*1 SPINDEN, Presiding Before PAUL M. HOLLIGER,
Judge, Judge, R. RONALD HARDWICK, Judge. and LISA WHITE ORDER appeals Judg- from the Alvin Johnson Dissolution, which ended his twen- ment Deborah ty-three year marriage to John- Mr. point appeal, son. his sole *3 Jeanetta, MO, City,
Kathleen A. Kansas appellant. for Herbertson, MO, City, E. James Kansas respondent. BRECKENRIDGE, Before PATRICIA P.J., SMART, JR., and JAMES M. HOWARD, C. JJ. VICTOR PER CURIAM. appeal
This is an from a Juvenile Court judgment sustaining the Juvenile Officer’s juvenile, petition, alleged that which N.J.K., delinquent act of committed degree. molestation in the first child evi- issue is whether there was sufficient beyond a reasonable doubt prove dence to juvenile delinquent committed the act. We affirm. Background and Procedural
Factual (herein- early February N.J.K. N.K.) after, years old and was sixteen stepmother. On living with his father and 3rd, N.K. was at evening February baby- who was stepmother, home with his four-year- sitting grandchildren, her two brother. girl eight-year-old old and her at home that eve- father was not N.K’s that she testified ning. stepmother N.K.’s upstairs family in the room while was in the base- played three children down eight-year-old point, ment. At some room and sat with up family came eventually told boy little Stepmother. The upstairs that his sister and N.K. went her Stepmother him not to come. and told where bedroom upstairs went to N.K.’s light and the off. door closed she found the door, light, turned on the opened the She the bed with girl and found the little In the third pulled any and underwear down. abuse had occurred. pants Banker, the child stated N.K., clothed, session with Ms. fully lying on the also touches, bad that she understood about his head about six to twelve bed with touch- person doing she knew that the area,” girl’s “vagina from the little inches fault, that she ing person according Stepmother. Stepmother did mommy touched anyone would tell her if girl. touching not observe N.K. way. her in a bad Toward the end of Stepmother picked up girl, car- session, stated that she want- downstairs, police. ried her and called the forget touching by ed to N.K. that had Stepmother asked the little if N.K. had occurred in N.K’s room. She did clothing, forced her to remove her and the gave Banker her anatomi- elaborate. Ms. *4 “no.” girl police little said came to cally correct dolls and asked her to show no investigate, but arrest was made. touching happened. kind of She what evening, girl’s par- Later that the little pointed genital girl to the areas on the doll Mercy Hospi- ents took her to Children’s say do boy and on the doll but did not or tal, where she a ex- physical underwent if anything further. When asked there amination to determine if she had been anything was she wanted to tell N.K. sexually raped. assaulted or There was no talk touching, replied, about the she “Don’t physical evidence that the child had been [stating by to her own her! name] be assaulted, sexually and no evidence was Stop doing you’re supposed what not collected that incriminated N.K. The little play do.” Ms. Banker recommended ther- girl regarding any made no statements apy probable for the child to “address alleged assault or molestation at that sexual abuse.” time. On March in the midst of the ses- later, girl About three weeks the little Banker, sions with Ms. the child’s mother by was interviewed Julie Donelon at the Metropolitan Organization took her to the (CPC). Child Protection Center In that an to Counter Sexual Abuse for assess- interview, videotaped played which was ment. The child’s mother identified some hearing, girl any- the little that denied the child had been problems behavioral one had touched her inappropriately, and having, including wetting pants, sleep- her she did not mention N.K. at all. Ms. ing problems, play and “some sexualized Donelon referred her for a sexual abuse attending talk.” began and The child assessment. weekly therapist sessions with Heather The sexual abuse assessment was con- Mills. The sessions included discussions by ducted Beth Banker at the over CPC types Begin- about different of touches. three sessions during March. The first June, ning through May in April and and primarily get-acquainted session was a ses- a togeth- Ms. Mills and the child read book subject sion at which of sexual abuse entitled, Book,” “A Very Touching er session, was not broached. In Mills, the second which, according to Ms. discusses girl genital the little identified the area on touches, touches, good and secret bad drawing girl’s a as the “cooehie.”1 The acknowledged touches. Ms. Mills that girl given Raggedy little was Ann dolls and genitalia a lot their children learn about similar depict asked to sexuality by reading scenario what and that book. night occurred on the alleged therapy, of the moles- For the first four months of her Still, girl tation. not no that she girl did indicate the little made disclosures terminology age-appropriate. 1. Ms. Banker testified that this would be considered Finally, had inappropriately. put been touched On “He me there.” she licked 18, however, July watching after boy penis. a video girl on the doll’s doll’s mouth entitled “Little Bear”—which discusses did, N.K. she stat- what else When asked abuse, child sexual the disclosure of such ed, explain further. spit” “he but did abuse, and “secret touches” on the Little 4th, September On breasts, vagina, Bear’s and bottom —the again interviewed Ms. Donelon asked, little responded, being after also CPC. A of that interview videotape that she knew how Little Bear felt because hearing. at the presented that was what had done her. Done- interview, to Ms. child revealed August Chance, On investiga- Jan an her mouth kissed Ion that N.K. had tor with Missouri of Family Division Ser- “coochie,” “bot- “boobies,” touched her vices, went girl’s home to clothes. under tom” with his hands interview her. The child told Ms. Chance draw- body parts pointed She these that when grandmother’s she was at her at her happened that it ings. stated She house, N.K. had touched her “under her hap- it had grandmother’s house “private parts.” clothes” on her The little also talked She pened than once. more girl indicated on drawing where she had *5 going to they were N.K. said how touched, breasts, pointing been to the gen- had how he and play hide-and-seek itals, and buttocks areas. him; about with “pulled” her to come session, At her therapy August next on them in N.K.’s discovery of Stepmother’s 15, girl the little told Ms. Mills that she actions bedroom; Stepmother’s and about wanted to talk about what N.K. had done calling police. the thereafter, including to girl her. The little asked that her had been denied, there though, that She mother be with them. She asked if her or that with N.K. any oral-genital contact mother could pictures draw the and tell his other than with he had touched her the therapist happened. what had hands. therapist suggested that Mother draw pictures girl and the little tell her what 30th, meantime, May N.K.’s In the on happened. girl The little then revealed to po- him to the Lee’s Summit Father took Mills, mother, Ms. front of her that N.K. Father questioned. lice station to be had touched her breasts and the inside of claimed, had “confess- vaguely, that N.K. vagina with his hands while her clothes had “done this” ed” to Father that he were off. stated that N.K. had She also girl.2 the little “committed on this offense” made her touch him and indicated where He, therefore, talk to N.K. should felt that by pointing penis boy figure to the of a on being told he police. Despite Then, a drawing her mother had made. being he was accompany could N.K. while 19, August when she alone not to do so. He questioned, Father chose Mills, by anatomically Ms. and aided cor- interviewed with- also allowed N.K. to be dolls, rect she demonstrated what N.K. present. an attorney being out by putting boy had done to her doll’s 2002, In Officer October Juvenile girl hand on the genital doll’s breast and alleging one petition against filed a N.K. put boy area. She also doll’s mouth to stated, in the first de- girl genital doll’s area then count of child molestation and only suppression 2. Father testified Officer's case in chief. hearing; testify during he did not the Juvenile 566.067,3 by the statute reliability required a of gree, in violation of section time, hearing By dispositional B N.K. was At a felony. class the case/law. mother in Kansas. N.K. N.K. residing with his trial court committed May Officer, the statement suppress filed a motion but custody of the Juvenile sup- After a given police. he had suspended, and he execution was and the pression hearing, at which Father subject custody in the of his mother placed testified, interrogating the court officer probation. He was to certain rules also granted suppress. the motion to N.K. therapy ses- weekly to attend required moved to exclude the out-of-court state- Findings and sions. The Commissioner’s by to various ments made transmitted to the Recommendations were witnesses, Banker, including Beth Julie Judge, who Family Court Administrative Mills, Donelon, Chance, and Heather Jan on June 2003. As entered hearsay on the that the basis required judgment, result of that N.K. is reliability sufficient indicia of lacked juvenile felony sexual of- register as required trustworthiness as under section Missouri, to section pursuant fender being 491.075. Because the case was 211.425, Kansas, re- where he now court, heard the court reserved K.S.A., 22-4901, sides, pursuant to section ruling on the motion until after the evi- appeals et N.K. to this court. seq. presented. dence had been Point I: Indicia Sufficient trial, At was called Reliability
testify. identify She was unable to the courtroom. She testified that she had point, his first N.K. contends mother, forgot discussed N.K. with her but finding discretion in trial court abused its *6 what she told her mother about him. She that the child’s out-of-court statements also stated that she had discussed N.K. reliability indicia of contained sufficient Mills, although with Heather she could not 491.075, in that the state- satisfy section remember what about. Then she denied and contradicted ments were inconsistent discussing even N.K. Ms. Mills. with statements; obtained by her earlier were cross-examination, There was no and the only repeated questioning of after months child was excused. The Juvenile Officer suggestive interviewing techniques; testimony Stepmother, next offered the of of knowledge and did not reveal a sexual testimony the of Ms. the Donelon of CPC age. for a inappropriate matters child her videotapes and the two of her interviews of Review Standard child,
with the and the testimonies of Ms. Banker, Chance, Ms. and Ms. Mills. the trial court’s deci We review pur statements sion to admit out-of-court presented
N.K. no evidence and moved for an abuse of suant to section 491.075 to dismiss. He also renewed his motion Redman, discretion. State v. 916 S.W.2d out-of-court Both exclude the statements. (Mo. 1996). 787, This court will denied, 792 banc motions were and the Juvenile Of- only where the find an abuse of discretion denying petition ficer’s was sustained. findings supported by not exclude, trial court’s are the motion to the court found that in the record. State by victim substantial evidence all of the statements made (Mo. 560, Heckenlively, 83 567 and introduced into evidence met the test v. S.W.3d statutory Stat- ed. 3. All references are to Revised Missouri, 2000, unless not- utes of otherwise
256
App.2002). “If
persons
reasonable
can dif
telling
to be
the truth
statement
when
fer about
at
propriety
Wright,
of
497 U.S.
the action taken
made.”
v.
Idaho
by
court,
822,
‘particularized
the trial
then it cannot
110 S.Ct.
“Such
be said
are re-
guarantees
that
the trial court
trustworthiness’
abused its discretion.”
quired
un-
Costa,
(Mo.
because
admitted
670,
State v.
11
S.W.3d
679
der
are
within
App.1999)
[section 491.075]
(quoting Anglim v. Mo. Pacific
hearsay
firmly
exception
rooted
to the
ex-
Co.,
(Mo.
298,
R.R.
832 S.W.2d
303
banc
Wemeke, 958
clusionary
v.
1992)).
rule.” State
314,
(Mo.App.1997) (quoting
5.W.2d
318
790).
Redman,
Analysis
S.W.2d
factors, N.K. first asserts
Applying 491.075.1,
Under section
an out-
neither
that
statements were
the child’s
of-court
by
statement
a child under the
con-
consistent and were
spontaneous nor
age of
relating
twelve
to an offense under
any
that
denials
by
tradicted
her earlier
Chapter 566 is admissible in
evidence
example
A
prime
abuse had occurred.6
juvenile4
criminal and
proceedings as
N.K.,
according to
is
inconsistency,
substantive
prove
evidence to
the truth of
there
to Ms. Mills
child’s indication
asserted,
the matter
only
but
if the court
later
contact and her
oral-genital
had been
time, content,
first finds that “the
and cir
September interview
denial of it in her
provide
cumstances of the statement
suffi
notes that
N.K. also
Ms. Donelon.
cient indicia
reliability.”5
In making
the child’s
nothing
explain
there
determination,
Missouri courts apply
beginning
indi-
denials of abuse
—no
a “totality
test,”
of the circumstances
child,
part
cation
of fear on
which involves consideration of several
or evi-
alleged perpetrator,
threats
non-exclusive factors first
identified in
protect
N.K.
dence of the child’s desire
805, 821,
Idaho v. Wright, 497 U.S.
N.K.,
This
that the denials
suggests, says
(1990).
S.Ct.
257
with Ms.
in
second interview
matter,”
un ments
her
subject
it is not
barrassing
happened
to her when
for children’s accounts of
Donelon about what
common
“variations, contra
to contain some
in N.K.’s bed-
abuse
found her
grandmother
Wemeke,
memory.”
lapses
dictions or
many
that corre-
included
details
room
319;
v. Ben-
at
see also State
958 S.W.2d
version
sponded
Stepmother’s
wire,
(Mo.App.2003).
98 S.W.3d
early on denied
the child
Although
event.
contradictory
statements
“[[Inconsistent
abused,
did
when she
that she had been
by
relating
experi
a sexual
young
child
abuse,
her statements
disclose
not,
itself,
testi
deprive
does
ence
and where he had
N.K. had touched her
mony
probative
of all
force.” State v. Sil-
consistent and clear.
touched her were
1995).
(Mo.
662, 673
banc
vey, 894 S.W.2d
occur-
specific
claims that two
N.K. also
at first denied and
The fact that the child
child’smental state and
rences affected the
that she had been abused is
later admitted
her with a motive
fabricate.
provided
occurrence in cases such as
not an unusual
First,
related that
a session
Ms. Mills
itself,
not,
and does
render her
these
abuse,
her full disclosure of the
prior to
unreliable
incriminating
later
if her
the child asked “out of the blue”
untrustworthy.
likely
The child
was
jail
“be-
grandmother
going
go
may
embarrassed or ashamed and
even
me.”8
... of what
did to
[N.K.]
cause
afraid that she would be blamed
have been
Second,
thera-
just
girl’s
to the little
prior
happened.7
if she
what had
Ms.
revealed
fully
in which she
disclosed
py session
that it is not uncommon for
Mills testified
Mills
the child’s mother told Ms.
touching,
sexually
age
abused child of that
to be
had
girl’s playmates
of the little
that one
embarrassed and hesitant
to talk about
play-
“secret
touches”
disclosed
or to take
happened
what has
to them
had
mate’s brother and that
It
several months to disclose the abuse.
is
aunt.
her mother and
discussed that with
always necessary that the child’s state
Ms. Mills that the little
Mother told
ments occur at or near the time of the
Mills about
reli
wanted to talk to Ms.
alleged abuse
order to be deemed
said she
Jankiewicz,
gotten.
able. See State v.
831 S.W.2d
It was
the secret touches she had
(Mo.
1992).
195, 199
child,
banc
therapy
at her next
session
disclosed the ex-
present,
with her mother
Furthermore, “there is a fundamental
touching. N.K.
inappropriate
tent of
de-
inconsistency
difference between
playmate’s revelations
claims that
at different
scribing different details
fear
and the child’s
sexual abuse
Porras,
(quoting
times.”
84 S.W.3d
jail
grandmother
going
that her
explanation
finding
the lower court’s
provid-
her mental state and
both affected
reliable).
that out-of-court statements were
does
motive to fabricate. He
ed her with a
Here,
inconsistencies that N.K. identi-
*8
points
clearly explain how. N.K. also
not
appear
nothing
to be
more than the
fies
girl spoke
that
little
the evidence
of
revealing every
child
not
detail
simply
the abuse as
family members about
every
to her
time she re-
happened
what
influ-
they may have
indication that
The child’s state-
an
counted the events.
told Ms. Mills earli-
very upset
The child’s mother had
Stepmother
that she was
8.
testified
upon finding
girl with
and that
been arrested
Stepmother
N.K.
said she had
er that
girl:
girls ... d[o]n't
"little
Stepmother
she told the
that she
beating
testified
N.K.
that,”
boys
a
...
touch like
state-
...
let little
not been
say that and that she had
did not
that could cause a child to believe she
ment
arrested.
something wrong.
had done
“totality
enced her
Although
statements.
N.K.
statements must
be based
speculates that
fac-
these events affected the
of the
The Redman
circumstances.”
of con-
provided
child’s mental state and
her a
tors
list
merely
are
a non-exclusive
fabricate,
assessing
motive to
say
we cannot
that the
to assist
siderations intended
evidence
a
Rather
totality
dictates such
conclusion. We
of the circumstances.
not agree
do
that this
that
test for determin-
articulating
rigid
evidence shows
than
unreliable,
statements
par-
ing
child’s statements were
when a child’s out-of-court
in Idaho
ticularly
conjunction
reliable,
when
Supreme
considered
are
Court
“con-
with all the other
courts have
Wright
circumstances surround-
noted
of
ing the statements.
consideration
leeway”
siderable
in their
at
all
497 U.S.
appropriate factors.
N.K. also
that
contends
the child’s state-
As noted the determination from disinterested as statements came trained reliability experienced the of a child’s out-of-court and viduals who were touching; and the any not observe Jan she did exception the With interviewers. “confession” alleged of N.K’s evidence interview, conducted which was Chance’s (1) in into evidence not come Father did home, the interviews in the child’s own case-in-chief, only at Officer’s the Juvenile in conducted neutral with the child were may not hearing, and suppression the of trust- “weighs in favor settings, which court, and by the be considered properly Costa, 11 at 681. See S.W.3d worthiness.” (2) as to the testimony vague Father’s during ses- child’s disclosures came All the does not confession of N.K’s substance interviewer she and the sions which any of the crime the elements meet exception the alone the room with were rate. to Mills when the of the one disclosure Ms. pres- asked that her mother be child had are re proceedings Juvenile in this case that ent. There is no evidence case, i.e., any other court-tried viewed like sugges- leading used or the interviewers unless will not be disturbed interview improper questioning tive evidence or weight against it is the in- and no evidence that techniques erroneously ap erroneously declares or it criminating product were the Officer, the law. C.L.B. Juvenile plies (cit of coercion. (Mo.App.2000) 235-36 S.W.3d Carron, 30, 32 536 S.W.2d Murphy v. ing record, in- After careful review 1976)). (Mo. as to Determinations banc Do- cluding viewing videotapes of Ms. to be credibility weight and the witness child, can- we nelon’s interviews with court, the trial testimony are left to given say the trial court abused its not none, part, free to believe and the court is finding discretion considerable Id, at 236. testimony. “[I]n or all of and child’s out-of-court statements rehable evidence, sufficiency we determining the in accor- trustworthy admitting them infer and reasonable view the evidence dance with section 491.075. Point denied. therefrom may be drawn ences which favorable to the verdict light most II: Evidence Point Sufficient and inferences all evidence ignore we Support Conviction contrary.” Id. point, In his second N.K. asserts that an provides Section 491.075.1 sup that there was insufficient evidence to “is admis of a child out-of-court statement 566.067, under section port his conviction proceedings in criminal in evidence sible guilt as to only because the evidence of his evi as substantive courts of this state crime came from the the elements of the of the matter prove the truth dence to statements, all of which child’s out-of-court circum specific certain under asserted” by the child’s earlier were contradicted added). As noted (emphasis stances Because those statements statements. state above, victim’s out-of-court the child reliability, N.K. indicia of lacked sufficient properly admitted in this case were ments admit not have been argues, they should statements, “Such 491.075.1. under section statements, there was ted. Absent those may be inferences any reasonable him, to convict enough not other evidence statements, ‘may alone from those drawn evi physical no he contends. There was of an ele evidence constitute substantial dence; testimony on the witness the child’s ” Benwire, 98 charged.’ offense ment of the the notion that support did not stand at 623. S.W.3d committed; Stepmother’s crime had been contends, if the though, that even did testimony as to her observations admitted, properly child’s statements of the crime because meet the elements *10 260
they prove beyond still were insufficient to I of cause would find that the statements a reasonable doubt that he committed the lacking in alleged the victim were true alleged act. disagree. We The child’s con- spontaneity only marginally and were statements were admissible as substantive and, therefore, sistent be inadmissi- should evidence, and the substance of those state- ble under 491.075.1. section ments satisfies the elements of the crime. the little spontaneity, the of On issue 566.067.1, Under person section “[a] com- made after she had girl’s mits the crime of child molestation about sexual received education extensive degree subjects first if he or she another abuse, touching, particularly inappropriate person who is years less than fourteen of age to questioned sexual contact.” “Sexual re- contact” is and after she had been 566.010(3) defined at “any section as touch- peatedly topic. on the Even ing of person another with the genitals or girl’s incriminating first statement any touching genitals of the or anus of inappropri- of made after a discussion person, another or the breast of a female touching multiple questions ate about person, or touching such through the cloth- night alleged what of the happened ing, for purpose of or arousing gratify- Indeed, little several molestation. ing sexual any person[.]” desire of The immediately preced- girl’s statements were four-year-old child’s in- statements to her inap- ed of discussion some form clearly terviewers satisfy description. this touching, and all of her state- propriate purpose The sexual touching behind N.K’s from the by questions ments were elicited of the little can be inferred from the As con- therapist. interviewers or her circumstances. disregarding Even Fa- girl’s statements were sistency, the little ther’s testimony at the suppression hear- very general allega- only consistent ing, statements, the child’s out-of-court her on her tion that N.K. had touched combined Stepmother’s testimony genital breasts and area. about the scene night she observed the this regarding was not consistent whether incident, are sufficient evidence to sup- touching occurred under her clothes port beyond conviction a reasonable off; with her nor was she consis- clothes doubt. regarding tent in whether her statements Point denied. abuse, any such as oral- type other contact, Additionally, genital occurred. Conclusion almost no details girl supplied reasons, For foregoing than the fact event other concerning the is affirmed. that touching occurred. Concurring Opinion by PATRICIA recognize involving I cases While BRECKENRIDGE, Judge. victim, girl, it is young such as the little “ BRECKENRIDGE, Judge, PATRICIA common for ‘to the victim’s statements concurring. variations, contain some contradictions or ” lapses in memory.’ Sprinkle, State v. reluctantly I majority’s concur (citation (Mo.App.2003) S.W.3d decision to affirm the admission of the omitted), circum- totality under the alleged victim’s out-of-court statements case, I find that the stances would so, however, under section 491.075. I do only sufficient indicia of because the standard of statements do have review re- quires this result. I separately reliability write be- admissible. be *11 Daniels, (Jay) W.
Nevertheless, although I Deborah Jeremiah believe the evi- Nixon, Gen., K. conclusion, Atty. Burgess, and Beck I supported dence a different MO, Respondent. City, Jefferson for juvenile my say cannot court’s the state- colleagues’ determination NEWTON, P.J., H. Before THOMAS relia- possessed sufficient indicia of ments “ HAROLD L. LOWENSTEIN bility ‘clearly against logic ” HOLLIGER, RONALD R. JJ. then before court’ circumstances “ arbitrary and as to ‘so unreasonable ORDER justice shock the sense of and indicate ” lack of careful consideration.’ State v. PER CURIAM. Costa, (Mo.App. 11 S.W.3d 678-79 appeals Mr. Darrell R. from the Stewart 1999) omitted). (citation reaching this court, judgment which of the motion de- conclusion, significant I find it all the request post-conviction nied his relief persons who elicited the statements from Rule For the reasons under 24.035. ex- experienced were and trained plained furnished to the memorandum there was interviewers and no evidence parties, affirm the we presented techniques that their interview 84.16(b). motion Rule court. improper upon or coercive. Based court, this record before reasonable the propriety minds can differ about Therefore,
admitting the statements. this juvenile court find that the cannot court discretion. Id. at abused its 679. For reason, I in the result. concur HAYES,
Craig Appellant, Allen
v. Missouri, Respondent.
STATE of 63338. No. WD Appeals, Missouri Court of District. Western STEWART, Appellant, Darrell R. 27, 2004. July Missouri, Respondent.
STATE of No. WD 62999. Appeals, Missouri Court District. Western July Schroeder, MO, City, A. Kansas Andrew for Appellant.