State of Missouri, Respondent, v. Joshua Wooten, Appellant.State of Missouri, Respondent, v. Joshua Wooten, Appellant.
Appeal from the Circuit Court of St. Louis County
The Honorable Ellen H. Ribaudo
Introduction
Joshua Wooten (Defendant) appeals the judgment entered upon his conviction by jury of one count of rape in the second degree. He argues the trial court erred in excluding evidence of a prior rape allegation made by the victim (Victim). Finding no abuse of discretion by the trial court in excluding this evidence, we affirm.
Factual and Procedural Background
The State charged Defendant with one count of first-degree rape and one count of attempted first-degree sodomy for events occurring in the early hours of May 1, 2023. At trial, the jury heard the following evidence.
Victim testified that she woke up at approximately 3:00 a.m. in her bed, face down with Defendant on top of her. She had gone to bed with underwear and pajamas on, but both were at her feet, and Defendant‘s penis was penetrating Victim‘s vagina. Victim asked Defendant to stop multiple times, and he would not. He told her “just let me finish.” Victim tried to get away, but she was unable to move because Defendant was on top of her. Victim also testified Defendant attempted anal intercourse with her but was not successful. She said at some point the assault stopped, and she ran away. She drove to an empty church parking lot and called her sister (Sister). Sister met Victim there and they “watched [Defendant] blow [Victim‘s] phone up.” Victim called Defendant back at some point, and she recorded the conversation with Defendant using Sister‘s phone. The conversation included the following:
Defendant: Hello.
Victim: Yeah.
Defendant: [Victim], I‘m sorry. Hear me?
Victim: I heard you.
Defendant: This is for real like deep down. Something like that wasn‘t supposed to happen. You supposed to come over here and feel comfort, not – not now what you‘re feeling. The trouble is it‘s – it‘s – it‘s f***ed up. I was trying to (inaudible) please, at least get back to the house come talk to me, I promise I won‘t put my hands on you.
Victim: Why did you do it in the first place?
Defendant: [Victim], you know what, I have no f***ing idea … I stopped when you said stop.
Victim: No you didn‘t.
Defendant: [Victim], okay, you know what, [Victim], maybe you‘re right, you‘re right, [Victim]. Can you please just get out here so we can talk…I will not f*** up again?
Victim: I don‘t know if I can talk to you. … You supposed to give me a sense of comfort and you know what I just went through.
Defendant: I know, I know, [Victim], I know, I know. And I really apologize. And I f***ed up…
[Victim], I promise you I will (inaudible) and not hurt you, I am very sorry.
Victim testified she went to the hospital the same day or the day after and underwent a sexual assault examination. A forensic DNA analyst detected Defendant‘s DNA as the result of a presumptive test for the presence of seminal fluid in two samples from Victim: a swab of her external genitalia and a swab from a tampon Victim was wearing when she arrived at the hospital. Additional microscopic analysis, performed approximately one and a half years later, intended as a confirmatory test for the presence
Defendant did not testify or present any evidence. On the count of first-degree rape, the jury found Defendant guilty of the lesser-included offense of second-degree rape; and on the count of attempted first-degree sodomy, the jury found Defendant not guilty. The trial court sentenced Defendant as a prior offender to seven years’ imprisonment.
Defendant‘s attorney had filed a pre-trial motion pursuant to
Defendant‘s mother also testified at the pre-trial hearing. She stated that she had obtained the incident report from the Tulsa police regarding the alleged rape Victim had reported there. The report stated that its status was “unfounded.” The assistant prosecuting attorney (prosecutor) objected to the report as hearsay, and further argued that there was no evidence regarding what “unfounded” meant. The prosecutor stated his investigator called the Tulsa police department and was told that the police submitted the case to the prosecuting attorney‘s office in Tulsa where they declined to file charges, to which defense counsel objected as hearsay. The trial court stated it would allow the testimony as an offer of proof but would not utilize it for any inadmissible purpose. Following the hearing, the trial court concluded that Defendant had failed to establish that Victim‘s prior allegation was false, and therefore Defendant could not introduce evidence of the prior allegation at trial.
Discussion
Standard of Review
The State argues as an initial matter that none of Defendant‘s points on appeal are preserved, because after obtaining the court‘s pre-trial ruling excluding his proffered evidence, Defendant did not attempt to submit the evidence during trial, and thus failed to allow the trial court to make a final ruling and preserve the issue for appeal. Under the circumstances here, we disagree with the State.
A trial court‘s pre-trial ruling excluding a party‘s proffered evidence is interlocutory, and as such, preserves nothing for appeal. State v. Marshall, 131 S.W.3d 375, 377 (Mo. App. E.D. 2004). Rather, to preserve the issue, a party must attempt to present the excluded evidence at trial, and if the trial court sustains an objection to the evidence, the proponent must make an offer of proof so that the trial court has an
Here, Defendant made an offer of proof at the pre-trial hearing on his motion to submit the evidence of Victim‘s prior rape allegation. At trial, prior to the State‘s submission of the recorded phone call between Victim and Defendant, Defendant‘s counsel objected due to lack of foundation. The trial court then asked whether counsel was “also objecting based on [his] previous motions that were filed[,]” and the following took place:
Counsel: Absolutely. I was going to do that. I want to do that. Yes, I am.
The Court: And you want that to be continuing?
Counsel: A continuing objection. And I was going to take this up at my cross, and I was going to try to offer all that information in. Do you want me to get up and do this again, or do you just want to have a continuing objection and object to all of it under 491.015?
The Court: I mean, I just want to make sure you feel like you‘ve had an opportunity to preserve. If you think you need to do more, that‘s fine. If you think that‘s good, I‘m fine with that, too.
Counsel: Okay. Well, right now I‘m objecting to introducing the phone call. I believe it lets in all kinds of other information. The phone call specifically says, you know, after all I‘ve been through – he‘s introducing that. I should be able to cross examine that. The Court has limited me in my cross-examination. I just think I ask that this all be preserved on appeal.
The Court: The Court understands and the Court‘s previous ruling with regards to what you‘re allowed to ask about what she said. You are allowed limited inquiry.
We find this sufficient here to preserve Defendant‘s argument on appeal. In the cases cited above, the defendants’ counsels did not attempt to introduce the evidence at trial. See Marshall, 131 S.W.3d at 377; Boyd, 992 S.W.2d at 218-19. Here, while Defendant‘s counsel did not make an additional offer of proof at trial, he made clear he intended to try to introduce the same evidence during his cross-examination and gave the trial court an opportunity to reconsider its prior ruling. The trial court likewise made clear that the court‘s prior ruling would stand, and both of them indicated their intention to preserve the issue for appeal. Under the circumstances, Defendant should not have been compelled to make an additional offer of proof here; “[t]he law does not compel the undertaking of a useless act for the lone aim of complying with a technical requirement.” State v. Long, 140 S.W.3d 27, 32 n.7 (Mo. banc 2004) (finding defense‘s decision not to cross-examine victim does not bar defendant from introducing relevant evidence of prior allegations shown to be false where trial court had made clear it would not allow evidence and attempts to cross-examine victim would therefore be futile).
Therefore, because each of Defendant‘s points on appeal dispute the trial court‘s evidentiary ruling, we review them for abuse of discretion. State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007). An abuse of discretion occurs when the trial court‘s ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. Id. Moreover, we review for prejudice, not mere error, and we
Point One – Defendant Failed to Establish Victim‘s Prior Rape Allegation was False
In Point One, Defendant argues the trial court abused its discretion in excluding evidence of Victim‘s prior rape allegation because it was relevant to impeach her credibility. We disagree.
Missouri‘s rape shield statute,
In order for evidence of Victim‘s prior allegations to be relevant to refute Victim‘s credibility here, Defendant had to establish by a preponderance of the evidence that
At the pre-trial hearing, the State asked Victim directly whether she made up the allegations, and she said “[n]o,” and “[i]t happened to me.” Defendant relies on two hearsay statements from the pre-trial hearing to refute Victim‘s testimony regarding the prior incident: (1) Victim‘s testimony that one witness at the Title IX hearing testified that Victim made up the prior rape allegation; and (2) an unauthenticated incident report from Tulsa police, noting the status of Victim‘s complaint was “unfounded.” Both statements were offered to prove the truth of the matter asserted, and neither fit under a hearsay exception. See State v. Hollowell, 643 S.W.3d 329, 337 (Mo. banc 2022) (hearsay statements are inadmissible unless recognized exception to rule against hearsay applies).
Regardless, even if these statements were admissible as evidence, they do not establish Victim‘s prior rape allegation was false, though these statements together may come close. “The fact that an agency determined that a witness‘s prior allegations were unfounded does not alone demonstrate that those allegations were false.” State v. Thompson, 341 S.W.3d 723, 733 (Mo. App. E.D. 2011). Similarly, the fact that the
Because Defendant failed to establish by a preponderance of the evidence that Victim made a prior false allegation and she was aware of its falsity, Defendant could not show the evidence of Victim‘s prior allegation was relevant for impugning Victim‘s credibility. Moreover, because the prior allegation was inherently intertwined with Victim‘s prior sexual conduct, in that she testified “[i]t happened,”
The trial court did not err in excluding the evidence of Victim‘s prior allegation on the basis asserted in Point One. Point denied.
Point Two – No Exception to the Rape Shield Statute Applies
First,
In the present case, the evidence Defendant sought to introduce concerned a prior incident that took place at least one week, but more likely several weeks,4 before the relevant incident here, when Victim lived in a different city. This prior incident was separate and distinct, and Defendant has not shown how it was in any way connected to
Defendant further argues that the prior rape allegation was relevant under the third statutory exception to show why Victim knew not to shower before going to the hospital, which would elucidate a main fact in issue. As stated above, these events were not connected, defeating the applicability of
We find no abuse of discretion on the part of the trial court here. We fail to see first, how the additional extrinsic evidence Defendant proffered to show Victim‘s prior allegation was false is related to her knowledge not to shower before undergoing a rape examination; and second, how such knowledge not to shower tends to elucidate the fact of whether Defendant committed the charged acts. The key facts are whether DNA was present, and, in light of the DNA evidence, how it got there. The reason Victim did not shower prior to the examination does not elucidate those factual determinations for the jury, which is presumably one of the reasons Defendant‘s counsel chose not to pursue that line of questioning.
Apart from the statutory exceptions to
Missouri courts have found that the rape shield statute “may not be applied so strictly as to deprive the defendant of the fair trial comprehended by the concept of due process.” Parry, 703 S.W.3d at 712 (quoting State v. Samuels, 88 S.W.3d 71, 82 (Mo. App. W.D. 2002)). This exception is narrowly interpreted, and applies only where the State has introduced evidence to show a defendant‘s guilt and prohibiting a defendant‘s contrary evidence under the rape shield statute would violate a defendant‘s constitutional right to a fair trial. Id. (citing State v. Cooper, 581 S.W.3d 677, 681 (Mo. App. S.D. 2019)). “As a result, the judicially created ‘right to fair trial’ exception to section 491.015 does not apply when the evidence is relevant merely to impeach a victim‘s credibility and does not directly refute evidence that tends to show a defendant‘s guilt.” Id.
Here, Defendant seeks to introduce evidence of Victim‘s prior allegation primarily to attack her credibility, which is not a purpose to which the fair-trial exception applies. Beyond the issue of credibility, Defendant relies on State v. Estes, which found the “fair trial” exception applied and the trial court‘s exclusion of evidence constituted plain error. 716 S.W.3d at 343-44. In Estes, there was evidence the victim had asked her stepmother to get a pregnancy test because she feared she had become pregnant as a result of the defendant‘s rape. Id. The trial court excluded evidence that the victim had told the defendant‘s daughter that she was concerned she had become pregnant due to unprotected sex with her boyfriend. Id. at 344. There was no forensic evidence or eyewitness testimony corroborating the victim‘s rape allegations, and the excluded evidence directly
Unlike in Estes, the evidence here of Victim‘s prior allegation does not directly refute the evidence she offered to establish Defendant raped her. Defendant argues the evidence was relevant to explain Victim‘s statement in the phone call to Defendant that he knew “what [she] just went through,” and to explain why Victim did not shower after the incident with Defendant. Neither the prior incident, Defendant‘s knowledge thereof, nor whether Victim showered were facts tending to prove Defendant‘s guilt that Defendant had to refute. Further, the question regarding the truth of Victim‘s prior rape allegation did not directly refute Victim‘s testimony that Defendant raped her or the physical evidence presented to the jury.
Because neither exception to
Point Three – The State Did Not Open the Door to the Disputed Evidence
Finally, Defendant argues the trial court erred in excluding Defendant‘s proffered evidence of Victim‘s prior rape allegation because the State opened the door by introducing the recording of Victim‘s phone call with Defendant, in which she states,
In this argument, Defendant invokes the “curative admissibility doctrine.” See State v. Middleton, 998 S.W.2d 520, 528 (Mo. banc 1999). The general rule is that “[a] party may not … introduce inadmissible evidence to rebut inferences raised by the introduction of admissible evidence during cross-examination.” Id. However, if one party introduces inadmissible evidence, the “curative admissibility doctrine” allows the opposing party to “introduce otherwise inadmissible evidence of its own to rebut or explain inferences raised by the first party‘s evidence.” Id. (citing State v. Shurn, 866 S.W.2d 447, 458 (Mo. banc 1993)).
Here, Defendant does not argue and has not demonstrated that the recorded phone call was inadmissible; he simply argues he should have been permitted to cross-examine Victim about her statement referring to what she “just went through.” As noted above, during the pre-trial hearing, the trial court told Defendant‘s counsel he could ask Victim what she meant by that statement. The parties agreed Victim would essentially say she was referring to being raped in Oklahoma, and the court said it would permit that testimony, but limited counsel from inquiring further into the details of that incident or producing extrinsic evidence about it.
The trial court‘s ruling in this regard was not an abuse of discretion. As we have discussed, any further evidence was not relevant for impeachment purposes because
We find no error in the trial court‘s exclusion of any further evidence of Victim‘s prior allegations on the basis of the curative admissibility doctrine. Point denied.
Point Four – The Trial Court Did Not Improperly Limit Defendant‘s Ability to Establish a Motive to Fabricate
In Point Four, Defendant argues the trial court‘s ruling excluding extrinsic evidence of Victim‘s prior rape allegations improperly limited Defendant‘s ability to show Victim had a motive to fabricate the allegations against Defendant. We disagree.
Defendant relies on State v. Lampley, 859 S.W.2d 909 (Mo. App. E.D. 1993), which held that evidence involving a victim‘s prior allegations can be relevant if the evidence shows a motive to make a false accusation against the defendant, so long as the questions posed to the victim are limited to the prior complaint without inquiry into any sexual conduct. Id. at 911. Defendant‘s proposed cross-examination of Victim here, based on that outlined by the court in Lampley, included asking Victim if she had made a prior complaint, if she had received a benefit from such prior complaint, and whether that
The trial court did not improperly limit Defendant‘s ability to make this argument. As discussed above, the trial court stated Defendant would be permitted to ask Victim what she meant by “what she had gone through,” thus eliciting testimony about a prior rape incident. Defendant did not ask the trial court if he could then draw out whether Victim received any benefit from the process following that incident, whether she had a dislike for Defendant, and whether those things prompted her to fabricate the present allegations; but even if he had, there is no indication the trial court would have excluded those kinds of questions, none of which sought details of prior sexual conduct. The trial court was clear in its exclusion only of extrinsic evidence of the university‘s conclusions and the police report because neither established Victim‘s allegations were false and because during her offer of proof, Victim testified the prior rape occurred. However, the court specifically told Defendant he could elicit the fact of the prior incident. As stated previously, Defendant‘s counsel chose not to do so.5 Point denied.
For the foregoing reasons, we conclude the trial court did not abuse its discretion in excluding Defendant‘s proffered evidence related to Victim‘s prior rape allegation. We affirm.
Gary M. Gaertner, Jr., Judge
Rebeca Navarro-McKelvey, Presiding Judge, and James M. Dowd, Judge, concur.