State v. Tindle

• Decision Date: 25 March 2013
• Docket Number: No. SD 31723.,SD 31723.
• Citation: 395 S.W.3d 56
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Darrell Dean TINDLE, Defendant–Appellant.
• Court: Missouri Court of Appeals

395 S.W.3d 56

STATE of Missouri, Plaintiff–Respondent,

v.Darrell Dean TINDLE, Defendant–Appellant.

No. SD 31723.

Missouri Court of Appeals,

Southern District,

Division Two.

March 25, 2013.

Stuart Huffman, Springfield, MO, for appellant.

Jessica P. Meredith, Jefferson City, MO, for respondent.

DON E. BURRELL, J.

Appellant Darrell Dean Tindle (“Defendant”) was charged with two counts of first-degree child molestation ( see section 566.067) and three counts of statutory sodomy ( see section 566.062) arising from alleged sexual contact he had with two minor children, A.T. and D.A.¹ Following a jury trial, Defendant was found not guilty of child molestation in regard to D.A.² The jury found Defendant guilty of three counts relating to A.T.: Count II (statutory sodomy in the first degree) and counts III and IV (statutory sodomy in the second degree).³ Defendant waived jury sentencing and was sentenced by the trial court to serve concurrent sentences of 20 years for first-degree statutory sodomy and 7 years on each conviction of second-degree statutory sodomy.

In four points relied on, Defendant asserts two claims of trial court error. His first three points all allege, for the following reasons, that the trial court erred in admitting into evidence State's Exhibit No. 3, a DVD video recording of a forensic interview of A.T. conducted at the Child Advocacy Center (“the CAC interview”): 1) it failed to meet “any hearsay exception including” those set forth in sections 491.075 and 492.304⁴ in that A.T. was more than fourteen years old at the time of the interview; 2) it did not meet the requirements of Rule 25.16⁵ (which governs the admissibility of depositions in criminal cases); and 3) it violated Defendant's constitutional right to confront and cross-examine A.T. Defendant's final point alleges the trial court erred in admitting testimony from a law enforcement officer about his interview of A.T. pursuant to section 491.075 because A.T. was more than fourteen years old at the time of that interview. We deny each point and affirm Defendant's convictions.

Facts and Procedural Background

Defendant does not challenge the sufficiency of the evidence supporting his convictions. As a result, we set forth only those facts necessary to address Defendant's points on appeal.

At trial, A.T. testified that she was born in February 1995 and that she and her younger sister, D.A., had “always” lived with a couple she considered to be her “stepparents.” ⁶ A.T.'s biological mother (“Mother”) was involved in A.T.'s life. Sometimes Mother also lived at the stepparents' residence. When she did not, A.T. and D.A. would visit her at her residence. During the events in question, A.T. was visiting Mother “every other weekend” at a house Mother shared with Defendant. Initially, A.T. liked being with Defendant, and he watched A.T. and D.A. when Mother was at work. A.T. stopped wanting to visit Mother when Defendant “started touching [her] in places [she] wasn't comfortable.”

A.T. could not remember when Defendant first touched her in a way that made her uncomfortable, but initially Defendant would put his hand on and under her pants and bra on different occasions. A.T. testified that Defendant “told [her], if [she] told anyone, he would slit [her] throat.” Defendant also made her watch a DVD containing“[p]ornography” more than once. When she said she did not want to watch it, Defendant told her that if she told “anybody, [he] [was] going to slit [her] throat.” A.T. identified a DVD at trial that, based on its cover, looked like the one Defendant had her watch. A.T. testified that on more than one occasion Defendant put his finger inside her “butt” and her vagina. A.T. was not sure how she remembered it, but she thought she “was about eleven and a half” when Defendant started touching her vagina and anus. A.T. also testified that Defendant made her touch his penis “with his clothes off” on more than one occasion after she had turned fourteen. A.T. was “scared” to tell anyone what had been happening, but one day her stepmother asked her if Defendant “had done anything to [her]” and A.T. “told her.” A.T. recalled that she talked to the police when they came over later that same day. She also recalled going to a place and “talk[ing] to a couple of detectives” about what had happened.

Defense counsel's cross-examination of A.T. included questions about what she had told the police officer and about the contents of the CAC interview. A.T. agreed that she did not remember “what [she] said to the officer[.]” A.T. testified that she had not watched the video recording of the CAC interview, and she agreed that she did not remember “any specifics of that interview[.]” ⁷

After A.T. testified before the jury, a hearing was held outside the jury's presence on a motion the State had filed during trial to admit statements A.T. made to Springfield Police Officer Robert Baker pursuant to section 491.075 (“the 491 hearing”). Officer Baker testified during the 491 hearing that he had interviewed A.T. about Defendant on March 28, 2009, after responding to a report of child sexual abuse. After the interview concluded, Officer Baker prepared a written report of A.T.'s statements. Defense counsel cross-examined the officer about other persons present during the interview, the content of some specific statements made by A.T., and how the officer attributed exact quotations as compared to paraphrases in his report. Other than an objection regarding the timing of the State's motion, the following constituted Defendant's objection and the trial court's ruling:

[Defense Counsel]: As far as the exact items that Officer Baker would be allowed to testify to, I think the purposes of a 491 hearing are those specific statements that the children make. The CAC interview is nice because it's recorded. We actually see and hear exactly what it says. In this particular case, whether he is trying the best that he can or not trying the best that he can, it doesn't change the fact that it's paraphrasing.

You know, I understand they don't have recorders there. I mean, I don't see why they don't take them with them on these calls. But that's neither here nor there. But it's still paraphrasing, Judge.

I think that anything that's a direct quote that he can differentiate as a direct quote, that's something that I think is suitable under the 491 [h]earing statute. Anything else that he has no direct knowledge or memory as far as the exact statement—And even the State, Judge, as he was making his statements about 491, talked about how important it was to do the specific words that he [sic] said. So the State by their own statements are saying that it's important that we only are hearing those words that the officers [sic] were sure is what she said to him. Those are what's [sic] in quotes. Everything else is a paraphrase and not admissible.

[THE COURT]: Well, the Court will find the statements are admissible in that at the time content and circumstances of statements provides sufficient indicia of reliability. And it's up to the jury to determine the credibility and the accuracy of the statements, and not for me to do that at this point.

After proceedings before the jury resumed, the State asked Officer Baker what A.T. told him had happened. Defense counsel stated, “Judge, if I may renew my previous objection.” The trial court replied that the objection was shown and overruled. Officer Baker went on to testify that he did not ask A.T. any questions, but that the stepmother told A.T. to tell the officer what had happened. A.T. then told the officer that “for the last year that, while [A.T.] was there alone with [Defendant] while [A.T.'s] mother was at work, that [Defendant] would hold her down on the bed and masturbate.” A.T. also reported that Defendant made “her watch porn DVDs” and he “touch[ed] her private parts and that he did put his finger inside her.” Officer Baker also said A.T. told him that Defendant told A.T. that Defendant would cut A.T.'s throat “if anyone ever found this out[.]” Officer Baker made a “Child Abuse Hotline” report, but he did not personally conduct a full interview of A.T. because he knew that a detective would need to be assigned for a follow-up investigation.

Defense counsel cross-examined the officer about certain details A.T. had reported, including that it had been going on for a year, not longer. He elicited from Officer Baker that A.T. did not specify the body part that was penetrated and that Defendant's threat “was a one-time deal.”

Matthew Brown, a CAC forensic interviewer at the time, testified that he interviewed A.T. and D.A. on April 16, 2009.⁸ When a DVD recording of D.A.'s interview was offered into evidence as State's Exhibit 2, defense counsel stated, “Subject to previous objection, Your Honor.” ⁹ The objection was overruled and the exhibit was admitted. After this, Mr. Brown described how his interview of A.T. had occurred. When the CAC interview was offered into evidence, Defense counsel again stated, “Subject to previous objection, Your Honor.” The trial court overruled the objection, and the State requested permission to publish it to the jury. Defense counsel replied, “No objection.” The CAC interview was then played for the jury. Male and female anatomical drawings marked during the course of the CAC interview were also admitted into evidence upon “[n]o objection” by defense counsel.

The CAC interview was deposited with the court, and we have reviewed it. At the beginning of the recording, A.T. told Mr. Brown that she was fourteen years old. She said that at first, Defendant touched her as though he were playing. A.T. said that Defendant would “stick his fingers everywhere.” A.T. said that Defendant “ha[d] been doing it since [A.T.] was 11.” A.T. said Defendant also made her watch “porn” on a disc. A.T. said that she was fourteen when Defendant touched her inside her vagina. She said that Defendant said he would “slice...