State of Missouri v. Bobby Donald McClure

In the
Missouri Court of Appeals
Western District
STATE OF MISSOURI, )
)
Respondent, ) WD78385
)
v. ) OPINION FILED: March 1, 2016
)
BOBBY DONALD McCLURE, )
)
Appellant. )
Appeal from the Circuit Court of Howard County, Missouri
The Honorable Scott A. Hayes, Judge
Before Division One: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge
and Gary D. Witt, Judge
Appellant Bobby McClure ("McClure") was convicted following a jury trial in the
Circuit Court of Howard County of statutory sodomy in the first degree, section
566.062.1,1 and child molestation in the first degree, section 566.067. McClure now
appeals and argues the trial court abused its discretion in admitting State's Exhibit 7, a
video-recording of an interview with the child victim ("T.S."), conducted by a child
1
All statutory citations are to RSMo 2000, as updated through the 2015 Cumulative Supplement, unless
otherwise indicated.
advocacy center, because the time, content, and circumstances of T.S.'s statement did not
satisfy the indicia of reliability requirements of section 491.075.1. We affirm.
FACTUAL BACKGROUND2
In 2003, T.S., the child victim, was seven years old. McClure, T.S.'s step-father,
lived with T.S., T.S's mother, and T.S.'s brother. T.S. testified that in 2003 McClure had
repeatedly sexually assaulted her. For example, one time when T.S. was sitting on
McClure's lap in a recliner, he placed her hand on his penis. On another occasion, T.S
woke with her panties removed and McClure's head between her legs with his tongue
touching her vagina. In another instance, McClure took T.S. to his bed and laid down
with her. He took off her panties and attempted to put his penis in her vagina.
In 2004, when she was eight years old, T.S.'s uncle asked her whether McClure
had touched her inappropriately. T.S. responded that McClure had touched her and then
repeated the allegations to her aunt. Police investigated T.S.'s allegations in 2004 and
asked T.S. what had occurred. T.S. told the investigating officer that McClure had stuck
his finger into her vagina. T.S. was taken to the Rainbow House Child Advocacy Center
("CAC") to be interviewed in 2004 but she refused to speak with the interviewer. No
charges were brought against McClure in 2004, and T.S. permanently relocated to live
with her grandparents.
2
"Defendant does not challenge the sufficiency of the evidence to support his convictions; thus, a brief
summary of the ... facts of the case will suffice for our review." State v. Gaines, 342 S.W.3d 391 n.2 (Mo. App.
W.D. 2011) (quoting State v. Johnson, 150 S.W.3d 132, 134 (Mo. App. E.D. 2004)). "Furthermore, '[w]e view the
facts in the light most favorable to the verdict.'" Id. (quoting State v. Allison, 326 S.W.3d 81, 85 (Mo. App. W.D.
2010)).
2
T.S. was again interviewed by the CAC in 2007. This interview was video
recorded. In the interview, T.S. stated that she had moved to live with her grandparents
because of McClure. T.S. remained closed and guarded when she was asked what had
happened between her and McClure but confirmed that there had been something about
touching and she circled the genital area on an anatomical drawing to show where
McClure had touched her. T.S. said McClure had touched her more than once and that it
happened at her "mom's house." The video recording of the 2007 CAC interview ("2007
CAC Interview") was admitted at trial and shown to the jury.
McClure was found guilty of first-degree statutory sodomy and first-degree child
molestation. He was acquitted of a charge of attempted statutory rape. McClure was
sentenced as a prior and persistent offender to concurrent terms of life imprisonment on
each count. McClure now appeals.
POINT ON APPEAL
In his sole point on appeal, McClure argues that the trial court abused its
discretion in admitting the 2007 CAC Interview because it violated his right to due
process of law and a fair trial in that the time, content, and circumstances of T.S.'s
statements in the 2007 CAC Interview failed to provide sufficient indicia of reliability as
required by section 491.075.1 since it was made several years after the alleged events and
was inconsistent with T.S.'s version at the time of the events.
STANDARD OF REVIEW
Generally, our review of the trial court's decision to admit hearsay testimony under
section 491.075 is limited to whether the trial court has abused its discretion. See State v.
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Porras, 84 S.W.3d 153, 156 (Mo. App. W.D. 2002). However, this standard only applies
where there has been a proper objection at trial to preserve the claim for appeal. Where
no proper objection is made at trial, even if the same objection was raised and denied at
the section 491.075 hearing, the objection is not preserved and may only be analyzed
under plain error review. See State v. Heckenlively, 83 S.W.3d 560, 567 (Mo. App. W.D.
2002); see also, State v. Copeland, 95 S.W.3d 196, 200 (Mo. App. S.D. 2003).
Here, McClure claims he objected to the admission of the 2007 CAC Interview at
trial and the alleged error has therefore been preserved for appeal. We disagree. At trial,
McClure objected to the exhibit on three grounds: (1) lack of foundation because the
CAC interviewer had not testified about the substance of the interview; (2) materials in
the video may have been subject to motions in limine in the case; and (3) the video could
constitute improper bolstering. McClure did not object at trial that the 2007 CAC
Interview should not be admitted because the statements therein did not satisfy the indicia
of reliability requirements or any other requirements of section 491.075.
Accordingly, pursuant to Rule 30.20, McClure's claim of error may only be
considered under plain error review. Heckenlively, 83 S.W.3d at 567.
Rule 30.20 authorizes this Court to review, in its discretion, "plain errors
affecting substantial rights ... when the court finds that manifest injustice or
miscarriage of justice has resulted therefrom." Our Supreme Court has
established a threshold review to determine if a court should exercise its
discretion to entertain a Rule 30.20 review of a claimed plain error. First,
we determine whether or not the claimed error "facially establishes
substantial grounds for believing that 'manifest injustice or miscarriage of
justice has resulted[.]'" State v. Brown, 902 S.W.2d 278, 284 (Mo. banc
1995) (quoting Rule 30.20). If not, we should not exercise our discretion to
conduct a Rule 30.20 plain error review. If, however, we conclude that we
have passed this threshold, we may proceed to review the claim under a
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two-step process pursuant to Rule 30.20. In the first step, we decide
whether plain error has, in fact, occurred. [State v. Baumruk, 280 S.W.3d
600, 607 (Mo. banc 2009)]. "All prejudicial error, however, is not plain
error, and plain errors are those which are evident, obvious and clear." Id.
(citations and internal quotation marks omitted). In the absence of evident,
obvious, and clear error, we should not proceed further with our plain error
review. If, however, we find plain error, we must continue to the second
step to consider whether or not a miscarriage of justice or manifest injustice
will occur if the error is left uncorrected. Id. at 607–08.
State v. Flores, 437 S.W.3d 779, 789 (Mo. App. W.D. 2014).
ANALYSIS
We conclude that McClure's claim does not facially establish substantial grounds
for believing that a miscarriage of justice or manifest injustice has resulted and we
therefore decline plain error review. Because T.S. actually testified at trial and was
available for cross-examination, even if the challenged statements were erroneously
admitted under section 491.075, McClure was not prejudiced. This failure alone would
justify our dismissal of this point without further consideration. Id.
The facts of State v. Tindle are similar to the facts at bar. 395 S.W.3d 56, 63 (Mo.
App. S.D. 2013). In Tindle, defendant complained that the admission of a CAC interview
tape was inadmissible hearsay and, in that case, the State conceded the point. Id. at 62-
63. The hearsay declarant, however, testified at trial and was subject to cross-
examination. Id. at 63. The court stated:
If hearsay testimony is erroneously admitted, the admission does not
require reversal unless the defendant was prejudiced as a result. State v.
Harrison, 213 S.W.3d 58, 76 (Mo. App. S.D. 2006). "A defendant is not
prejudiced by hearsay testimony that is merely cumulative of evidence
already before the trial court, especially if that evidence was presented by
another witness who was subject to cross-examination." State v. Atkeson,
255 S.W.3d 8, 11 (Mo. App. S.D. 2008). Indeed, "prejudice will not be
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found from the admission of hearsay testimony where the declarant was
also a witness at trial, testified on the same matter, and was subject to cross-
examination because the primary defects in hearsay testimony are
alleviated." [State v. Steele, 314 S.W.3d 845, 850 (Mo. App. W.D. 2010].
Id. (emphasis added). This result is in accord with other cases that have held that the
admission of hearsay evidence, even if in error, does not result in prejudice where the
declarant testifies at trial and is subject to cross-examination regarding the statements.
See State v. Bright, 782 S.W.2d 91, 92 (Mo. App. E.D. 1989); State v. Hankins, 612
S.W.2d 438, 439-40 (Mo. App. S.D. 1981).
In this case, T.S., the declarant of the hearsay evidence, testified at trial regarding
the same subject matter as that contained in the 2007 CAC Interview, and was subject to
cross-examination by McClure. Accordingly, McClure has not and cannot establish
substantial grounds to suggest that a miscarriage of justice or manifest injustice has
resulted. We therefore decline to review the point under plain error.
The point is denied.
CONCLUSION
The judgment and sentence of the Circuit Court is affirmed.
__________________________________
Gary D. Witt, Judge
All concur
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