Appellant Darrell Dean Tindle (“Defendant”) was charged with two counts of first-degree child molestation (see section 566.067) and three counts of statutory sodomy (see section 566.062) arising from alleged sexual contact he had with two minor children, A.T. and D.A.
In four points relied on, Defendant asserts two claims of trial court error. His first three points all allege, for the following reasons, that the trial court erred in admitting into evidence State’s Exhibit No. 3, a DVD video recording of a forensic interview of A.T. conducted at the Child Advocacy Center (“the CAC interview”): 1) it failed to meet “any hearsay exception including” those set forth in sections 491.075 and 492.304
Defendant does not challenge the sufficiency of the evidence supporting his convictions. As a result, we set forth only those facts necessary to address Defendant’s points on appeal.
At trial, A.T. testified that she was born in February 1995 and that she and her younger sister, D.A., had “always” lived with a couple she considered to be her “stepparents.”
A.T. could not remember when Defendant first touched her in a way that made her uncomfortable, but initially Defendant wоuld put his hand on and under her pants and bra on different occasions. A.T. testified that Defendant “told [her], if [she] told anyone, he would slit [her] throat.” Defendant also made her watch a DVD con-
After A.T. testified before the jury, a hearing was held outside the jury’s presence on a motion the State had filed during trial to admit statements A.T. made to Springfield Police Officer Robert Baker pursuant to section 491.075 (“the 491 hearing”). Officer Baker testified during the 491 hearing that he had interviewed A.T. about Defendant on March 28, 2009, after responding to a report of child sexual abuse. After the interview concluded, Officer- Baker prepared a written report of A.T.’s statements. Defense counsel cross-examined the officer about other persons present during the interview, the content of some specific statements made by A.T., and how the officer attributed exact quotations as compared to paraphrases in his report. Other than an objection regarding the timing of the State’s motion, the following constituted Defendant’s objection and the trial court’s ruling:
[Defense Counsel]: As far as the exact items that Officer Baker would be allowed to testify to, I think the purposes of a 491 hearing are those specific statements that the children make. The CAC interview is nice because it’s recorded. We actually see and hear" exactly what it says. In this particular case, whether he is trying the best that he can or not trying the best that he can, it doesn’t change the fact that it’s paraphrasing.
You know, I understand they don’t have recorders there. I mean, I don’t see why they don’t take them with them оn these calls. But that’s neither here nor there. But it’s still paraphrasing, Judge.
I think that anything that’s a direct quote that he can differentiate as a direct quote, that’s something that I think is suitable under the 491 [h]earing statute. Anything elsethat he has no direct knowledge or memory as far as the exact statement — And even the State, Judge, as he was making his statements about 491, talked about how important it was to do the specific words that he [sic] said. So the State by their own statements are saying that it’s important that we only are hearing those words that the officers [sic] were sure is what she said to him. Those are what’s [sic] in quotes. Everything else is a paraphrase and not admissible.
[THE COURT]: Well, the Court will find the statements are admissible in that at the time content and circumstances of statements provides sufficient indicia of reliability. And it’s up to the jury to determine the credibility and the accuracy of the statements, and not for me to do that at this point.
After proceedings before the jury resumed, the State askеd Officer Baker what A.T. told him had happened. Defense counsel stated, “Judge, if I may renew my previous objection.” The trial court replied that the objection was shown and overruled. Officer Baker went on to testify that he did not ask A.T. any questions, but that the stepmother told A.T. to tell the officer what had happened. A.T. then told the officer that “for the last year that, while [A.T.] was there alone with [Defendant] while [A.T.’s] mother was at work, that [Defendant] would hold her down on the bed and masturbate.” A.T. also reported that Defendant made “her watch porn DVDs” and he “touch[ed] her private parts and that he did put his finger inside her.” Officer Baker also said A.T. told him that Defendant told A.T. that Defendant would cut A.T.’s throat “if anyone ever found this out[.]” Officer Baker made a “Child Abuse Hotline” report, but he did not personally conduct a full interview of A.T. because he knew that a detective would need to be assigned for a follow-up investigation.
Defense counsel cross-examined the officеr about certain details A.T. had reported, including that it had been going on for a year, not longer. He elicited from Officer Baker that A.T. did not specify the body part that was penetrated and that Defendant’s threat “was a one-time deal.”
Matthew Brown, a CAC forensic interviewer at the time, testified that he interviewed A.T. and D.A. on April 16, 2009.
The CAC interview was deposited with the court, and we have reviewed it. At the beginning of the recording, A.T. told Mr. Brown that she was fourteen years old. She said that at first, Defendant touched her as though he were playing. A.T. said that Defendant would “stick his fingers everywhere.” A.T. said that Defendant “ha[d] been doing it since [A.T.] was 11.” A.T. said Defendant also made her watch “porn” on a disc. A.T. said that she was fourteen when Defendant touched her inside her vagina. She said that Defendant said he would “slice [her] throat” if she told anyone. A.T. said that Defendant made her touch him, and she circled the depiction of a penis on the male anatomical drawing shown to her. She said that this touching happened “like the day after [her] birthday,” specifically referring to her fourteenth birthday.
Defendant testified in his own defense. He denied touching A.T.’s vagina or anus, and he denied making A.T. touch his penis. Defendant testified that he did not touch either A.T. or D.A. “in a sexual manner[.]” Defendant testified that A.T. made up or was lying about her allegations against him.
After both sides rested, the trial court dismissed Count V (which charged Defendant with molesting A.T. when she was less than fourteen years old between February 18, 2009 and March 28, 2009). The trial court found that “based upon the felony information and the evidence, it is impossible for that count to be proven because [A.T.] was not less than 14.”
Defendant’s contention No. 11 in his motion for new trial statеd:
The trial court erred in sustaining the State’s motion pursuant to 491.075 RSMO. states [sic] to the [trial c]ourt that the State has failed to show that the time, content, and circumstance to [sic] the statements made by the children to each witness, and the two taped interviews from the [CAC] provides sufficient indicia of reliability to be deemed admissible. The admission of these exhibits (State’s exhibit 2 and 3) violated Defendant’s right to a fair trial, due process and the right of confrontation^]
The trial court overruled the motion and sentenced Defendant as set out above. This appeal timely followed.
Applicable Principles of Review
We review the trial court’s admission of evidence for an abuse of discretion. State v. Freeman,
“In order to preserve an eviden-tiary question for appellate review, an objection needs to be made at the first opportunity.” State v. Manes,
Analysis
Points I, II, & III — The CAC Interview
As earlier noted, Defendant’s first three points all contend the trial court erred in admitting the CAC interview on the grounds of: inadmissible hearsay, improper bolstering, improper use of a deposition under Rule 25.16, and the violation of Defendant’s constitutional right “to confront and cross[-]examine” A.T. The State asserts that Defendant waived appellate review of his claims by “not objecting at trial] on the grounds he now raises for the first time on appeal.” With one exception, we agree with the State’s assertion.
Defendant’s objection to the admission of the CAC interview was, “Subject to previous objection, Your Honor.” As best we can glean from the chronology of Defendant’s previous objections, the reference is to defense counsel’s objection during Officer Baker’s 491 hearing testimony that A.T.’s statements to the officer were not reliable because they had not been audio or video recorded. The trial court overruled that objection, finding that the statements were admissible because the circumstances surrounding the statements “provide[d] sufficient indicia of reliability.” Based on that response, the triаl court apparently took Defendant’s objection as a challenge to the indicia of reliability required for the admission of a child’s hearsay statements under section 491.075. The record does not contain any objection by Defendant to its admission on the grounds of improper bolstering, improper use of a deposition, or violation of the confrontation clause. As a result, those contentions were not preserved for our review; Defendant cannot bypass the trial court and assert alternative grounds for
Even Defendant’s hearsay objection has significantly shifted from what was argued to the trial court. Defendant now contends that the CAC interview was
not subject to any hearsay exception including and specifically the exceptions created pursuant to [section] 492.304 or [section] 491.075 regarding a child under the age of 14 at the time of the interview because the interviewee, A.T., was over 14 years of age at the time of the interview and the admission of said video was highly prejudicial to [Defendant’s] defense.
The State candidly concedes that the CAC interview was “erroneously admitted under the hearsay exception in [section] 491.075.” And we see no basis to admit this evidence under section 492.304. Mr. Brown testified before the CAC interview was offered into evidence that A.T. was fourteen at the time of that interview. Despite that testimony, no objection based on AT.’s age was brought to the attention of the trial court befоre either the CAC interview or A.T.’s statements to Officer Baker were admitted into evidence.
Hearsay is defined as an “out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value.” State v. Sutherland,
If hearsay testimony is erroneously admitted, the admission does not require reversal unless the defendant was prejudiced as a result. State v. Harrison,
Here, A.T. testified at trial, and she was subjected to cross-examination. Part of the CAC interview was cumulative of A.T.’s trial testimony. To the extent that the statеments were not cumulative, A.T. was cross-examined about the inconsistencies. Although Defendant now complains that the CAC interview was admitted after A.T. had left the witness stand and was released, Defendant had cross-examined A.T. about the CAC interview before it was offered, and Defendant made no attempt to recall A.T. as a witness after it was published to the jury. Defendant suffered no prejudice from the admission of the CAC interview, and to the extent that the CAC interview was inconsistent with A.T.’s trial testimony, Dеfendant benefited from the ability to attack A.T.’s credibility based on those inconsistencies. Points I, II, and III are denied.
Point IV — Statements to Officer Baker
Defendant claims the trial court erred in admitting the testimony of Officer Baker “based on the hearsay exception created by [section] 491.075” because A.T. “was
As previously noted, Officer Baker’s testimоny was admitted following a hearing on the State’s motion to admit it under section 491.075. Like the CAC interview, the testimony was not admissible under that statute because A.T. was fourteen years old when Officer Baker interviewed her. Also like the CAC interview, Defendant did not object to the admission of the testimony on that basis. As earlier noted, the objection Defendant offered to the trial court was that the statements were not reliable because they were not mechanically recorded. As with his first three points, Defendant’s claim on appeal cannot be broadened beyond the theory of his trial objection. Johnson,
Point V is also denied, and the judgment of conviction and sentence is affirmed.
Notes
. Unless otherwise indicated, all statutory references are to RSMo Cum.Supp.2011.
. The child molestation charge relating to A.T. was dismissed before the case was submitted to the jury.
. Count II alleged that Defendant had placed his finger in the vagina of A.T. when she was less than fourteen years of age; count III alleged that Defendant placеd his finger in the anus of A.T. after she was fourteen years of age; and count IV alleged that Defendant had A.T. touch Defendant's penis after A.T. was fourteen years of age.
. At the time of trial, section 491.075 provided:
I. A statement made by a child under the age of fourteen relating to an offense under chapter 565, 566, 568 or 573, 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 mаtter 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
(2)(a) The child testifies at the proceedings; or
(b) The child is unavailable as a witness; or
(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 or vulnerable person unavailable as a witness at the time оf the criminal proceeding.
2. Notwithstanding subsection 1 of this section or any provision of law or rule of evidence requiring corroboration of statements, admissions or confessions of the defendant, and notwithstanding any prohibition of hearsay evidence, a statement by a child when under the age of fourteen who is alleged to be victim of an offense under chapter 565, 566, 568 or 573 is sufficient corroboration of a statement, admission or confession regardless of whether or nоt the child is available to testify regarding the offense.
3. A statement may not be admitted under this section unless the prosecuting attorney makes known to the accused or the accused’s counsel his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the accused or the accused's counsel with a fair opportunity to prepare to meet the statement.
4.Nothing in this section shall be construed to limit the admissibility of statements, admissions or confessions otherwise admissible by law.
(Bold text as stated in original.) Section 492.304 provides predicate conditions for the admission of "the visual and aural recording of a verbal or nonverbal statement of a child when under the age of fourteen who is alleged to be a victim of an offense under the provisions of chapter 565, 566 or 568[.]”
. Unless otherwise indicated, all rule references are to Missouri Court Rules (2012).
. A.T. testified that the stepparents were "actually kind of [her] cousins.” We will use "stepparents” in referring to this couple and "stepmother" in reference to the female family member.
. In closing argument, defense counsel argued that when A.T. was "asked about or pressed upon the specific instances, she had no knowledge or recollection of any specific instance” thereby raising doubt about the events. Defense counsel also pointed out inconsistencies in A.T.’s trial testimony, the CAC interview and her statements to Officer Baker.
. The docket entries reflect that before trial, the State filed a motion under section 491.075 to admit statements that D.A. made to Mr. Brown at the CAC and the motion was granted after a hearing. A transcript of that hearing was not deposited with the court, but the record does not reflect that a similar motion was filed regarding the CAC interview. "The hearing provided for in Section 491.075 is not required, however, in the absence of an objection to the statеments when they are offered.” State v. Schuster,
. The referenced prior objection to this occurred after the 491 hearing when Officer Baker began testifying to the jury as to what A.T. told him and defense counsel stated, "Judge, if I may renew my previous objection.”
. Unpreserved errors may be reviewed for plain error only, requiring the reviewing court “to find that manifest injustice or miscarriage of justice has resulted from the trial court error.” State v. Clayton,