims that both rulings were erroneous.

1. Standard of Review

‘The standard of review for the admission of evidence is abuse of discretion.’ State v. Perdomo–Paz, 471 S.W.3d 749, 756 (Mo.App.W.D.2015)

(quoting State v. Steele, 314 S.W.3d 845, 850 (Mo.App.W.D.2010) ). “A trial court abuses its discretion only if its decision to exclude evidence is ‘clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.’ State v. Taylor, 466 S.W.3d 521, 528 (Mo. banc 2015) (quoting Mitchell v. Kardesch, 313 S.W.3d 667, 675 (Mo. banc 2010) ). “Evidentiary error is reviewed ‘for prejudice, not mere error,’ and error is only prejudicial if the court's error affected the outcome of the trial with ‘reasonable probability’ and deprived the defendant of a fair trial.” Id. (quoting State v. Clark, 364 S.W.3d 540, 544 (Mo. banc 2012) ).

2. The court did not err in overruling Johnstone's request to admit the deposition under § 491.075.

Under § 491.075, out-of-court statements made by a child are admissible in the following circumstances:

1. A statement made by a child under the age of fourteen, or a vulnerable person, relating to an offense under chapter 565, 566, 568 or 573, performed by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:
(1) The court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(2)(a) The child or vulnerable person testifies at the proceedings; or
(b) The child or vulnerable person is unavailable as a witness; or
(c) The child or vulnerable person is otherwise physically available as a witness but the court finds that the significant emotional or psychological trauma which would result from testifying in the personal presence of the defendant makes the child or vulnerable person unavailable as a witness at the time of the criminal proceeding.

Here, Johnstone argued that the statutory requirements were met and, therefore, the deposition should have been admitted. Indeed, Victim was under the age of fourteen when the deposition was taken, the offense arose under Chapter 566, the testimony was likely otherwise inadmissible hearsay, and Victim testified at trial. That being said, it does not appear that there were sufficient indicia of reliability surrounding the statements made during the deposition. Johnstone argues that the simple fact that the statements occurred during a deposition provided sufficient indicia of reliability. We disagree.

Ordinarily, the question of whether a statement bears sufficient indicia of reliability requires a court to examine the totality of the circumstances. State v. Barker, 410 S.W.3d 225, 232 (Mo.App.W.D.2013)

. “In evaluating the totality of the circumstances, the court considers a non-exclusive list of factors, including: (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) the lack of motive to fabricate; and (4) knowledge of subject matter unexpected of a child of similar age.’ Id. (quoting State v. Wadlow, 370 S.W.3d 315, 320 (Mo.App.S.D.2012) ). ‘Interviewing techniques are also an important factor to be considered as part of the court's totality of the circumstances analysis.’ Id. at 232–33 (quoting N.J.K. v. Juvenile Officer, 139 S.W.3d 250, 258 (Mo.App.W.D.2004) ).

In State v. Thompson, 341 S.W.3d 723 (Mo.App.E.D.2011)

, the Eastern District addressed the question of whether a child's deposition testimony was properly admitted under § 491.075. The defendant had deposed the victim's brother, and then the State sought to admit the deposition at the defendant's trial under the authority of § 491.075. Id. at 727–28. The defendant objected, arguing that the deposition lacked sufficient indicia of reliability. Id. at 728. On appeal, the Eastern District analyzed the above factors and determined that the deposition bore sufficient indicia of reliability. Id. at 729–30. Specifically, the court determined that the child's deposition testimony was consistent with both a videotaped Child Advocacy Center (CAC) interview and his trial testimony; though the deposition statement was not spontaneous, it was consistent with spontaneous statements the child had made during the CAC interview; there was no evidence suggesting that the child's mental state at the time of the deposition rendered his statements unreliable, nor was there evidence of any motive to fabricate; and the questions asked...

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6 cases
  • State v. Emerson
    • United States
    • Missouri Court of Appeals
    • April 2, 2019
    ...Supreme] Court's rules and a statute, the rule always prevails if it addresses practice, procedure or pleadings." State v. Johnstone, 486 S.W.3d 424, 432 (Mo. App. W.D. 2016) (quoting State ex rel. Union Elec. Co. v. Barnes, 893 S.W.2d 804, 805 (Mo. banc 1995) ). Service of process is a pro......
  • State v. Gibbons
    • United States
    • Missouri Court of Appeals
    • June 29, 2021
    ...whether a statement bears sufficient indicia of reliability, the totality of the circumstances must be examined. State v. Johnstone , 486 S.W.3d 424, 430 (Mo. App. W.D. 2016). In evaluating the totality of the circumstances, the following non-exclusive factors are considered: "(1) spontanei......
  • Gwin v. City of Humansville
    • United States
    • Missouri Court of Appeals
    • June 19, 2017
    ...Similarly, we decline to consider theories of error or prejudice asserted or developed only at oral argument.3 See State v. Johnstone, 486 S.W.3d 424, 435 (Mo. App. 2016) ; Gleason v. Bendix Comm. Vehicle Sys., LLC, 452 S.W.3d 158, 172 (Mo. App. 2014) ; Fielder v. Gittings, 311 S.W.3d 280, ......
  • State v. Beck
    • United States
    • Missouri Court of Appeals
    • June 26, 2018
    ...court made no factual findings, "we ‘must assume that all facts were found in accordance with the result reached.’ " State v. Johnstone , 486 S.W.3d 424, 435 (Mo. App. 2016) (citation omitted). Furthermore, the court was "free to believe all, part, or none of the testimony presented by the ......
  • Request a trial to view additional results
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