State v. Simmons, ED 87655.

• Decision Date: 18 September 2007
• Docket Number: No. ED 87655.,ED 87655.
• Citation: 233 S.W.3d 235
• Parties: STATE of Missouri, Respondent, v. Leroy SIMMONS, Appellant.
• Court: Missouri Court of Appeals

233 S.W.3d 235

STATE of Missouri, Respondent, v. Leroy SIMMONS, Appellant.

No. ED 87655.

Missouri Court of Appeals, Eastern District, Division Four.

September 18, 2007.

Maleaner Harvey, Attorney at Law, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for respondent.

ROY L. RICHTER, Presiding Judge.

Leroy Simmons ("Defendant") appeals the judgment and sentence imposed after a jury found him guilty of child molestation in the first and second degree, statutory rape in the first and second degree, statutory sodomy in the first and second degree, abuse of a child, tampering with a witness, and furnishing pornographic materials to minors.¹ We reverse the judgment entered on Count 17 and affirm the judgment as to all other counts.

I. BACKGROUND

Defendant's daughter ("Daughter") told her mother ("Mother") that Defendant had sexually abused her for a number of years. Mother called the police and when the police arrived, an officer ("Police Officer") spoke with Daughter in private and Defendant was arrested.

Later, while in custody, Defendant called his son ("Son") who was staying with a relative. After Son told Defendant about a fight with his mother and sister, Defendant stated that he was "sorry for what he did."

Daughter testified at trial concerning various acts of abuse. Police Officer also testified during the State's case-in-chief as to what Daughter had told her during her investigation. The jury found defendant guilty on all counts and the trial court entered judgment in accordance therewith and sentenced Defendant to 15 years imprisonment for Count 1, first-degree child molestation, 15 years imprisonment for Count 2, first-degree child molestation, and 20 years imprisonment for Count 3, first-degree statutory rape, to run consecutively. On the remaining counts, the trial court sentenced Defendant to various sentences ranging from six months to thirty years to run concurrently with each other and concurrently with the sentences for Counts 1, 2, and 3.

Defendant appeals.

II. DISCUSSION

In his first point, Defendant alleges the trial court erred in allowing the State to elicit testimony from Son that Defendant told him he was "sorry for what he did" in that Defendant's statement was too vague to fall under the admission of a party opponent hearsay exception and was therefore irrelevant. We disagree.

A trial court has broad discretion to admit or exclude evidence and we will reverse a trial court's ruling on the admission of evidence only when a trial court abuses its discretion. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. Id. (citation omitted).

A hearsay statement is an out-of-court statement offered for the truth of the matter asserted. State v. Kemp, 212 S.W.3d 135, 146 (Mo. banc 2007). Hearsay statements are generally inadmissible. State v. Lockett, 165 S.W.3d 199, 204 (Mo. App. E.D.2005). However, the admission of a party opponent is not hearsay. State v. Brown, 833 S.W.2d 436, 438 (Mo.App. W.D.1992). A statement may be admitted as an admission of a party opponent if the statement is material to the issues of the case, the statement is relevant to the case, and the statement is offered by the opposing party. Id. at 439. Moreover, "the admission of a criminal defendant is relevant and material if it tends to incriminate the defendant, to connect the defendant to a crime, or to manifest the defendant's consciousness of guilt." State v. Brummall, 51 S.W.3d 113, 119 (Mo.App. W.D. 2001) (citation omitted).

In the present case, Defendant objected to Son's testimony prior to Son testifying. In response, the trial court indicated that Son would be allowed to testify to what Defendant said but would be unable to speculate about the meaning of Defendant's words. Son testified that he talked with Defendant "about me and my mom and my sister got sic into it, and Defendant said he was sorry for what he did."

A review of the record demonstrates that the trial court did not err in treating Defendant's statement as an admission of a party opponent. Defendant uttered his statement while incarcerated, after having been charged with sexually abusing his daughter, in the context of a conversation with his Son. Further, by virtue of the words, themselves, Defendant's statement implies guilt. Because Defendant's statement, when viewed in light of the surrounding circumstances, demonstrates a consciousness of guilt, it is consequently both relevant and material. Id. Accordingly, we cannot say the trial court abused its discretion in allowing Son to testify to Defendant's statement. Point denied.

In his second point, Defendant asserts the trial court erred in overruling his objection to Police Officer's testimony in that it was inadmissible hearsay, unnecessary to explain subsequent police conduct. We disagree.

A trial court has broad discretion to admit or exclude evidence and we will reverse a trial court's ruling on the admission of evidence only when a trial court abuses its discretion. State v. Forrest, 183 S.W.3d at 223.

"An out-of-court statement offered not for the truth of the matter asserted, but to explain subsequent police conduct, is not hearsay and is, therefore, admissible, assuming it is relevant." State v. Lockett, 165 S.W.3d at 204. Moreover, such a statement explaining subsequent police conduct is admissible to supply relevant background and continuity. State v. Dunn, 817 S.W.2d 241, 243 (Mo. banc 1991).

Police Officer's testimony was relevant in that it revealed the motivation behind her investigation. Police Officer testified that Daughter recounted details of her sexual abuse, including where episodes occurred,...