State v. Gillard

986 S.W.2d 194, 1999 Mo. App. LEXIS 49, 1999 WL 13360
CourtMissouri Court of Appeals
DecidedJanuary 15, 1999
DocketNo. 21675
StatusPublished
Cited by6 cases

This text of 986 S.W.2d 194 (State v. Gillard) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gillard, 986 S.W.2d 194, 1999 Mo. App. LEXIS 49, 1999 WL 13360 (Mo. Ct. App. 1999).

Opinion

JAMES K. PREWITT, Presiding Judge.

Following jury trial, Appellant Daniel F. Gillard, was convicted by a jury of the class C felony of abuse of a child, under Section 568.060, RSMo 1994. He was sentenced to seven years’ imprisonment.

On appeal, Appellant raises one point with two parts, all concerning admissions of testimony under Section 491.075, RSMo.1994. The first part of Appellant’s point alleges trial error in admitting the testimony of Lori Harmon, William Nichols, and Caroline Bradford because their statements lacked sufficient indicia of reliability. The second part again alleges error in admitting the testimony of the same individuals, for the reason that the statements were merely du-plicative and cumulative and thus constituted improper bolstering.

Although the sufficiency of the evidence to support the conviction is not in dispute, we view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict. State v. Kelley, 945 S.W.2d 611, 613 (Mo.App.1997).

At the time of the alleged abuse suffered by the minor child, Appellant was the paramour of his mother. The mother lived in a mobile home with the child and Appellant in Texas County. Living nearby were Appellant’s sister, mother and step-father, and his aunts and uncles. The child, C.N., was seven years old at the time of the abuse. C.N. testified that on November 27, 1995, his mother was working the night shift from 3:00 p.m. to 11:00 p.m., so after school he went to Appellant’s place of work, stayed there until Appellant got off work, and then went home with Appellant. That evening, C.N. and Appellant had dinner at the home of Ruth Moore, Appellant’s sister. After dinner, C.N. took a bath at the sister’s home, and put on a t-shirt and shorts. The sister testified that she saw no bruises on C.N. that evening. C.N. testified that at the sister’s home, Appellant picked him up by his shirt and up threw him down to the floor, and that he did not know why Appellant did so. Appellant then told him to go home.

C.N. went home and sat in a chair until Appellant got there. When Appellant arrived, he began hitting C.N. on his face with his fist and beating his legs with a stick. C.N. did not know how many times he was hit, but thought that the episode lasted approximately thirty minutes. Appellant then told C.N. not to tell anybody or he would “do it” again. C.N. then went to bed. When his mother woke him in the morning, she asked how he got the bruises, and C.N. told her he did not know. C.N. had braising on both of his cheek bones and his ears, on his legs, and a laceration on his chin. When C.N. arrived at school that day, his teacher asked him how he got the bruises, but he would not tell her. The principal was called and he took C.N. home. The mother then sought medical attention for C.N..

At the Texas County Memorial Hospital, Division of Family Services (DFS) investigator William E. Nichols saw C.N. and his [196]*196mother walk past him as they were entering the emergency room. Nichols saw that C.N. had severe bruising to his face, and asked C.N. how he got the bruises. C.N. replied that he had been kicked by a cow. At trial, C.N. testified that he did not tell Nichols the truth at that point because he was afraid Appellant would “do it” again.1

C.N. was taken by ambulance to a hospital in Springfield for further care, where he told a registered nurse, Lori Harmon, that he was kicked by a cow. Again during testimony, C.N. stated he did not tell the truth “because [he] didn’t want to get it done to [him] again.” When C.N. disrobed for the doctor at the emergency room, he overheard the doctor say that he had been beaten. At this point, C.N. told the nurse and the doctor that he had been beaten, and he felt it was okay to tell them because “they already knew.” Harmon testified that C.N. had extensive bruising and redness on his buttocks and all the way down the back side of his legs.

C.N. spent the night in the hospital and was then transported by Caroline Bradford, a DFS supervisor, to a foster home on November 29th. At the hospital, Bradford observed bruises on C.N.’s face and head area, and bruises on both legs. Bradford was with C.N. for approximately two and one-half hours at the hospital, and with him in the car for about two hours that day. C.N. told Bradford that “his dad” had spanked him; he did not describe further how he had acquired the bruises. Bradford testified ■ that C.N. became very upset when she first told him he must go to a foster home. C.N. insisted he would not go to a foster home, and that his mother had told him he would not have to go to a foster home.

Bradford explained to C.N. that because his dad had hurt him and that his dad still lived in the home with his mother, he could not be returned to the home because they could not ensure his safety. C.N. was insistent that Bradford take him to the Sheriff’s Department so he could tell the Sheriff what his dad had done, and to take him to the judge so he could explain to the judge what his dad had done. C.N. was certain that one of them would put his dad in jail if Bradford would just take him to talk to them.

Nichols again met with C.N. at his office on November 30, which was three days after the beating. C.N. told Nichols that Appellant had beaten him with a stick described to be about two and one-half feet long and one inch in diameter.

Prior to the trial of this matter, a pre-trial hearing was held pursuant to Section 491.075, to determine the reliability of statements made by C.N. At this hearing, both Caroline Bradford and William Nichols testified. Lori Harmon was not present, but a hearing regarding her testimony was held pursuant to Section 491.075, on the day of the trial, prior to evidence being presented and out of the hearing of the jury panel. At the conclusion of both hearings, the trial court allowed the hearsay testimony of each of the witnesses presented. At the hearings, and at the trial, Appellant objected to this testimony because the statements did not have the sufficient indicia of reliability regarding the time, content and circumstances of the statements. As earlier mentioned, C.N. did testify at the trial and was cross-examined.

Our review of the trial court’s decision to admit the minor child’s out-of-court statements under Section 491.075, is limited to a determination of whether the decision amounted to.an abuse of discretion. Section 491.075.1; Kelley, 945 S.W.2d at 614.

Section 491.075 permits the out-of-court statements of a child under twelve in a case arising out of a violation under Chapter 568 to be admitted at trial, if the “time, content and circumstances” of those statements provide “sufficient indicia of reliability,” and the child victim testifies at trial. Section 491.075.1. “In determining whether a child’s out-of-court statements possess ‘sufficient indicia of reliability’ for the purposes of Sec. 491.075, Missouri courts have adopted a totality of the circumstances test that includes the consideration of several, non-ex-[197]*197elusive factors which include (1) spontaneity and consistent repetition; (2) the mental state of the declarant; and (3) the lack of a motive to fabricate.” Kelley, 945 S.W.2d at 614.

The challenged testimony related to statements made by C.N. concerning his injuries. The statements were spontaneous in that C.N. was not prompted, cajoled, or coaxed into the responses. C.N. merely answered questions put to him.

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Bluebook (online)
986 S.W.2d 194, 1999 Mo. App. LEXIS 49, 1999 WL 13360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gillard-moctapp-1999.