State v. Smart

907 S.W.2d 275, 1995 Mo. App. LEXIS 1624, 1995 WL 563936
CourtMissouri Court of Appeals
DecidedSeptember 26, 1995
DocketNos. WD 49490, WD 50588
StatusPublished
Cited by5 cases

This text of 907 S.W.2d 275 (State v. Smart) 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. Smart, 907 S.W.2d 275, 1995 Mo. App. LEXIS 1624, 1995 WL 563936 (Mo. Ct. App. 1995).

Opinion

SPINDEN, Presiding Judge.

A jury convicted Tim R. Smart of raping and sodomizing an eight-year-old Saline County girl in 1989. In this appeal, Smart accuses the circuit court of five points of error. In his first two points, he complains that the circuit court erroneously refused to let him present evidence concerning the victim’s sexual activity with others and the “tempestuous relations” in the victim’s family. In his third and fourth points, he accuses the circuit court of plain error in overruling his objection to evidence of the victim’s statements to a doctor and in not declaring, sua sponte, a mistrial because of the state’s closing argument. In his fifth point, he argues that the circuit court erred in overruling, without convening an evidentiary hearing, his Rule 29.15 motion for post-conviction relief. We find no merit in his contentions and [277]*277affirm the judgment of convictions and the denial of his Rule 29.15 motion.

During the trial, the circuit court refused to let Smart present evidence that the victim had sexual relations with several men between the time of the alleged offense and a medical examination of her. Smart argues that it should have been admissible, pursuant to § 491.015, RSMo 1994, which says:

1. In prosecutions under chapter 566, RSMo, ... evidence of specific instances of the complaining witness’ prior sexual conduct ... is inadmissible, except where such specific instances are:
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(2)Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease;
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2. Evidence of the sexual conduct of the complaining witness offered under this section is admissible to the extent that the court finds the evidence relevant to a material fact or issue.
3. If the defendant proposes to offer evidence of the sexual conduct of the complaining witness under this section, he shall file with the court a written motion accompanied by an offer of proof or make an offer of proof on the record outside the hearing of the jury. The court shall hold an in camera hearing to determine the sufficiency of the offer of proof and may at that hearing hear evidence if the court deems it necessary to determine the sufficiency of the offer of proof. If the court finds any of the evidence offered admissible under this section the court shall make an order stating the scope of the evidence which may be introduced. Objections to any decision of the court under this section may be made by either the prosecution or the defendant in the manner provided by law. The in camera hearing shall be recorded and the court shall set forth its reasons for its ruling. The record of the in camera hearing shall be sealed for delivery to the parties and to the appellate court in the event of an appeal or other post trial proceeding.

We are not able to review the matter because Smart did not provide a record which permits review. The statute required Smart to make his request through “a written motion accompanied by an offer of proof or make an offer of proof on the record outside the hearing of the jury.” The circuit court’s duty was to determine whether the evidence submitted in the offer of proof was sufficient to satisfy § 491.015.1 and .2. Our review of the issue concerns whether the circuit court made a proper ruling concerning the sufficiency of Smart’s offer of proof. Indeed, § 491.015.3 specifically provides that the in camera hearing be recorded and preserved for the appellate court’s review. Except for the circuit court’s docket sheet and references to the hearing in the trial transcript, the record does not include any record of the in camera hearing.

The only offer of proof preserved in this record was the one made by Smart in his written motion:

[ T]he defendant would elicit testimony from several witnesses that the alleged victim in this cause, [L.L.], had numerous boyfriends, and had been caught engaging in sexual contact with others, thus demonstrating an alternative source for the proffered medical testimony. Said boyfriends, or alternative sources, would include, but not be limited to, [S.S.], [B.L.], [B.W.], “two grown men in a truck by the lake,” [M.R.] and her brother.

This certainly was not a sufficient offer of proof. An offer of proof “should be specific and in sufficient detail to demonstrate its admissibility; mere conclusions of counsel will not suffice.” State v. Townsend, 737 S.W.2d 191, 192 (Mo. banc 1987).

The record suggests that Smart presented additional evidence to support his motion: “testimony of the defendant, [J.L.], and [J.R.]” We cannot find that testimony in this record. We cannot review matters not preserved in the record. “ ‘A transcript on appeal must contain all of the records and proceedings necessary to a determination of the questions presented for decision, and where any such items are absent there is nothing for the appellate court to decide.’ ” State v. Holland, 653 S.W.2d 670, 678 (Mo. [278]*278banc 1983) (quoting State v. Hamilton, 612 S.W.2d 141, 143-44 (Mo.App.1980)). The burden was on Smart to submit an adequate record. Rule 81.12(c).

Judging this issue strictly on the offer of proof preserved in the record, we concur with the circuit court’s conclusion that Smart’s “offer of proof doesn’t contain sufficient probative value, proof of any prior sexual contact that would [relieve] ... the requirements of the rape shield statutes[.]”1 Not being able to review the remainder of Smart’s offer of proof, we reject the point.

In his next point, Smart complains that the circuit court erroneously refused to let him present evidence concerning “the tempestuous relations in [the victim’s] family[J” The evidence to which Smart referred was:

• Asking the victim about a picture she drew for a nurse;
• Asking the victim’s neighbor about weapons the victim’s mother kept beside her bed;
• A portion of the victim’s school records noting that the victim’s teacher was concerned that the victim’s mother suspected that the victim had been “sexually abused by her father,” and reporting that she had been seen by George Blosser, Community Counseling Service.

“This evidence was essential,” Smart argues, “to providing the jury with a multidimensional image from which to assess [the victim’s] veracity. [The] jury was left ignorant of [the] ... eccentricities [of the victim’s mother] and ignorant of much of the crisis within [the victim’s] family.”

Smart preserved only the issue of whether the victim’s drawing should be admitted. His motion for new trial addressed only the drawing. It did not address the other two items, and he did not raise the issue of establishing a “tempestuous family.” This failure to include the issues in his motion for new trial means that we can review them only as plain error pursuant to Rule 30.20.

We turn first to the drawing. Smart wanted to ask the victim about it during cross-examination. The drawing depicted a girl with no hands and no lower body.

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Cite This Page — Counsel Stack

Bluebook (online)
907 S.W.2d 275, 1995 Mo. App. LEXIS 1624, 1995 WL 563936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smart-moctapp-1995.