State v. Thompson

• Decision Date: 17 May 2011
• Docket Number: No. ED 95223.,ED 95223.
• Citation: 341 S.W.3d 723
• Parties: STATE of Missouri, Respondent,v.Clarence THOMPSON, Jr., Appellant.
• Court: Missouri Court of Appeals

341 S.W.3d 723

STATE of Missouri, Respondent,

v.Clarence THOMPSON, Jr., Appellant.

No. ED 95223.

Missouri Court of Appeals, Eastern District, Division Five.

May 17, 2011.

Patricia A. Harrison, St. Louis, MO, for appellant.Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.PATRICIA L. COHEN, Judge.

Introduction

Clarence Thompson (Defendant) appeals the judgment of conviction entered after a jury found him guilty of three counts of statutory rape and one count of statutory sodomy. Defendant claims the trial court erred by: (1) allowing the State to introduce a child witness's deposition testimony because it lacked sufficient indicia of reliability as required by Section 491.075; (2) allowing the State to introduce a child witness's deposition testimony pursuant to Section 491.075, despite the statute's conflict with Rule 25.16 governing the use of depositions in criminal trials; (3) admitting evidence of uncharged sexual acts Defendant committed against the victim in another state and preventing Defendant from cross-examining the victim about her prior false allegations of abuse; and (4) admitting the victim's videotaped statements pursuant to Section 492.304 and the victim's hearsay statements through the testimony of various other witnesses pursuant to Sections 491.075. We affirm.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the evidence presented at trial established that E.C. (Victim) was twelve years old at the time of the charged crimes and was living with Defendant, her godfather. Victim and Defendant also lived with Victim's brother K.C., then eight years of age; Victim's mother; Defendant's wife; and Defendant's infant son.

Defendant began sexually abusing Victim in Arkansas when Victim was nine years old. Victim testified that Defendant touched her, raped her, and forced her to perform oral sex on him. On one occasion, when the families were living in Arkansas, K.C. walked into the living room and saw Defendant laying on top of and “humping” Victim with his pants down.

In May 2007, Defendant's and Victim's families moved from Arkansas to St. Louis County. Upon relocating to St. Louis, Defendant, Victim, and their families stayed for several weeks in a room at the Oak Grove Inn, a motel in South County. One night, when Victim awoke to use the bathroom, Defendant followed her into the bathroom and raped her. Another night at the Oak Grove Inn, Defendant lay on the air mattress Victim was sharing with K.C. and touched Victim's chest and vagina.

In September 2007, Victim's and Defendant's families were sharing a room in the basement of Defendant's sister's house. On September 24, 2007, Victim told her special education resource teacher, Sheronda Laden, “her stomach was hurting” and “it felt like something was wiggling in her stomach.” Later that day, Victim told Ms. Laden that she needed to talk to her and confided that Defendant “was having sex with her” and “[h]e made her put his penis in her mouth, and if she told anyone, he was going to kill her mother and break her neck.” Victim informed Ms. Laden that the abuse was occurring almost every night or every other night. Before sending Victim home that evening, Ms. Laden advised Victim not to bathe if Defendant abused her again.

Around 2:00 or 3:00 a.m. on September 25, 2007, Victim woke up to use the bathroom, which was on the main level of the house. When Victim reached the top of the stairs, Defendant pulled her into the kitchen, started touching her chest, removed his shirt, pulled off Victim's clothes, and continued touching Victim's chest and vagina. Defendant then raped Victim on the kitchen floor.

When Victim arrived at school on September 25, 2007, she told Ms. Laden that “it happened again.” Ms. Laden called the Division of Family Services (DFS). DFS and the police brought Victim to St. Louis Children's Hospital, where hospital staff administered a rape kit to collect physical evidence. At the hospital, Victim separately spoke to Detective Angela Bruno, a child abuse detective with the St. Louis County Police, and Stephanie Whitaker, a pediatric medical social worker in the hospital's emergency department. Victim told Ms. Whitaker that, early that morning, Defendant had pulled her into the kitchen, laid her on the floor, touched her vagina with his fingers, and “put his stuff in her vagina.” Victim also told Ms. Whitaker that Defendant began abusing her when she was around nine years old.

Forensic scientists at the St. Louis County Police Department Crime Laboratory tested the items in the rape kit for bodily fluids and found sperm cells on the internal and external vaginal swabs and on Victim's underwear. The male DNA found on the vaginal swab and Victim's underpants matched Defendant's genetic profile.

The trial court conducted a jury trial in May 2010. At trial, the State presented the testimony of Victim, K.C., Ms. Laden, Ms. Whitaker, the emergency room nurse from St. Louis Children's Hospital who helped administer Victim's rape kit, the forensic interviewers at the Children's Advocacy Center (CAC) who interviewed Victim and K.C., and various police officers and forensic scientists involved in the investigation. The defense called as witnesses Defendant's wife, Defendant's sister, and Defendant's sister's boyfriend.

The jury found Defendant guilty on all four counts, and the trial court sentenced him to four concurrent sentences of life imprisonment. Defendant appeals.

Discussion

Defendant's first and second points on appeal are based on the admission at trial of K.C.'s deposition testimony. First, Defendant claims that the trial court abused its discretion when it allowed the State to introduce K.C.'s deposition testimony as a child hearsay statement under Section 491.075 because the deposition was used solely to bolster K.C.'s trial testimony and it lacked sufficient indicia of reliability. ¹

Defense counsel deposed K.C., then ten years of age, on May 20, 2009 at the Circuit Attorney's office. At the beginning of the interview, defense counsel encouraged K.C. to answer her questions truthfully and confirmed that K.C. understood the different between “truth and a lie.” When defense counsel asked K.C. whether he remembered “anything funny happening between” Defendant and Victim when they were living in Arkansas, K.C. answered in the affirmative. Defense counsel asked, “What do you remember?,” and K.C. responded, “Him on top of my sister.” K.C. told defense counsel that no one else was home when he saw Defendant “hunching” or “humping” Victim on a pallet on the floor of the bedroom Defendant shared with his wife. Victim's clothes were on “a little bit.” K.C. further stated that he told his mother, but he “[s]hould have told the po-po. They would have locked him up.” Defense counsel agreed that “[y]ou definitely want to tell somebody when you see stuff like that.”

Prior to trial, Defendant filed a motion to “preclude hearsay statements,” and the trial court held a Section 491.075 hearing on the admissibility of K.C.'s deposition statement. At the hearing, defense counsel argued that the trial court should not admit K.C.'s deposition testimony because it lacked sufficient indicia of reliability. On May 17, 2010, the trial court ruled that the State could present K.C.'s deposition testimony if K.C. testified at trial.

At trial, K.C. testified that when his family was living with Defendant in Arkansas, he saw Defendant “humping” Victim in Defendant's room. K.C., Victim, and Defendant were the only people home at the time. Victim was laying face down on the floor and Defendant was laying on top of her with his pants down. K.C. then went to the room he shared with Victim, and Defendant later “came by” and “smiled at [him] and gave [him] a thumbs up.” After K.C. testified, the prosecutor sought to admit K.C.'s deposition testimony, and defense counsel renewed her objection. The trial court admitted the deposition, which was read aloud to the jury.

At the Section 491.075 hearing and at trial, Defendant objected to admission of the deposition testimony on the ground that it lacked sufficient indicia of reliability. Defendant did not raise at trial the argument that K.C.'s deposition testimony improperly bolstered K.C.'s trial testimony. “The grounds asserted on appeal are limited to those stated at trial.” State v. Gaines, 316 S.W.3d 440, 449 (Mo.App. W.D.2010). Defendant therefore failed to preserve his bolstering claim for appellate review. ² See State v. Mattic, 84 S.W.3d 161, 168 (Mo.App. W.D.2002).

With regard to Defendant's claim that K.C.'s deposition testimony lacked sufficient indicia of reliability, we review the trial court's decision to admit the deposition testimony for an abuse of discretion. State v. Redman, 916 S.W.2d 787, 792 (Mo. banc 1996). We will find that a trial court abused its discretion in admitting a child's out-of-court statements pursuant to Section 491.075 only where the trial court's findings are not supported by substantial evidence in the record. In re N.J.K. v. Juvenile Officer, 139 S.W.3d 250, 255 (Mo.App. W.D.2004). “If reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Id. at 256.

Section 491.075.1 provides:

A statement made by a child under the age of fourteen relating to an offense under chapter 565, 566, 568 or 573, performed with or on a child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:

(1) The court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2) (a) The child testifies at the proceedings; or

(b) The child is unavailable...