State v. Snyder, SD 35615

• Decision Date: 19 November 2019
• Docket Number: No. SD 35615,SD 35615
• Citation: 592 S.W.3d 375
• Parties: STATE of Missouri, Respondent, v. Cregg Allen SNYDER, Appellant.
• Court: Missouri Court of Appeals

592 S.W.3d 375

STATE of Missouri, Respondent,

v.Cregg Allen SNYDER, Appellant.

No. SD 35615

Missouri Court of Appeals, Southern District, Division One.

FILED: November 19, 2019

Motion for Rehearing and/or Transfer to Supreme Court Denied December 11, 2019

Application for Transfer Denied February 18, 2020

Appellant’s attorney: Christian Lehmberg.

Respondent’s attorneys: Eric S. Schmitt, Atty. Gen., & Evan J. Buchheim, Asst. Atty. Gen.

GARY W. LYNCH, P.J.

Following a jury trial, Cregg Allen Snyder ("Defendant") was convicted of two counts of first-degree statutory sodomy involving S.L. (Counts 1 and 2) and two counts of first-degree statutory sodomy involving T.L. (Counts 3 and 4). See section 566.062.¹

Defendant raises three points on appeal. His first point alleges an abuse of trial court discretion in the exclusion of certain testimony from Nikki Breuer, a Division of Social Services ("DSS") employee, from evidence. His second and third points request plain error review of the trial court’s submission of jury instructions 13 and 17, the verdict directors for Counts 3 and 4, respectively. Determining that Defendant’s first point is not preserved for appellate review and that his requests for plain error review in his second and third points are denied, we affirm.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his conviction. Briefly summarized and viewed in the light most favorable to the finding of guilt, State v. Lammers , 479 S.W.3d 624, 632 (Mo. banc 2016), the evidence reveals that S.L. and T.L., born in May 2008 and June 2004, respectively, moved in with Defendant in January 2015 and lived with him until July 2015. During this timeframe, Defendant committed acts of abuse against S.L and T.L., which included inserting his penis in S.L.’s mouth and anus, touching T.L’s penis, and making T.L. touch Defendant’s penis.

Following his convictions on four counts of first-degree statutory sodomy, Defendant was sentenced to twenty years' imprisonment for each count and those terms were ordered to run consecutively. Defendant timely appeals.

Additional relevant background is set out, infra , as we discuss Defendant’s three points relied on. Due to their similarity, Defendant’s second and third points are addressed together.

Discussion

Point 1 – Claim not Preserved for Appellate Review

In his first point, Defendant contends that "[t]he trial court abused its discretion in sustaining the State’s objection and excluding the testimony of Nikki Breuer[.]" Specifically, he asserts that the trial court erred in "excluding the testimony of Nikki Breuer that the Division of Family Services ceased its investigation of [Defendant.] " (Emphasis added.) This evidence, according to Defendant, "was relevant to show that the children’s story changed, either due to pressure from investigators or the children’s family, which caused the State to charge these allegation [sic] and calls into question the children’s credibility." For the reasons set forth below, the claim in this point was not preserved for appellate review.

At trial, Defendant called Nikki Breuer as a witness and attempted to ask her questions relating to a July 25, 2016, letter from the Children’s Division in Dent County that was addressed to Defendant and signed by Breuer ("the letter"). The letter stated that the Children’s Division, following an investigation into a report alleging sexual abuse by Defendant against S.L. and H.L.,² had determined that there was insufficient evidence to conclude based on a preponderance of the evidence that S.L. and H.L. had been abused.

Following an objection by the prosecutor, the trial court looked over the letter and asked "For the record, this is marked as Exhibit A; is that correct?" Defense counsel responded, "That is correct. That was before [H.L.] dropped out of it." The trial court then indicated that it did not think that the letter was admissible. Defense counsel responded, "I'm not gonna admit it" and clarified that "I'm just gonna have her acknowledge that she sent the letter and that it is...." Before defense counsel could finish, the trial court stated, "You're gonna have her acknowledge that she sent a letter saying they were not gonna pursue the investigation?" Defense counsel responded in the affirmative "as far as [S.L.]" The trial court then stated that it thought the evidence was irrelevant but "I will send the jury back and let you make an offer of proof, all right, and we'll see if you can make it relevant."

Once the jury was out of the courtroom, defense counsel asked Breuer to identify the letter, confirm the accuracy of the date and her signature, and confirm that the letter "purport[s] to conduct business concerning [Defendant.]" Then, without addressing any substance in the letter, defense counsel stated, "That’s my offer of proof."

Following another objection by the prosecutor, the trial court stated, "My understanding is, from what you said at the Bench, you're not going to offer the letter in evidence?" Defense counsel responded, "That’s correct." The trial court then asked why defense counsel thought the fact that Breuer wrote the letter was relevant. Defense counsel responded, "That the letter did, in fact, say that they weren't going to continue the investigation." The trial court then observed that defense counsel did not elicit that testimony from Breuer. Asked by the trial court if he had any objection, the prosecutor stated, "an alternative decision by an independent administrative body doesn't have any relevance on the veracity of the allegations." The trial court then replied, "That objection will be sustained."

Following the jury’s findings of guilt, Defendant filed a motion for a new trial. None of the allegations in that motion, however, claim any trial court error in excluding any testimony elicited from Breuer. Rather, Defendant alleged:

The trial court erred in that initial letters sent to Defendant by the Dent and Phelps County Division of Family [sic] Services, State of Missouri, concluding that the entities were closing their respective investigations against Defendant because there was not sufficient evidence by a preponderance of the evidence to proceed against Defendant were deemed inadmissible. The trial court’s failure to allow the admission of said evidence violated Defendant’s rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections, 2, 10, 15, 18(a), 19 and 21 of the Missouri S[t]ate Constitution.

(Emphasis added.) This claim addresses the letter and its content, which Defendant expressly and affirmatively represented to the trial court that he did not seek to admit at trial.

Now, in this appeal and without explanation, Defendant grafts the letter’s information that DSS was closing its investigation onto Breuer’s purported testimony at trial and that the trial court erred in excluding that testimony. As previously noted, however, nothing in the record supports that such testimony was ever offered to the trial court by Defendant.

"If an objection to the proffered evidence is sustained, the proponent must then make an offer of proof in order to preserve the record for appeal and to allow the trial court to consider further the claim of admissibility." State v. Yole , 136 S.W.3d 175, 178 (Mo.App. 2004). However, "[a] defendant cannot, on appeal, broaden the stated purpose of an offer of proof made at trial." State v. Cote , 60 S.W.3d 700, 705 (Mo.App. 2001) ; see also State v. Johnson , 207 S.W.3d 24, 43 (Mo. banc 2006) ("A point is preserved for appellate review only if it is based on the same theory presented at trial."). Moreover, in a jury-tried case, a claim generally must be included in a motion for new trial in order to be preserved for appellate review. Rule 29.11(d).

Here, the information that DSS had closed its investigation into Defendant was not established by Breuer’s testimony as part of Defendant’s offer of proof. Moreover, Defendant made no claim in his motion for new trial that the trial court erred in excluding any of Breuer’s testimony. Defendant’s claim raised in this appeal directed toward the exclusion of Breuer’s testimony, therefore, is not preserved for appellate review. Accordingly, point 1 is denied.

Points 2 and 3 – Requested Plain Error Review Declined

Defendant concedes that his instructional error claims in his second and third points are not preserved for appellate review in that he did not object to Instructions 13 and 17 as required by Rule 28.03. He requests that we review for plain error under Rule 30.20.³

"Rule 30.20 is no panacea which a criminal defendant can use to obtain appellate review of any alleged error that is unpreserved." State v. Campbell , 122 S.W.3d 736, 739 (Mo.App. 2004). "[A]n appellate court is not required to engage in plain error review; the decision whether to grant or deny such a request is left to the court’s discretion." Id. at 740. "The court may simply decline to exercise its discretionary authority to review the point for plain error." Shifkowski v. State , 136 S.W.3d 588, 590 (Mo.App. 2004).⁴

If we exercise our discretion and engage in the requested plain error review of unpreserved error, a "defendant must show not only that the trial court committed evident, obvious, and clear error, but also the existence of manifest injustice or a miscarriage of justice." State v. Stuckley , 573 S.W.3d 766, 768 (Mo.App. 2019).

A defendant’s attempt to show that the trial court committed evident, obvious and clear error where the defendant was represented by counsel at trial, however, also necessarily implicates that trial counsel’s failure to timely and properly object to such error. In other words, if the alleged error should have been evident, obvious, and clear to the trial court, it also should have been evident, obvious, and clear to trial counsel. Trial counsel’s then timely and proper objection bringing...