State v. Root
| Decision Date | 02 December 1991 |
| Docket Number | No. 17262,17262 |
| Citation | 820 S.W.2d 682 |
| Parties | STATE of Missouri, Respondent, v. Lavillian ROOT, Appellant. |
| Court | Missouri Court of Appeals |
Walter K. Disney, El Dorado Springs, for appellant.
William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant Lavillian Root was convicted by a jury of abuse of a child in violation of § 568.060, RSMo 1986, 1 and was sentenced to a term of two years imprisonment. She appeals, presenting five claims of error, none of which challenge the sufficiency of the evidence. We affirm.
In stating the facts, we view the evidence in the light most favorable to the verdict. State v. Hegwood, 558 S.W.2d 378, 379 (Mo.App.1977). The evidence at trial shows the following: Defendant was the paramour of Dennis Edmiston, the natural father of Denise Edmiston, born April 24, 1987, and Delilah Edmiston, born January 7, 1985. The two children were born of the marriage of Dennis and Sarah Edmiston. The marriage ended in divorce on April 19, 1989. Dennis had custody of the minor children, and Sarah had substantial visitation rights.
On April 18, 1990, defendant picked up Denise and Delilah from a day care center. When Dennis returned to his home that evening, defendant immediately told him that she had whipped Denise for wetting her pants. Defendant was upset and asked Dennis to take her home which he did. Later that evening Dennis noticed that Denise had red lines on her bottom as well as light red coloring in that area. The next day Dennis went to defendant's home and talked with her about the problem. Defendant said she did not mean to hit Denise so hard. She admitted hitting Denise with a board designed for meat cutting.
On April 19, 1990, the two young girls were picked up at the day care center by Sarah Edmiston, their natural mother, and her boyfriend. At 9:00 p.m. that evening Sarah gave Denise a bath. She noticed that her buttocks were bruised from top to bottom. Sarah and her boyfriend immediately took Denise to the police station and then to the hospital. During that evening Denise told her mother that defendant spanked her "real hard" with a paddle.
A physical examination at the hospital by Dr. Rick D. Casey revealed two large hematoma areas on each buttocks approximately seven and a half by ten centimeters. The bruises on each buttock were symmetrical and identical in nature. The doctor testified the bruises were between four hours and four days old.
At the hospital Denise told Nora Powell-Joyce, a social worker with the Division of Family Services, that defendant whipped her. This witness was called to the stand by defendant in her case. Her testimony on the child's statement received no objection.
On April 23, 1990, the police interviewed defendant and she waived her constitutional rights. Defendant was read the Miranda warning from a waiver form, and she acknowledged her understanding by her signature on the Miranda waiver form. Afterwards, she stated that she sent Denise to bed while she made supper and later called both girls to eat. She then noticed that Denise had wet her pants. She became mad and spanked her with a board. She stated she did not intend to spank her that hard, but just lost her temper.
Defendant's first point claims the trial court erred in allowing Sarah Edmiston and a social worker to testify concerning the out-of-court statements of Denise that defendant "whipped" or "spanked" her when Denise did not take the witness stand. Defendant alleges she was denied her right to confront and cross-examine the child in violation of the sixth amendment of the United States Constitution and Article 1, § 18(a), Missouri Constitution.
In her argument defendant tells us the trial court allowed the extrajudicial statement of Denise in evidence under § 491.075. 2 The state concedes the trial court erroneously failed to follow the requirements of the statute because the requisite hearing was not held and Denise did not testify. We need not discuss cases cited by defendant in her support because of the state's concession.
The state contends the error was harmless because the statement of Denise--defendant "spanked her real hard with a paddle"--added nothing to defendant's confession and admissions. Defendant admitted to the father she hit Denise with a board and admitted the same act to the police at a later date. Although not mentioned by the state, we find an unexpected statement in defendant's brief under a heading "Statement of Case" 3 which boldly states:
The state made a submissible case to the jury when the Court allowed Officer Lambrecht to testify that defendant stated to him, while incarcerated, but subsequent to a Miranda Warning, that she had 'spanked the child by twice striking her upon the buttocks with a paddle'.
The transcript reveals defendant objected on the basis of hearsay to testimony of Sarah Edmiston on statements to her by Denise. No constitutional objection was made by defendant. The testimony by the social worker on similar statements by Denise brought no objection by defendant.
Defendant has failed to preserve the constitutional issue in this point for review because she did not object to the testimony of Sarah Edmiston on any constitutional grounds. To properly preserve the constitutional issue for appeal " 'a party must (1) raise the constitutional issue at the first available opportunity, (2) specifically designate the constitutional provision claimed to have been violated by express reference to the article and section of the constitution or by quoting the provision itself, (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.' " State v. Hillis, 748 S.W.2d 694, 697 (Mo.App.1988). We decline to review the constitutional issue for plain error for reasons which follow concerning defendant's hearsay contention.
We review this claim of error only on the basis of defendant's hearsay objection which was preserved for appellate review. Defendant's admissions to the father were before the jury. Her confession to the police was consistent with the challenged testimony which added nothing more for consideration by the jury. We further depend on defendant's statement in her brief that the state made a submissible case on the testimony of Officer Lambrecht concerning defendant's confession. With these facts, we view the error as harmless and not prejudicial to defendant.
The admission of hearsay which does not have an unequivocal effect on the jury or resulting miscarriage of justice is not prejudicial error. Billings v. State, 503 S.W.2d 57, 60 (Mo.App.1973). Because of the strong evidence of guilt independent of the challenged testimony, hearsay may be regarded as merely cumulative to the other evidence fully proving the issue. State v. Montgomery, 571 S.W.2d 784, 788 (Mo.App.1978). See State v. Mills, 521 S.W.2d 495, 497 (Mo.App.1975). Accordingly, we rule against defendant on Point I.
Defendant's next point reads:
The States [sic] failure to comply with the Discovery Rules [CR 25], and the Division of Family Services [sic] intentional non-disclosure of: (1) a possible witness, Darrell Richardson; (2) its involvement of child custody in the divorce proceedings between Sarah Edmiston and Dennis Edmiston; (3) [t]he failure to produce to defendant the deposition and other transcripts of states [sic] witnesses contained in the juvenile case JU 390-9 relating to the mistreatment of the subject child; and, failure to produce the prior criminal conviction of the defendant in a timely manner, all culminated in the withholding of material evidence which reasonably or might have caused a judgment of acquittal for the defendant, was prejudicial to defendant and prevented her from timely preparing and submitting her case.
As written, this point completely disregards the mandatory requirements of Rule 30.06(d), Missouri Rules of Court (1991). 4 This rule requires a point relied on to set forth "wherein and why" the trial court erred. An explanation for this requirement is found in the leading case of Thummel v. King, 570 S.W.2d 679, 684-87 (Mo.1978). A point relied on, after identifying the alleged erroneous ruling of the trial court, must specify why the ruling was erroneous. Id. This requirement contemplates a statement which ordinarily will closely approximate what the appellant believes should have been the trial court's conclusion of law on the point being addressed. Id. After stating why the ruling was erroneous, the point must then explain wherein the testimony or evidence gives rise to the ruling for which the appellant contends. Id. 5 "... [T]his court has no duty to resort to the argument section of the brief to ascertain 'wherein and why' movant is claiming the court erred." Turner v. State, 669 S.W.2d 642, 644 (Mo.App.1984). As a result, this point presents nothing for review. Tate v. State, 773 S.W.2d 190, 192 (Mo.App.1989).
We do not feel compelled to review this point for plain error pursuant to Rule 30.20. The main thrust of this point is failure of the Division of Family Services to make disclosure. We fail to comprehend any circumstances in this case, after reviewing the record, which created a duty on the Division of Family Services to do anything. Point II is denied.
Defendant's third point claims her confession was improperly admitted because "it violated her 5th Amendment Right of being a witness against herself...." She complains of the circumstances and surroundings when her confession was made and that the Miranda warning was obtained under false pretenses, not voluntarily nor knowingly given. Defendant does not preserve this point for review.
Defendant's motion to suppress her statement to the police officer was denied. At trial, the officer testified in regard to the...
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