State v. Sanders

• Decision Date: 02 December 2003
• Docket Number: No. WD 61432.,WD 61432.
• Parties: STATE of Missouri, Respondent, v. David L. SANDERS, Appellant.
• Court: Missouri Court of Appeals

126 S.W.3d 5

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

No. WD 61432.

Missouri Court of Appeals, Western District.

December 2, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 27, 2004.

Application for Transfer Denied February 24, 2004.

Nancy A. McKerrow, State Public Defender Office, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, John Munson Morris, Stephanie Morrell, Office of Attorney General, Jefferson City, for respondent.

RONALD R. HOLLIGER, Judge.

David Sanders was charged with two counts of statutory sodomy in the first degree, Section 566.062, RSMo,¹ and one count of promoting child pornography in the first degree, Section 573.025, RSMo, involving his daughter. Following a change of venue from Saline County, a Lafayette County jury found him guilty on all three counts and recommended the maximum punishment authorized for each offense. The trial court accepted the jury's recommendations and sentenced Appellant to two terms of life imprisonment on the statutory sodomy convictions and a term of fifteen years of imprisonment on the conviction for promoting child pornography. He now appeals, assigning two points of error. He first contends that the trial court erred in admitting the video evidence of the child victim and her video deposition because there was insufficient evidence to admit the hearsay testimony under Chapter 491 and he was therefore denied his right to confront his accusers. In his second point he contends that the trial court erred in excluding certain evidence intended to show that his ex-wife may have taken the pornographic pictures of their daughter. We affirm the sodomy convictions and reverse and remand the child pornography conviction for a new trial.

The following facts supporting the jury's verdicts were established at trial.² The victim ("R.S.") and her siblings were the children of Appellant and his ex-wife, Michelle Sanders ("Michelle"). Appellant lived in a renovated bank building in Napton, while Michelle and the children lived in Sedalia. One or more of the children would routinely have scheduled visitation with him on the second and fourth weekends of each month. During such overnight visits, they would sleep on mattresses lying on the floor, all in one downstairs room. The children usually slept three to a mattress, and Mr. Sanders would usually sleep with them in the same downstairs room.

When they were staying at Michelle's home, R.S. and one of her sisters, Autumn Sanders ("Autumn"), slept in the same bedroom. In early May 2000, Autumn, who was then fourteen years old, noticed that R.S., then four years of age, was having repeated nightmares and coming to sleep with Autumn in Autumn's bed. R.S. would wake up crying and screaming, saying things like "No, Daddy, no, leave me alone" and "Daddy's eating me." Autumn told Michelle about the nightmares R.S. was having. One day, shortly after an overnight visit to Appellant's home, Michelle sat down with Autumn and R.S. and asked R.S. why she was having nightmares. R.S. told Autumn and Michelle that she was scared, explaining that when she visited Appellant, he pulled down her pants and took "funny pictures" of her.

The next visitation period with appellant was scheduled for the Memorial Day weekend (May 29-30, 2000), which was approximately two weeks away. Michelle asked Autumn to make the trip to Napton that weekend and to look around appellant's house for "anything peculiar," including the photographs R.S. had mentioned. While visiting at his home during the Memorial Day weekend, Autumn looked around the house but did not find anything unusual. Autumn reported her lack of success to Michelle but was told to keep looking. Shortly after talking to her mother, Autumn went upstairs to use the bathroom. While in the bathroom, she noticed that a shelf that was normally uncluttered seemed to be disorganized, with several items shoved underneath it. When Autumn moved around some of the stuff on the shelf, she noticed a tray. She pulled out the tray and saw a Polaroid camera, along with a Ziploc bag containing several rubber gloves, a pair of R.S.'s underwear, and ten explicit Polaroid photographs of R.S. in various states of undress, depicting sexual conduct.³

Autumn called Michelle to report these findings, and was told to put the Ziploc bag back where she had found it. Michelle picked up the children the next day, and drove them back to her home in Sedalia. The day after that, Michelle drove Autumn and several of the children back to the father's home in Napton so Autumn could surreptitiously retrieve the bag and its contents. Using the pretense that she had forgotten her bathing suit, Autumn was able to retrieve the items without making her father suspicious.

Michelle and Autumn then proceeded to the sheriff's office in Marshall, where they talked to Saline County Deputy Sheriff Brad O'Neal. Michelle informed O'Neal that she was concerned about some inappropriate activity with her children, and Autumn gave him the bag she had found in appellant's bathroom. After viewing the photographs, O'Neal reported the information he had received to the Saline County Division of Family Services ("DFS").

Officer O'Neal also obtained a warrant to search appellant's home. O'Neal, accompanied by three other police officers, traveled to Napton to execute the warrant. During the ensuing search, the officers found a Polaroid camera underneath a shelf in the upstairs bathroom. In the front room downstairs, they found a mattress and blanket that appeared to be the same as those shown in the photographs of R.S. The officers also discovered a ballpoint pen that appeared to be the same one shown sticking out from between her buttocks in one of the photographs. Saline County Deputy Sheriff Richard Miller then requested and obtained consent from appellant's employer to search the truck driven by Sanders during the course of his employment. Miller found a pair of R.S.' underwear under the mattress in the truck's sleeper compartment.

After Mr. Sanders' arrest, DFS placed R.S. and her siblings in foster care, where they would remain for the next seven months.⁴ Cynthia Kneibert, an experienced licensed clinical social worker with a master's degree in counseling who was working under contract with DFS, began providing therapy and counseling services for R.S., her siblings, and her mother in July 2000. Over the course of the six months she was under her care, Kneibert conducted twenty individual 50-minute therapy sessions with R.S., who was then five years old. During the first session, less than two months after appellant's arrest, R.S. told Kneibert that appellant "took flash pictures of [her] private parts" after slipping off her clothes. Gesturing down to her anal area, R.S. also told Kneibert that appellant "stuck a pen in [her] butt." R.S. further related to Kneibert that she had dreams in which appellant tried to kill her and her family and ate her "as a werewolf would." After having these nightmares, R.S. would wake up crying out, "get away from me, get away from me."

In the fall of 2000, Kneibert became aware that R.S. was experiencing rectal bleeding, caused by an internal unhealed tear or fissure of the anus, as well as vaginal itching. R.S. was also developing a "binge and purge"-type eating disorder, unusual for children her age, in which binge eating was followed by self-induced vomiting. During subsequent therapy and counseling sessions, which continued through early January 2001, R.S. again told Kneibert that appellant had "dropped a sharp pen into [her] butt," pulled her pants down and taken pictures of her, and told her that "he was going to cut [her] boobs off." During one of their final counseling sessions together, R.S. told Kneibert about an event that happened while her mother was at work and appellant was baby-sitting the children. She pointed to her crotch area and told Kneibert that appellant made her suck "down there," demonstrating how he pushed her head down on his genitals and explaining that she eventually "felt little drops dropping in [her] mouth."

At the request of DFS, in January 2001, Maria Mittelhauser, a Deputy Juvenile Officer for Pettis and Cooper counties, with nearly ten years of experience interviewing children in suspected sex crime cases, conducted an interview with R.S. at her elementary school in Sedalia. During that interview, R.S. told Mittelhauser that her father had taken some pictures of her while she was naked. R.S. further stated that on one occasion, she saw that he had taken some pictures of her seven-year-old brother, S.S., with his pants down. Appellant told R.S., "The same thing happened to you." R.S. also told Mittelhauser that her father made her suck his "nuts" and his penis, physically demonstrating how he placed his hands behind her head and moved it forward and backward during the acts. R.S. went on to describe an incident in which she woke up to find father "down there and sucking her," pointing to her genital region. Finally, R.S. disclosed to Mittelhauser that her father had put grapes "inside her," again pointing to her genital area, after which he sucked them out.

Mittelhauser then terminated the interview and told R.S. that she would like to meet with R.S. at another time. They met again in February 2001, this time at the Sedalia offices of Child Safe of Central Missouri, a children's advocacy center where suspected victims of sexual or physical abuse are interviewed in a safe, nonthreatening environment. This interview, which was conducted in a specially designed room containing concealed video cameras and microphones, was recorded on videotape. During the interview, R.S. told Mittelhauser that her father had taken pictures of her naked and that the same thing happened to her brother S.S. R.S. demonstrated how her father made her get down on all fours and used her "bottom" as a sort of table,...