State v. Schachtner
| Decision Date | 06 October 2020 |
| Docket Number | No. SD 36093,SD 36093 |
| Citation | 611 S.W.3d 885 |
| Parties | STATE of Missouri, Respondent, v. David Rodney SCHACHTNER, Appellant. |
| Court | Missouri Court of Appeals |
Appellant's Attorney: Jedd C. Schneider, of Columbia, Missouri.
Respondent's Attorneys: Eric S. Schmitt, Attorney General, and Daniel N. McPherson, Assistant Attorney General, of Jefferson City, Missouri.
David R. Schachtner ("Schachtner") appeals his conviction, following a jury trial, of one count of statutory sodomy in the first degree. Schachtner challenges his conviction in six points on appeal. We find no merit to Schachtner's Points I, II, III, IV and VI, and those points are accordingly denied. We find merit to Schachtner's Point V, which challenges that the trial court plainly erred in entering written judgment of sentence for "999 Years," whereas the trial court's oral pronouncement of sentence was for "life imprisonment." We remand with instructions that the trial court enter written judgment of sentence to reflect its oral pronouncement of sentence.
We recite the evidence and the reasonable available inferences therefrom in the light most favorable to the verdict. State v. Lammers , 479 S.W.3d 624, 630 (Mo. banc 2016). We recite other information as necessary for context.
In June 2017, Schachtner entered the bedroom of Victim (a 7-year-old girl) at night while Victim was sleeping. He pushed Victim's pants and underwear aside, and touched Victim's genitals with his hands and mouth. Victim woke up, and Schachtner terminated the assault at that time.
Victim reported the abuse. Victim's mother ("Mother") confronted Schachtner regarding his sexual assault of Victim, at which time "[h]e stood up and he began pacing back and forth saying that he made a mistake, he didn't mean to do that." Mother prevailed upon Schachtner to apologize to Victim, and Schachtner admitted to Victim "that what he did was not okay[,]" and that it was "something that adults shouldn't do to children[.]" Schachtner was subsequently apprehended and charged by amended information, as a prior offender, with statutory sodomy in the first degree, pursuant to section 566.062.1
Schachtner was questioned by police and admitted that he "licked [Victim] near her privates." Victim's underwear was DNA tested, and the two DNA profiles developed were consistent with Schachtner and Victim.
Prior to trial, the State filed a motion to admit propensity evidence, which asserted that Schachtner had committed the crime of statutory sodomy in the first degree by previously touching a child under the age of 12 years old inappropriately 10-20 times. After hearing argument, the trial court sustained the State's motion.
A jury trial commenced on January 8, 2019. During the State's direct examination, and during Schachtner's cross-examination, the propensity witness testified that when she was nine or ten years old and Schachtner was thirteen or fourteen, on ten or more occasions, he entered her bedroom at night while she and other members of the household were sleeping and touched her genitals with his hands. She reported Schachtner's abuse and a member of the household installed a lock on her bedroom door. Undeterred, Schachtner then gained access to the witness's bedroom through a window.
During Mother's testimony, she was asked if she found something on Schachtner's cellphone that "should have raised bigger flags[.]" Defense counsel objected that this violated the best evidence rule, and the trial court overruled the objection. Mother then testified that she found a porn website in a search history on Schachtner's cellphone. She clicked on the website and found a video of an "underdeveloped" female who appeared prepubescent. Mother confronted Schachtner—he claimed the website allowed him to find younger looking girls, but that everyone on the website was at least eighteen years old. Schachtner then locked his phone so that Mother could not access it in the future.
Schachtner testified in his own defense. He admitted to "lick[ing] [Victim]’s leg," but claimed he obtained no He stated he did not know why he did it, but denied that it was for sexual gratification. Schachtner also testified regarding the alleged "child porn on [his] phone[,]" stating he only accessed the pornographic website to see "a girl from Joplin ... [who] does porn[,]" and whom he and another friend "recognized ... from Facebook."
The jury found Schachtner guilty of statutory sodomy in the first degree. The trial court made oral pronouncement of sentence to Schachtner, as a prior and persistent offender, to life imprisonment; however, the trial court's written judgment of sentence records the "Length" of sentence as "999 Years," but then records under "Text": "Life Imprisonment ... as a prior offender[.]"
On January 27, 2019, Schachtner filed a motion for new trial. On March 25, 2019, Schachtner also filed a "Motion for Dismissal of Convictions for States [sic] Failure to Provide Impeachment Evidence or in the Alternative a Motion for New Trial for States [sic] Failure to Provide Impeachment Evidence," which asserted, in part, that there was a Brady[2 ] violation because the State failed to provide the defense a copy of Victim's "trauma narrative," which should have been part of the Child Advocacy Center's case file. Defense counsel argued that had the prosecutor timely provided this narrative, the defense could have used it to cross-examine Victim about prior inconsistent statements. After a hearing, the trial court overruled both motions. This appeal followed.
In six points on appeal, Schachtner argues:
Principles of Review
State v. Shockley , 410 S.W.3d 179, 195 (Mo. banc 2013). "We further note that we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Bumbery , 492 S.W.3d 656, 665 (Mo. App. S.D. 2016) (internal quotation and citation omitted). "Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial." Id.
The general rule in Missouri is that evidence must be both logically and legally relevant in order to be admissible. Evidence is logically relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or if it tends to corroborate evidence which itself is relevant and bears on the principal issue of the case. The determination of legal relevance—the balancing of the probative value of the proffered evidence against its prejudicial effect on the jury—rests within the sound discretion of the trial court.
State v. Tisius , 92 S.W.3d 751, 760 (Mo. banc 2002) (internal quotations and citations omitted) (internal footnotes omitted).
In his first point, Schachtner argues that the trial court "plainly erred in accepting the jury's guilty verdict and entering sentence and judgement for first-degree statutory sodomy with an alleged victim less than twelve years old," pursuant to section 566.062, in that "the aggravating fact of [Victim] allegedly being less than twelve years old ... [was] an element of the crime that had to be submitted to the jury[.]" Schachtner's point further claims that this issue was not submitted to the jury in Instruction No. 5, and that the jury likewise did not make such required finding.
The record reflects the following colloquy at the jury instruction conference as relevant to Instruction No. 5:3
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State v. Kleeschulte
..." ‘It is axiomatic that a defendant may not take advantage of self-invited error or error of his own making.’ " State v. Schachtner , 611 S.W.3d 885, 895 (Mo. App. 2020) (quoting Brandolese , 601 S.W.3d at 531 ). The trial court did not abuse its discretion. Point III is denied.Confrontatio......