In the Missouri Court of Appeals Eastern District
DIVISION FOUR
STATE OF MISSOURI, ) No. ED100036 ) Plaintiff/Respondent, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) ) Honorable Elizabeth B. Hogan KEITH MASON, ) ) Defendant/Appellant. ) Filed: April 29, 2014
I. Introduction
Keith Mason (Defendant) appeals his convictions of three counts of first-degree
statutory sodomy, two counts of second-degree statutory sodomy, and one count of
second-degree statutory rape. Defendant raises two points on appeal, challenging the trial
court‘s decisions in (1) denying his motion to dismiss for violation of his Sixth
Amendment right to a speedy trial and (2) excluding a portion of Defendant‘s statement
referring to the victim‘s sexual conduct with individuals other than Defendant. We
affirm.
I. Factual Background
In August 2011, Defendant engaged in multiple acts of sexual contact with a child
under fourteen years of age. Defendant‘s wife discovered the abuse after Y.C., Defendant‘s step-daughter, informed her of an illicit conversation Y.C. overhead between
Defendant and the victim. Defendant was arrested on January 17, 2012, and charged
with three counts of first-degree statutory sodomy, two counts of second-degree statutory
sodomy, one count of second-degree statutory rape, and one count of first-degree
statutory rape.
In April 2012, Defendant filed a motion requesting a speedy trial.1 However,
Defendant‘s trial date was rescheduled several times. Ten months after his arrest,
Defendant moved to dismiss the charges alleging that he had been denied his Sixth
Amendment right to a speedy trial. Shortly thereafter, the State requested a continuance.
Instead of ruling on Defendant‘s motion, the trial court entered an order noting the
parties‘ stipulation that Defendant did not consent to the State‘s motion to continue and
that Defendant was ready for trial. Defendant‘s trial date was continued several more
times before trial ensued on March 6, 2013, nearly 13 months after Defendant‘s arrest.
On the day of trial, Defendant requested a ruling on his motion to dismiss. The
trial court denied the motion after taking judicial notice of the court file and noting that
several continuances were attributable to Defendant. The trial court also ruled on the
State‘s motion in limine, which sought to exclude part of Y.C.‘s testimony regarding a
statement Defendant made because a portion of the statement would violate the rape
shield law. See § 491.015 RSMo (2000). Defendant objected, arguing that the entire
statement should be admitted. The trial court sustained the State‘s motion.
1 Defendant remained incarcerated while awaiting trial.
2 The jury returned a guilty verdict on three counts of first-degree statutory sodomy,
two counts of second-degree statutory sodomy, and one count of second-degree statutory
rape.2 The trial court sentenced Defendant to concurrent terms of 25 years‘ imprisonment
for each first-degree statutory sodomy conviction, 15 years‘ imprisonment for his second-
degree statutory sodomy conviction, and 15 years‘ imprisonment for his second-degree
statutory rape conviction. Defendant appeals.
III. Standard of Review
This Court reviews a decision on a motion to dismiss for an abuse of discretion.
State v. Ferdinand, 371 S.W.3d 844, 850 (Mo. App. E.D. 2012). ―A trial court abuses its
discretion when its ruling is clearly against the logic of the circumstances before the court
and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of
careful consideration.‖ State v. Scott, 348 S.W.3d 788, 794 (Mo. App. S.D. 2011)
(citation and quotations omitted).
We also review claims of evidentiary error for an abuse of discretion. State v.
Smith, 314 S.W.3d 802, 807 (Mo. App. E.D. 2010). To the extent that any of
Defendant‘s claims are unpreserved, we may review them for plain error under Supreme
Court Rule 30.20. Id. at 811. Plain error review involves two steps. Id. First, we
determine whether the ―the trial court committed an evident, obvious and clear error,
which affected the substantial rights of the appellant.‖ State v. Drudge, 296 S.W.3d 37,
40-1 (Mo. App. E.D. 2009). If we conclude that obvious error occurred, then the second
step is a determination whether ―manifest injustice or a miscarriage of justice resulted
2 The jury found Defendant not guilty of first-degree statutory rape and the trial court dismissed the charge.
3 therefrom.‖ Id. at 41. We apply plain error review sparingly. State v. Cannady, 389
S.W.3d 306, 310 (Mo. App. S.D. 2013).
IV. Discussion
A. Sixth Amendment Right to a Speedy Trial
In his first point, Defendant asserts that the trial court‘s decision denying his
motion to dismiss for violation of his Sixth Amendment right to a speedy trial
contravenes his constitutional right because: (1) Defendant had to wait 13 months for his
case to be tried; (2) his case was continued by the State or the trial court twice over
objection; (3) Defendant asserted his right to a speedy trial; and (4) Defendant suffered
prejudice due to severe anxiety. The State agrees that the 13-month delay was
presumptively prejudicial and that Defendant timely asserted his right to a speedy trial,
but asserts that the reasons for delay should be attributed to Defendant and that Defendant
has not established prejudice.
The right to a speedy trial under the Sixth Amendment of the United States
Constitution, which applies to the states through the Fourteenth Amendment, provides
that ―[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial . . . .‖ See Dillard v. State, 931 S.W.2d 157, 161 (Mo. App. W.D. 1996). The
Sixth Amendment right to a speedy trial protects a defendant‘s ability to defend against
pending criminal charges, as well as the defendant‘s interest in avoiding oppressive pre-
trial incarceration and the anxiety that pending charges cause. Scott, 348 S.W.3d at 794-
95. Thus, the right attaches when the defendant becomes an ―accused,‖ upon either arrest
or indictment. Ferdinand, 371 S.W.3d at 851.
4 In analyzing whether a defendant‘s Sixth Amendment right to a speedy trial has
been violated, courts are required to balance the defendant‘s interests with the State‘s
interest in the administration of justice. Scott, 348 S.W.3d at 795. In doing so, courts
weigh four factors as set forth by the United States Supreme Court in Barker v. Wingo:
(1) the length of delay, (2) the reason for the delay, (3) the defendant‘s assertion of his
right, and (4) the prejudice to the defendant. 407 U.S. 514, 530 (1972). Under this test, it
is not necessary to consider the last three factors unless, under the first factor, the length
of the delay is presumptively prejudicial. State ex rel. Garcia v. Goldman, 316 S.W.3d
907, 911 (Mo. banc 2010). The test is not intended to supply ―‗automatic answers . . . ,
[but] necessarily depends upon the facts and circumstances of each case.‘‖ Ferdinand,
371 S.W.3d at 851 (quoting State v. Black, 587 S.W.2d 865, 869 (Mo. App. E.D. 1979)).
1. Length of Delay
The first factor is the length of the delay. As noted, the length of the delay is
measured from the date the defendant is either arrested or indicted to the date that the
defendant‘s trial begins. Here, Defendant was arrested on January 17, 2012, and the trial
began on March 6, 2013, over 13 months later. In Missouri, it is well-established that a
delay of eight months or more is presumptively prejudicial. State v. Perry, 954 S.W.2d
554, 565-66 (Mo. App. S.D. 1997). Both parties agree that Defendant suffered a
presumptively prejudicial delay. Therefore, we conclude that this factor weighs in
Defendant‘s favor. Because the delay was presumptively prejudicial, we assess the
additional Barker factors.
5 2. Reason For the Delay
The second factor is the reason for the delay. Because it is the State‘s burden to
afford a defendant a speedy trial, it is incumbent upon the State to establish the reasons
justifying the delay. State v. Greenlee, 327 S.W.3d 602, 611-12 (Mo. App. S.D. 2010).
Here, Defendant argues that this factor should weigh against the State because the State
or the trial court continued the case over Defendant‘s objection and Defendant did not
contribute to any delay. Defendant explains that this case is unlike Perry, 954 S.W.2d at
554, where this factor weighed against the defendant who filed multiple pre-trial motions
and requested continuances. In response, the State asserts that three of the five
continuances are attributable to Defendant and that this factor should weigh against
Defendant.
In considering this factor, Missouri courts assign different weights to different
reasons for the delay depending on where the reason falls on the spectrum of
acceptability. Garcia, 316 S.W.3d at 911. A deliberate attempt by the State to delay a
trial that is designed to hinder the defense is heavily weighed against the State. Barker,
407 U.S. at 531. Neutral reasons for the delay are also weighed against the State, because
ultimately it is the State‘s burden to afford a defendant a speedy trial, but such delays are
weighed less heavily. Id. Examples include the State‘s negligence, overcrowded courts,
or other trial court-related docket delays. Id.; Greenlee, 327 S.W.3d at 612. However,
valid reasons for delay, such as a missing witness, ―serve to justify appropriate delay‖
and are not held against the State. Barker, 407 U.S. at 531.
6 In this case, Defendant‘s trial date was continued a total of five times. Initially,
Defendant‘s trial was set for May 7, 2012. On April 25, 2012, the trial court continued
the case to July 2012, because it was the ―cause‘s first appearance in Division 16.‖
Eleven days before the July trial date, on July 12th, Defendant requested a continuance
because discovery was incomplete. The trial court granted the continuance and
rescheduled the trial for October 1, 2012. However, the trial did not commence on
October 1st, and the trial court entered a continuance several days later, on October 4th,
due to defense counsel‘s conflict. The trial court reset the trial date to November 26,
2012. Six days before the November trial date, the State moved for a continuance
because a witness was unavailable and the prosecutor was scheduled to try a different
case. Over Defendant‘s objection and assertion that he was ready for trial, the trial court
entered the continuance and rescheduled the trial for January 22, 2013. On January 10,
2013, defense counsel requested a continuance due to defense counsel‘s scheduling
conflict. The trial court reset the trial date for March 6, 2013 and, ultimately, the trial
commenced on that date.
Three of the five continuances are clearly attributable to Defendant: The October
4th and January 10th continuances, which continued the trial date due to defense
counsel‘s scheduling conflicts, and the July 12th continuance, which defendant requested
because discovery was incomplete.3 Thus, contrary to Defendant‘s assertion, this case is
similar to Perry, 954 S.W.2d at 566, where the defendant requested multiple
3 Defendant argues that the July 12th continuance should be attributed to the State because the State had not provided Defendant with discovery. The record does not support this assertion and we decline to attribute this continuance to the State.
7 continuances. And, while the record reflects that Defendant did not make multiple pre-
trial motions like the defendant in Perry, this fact does not negate that three of the five
continuances in this case are attributable to Defendant.
The two remaining continuances are attributable to the State. However, we weigh
them lightly because the reasons for these delays are neutral and do not reflect an intent
to hamper Defendant‘s defense. See Greenlee, 327 S.W.3d at 612. Mainly, the trial
court initially continued the case for administrative purposes in April 2012 and the
State‘s request for a continuance in November 2012 was due to the State‘s scheduling
conflict and an unavailable witness. Cumulatively, the balance of the trial delays is due
to Defendant‘s requests for continuances, not the State‘s conduct. ―[W]here a defendant
has contributed to the delay by requesting, and being granted, continuances, he cannot
later successfully allege the denial of his right to a speedy trial.‖ Id. ―Delays attributable
to the defendant weigh heavily against the defendant.‖ State v. Darnell, 858 S.W.2d 739,
745 (Mo. App. W.D. 1993). Therefore, we weigh this factor heavily against Defendant.
3. Defendant‘s Assertion of His Right
The third factor is when and how Defendant asserted his right to a speedy trial.
See Scott, 348 S.W.3d at 797. A request early in the proceedings for an immediate trial
reflects a desire to have a speedy trial. Id. Defendant points out that he requested a
speedy trial in April 2012, again on October 26, 2012 when he filed a motion to dismiss
for violation of his right to a speedy trial, and finally on the eve of trial when Defendant
filed another motion to dismiss on the same basis. The State acknowledges Defendant‘s
assertion of his right and concedes that this factor weighs in Defendant‘s favor. We do
8 not disagree. Because Defendant made a request for a speedy trial early in the
proceedings, we weigh this factor for Defendant.
4. Prejudice
The final and most important factor is whether the delay caused Defendant any
prejudice in going to trial. State v. McKay, 411 S.W.3d 295, 303 (Mo. App. E.D. 2013).
Defendant argues that the length of the delay caused him ―significant prejudice‖ because
of the ―anxiety‖ he suffered while awaiting trial. The State responds that Defendant has
failed to provide any evidence establishing prejudice and that anxiety alone is
insufficient.
―To determine whether the defendant has suffered from prejudice that would
warrant dismissal for violation of the defendant‘s right to a speedy trial, appellate courts
consider [(1)] the oppressiveness of pre-trial incarceration, [(2)] whether it unduly
heightened defendant‘s anxiety, and [(3)] possible impairment of the defense.‖ Scott, 348
S.W.3d at 797 (citation and quotations omitted). These are the considerations that the
Sixth Amendment right to a speedy trial is intended to protect and must be considered
together. Barker, 407 U.S. at 532. However, the last of the three factors, impairment of
the defense, is ―most vital to the analysis.‖ State v. Newman, 256 S.W.3d 210, 216-17
(Mo. App. W.D. 2008) (citation omitted). ―Claims of prejudice must be actual or
apparent on the record, or by reasonable inference, while speculative or possible
prejudice is not sufficient.‖ Greenlee, 327 S.W.3d at 612-13. ―The burden to present
evidence of actual prejudice is on the defendant and the failure to do so weighs heavily in
favor of the State.‖ Ferdinand, 371 S.W.3d at 855.
9 Of the three factors, Defendant only alleges that he suffered heightened anxiety
due to the length of delay. Aside from the allegations in Defendant‘s brief, Defendant
does not support this assertion with any evidence on the record. An assertion of anxiety
by itself is insufficient to establish that actual prejudice occurred absent a showing of
specific instances that weighed heavily on the defendant. Greenlee, 327 S.W.3 at 613.
Defendant has not met this burden and, indeed, we see no evidence in the record
supporting Defendant‘s claim that he suffered increased anxiety each time his case was
continued. Therefore, Defendant has not provided evidence of actual prejudice.
Accordingly, we conclude that this factor weighs heavily in favor of the State.4
In sum, when all the Barker factors are weighed together, it is clear that the 13-
month delay between Defendant‘s arrest and trial did not violate his Sixth Amendment
right to a speedy trial. While the length of the delay was presumptively prejudicial and
Defendant timely asserted his right, the remaining two factors, the reasons for the delay
and prejudice, weigh heavily against Defendant and in favor of the State. Accordingly, it
cannot be concluded that the trial court abused its discretion by denying Defendant‘s
motion to dismiss. Point I is denied.
B. Rape Shield Statute
In his second point, Defendant asserts that the trial court erred by excluding a
portion of Defendant‘s statement, introduced via the testimony of Y.C. who overheard 4 Even if Defendant‘s claim regarding anxiety is true, it is outweighed by the total lack of impairment to Defendant‘s defense. As the State points out, the record belies any indication that the delay had any prejudicial effect on Defendant‘s defense. Specifically, when the State requested a continuance in November 2012, Defendant asserted that he was ready for trial on that date. Nothing in the record indicates that, after that date, Defendant was unable to adequately prepare his case, e.g., a delay may prejudice the defense if a witness dies, goes missing, or is unable to recall the event. See Garcia, 316 S.W.3d at 912.
10 Defendant make the statement to the victim, because the ruling violated the ―rule of
completeness.‖5 Defendant asserts that he suffered prejudice as a result because he was
deprived of the opportunity to challenge Y.C.‘s credibility and had the jury heard the
entire statement it would not have regarded the statement as believable. The State
responds that this issue is not preserved and that Defendant is unable to establish plain
error because the excluded testimony was inadmissible under the rape shield statute.6
Section 491.015, which is commonly referred to as the ―rape shield‖ statute,
―creates a presumption that evidence of a rape victim‘s prior sexual conduct is
irrelevant.‖ Smith, 314 S.W.3d at 807. Thus, the statute excludes, subject to certain
limited exceptions, ―opinion and reputation evidence of the complaining witness‘ prior
sexual conduct,‖ as well as ―evidence of specific instances of the complaining witness‘
prior sexual conduct . . . .‖ § 491.015.1.7 If a defendant seeks to offer evidence of the
5 ―The rule of completeness provides that where either party introduces part of an act, occurrence, or transaction, the opposing party is entitled to introduce or inquire into other parts of the whole.‖ State v. Johnson, 313 S.W.3d 206, 211 (Mo. App. E.D. 2010) (citation and quotations omitted). 6 In the argument portion of his brief, Defendant asserts that the omitted portion of the statement would not have violated the rape shield statute because it is not opinion or reputation evidence of the victim‘s prior sexual conduct and also that the omitted portion was admissible under the statement against interest exception to the hearsay rule. Defendant did not raise these objections before the trial court. Further, on appeal, these arguments are not encompassed by Defendant‘s point relied on as required by Supreme Court Rule 84.04(e). Therefore, these arguments are not preserved. See State v. Myszka, 963 S.W.2d 19, 24 (Mo. App. W.D. 1998); State v. Daniel, 103 S.W.3d 822, 824 n. 2 (Mo. App. W.D. 2003). We decline to consider them. 7 The four statutory exceptions to the rape shield state include the following: (1) Evidence of the sexual conduct of the complaining witness with the defendant to prove consent where consent is a defense to the alleged crime and the evidence is reasonably contemporaneous with the date of the alleged crime; or (2) Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease; (3) Evidence of immediate surrounding circumstances of the alleged crime; or (4) Evidence relating to the previous chastity of the complaining witness in cases, where, by statute, previously chaste character is required to be proved by the prosecution. § 491.015.1(1)-(4).
11 victim‘s prior sexual conduct, the statute requires the Defendant to ―file with the court a
written motion accompanied by an offer of proof . . . .‖ § 491.015.3.
During her deposition testimony, Y.C. indicated that she had overheard a
conversation between Defendant and the victim. Y.C. stated, ―[Defendant] was talking to
[the victim] – like he was telling her it doesn‘t hurt – does it hurt when I do it and you
feel something when I do it and not when other guys do it.‖ Before trial, the State moved
in limine to exclude the portion of the statement, —―and not when other guys do it‖—
because it would violate the rape shield law. Defendant objected on completeness
grounds, asserting that the entire statement should be admitted, but the trial court
sustained the State‘s motion. At trial, consistent with the trial court‘s ruling, Y.C.
testified to the statement Defendant made to the victim without any reference to the
―other guys.‖ Defendant did not renew his objection to the testimony.
In order to preserve an objection for appellate review based on an issue brought in
a motion in limine, the defendant must object at trial when the relevant evidence is
presented. State v. Beishline, 926 S.W.2d 501, 509 (Mo. App. W.D. 1996). Issues raised
in a motion in limine preserve nothing for appeal. State v. Minner, 311 S.W.3d 313, 318
(Mo. App. W.D. 2010). Defendant concedes that he did not object to Y.C.‘s testimony at
trial. However, he urges this Court to review the trial court‘s admission of the excised
statement for an abuse of discretion because he raised the completeness objection in his
motion for new trial. Defendant cites no authority for the proposition that his motion for
new trial cured his failure to object to the testimony at trial. Therefore, our review is for
plain error under Rule 30.20. See State v. Young, 230 S.W.3d 30, 33 (Mo. App. E.D.
12 2007) (plain error applies where defendant fails to make specific objections at trial and,
thereafter, raises the issue in a motion for new trial).
Here, the omitted portion of the statement is easily characterized as testimony
regarding the victim‘s prior sexual conduct. Plainly, the omitted portion refers to the
victim‘s past sexual conduct with other ―guys‖ and does not, on its face, fit within one of
the exceptions to the rape shield statute. Indeed, Defendant never alleged that the omitted
portion of the statement was admissible under any of the statutory exceptions and
Defendant did not move to admit the entire statement pursuant to the procedure outlined
in § 491.015.3.
Nonetheless, Defendant, relying on State v. Marshall, 410 S.W.3d 663 (Mo. App.
S.D. 2013), asserts that the trial court erred by admitting only the excised portion of the
statement. According to Defendant, the rule of completeness compels admission of the
entire statement because the excluded portions of the statement are necessary to put the
admitted portion in context. Defendant‘s reliance on Marshall and the rule of
completeness is misguided. Marshall merely articulates the rule and does not apply the
rule of completeness in relation to the rape shield statute. See id. at 672. Therefore,
Marshall does not stand for the proposition, as Defendant‘s argument implies, that the
rule of completeness provides an exception to the rape shield statute. ―It is not the
province of this court to carve out more exceptions [to the rape shield statute] than the
legislature saw fit to include in the statute.‖ State v. Samuels, 88 S.W.3d 71, 82 (Mo.
App. W.D. 2002). Defendant‘s argument is nothing more than an attempt to circumvent
13 the rape shield statute in an effort to create negative inferences about the victim.8
Accordingly, the trial court made no error, plain or otherwise, by excluding the portion of
Defendant‘s statement. Point II is denied.
V. Conclusion
The judgment of the trial court is affirmed.
________________________________ Philip M. Hess, Judge
Lisa Van Amburg, P.J. and Patricia L. Cohen., J. concur.
8 Defendant also claims that the State ―opened the door‖ to the admission of the entire statement by eliciting testimony from the victim that put her chastity at issue. Defendant cites no authority in support of this argument. Therefore, we deem it abandoned. Sapp v. State, 22 S.W.3d 746, 747 (Mo. App. W.D. 2000).