State v. Johnston

979 S.W.2d 461, 1998 Mo. App. LEXIS 1715, 1998 WL 664942
CourtMissouri Court of Appeals
DecidedSeptember 29, 1998
DocketNo. WD 54207
StatusPublished
Cited by1 cases

This text of 979 S.W.2d 461 (State v. Johnston) 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. Johnston, 979 S.W.2d 461, 1998 Mo. App. LEXIS 1715, 1998 WL 664942 (Mo. Ct. App. 1998).

Opinion

LOWENSTEIN, Judge.

Johnston was found guilty by a jury of ten counts of sodomy, § 566.060, RSMo 1994, for deviate sexual intercourse committed between September 1993 and July 1994, against three boys.1 Johnston was sentenced to ten concurrent life terms.

The victims, all under age 14, were Johnston’s son, J., from a prior marriage, who was seven when the acts were committed, and his current wife’s two sons from a previous marriage, B. and Z. At the time the acts were committed, B. was four years old and Z. was three years old. The first four counts pertained to: Johnston placing his hand on his son J’s penis, having J. place his hand on Johnston’s penis, having J. place his mouth on Johnston’s penis, and Johnston placing his penis in J’s anus. The four counts involving B. related to Johnston placing his hand on B’s penis, B. placing his hand on Johnston’s penis, Johnston placing his mouth on B’s penis, and having B. place his mouth on Johnston’s penis. The two counts involving Z. related to Z. placing his hand on Johnston’s penis and Johnston placing his hand on Z’s penis. Johnston, his wife Jill and her two boys moved to Grandview in September 1993. Johnston’s son was a frequent visitor. Jill had her own business and was out of the home quite a bit. All of the charged acts occurred while Ms. Johnston was out of the home and while all the boys were present.

[462]*462Two specific events brought these charges to light. In July 1994, Jill left the Johnston house, along with her two children, B. and Z., and moved to a battered woman’s shelter in the metropolitan Kansas City area. A counselor in the shelter advised her that Z., during play therapy, made sexual advances toward a female child. Jill and the two boys moved to Florida. At a dinner party in Florida, around Christmas time of 1994, Jill “... heard a great deal of screaming and commotion and when I got up from my chair and walked into the kitchen [Z] had exposed his penis and was trying to get a little girl to fondle it and suck his penis.” After being taken from his perch on the kitchen table, he told his mother, “What’s wrong with it, daddy used to do it.” Ms. Johnston testified, “He’s drawn pictures of rear ends and penises and explained that it hurt really bad, that penises had semen coming out of them, and — um—he described the pee-pee game— this is what he played with the boys, when he did these things to them.” She then asked B. who told her the defendant “... would make him suck his penis, and pee in his mouth” while playing the “pee-pee” game. Jill Johnston notified police in Florida who took video statements of B. and Z.

The authorities in Missouri were notified and B. and Z. were then interviewed and video statements taken in this state. Jill Johnston called defendant Johnston’s first wife, Cheryl Johnston, with the news. Cheryl asked J., her son, if anyone had given him a bad touch. He said no. After seeing a therapist on another matter Cheryl told the therapist of her conversation with Jill. Sometime later, she again asked J. about any bad touchings and he responded “... that his dad had played a game with all the kids called the pee-pee game ...” and if they didn’t do it “he would beat them.” The boy testified his father told the three boys they would not get to see each other again if they told anyone about the pee-pee game. He told his mother that Johnston had sucked his penis and put his penis in J.’s behind. She reported the matter to the Grandview Police Department. All three boys’ trial testimony was consistent with the investigatory interviews and the accounts given to the mothers.

I.

Johnston’s first point asserts prejudicial error in a trial court ruling which limited the questioning of his expert in describing the suggestive nature of the interviewing techniques employed by the Florida authorities during the initial portion of the investigation.

A § 491.075.1 hearing was scheduled to determine the admissibility of the Florida videotaped statements of B. and Z., as well as the subsequent statements taken from all three boys in this state. This section allows the introduction, and the admissibility as substantive evidence of the statement made by a child under twelve in certain sex related offenses, where the “... time, content and circumstances of the statement provide sufficient indicia of reliability....” (This statute is set out in footnote 1 appearing in the next point). At this hearing, Johnston put on an expert, Dr. Wisner, who opined the interviews, particularly the ones taken in Florida, were suggestive and put extraneous information into the youngsters’ memory and their narrative. Wisner called this phenomenon “confabulated memory.” The trial court allowed the videos to be introduced under the aegis of § 491.075. The prosecutor filed a motion in limine to limit and exclude from the jury, the trial testimony of Dr. Wisner as to his expert opinion on the credibility of any of the child witnesses. The trial court, in reliance on State v. Ellis, 710 S.W.2d 378, 388 (Mo.App. banc 1986), ruled that expert opinion testimony as to the credibility of witnesses, would not be admissible. While acknowledging the trial judge, under State v. Biezer, 947 S.W.2d 540, 541 (Mo.App.1997), has discretion in admitting or excluding expert testimony, Johnston contends the ruling here which limited Wisner from telling the jury about “confabulated memory,” “or about how once an idea is injected into a child’s memory it becomes permanent,” was prejudicial to his ease. State v. Sloan, 912 S.W.2d 592 (Mo.App.1995). Sloan repeats the case law that there are typically two types of expert testimony challenged in child sexual abuse cases: general testimony describing behaviors commonly exhibited by victims (profile testimony), and particularized testimony concerning the alleged victim’s credi[463]*463bility. The Eastern District in Sloan wrote that the trial court has discretion in admitting the former, but admitting the latter as to credibility, usurps the province of the jury. 912 S.W.2d at 596.

A reading of the transcript undercuts the assertion made in this point. Defense counsel’s direct examination does not reveal any prejudicial inhibition of the questions to Dr. Wisner on the suggestibility of the circumstances surrounding the taking of the statements. He was inhibited only on questions pertaining to the expert’s opinion on the boys’ credibility. Despite the in limine ruling, it is apparent the trial court allowed the defense to delve into the interview techniques, so Sloan does not save the day for Johnston. In any event, the interlocutory ruling was not tested at trial, so the point is not preserved and must be denied. State v. Goad, 926 S.W.2d 152, 155 (Mo.App.1996).

II.

The second point relates to the victims’ statements given in interviews conducted during the investigation of this case. As previously stated in the first point, § 491.075.1(2) allows, after a hearing and finding of reliability by the trial court, the statements to be introduced as substantive evidence even though the child takes the stand.2 In the case at bar, the trial court held a § 491.075 hearing and determined the statements passed muster under the statute, and were admitted at trial.

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Related

State v. Barker
410 S.W.3d 225 (Missouri Court of Appeals, 2013)

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Bluebook (online)
979 S.W.2d 461, 1998 Mo. App. LEXIS 1715, 1998 WL 664942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnston-moctapp-1998.