State v. Werneke

• Decision Date: 23 December 1997
• Docket Number: No. WD,WD
• Citation: 958 S.W.2d 314
• Parties: STATE of Missouri, Respondent, v. Michael WERNEKE, Appellant. 53295.
• Court: Missouri Court of Appeals

Page 314

958 S.W.2d 314

STATE of Missouri, Respondent, v. Michael WERNEKE, Appellant.

No. WD 53295.

Missouri Court of Appeals,

Western District.

Dec. 23, 1997.

Gary E. Brotherton, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Michael Werneke appeals his jury conviction of one count of child molestation. Mr. Werneke claims that the trial court abused its discretion in admitting the victim's hearsay statements under Section 491.075, RSMo 1994, because they were unreliable as was indicated by the victim's inconsistent testimony at trial. The trial court's pre-trial finding of reliability of the hearsay statements was not an abuse of discretion. In any event, because the jury did not convict Mr. Werneke on the count as to which the victim's testimony was inconsistent, no prejudice could have resulted from the admission of those statements.

Mr. Werneke further argues that the trial court abused its discretion in allowing the victim to be recalled after she initially testified and following an out-of-court conversation between her and the prosecutor. He argues that the trial court abused its discretion in denying his motion to disqualify the prosecutor because he had become a necessary witness due to this conversation with the victim. We find that the trial court acted within its considerable discretion in permitting the victim to be recalled as a witness. We also find that the court did not err in failing to disqualify the prosecutor. Such disqualification will be required only where the attorney is the only available person to testify on the issue. Here, there were two other witnesses to the conversation. Moreover, no formal attempt was ever made to call the prosecutor as a witness.

Judgment affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 1995, the victim, then six years old, told her babysitter, Candace Hoehns, her aunt, Gail Dillon, and her aunt's boyfriend, Dan Borck, (using age-appropriate and explicit language) that her stepfather, Michael Werneke, had sexually molested her on numerous occasions. Mr. Borck called the police. The child was then interviewed by Deputy Maria Shaffer, who had special training in interviewing children regarding allegations of sexual abuse. The child told the deputy essentially the same things that she had told her babysitter, her aunt, and her aunt's boyfriend. She also told Deputy Shaffer that she had not previously told her mother or anyone else about her stepfather's conduct because she was afraid that she would not be believed, that Mr. Werneke would deny it, and that she would get in trouble.

On September 15, 1995, Dr. Carl Scott performed a Sexual Assault Forensic Examination (SAFE) on the victim. Dr. Scott has special training in interviewing and examining children who have allegedly been abused. The six-year-old victim gave Dr. Scott the same general account of Mr. Werneke's acts she had previously given to the others. Dr. Scott's exam did not reveal any physical signs of abuse. He considered these results "not surprising" and consistent with the acts described by the child. He testified that there were "multiple things that can happen without me seeing any physical evidence whatsoever, but still happen." Dr. Scott found that the six-year-old exhibited behavioral indicators that were "very consistent" with sexual abuse.

Mr. Werneke was indicted by a Pettis County Grand Jury on October 2, 1995, on three counts. Count I charged the defendant with statutory sodomy in violation of Section 566.062 ¹ for "an act involving the genitals of defendant and the mouth of the victim." Count II charged Mr. Werneke with child molestation in the first degree in violation of Section 566.067 for "touching the genitals of [the victim] with his hand." Count III charged the defendant with child molestation in the first degree for "touching the genitals of [the victim] with his genitals."

On January 24, 1996, the court held a hearing to consider the State's motion to admit the victim's out-of-court statements to Candace Hoehns, Gail Dillon, Dan Borck, Deputy Maria Shaffer, and Dr. Carl Scott, as substantive evidence as permitted by Section 491.075. That section states:

1. A statement made by a child under the age of twelve relating to an offense under chapter 565, 566 or 568, RSMo, 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....

§ 491.075.

Here, the victim was to testify at trial. The issue was thus whether the victim's out-of-court statements had sufficient indicia of reliability and trustworthiness to be admitted. The court found that the statements made by the victim had "sufficient and ample indicia of ... reliability and trustworthiness" and ruled them admissible.

The first trial of this cause began on May 1, 1996. The victim testified, and witnesses Candace Hoehns, Gail Dillon, Dan Borck, Deputy Maria Shaffer, and Dr. Alan Scott were allowed to testify as to the statements the victim had made to them at the time they learned of the alleged abuse. The jury failed to reach a verdict as to Counts I and II, which alleged mouth-to-genital contact and hand-to-genital contact, respectively, and the court declared a mistrial as to those counts. The court granted Mr. Werneke's Motion for Acquittal on Count III, alleging genital-to-genital contact, because of inadequate evidence on that count. ²

The State elected to retry Mr. Werneke on the charges in Counts I and II, mouth-to-genital and hand-to-genital contact. At the pre-trial hearing, defense counsel again moved to exclude out-of-court statements by the victim, but the judge again denied the motion.

The victim, now seven, was the first witness to testify at the second trial. She again testified that Mr. Werneke had touched her genitals with his "two fingers," the crime alleged in Count II. However, after testifying on direct examination that Mr. Werneke "tried to make [her] drink the white stuff" from his penis, she then denied that he had put his penis in her mouth or touched her with his penis anywhere. This denial was not consistent with any of her previous statements to the various witnesses or with her testimony at the first trial.

After her direct, cross, re-direct, and re-cross examinations were completed, the prosecutor took the victim, the victim's foster mother, Celia Parker, and a social worker, Lisa Brichacek, to his office. The foster mother and social worker were present for the ensuing conversation. The prosecutor told the victim that he had been surprised by her answers, explained that she was not in trouble, but said that he needed to know the truth about whether Mr. Werneke had put his penis in her mouth. The victim answered that he had, but that "she was embarrassed to talk about it around [Mr. Werneke]." She also told the prosecutor that "it was nasty or yucky or words to that effect" and that she "didn't like talking about it." The prosecutor then asked the victim whether she would go back and tell the jury the truth. She agreed to do so.

The State moved to recall the victim as a witness. Defense counsel objected, stating that he thought that due to his conduct the prosecutor was "a witness in this case" and should be disqualified, and he demanded that he be allowed to voir dire the prosecutor, the social worker, and the foster mother regarding the conversation that had just occurred in the prosecutor's office. The trial court allowed defense counsel to voir dire these three persons on the record outside the presence of the jury. The trial judge noted that Mr. Werneke would have the opportunity to call these witnesses in his case-in-chief. Defense counsel did not call or formally move to disqualify the prosecutor, however. Neither did he call or subpoena either the social worker or the victim's foster mother.

Instead, defense counsel simply objected to the State's recall of the victim as a witness. The court overruled the objection. The victim then testified that she had not told the complete truth before because she was embarrassed and that the truth was that Mr. Werneke had touched her with his penis. She testified that she could not remember which part of her body he had touched with his penis, but that she knew that he had. The State and Mr. Werneke's counsel questioned the victim about her conversation with the prosecutor.

Over defense counsel's continuing objection, the court then permitted the State to introduce the testimony of Ms. Hoehns, Ms. Dillon, Mr. Borck, Deputy Shaffer, and Dr. Scott as to the victim's out-of-court statements to them about Mr. Werneke's alleged sexual abuse. Dr. Scott also testified that the victim had behavioral indicators that were symptomatic of sexual abuse and that most sexual abuse victims were embarrassed and reluctant to discuss what had happened to them.

At the close of all the evidence, Mr. Werneke's Motion for Judgment of Acquittal was denied. The jury returned a verdict of guilty as to Count II, alleging hand-to-genital contact. The victim had not wavered in her testimony that this contact had occurred. The jury failed to reach a verdict on Count I, the count alleging mouth-to-genital contact and as to which the victim's testimony had been inconsistent. The court declared a mistrial as to Count I. Mr. Werneke moved for Judgment of Acquittal Notwithstanding the Verdict or, in the Alternative, for a New Trial. This...