State v. Lebbing

• Decision Date: 19 September 2003
• Docket Number: No. 24782.,24782.
• Citation: 114 S.W.3d 877
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Keith S. LEBBING, Defendant-Appellant.
• Court: Missouri Court of Appeals

114 S.W.3d 877

STATE of Missouri, Plaintiff-Respondent, v. Keith S. LEBBING, Defendant-Appellant.

No. 24782.

Missouri Court of Appeals, Southern District, Division One.

September 19, 2003.

Irene Karns, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, for respondent.

PHILLIP R. GARRISON, Judge.

Keith S. Lebbing ("Defendant"), was convicted by a jury of one count of statutory sodomy in the first degree, a violation of Section 566.062,¹ and one count of statutory rape in the first degree, a violation of Section 566.032. The trial court entered judgment in accordance with the jury's verdict and sentenced Defendant to fifty years imprisonment on each count, with the sentences to run consecutively.

Defendant raises two points on appeal. First, he seeks plain error relief for the admission of hearsay statements by the victim. Secondly, he contends that the trial court erred by not granting a mistrial when Defendant's wife mentioned during cross-examination that Defendant had been in jail. We affirm the judgment.

Defendant does not contest the sufficiency of the evidence to support the verdict. Viewed in the light most favorable to the verdict, the evidence revealed the following: Defendant met Tressie Shipman ("Shipman") in April 1998, and they were married about a month later. At that time Defendant, Shipman, and her eleven-year-old daughter, N.S., were living in Kansas City, Missouri. Shortly after the wedding, Defendant made "hickeys" on the neck of N.S., and would occasionally bathe with her. N.S. also testified about several other sexual incidents that occurred while they lived in Kansas City.

Sometime later, Defendant's relationship with Shipman became strained, and he moved to Rolla, Missouri to live with another woman, leaving Shipman and N.S. in Kansas City. Defendant eventually moved Shipman and N.S. to Rolla in April 2000, after which Defendant's sexual relationship with N.S. escalated. Defendant would sneak into N.S.'s bedroom at night to have sexual relations with her, and began inventing ways to be alone with her. One such incident occurred when he lied about a death in the family in order to remove N.S. from school and molest her during the day.

Shipman knew that N.S. had engaged in oral sex with Defendant and that they had bathed together, but she was not aware that sexual intercourse was taking place between them. Shipman did not at that time believe that oral sex constituted molestation, and therefore did not contact the authorities. N.S. kept silent about having sexual intercourse with Defendant because he threatened that if she ever told anybody he would kill both N.S. and Shipman. N.S. believed Defendant because she had previously witnessed him choke Shipman during an argument.

In May 2000, Defendant told N.S. that he was leaving Shipman and would not be coming back. After Defendant left, N.S. confided to Shipman, that he had been sexually abusing her. Shipman called the Missouri Division of Family Services ("DFS") the following day. Detectives promptly interviewed N.S. regarding her relationship with Defendant, and on June 6, 2000, Dr. Lisa Riojas performed a Sexual Abuse Forensic Exam ("SAFE")² on N.S. at the request of DFS. Dr. Riojas concluded that N.S. had been subjected to recurrent sexual trauma. Defendant was charged with statutory sodomy in the first degree and statutory rape in the first degree. This appeal followed Appellant's conviction and sentencing.

In his first point relied on, Defendant alleges that the trial court committed plain error by allowing Dr. Riojas to testify that N.S. identified the Defendant as her molester. Defendant claims Dr. Riojas' testimony was hearsay and that it fell outside the exception provided for medical diagnosis. The admission of this testimony, according to Defendant, constituted a miscarriage of justice.

When Dr. Riojas asked N.S. about her medical history as part of the SAFE exam, N.S. told her that Defendant had molested her. A physician performing a SAFE exam does not need to know or ask "who" molested the person in order to complete a diagnosis. State v. Miller, 924 S.W.2d 513, 515 (Mo.App. W.D.1996). Therefore, the identity of the molester was not relevant to a determination of whether N.S. had actually been abused. See id.

Evidentiary rulings by a trial court are typically reviewed to determine whether the trial court abused its discretion. State v. Bryan, 60 S.W.3d 713, 718 (Mo.App. S.D.2001). However, because Defendant did not object to Dr. Riojas' testimony at trial, or in his subsequent motion for a new trial, the issue is not preserved for review. Rule 29.11.³ However, Rule 30.20 provides an exception to this rule, providing for plain error review in criminal cases where the result would be a "manifest injustice or miscarriage of justice." State v. Phillips, 939 S.W.2d 502, 506 (Mo.App. W.D.1997). Plain error review should be used sparingly by the reviewing court, and does not justify a review of every trial error not properly preserved. Id. at 505-06. Because plain error review is discretionary, Defendant faces a greater burden than merely demonstrating prejudice. State v. Deckard, 18 S.W.3d 495, 497 (Mo.App. S.D.2000). Defendant must demonstrate that the error so substantially affected his rights that a manifest injustice or a miscarriage of justice will result if the error is left uncorrected. Id.

First, we note that where there is no objection, hearsay evidence may be considered by the fact finder in determining the facts. State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002). Second, N.S. testified at trial, subject to cross-examination, that Appellant had molested her. "Prejudice will not be found from the admission of hearsay testimony where the declarant was also a witness at trial, testified on the same matter, and was subject to cross-examination." State v. Mayabb, 43 S.W.3d 429, 435 (Mo.App. S.D.2001). "[T]o the extent that a declarant `is available for live testimony, under oath, the dangers of hearsay are largely non-existent.' " State v. Link, 25 S.W.3d 136, 145 (Mo. banc 2000) (quoting State. v. Schaal, 806 S.W.2d 659, 664 (Mo. banc 1991)), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992).

Third, the Defendant does not contest the sufficiency of the evidence, which was strong even without Dr. Riojas' statement. Shipman testified that she witnessed Defendant giving "hickeys" to and taking baths with N.S. Shipman also testified that she witnessed N.S. performing oral sex on the Defendant. Shipman further testified that she knew Defendant often went into N.S.'s bedroom late at night to sleep with N.S., which made Shipman feel that Defendant was being unfaithful to his marital vows. A hotel employee identified Defendant as the man who rented a room one afternoon with a young girl, and then purchased two X-rated videos to watch in the room. Detective Andy Davis of the Rolla Police Department testified that N.S. was able to show him both the hotel and the location of a house where Defendant had molested her. Dr. Riojas also testified that her diagnosis of N.S. indicated she had experienced recurrent sexual trauma during the three years prior to her exam.

Dr. Riojas' testimony that N.S. identified Defendant as her molester was cumulative of other testimony and evidence...