State v. Marsh
| Decision Date | 17 December 2020 |
| Docket Number | No. SD 36348,SD 36348 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jacob Ray MARSH, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
JAMES EGAN, Columbia, Mo, for Appellant.
MICHEL A. TRAPASSO, Jefferson City, Mo, for Respondent.
Jacob Ray Marsh ("Defendant") appeals his conviction, after a bench trial, of failing to register as a sex offender.1 Defendant's five points on appeal challenge the admission of separate statements he made to his probation officer and to the Greene County Sex Offender Registrar ("Registrar") about where he had been residing during the date range alleged in the State's Information.
Because statements a probationer makes to his probation officer are privileged, we assume, arguendo , that the trial court erred in ordering the probation officer to testify about them at trial. We nonetheless affirm Defendant's convictions because he fails to demonstrate that the trial court erred in refusing to exclude similar testimony from Registrar.2
Because Defendant had previously been found guilty of sexual abuse, he was required by law to register as a sex offender. See sections 589.400 and 589.425. Defendant had been placed on probation, and his probation officer was Cheree Gaunt ("P.O. Gaunt"), who supervises sex offenders in Greene County.
Defendant had last registered on December 30, 2016, and he was therefore required to update his registration during the month of March, 2017. Defendant failed to meet that deadline, and he did not register until July, 2017. During that same time period, Defendant also failed to report to P.O. Gaunt.
When Defendant failed to report to P.O. Gaunt as required, she visited the homeless camp that Defendant had listed as his address, but she could not locate him there. On March 20, 2017, P.O. Gaunt declared Defendant an absconder, and the judge that had granted Defendant probation issued a warrant for his arrest.
Defendant was eventually picked up on the warrant, and P.O. Gaunt visited him in the Greene County Jail on June 22, 2017. She did not read Defendant his Miranda4 rights, but she cautioned him that anything he said to her could be included in a probation violation report, and she told Defendant that he had the right to say nothing at all. Defendant agreed to talk with P.O. Gaunt, and he told her that he moved to a new homeless camp about two weeks after he last updated his sex offender registration in December 2016. After her visit with Defendant at the jail, P.O. Gaunt contacted Registrar and informed her that Defendant was no longer living at his registered address.
At trial, P.O. Gaunt told the trial court that, "because of statute, I have to be ordered to testify on anything that I know regarding [Defendant]." The trial court ordered P.O. Gaunt to testify, and she provided the evidence set forth above.
Registrar testified that her job is to register persons who have been "convicted of a sexual-in-nature crime that reside in Greene County[,]" and she had been registering Defendant for several years.5 As part of her normal job duties, Registrar was required to go over personal details with individuals who were required to register. Those duties included asking "if there's any new email or social media, any type of online identifiers, if they're still residing at the same place , same phone number, same employment, same vehicles" (emphasis added).
On July 26, 2017, Registrar spoke with Defendant when he came to her office to fill out paperwork updating his noncompliant sex-offender registration status after he was released from jail. Registrar asked Defendant where he had been residing because he had been noncompliant since March. Defendant told Registrar that he had been residing at "homeless camps ... throughout the city [of Springfield, Greene County] and just place to place, friend to friend."
Another duty of Registrar's job is to regularly communicate with employees of the Greene County offices of Probation and Parole, including P.O. Gaunt. P.O. Gaunt and Registrar had communicated about Defendant throughout the duration of P.O. Gaunt's supervision of Defendant, including the fact that Defendant was not in compliance with his registration obligations after March 2017.
The only testimony that Defendant challenges on appeal relates to the State's proof that Defendant actually resided in Greene County between the dates of April 1, 2017, and June 11, 2017, the range charged in the State's Information.6
State v. Hein , 553 S.W.3d 893, 896 (Mo. App. E.D. 2018).
In court-tried cases judges are given great latitude in the admission of evidence because of the presumption that they will not give weight to incompetent evidence. Pike v. Pike, 609 S.W.2d 397, 403 (Mo. banc 1980). "Because of this, it is difficult to base reversible error on the erroneous admission of evidence in a court-tried case." Blackburn v. Richardson, 849 S.W.2d 281, 291 (Mo. App. S.D. 1993). Erroneous admission of such evidence constitutes harmless error if other properly admitted evidence supports the judgment. Id.
Worthington v. State , 166 S.W.3d 566, 573 (Mo. banc 2005).
The elements of the crime of failing to register as a sexual offender are: "(1) Defendant was required to register under Sections 589.400 to 589.425 ; (2) Defendant changed his residence; (3) Defendant did not inform [the chief law enforcement official of the county in which he was residing] of the change within three days of the change; and (4) Defendant acted knowingly."
State v. Moore , 508 S.W.3d 148, 150 (Mo. App. S.D. 2016) (quoting State v. Jacobs , 421 S.W.3d 507, 513 (Mo. App. S.D. 2013) (en banc)).
Points 1 and 4 challenge the admissibility of P.O. Gaunt's testimony. Points 2, 3, and 5 challenge the admissibility of Registrar's testimony. Because the admissibility of Registrar's testimony is dispositive, we address first the points related to her.
Point 2 claims the trial court erred in allowing Registrar to testify that Defendant told her that he lived in Greene County between April 1, 2017, and June 11, 2017, because section 559.125 makes his statement to Registrar privileged, and therefore inadmissible.
We disagree.
Section 559.125.2 states as follows:
Information and data obtained by a probation or parole officer shall be privileged information and shall not be receivable in any court. Such information shall not be disclosed directly or indirectly to anyone other than the members of a parole board and the judge entitled to receive reports ,[7 ] except the court or the board may in its discretion permit the inspection of the report, or parts of such report, by the defendant, or offender or his or her attorney, or other person having a proper interest therein.
(Emphasis added.)
Defendant concedes in his brief that Registrar "was not a probation officer[,]" and that concession is dispositive of this point.8 Because Registrar was not a probation officer, under the plain language of section 559.125.2, Defendant's statement to Registrar about his whereabouts was not privileged. Point 2 fails.
Points 3 and 5 claim the trial court clearly erred in refusing to suppress Defendant's statements to Registrar on the ground that their admission constituted "fruit of the poisonous tree" because his statements to Registrar were made only after P.O. Gaunt had illegally obtained the same information from Defendant in violation of his Miranda rights.9 These claims fare no better.
"Generally, evidence discovered and later found to be derivative of a Fourth Amendment violation must be excluded as fruit of the poisonous tree." State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995). "However, there is no steadfast rule that evidence discovered after a ... violation must be excluded." Id. "Instead, ‘[i]n determining whether the exclusionary rule should apply to render evidence inadmissible as "fruit of the poisonous tree," the question is "whether, granting establishment of the primary illegality, the evidence to which ... objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint." ’ " Id. (citations omitted).
State v. Renfrow , 224 S.W.3d 27, 33-34 (Mo. App. W.D. 2007).
"We ‘will reverse a trial court's ruling on a motion to suppress only if it is clearly erroneous.’ " State v. Rumbaugh , 550 S.W.3d 492, 494-95 (Mo. App. S.D. 2017) (quoting State v. Holman , 502 S.W.3d 621, 624 (Mo. banc 2016) ). In reviewing the ruling, we state the evidence, and any reasonable inferences therefrom, in...
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