State v. Wyble

211 S.W.3d 125, 2007 Mo. App. LEXIS 39, 2007 WL 43612

• Court: Missouri Court of Appeals
• Decided: January 9, 2007
• Docket: WD 65139
• Status: Published

Opinions

JAMES M. SMART, JR., Judge.

Joshua Wyble appeals his conviction for first-degree statutory sodomy, section 566.062.¹ No grounds for appeal were preserved because the appellant failed to file a motion for new trial. Nevertheless, Wyble contends that the trial court plainly erred in allowing testimony under section 491.075 RSMo, because there was insufficient evidence to show that the young victim was unavailable to testify. Wyble asserts that admission of the resulting testimony at trial plainly violated his Sixth Amendment confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Because we find no plain, obvious error in the rulings of the trial court suggesting the possibility of a manifest injustice or miscarriage of justice, we affirm the judgment of the trial court.

Procedural and Factual Background

In April 2003, Wyble lived with Glenda W. and Tim B. (Glenda’s boyfriend), and Glenda’s three-year-old daughter, the child. Wyble had previously lived with them from the end of 2002 through March 2003, when he went to Texas for a brief period after getting kicked out of the house by Tim for failing to help pay the bills. He returned to Chillicothe to live with them in April 2003, stating he had “straightened up” and had a job.

On April 24, 2003, Glenda and Tim were preparing for a trip to Springfield and needed to make a trip to the store. Glenda’s daughter, the child, did not want to go to the store, so Wyble volunteered to watch her. Glenda and Tim were gone about an hour. When they returned, the child was asleep, which was unusual because she had quit taking naps. Wyble was anxious to leave even though Glenda and Tim had expected him to stay at their house while they were gone. Glenda and Tim agreed to take Wyble to his mother’s house in Brookfield on their way to Springfield.

Soon after returning from the store, they loaded the car for Springfield. The child was still asleep when they put her in her car seat, which was next to where Wyble was sitting. On the way to Brook-field, the child woke up. She started screaming that she wanted to be with Glenda and not in the backseat, which was unusual. Then Wyble leaned over to say something to the child, and touched her. The child “just went crazy” and started screaming.

After dropping Wyble off in Brookfield, Glenda, Tim, and the child continued to Springfield for the weekend. Over the weekend, the child was crabby and not herself. She did not want to sleep anywhere but with Glenda, which was unusual. She was also digging at her private area. Glenda noticed this and examined her daughter. She observed the area to be very red with a bad odor.

Glenda tried to apply some over-the-counter ointment she had gotten for her daughter’s yeast infection a couple months prior even though the symptoms differed greatly. The child fought and screamed each time Glenda touched her. The medicine did not help.

After returning from Springfield, the child continued to not act like herself. She did not want to sleep in her own bed. She continued to dig at herself, and Glenda still noticed irritation. Also, the child awoke a few times during the night crying and screaming, and she was calmer away from the house.

A couple days after returning from Springfield, the child stayed with her grandmother, Sharon W. The child made various comments while at Sharon’s house regarding her “butt” (which she used to describe her vaginal area) being red, and stated that Wyble had made it red. Sharon later examined her granddaughter and noticed the same red irritation and bad odor Glenda first noticed in Springfield. After Glenda picked up the child later that evening, the child told Glenda that Wyble had put his finger “in her hole.” The child made other comments the next few days and, while bathing, would not let Glenda wash her private areas.

A few days later, Glenda took the child to the hospital for an examination because the redness, irritation, and odor persisted. Dr. Campbell and Cindy Sackrey, a nurse, saw the child at the hospital. At trial, Ms. Sackrey described the foul odor as associated with sexual activity or a sexually transmitted disease. The child’s vaginal opening was six to twelve times larger than most children her age. During the examination the child repeatedly made comments that she did not want anyone to touch her “butt” or put anything in her “hole.” The child tested positive for strep B, which she could only have gotten from someone carrying strep B. Neither Glenda nor Tim nor Sharon had strep B.

The child was given medication to treat strep B. A couple days later, after the child had a negative reaction to the medication, Glenda took her back to the hospital for a shot. When Ms. Sackrey administered the shot, the child again screamed that she did not want anyone to touch her “butt.”

Wyble was charged by information with one count of statutory sodomy in the first degree, section 566.062. After a change in venue, the court conducted a section 491.075 hearing to determine the admissibility of statements made by the child to her family, medical personnel, and a social worker. Pursuant to section 491.075.1(2)(c), the court found the statements admissible. The court ruled that the emotional and psychological trauma that could result from having the child testify made her unavailable as a witness, and that the statements had sufficient indi-cia of reliability to be admitted.

At trial, the child’s mother and grandmother testified concerning the child’s statements accusing Wyble. Cindy Sack-rey, the E.R. nurse who examined the child, testified concerning statements made by the child to the effect that the child did not want anyone to touch her private area. A social worker testified that she had two interviews with the child to try to determine how to help her. The social worker denied having a forensic purpose or a law enforcement purpose in conducting the interviews, but admitted seeking to determine whether abuse had taken place. She testified that when she showed the child some dolls and referred to the male doll as “Josh,” the child stated that Josh was “a bad boy, was in trouble, and hurt.” Defense counsel objected to the admission of all of this evidence on the grounds that it violated Wyble’s right to confront and to cross-examine the witness. The objection was overruled.

Wyble presented no evidence in his defense. The jury found him guilty of first-degree statutory sodomy. He waived jury sentencing. The trial court sentenced him to thirty years of confinement. This appeal follows.

Standard of Review

At trial, Wyble’s trial counsel was apparently allowed a continuing objection to the testimony of the child’s out-of-court statements on the ground of rights guaranteed by the Confrontation Clause of the U.S. Constitution. However, counsel failed to raise this issue in a motion for new trial. For that reason, the issues are not properly preserved. Supreme Court Rule 29.11(d); State v. Winfield, 5 S.W.3d 505, 511 (Mo. banc 1999); Supreme Court Rule 30.20. In order to prevail on an unpreserved claim of error, the appellant must demonstrate that plain and obvious error was committed by the trial court and that either manifest injustice or a miscarriage of justice would occur if the error were not corrected. State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997).

Analysis

Appellant assigns six points of error to the trial court’s actions. The first five deal entirely with the admission of out-of-court statements made by the alleged child victim, and argue that they should not have been admitted because, under Crawford, the admission of the statements violated the defendant’s right to confront the witnesses against him. The sixth point of error claims that the trial court erred in its determination that the child was unavailable due to the potential for trauma under section 491.075. We will consider the sixth point and then the others together.

Section 491.075 states, in relevant part: 1. A statement made by a child under the age of fourteen 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

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(2)(c) The child is otherwise physically available as a witness but the court finds that the significant emotional or psychological trauma which would result from testifying in the personal presence of the defendant makes the child unavailable as a witness at the time of the criminal proceeding.

Under this statute, before the out-of-court statements can be admitted, the trial court must find sufficient “indicia of reliability” in the statements, and must find that the child would suffer “significant emotional or psychological trauma” if forced to testify “in the personal presence of the defendant.”

We first consider Wyble’s point contesting the unavailability of the child as a witness for trial. In determining whether the child should testify, the trial court must find that the child would be traumatized “not by the courtroom generally, but by the presence of the defendant.” State v. Naucke, 829 S.W.2d 445, 448 (Mo. banc 1992). This trauma must be “more than de minimis ” which means “more than ‘mere nervousness or excitement or some reluctance to testify.’” Id. Here, there was substantial evidence that the child had much more than a de minimis emotional reaction to the items alleged and to the defendant personally.

There must be expert testimony about the potential for trauma unless “the distress of the child victim is so evident that the trial court would be competent to determine the issue itself.” State v. Sanders, 126 S.W.3d 5, 15 (Mo.App.2003). The court cannot rely strictly on the age of the child. Here, there is no indication the court relied strictly on the age of the alleged victim in making the determination. This case is not like Kierst v. D.D.H., 965 S.W.2d 932 (Mo.App.1998) (court relied solely on the child’s age and the court’s visual observation of the child), or State v. Sanchez, 752 S.W.2d 319 (Mo. banc 1988) (court assumed emotional trauma solely because of age). In this ease, the trial court heard testimony from the victim’s mother as to her belief that the child would be traumatized. A social worker also opined that it would be traumatic, although the social worker seemed to be relying primarily on age. The court also was aware of the emotional displays of the child observed by the witnesses.

The child demonstrated extreme emotional reaction, and markedly changed behavior, after she was left alone with Wyble on April 24, 2003. Immediately after that incident, when the child awoke, she was frantic to get away from Wyble and to cling to her mother. The child had nightmares, wet the bed, had trouble sleeping away from her mother, and cried if anyone mentioned the name “Josh.” After they moved from the house where the alleged incident occurred, the child became fearful and clung to her mother when they drove past the old house. These incidents are clearly factors other than age upon which the trial court could have based its decision. Even if the social worker’s recommendation seemed to be based mostly on age because the social worker did not articulate other reasons, there was sufficient other evidence that we can affirm that there is no demonstration of plain or obvious error in the determination of potential trauma.

Appellant also contends that his rights to a fair trial were violated when statements made by the child were allowed in through the testimony of her mother, grandmother, nurse, and social worker. Appellant acknowledges that the Supreme Court of Missouri held section 491.075 constitutional in State v. Wright, 751 S.W.2d 48 (Mo. banc 1988), but contends that the United States Supreme Court’s analysis in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), would at least affect the application of the statute.

Although Wyble’s claims have not been preserved, we will cursorily consider the facts of this case in the light of Rule 30.20 to see if there is plain, obvious legal error indicating a potential manifest injustice or miscarriage of justice.

In State v. Justus, 205 S.W.3d 872, 880 (Mo. banc 2006), the Missouri Supreme Court applied Crawford in the context of child hearsay statements admitted under section 491.075. The defendant in Justus did not challenge the constitutionality of section 491.075. Id. at 878. Similarly, the defendant in this case does not directly challenge section 491.075; he seeks only to have the court declare a Crawford exception applicable to the hearsay statements in this case. The Supreme Court did just that in Justus. Id. at 879-81.

Under Crawford, out-of-court testimonial statements by witnesses are barred under the Confrontation Clause unless the witnesses are unavailable and the defendants had prior opportunity to cross-examine the witnesses. Crawford, 541 U.S. at 59, 124 S.Ct. 1354. Although the Court in Crawford explicitly left for “another day any effort to spell out a comprehensive definition of ‘testimonial,’ ” id. at 68, 124 S.Ct. 1354, the Court did give some examples of statements that would be testimonial. These examples included prior testimony at a preliminary hearing, prior testimony before a grand jury, prior testimony at a former trial, and police interrogations. Id. “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 51, 124 S.Ct. 1354.

In Justus, the Court provided guidance on the application of Crawford to section 491.075. That case involved an alleged three-year-old victim, a girl, who turned four during the investigatory stage. Justus, 205 S.W.3d at 874-75, 880 n. 9. The accused was the child’s father, with whom the child had visitation after the father’s divorce from the mother. Id. at 875. The witnesses at trial included not only the child’s mother and the child’s grandmother, who both reported the child’s statements, but also Cynthia Debey, a child abuse investigator for the Division of Family Services, and Joyce Estes, a social worker and counselor for a children’s advocacy organization. Id. at 875-76. Defendant Justus was convicted based on the hearsay statements of the child. Id. at 877.

In Justus, where no general challenge to section 491.075 was made, the Court declined sua sponte to review the statute’s constitutionality. Similarly, in this case, there is no such challenge. Also, here, unlike in Justus, no claims of error have been preserved.

In Justus, the defendant properly preserved a challenge to the admission of the testimony of Debey, the investigator, and Estes, the social worker, on the grounds of Crawford. Id. at 876. The Court determined that, in light of the facts, Crawford required the exclusion of the testimony of both Debey and Estes as to the hearsay statements of the child. Id. at 880-81. The Court noted that out-of-court statements are testimonial, and hence governed by Crawford, when “the circumstances objectively indicate” that there is no “ongoing emergency,” and “that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Justus, 205 S.W.3d at 879 (quoting Davis v. Washington, — U.S. -, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006)).

The statements to Debey were made as part of a government investigation of child abuse as a result of a hotline call. Id. at 880. Also, Estes, the social worker, was acting as a government agent when she conducted a “forensic interview” of the child for law enforcement purposes. Id. The child in that case was also aware that her statements could be used to prosecute Mr. Justus. Id. The child’s demeanor was calm, and the child was asked about past events for prosecution purposes. Id. at 880.

We briefly consider and compare the nature of the child’s out-of-court statements in this case. The child’s statements made to her mother and grandmother were given in an informal, unstructured setting, and were generally spontaneous. The child’s statements in the emergency room, to the effect that she did not want anyone to touch her private areas, as reported by the nurse, were made in connection with the diagnosis and treatment of the redness and discomfort she was experiencing. They were related to the child’s then present experience, not to past events. The child was not calm, but was distressed. While medical personnel are, of course, required to report indications of child abuse, there were no statements made by the child about past events. No steps were taken to identify a perpetrator, and the child made no statements as to a perpetrator.

The social worker denied that her purpose was to conduct a forensic interview for investigation purposes or for proof purposes. She testified that her purpose was not to develop evidence for prosecution, but to create an environment in which the child would be comfortable talking about anything that happened for counseling and therapy purposes. She acknowledged she did want to determine whether abuse had taken place. The child attended two sessions. More were planned, but the mother did not return the child.

Of course, it goes without saying that the medical personnel and the social worker each would have been aware that testimony as to the child’s hearsay statements could be sought by the State for prosecution purposes. Here, though, the witnesses, according to their own testimony, stated they were not driven by the purpose of prosecution. Nor is there obvious reason to believe that here the child would have thought prosecution was in view, at least as to the medical personnel.

While interviews such as the social worker interview in this case would generally be subject to careful scrutiny in the light of Justus, when properly challenged, here we need not undertake such a task. We need not decide whether there was plain, obvious error when it is clear that there could be no prejudice. There is no presumption of prejudice as to unpre-seryed error. See State v. Isa, 850 S.W.2d 876, 884 (Mo. banc 1993) (when the standard of review is for plain error, the defendant bears the burden of showing prejudice resulting in manifest injustice).

Our examination of the issue of any prejudice does not show the possibility of prejudice in view of the overwhelming evidence of Wyble’s guilt. The statements made by the child to the mother and grandmother were punctuated with emotional reactions indicative that something traumatic and unusual had happened to the child in the short period of time the child was in the care of Wyble. The child was between the ages of three and four years old. There was no indication of any motive of the child, the mother, or the grandmother to fabricate such statements. The child’s statements appear to have been absolutely genuine and relatively consistent. The emergency room nurse’s testimony further supported the notion that the child was genuinely upset and fearful of being touched. The child contracted a sexually transmitted disease, which, according to the evidence, she could not have contracted from anyone in the household other than Wyble. This disease began to manifest itself within a few days after the child was left alone with Wyble. The physical examination of the child revealed factors consistent with sexual abuse.

In short, there was no doubt of the abuse of the child; no doubt that the child had an extreme emotional reaction to Wy-ble; and no doubt that something traumatic happened when the child was alone with Wyble. Nothing occurred at trial to impeach the strength of the State’s evidence or to suggest an alternative theory of events.

The instance of prompting the child (that occurred when the social worker used two dolls and referred to one as “Josh”) raises a question both as to the reliability of that statement and as to the purpose of the interview. But even though we may doubt that the one statement made to the social worker (that “Josh” was a “bad boy, was in trouble, and hurt”) should have been admitted, there can be no reasonable basis to grant relief here. Again, there is no presumption of prejudice, and Wyble fails to persuade us that there could be any possible prejudicial effect of the one statement in light of the overwhelming weight of the evidence of all the circumstances indicating guilt in this case.

Conclusion

There is no basis for granting relief in this case. For all of the foregoing reasons, the judgment of the trial court is affirmed.

NEWTON, J., concurs.

ELLIS, J., concurs in separate opinion.

1 . Statutory references are to the Revised Statutes of Missouri, 2000, unless otherwise indicated.