State v. Hawkins

604 S.W.3d 785

STATE of Missouri, Respondent,

v.Frank G. HAWKINS, Appellant.

WD 81946

Missouri Court of Appeals, Western District.

OPINION FILED: April 14, 2020

Motion for Rehearing and/or Transfer to the Supreme Court Denied May 28, 2020

Application for Transfer to Supreme Court Denied September 1, 2020

Gregory L. Barnes, Jefferson City, MO, for respondent.

James C. Egan, Columbia, MO, for appellant.

Before Division One: Lisa White Hardwick, Presiding Judge, Cynthia L. Martin, Judge and Thomas N. Chapman, Judge

Cynthia L. Martin, Judge

Frank G. Hawkins ("Hawkins") appeals his conviction of sodomy in the first degree with a victim less than 12 years old in violation of section 566.060.¹ Hawkins contends that the trial court erred in admitting out-of-court statements of a child victim ("Victim") offered by multiple witnesses in violation of section 491.075 and Hawkins's Sixth Amendment right to confront his accusers. Finding no error, we affirm.

Factual and Procedural Background²

Hawkins lived with Victim's grandmother. Victim often visited her grandmother's house where Hawkins would take care of Victim.

In June 2017, several weeks after a visit to Victim's grandmother's house, Victim disclosed to her mother ("Mother") that Hawkins touched her "privates" and "put something inside of her and it hurt." Victim told Mother this happened more than once. The same day, Victim's father ("Father") came home from work and Victim repeated the disclosure. Victim was taken to the hospital and the police were contacted. Several days later, Victim told Mother that Hawkins would take her to get ice cream if she let Hawkins touch her inappropriately.

During a recorded interview at the Northwest Missouri Children's Advocacy Center, Victim disclosed to Trenny Wilson ("Wilson"), a forensic interviewer, that Hawkins had touched Victim inside her vagina while she visited her grandmother's home. This touching would occur in the kitchen and the living room, and was preceded by Hawkins showing Victim pornography on his phone. During therapy sessions, Victim repeated these disclosures to Wendy Hickman ("Hickman"), a therapist at the Young Women's Christian Association.

On March 14, 2018, Hawkins was charged with sodomy in the first degree as a prior and persistent offender for acts committed against a victim under the age of 12 in January and May of 2017.³

On March 29, 2018, pursuant to section 491.075.1(1), the trial court held a hearing to determine the admissibility of statements made by Victim, who was three years old on the date of the charged offenses, to her parents regarding the criminal acts committed by Hawkins. The trial court also considered the admissibility of statements made to Wilson and Hickman.

On May 1, 2018, the trial court entered an order finding that "the content and circumstances" of the statements made by Victim indicated they were "sufficiently reliable to allow for their admissibility at trial." The trial court required the Victim to testify at trial "as a foundation for the admissibility" of Victim's out-of-court statements.

A jury trial was held. During the State's case-in-chief, Victim, who was four years old at the time of trial, was called to the stand, sworn under oath to testify truthfully, and testified as provided:

State: Can you tell us your name? Do you remember this? Look, come over here.

Victim: I don't want to.

State: I know you don't want to. Can you tell us your name?

Victim: I don't want to.

State: We need to know. What's your name? See that? Do you want to go draw me a picture? [Victim]? [Victim], look at me? Remember? Tell me your name. You can do it. Can you tell me your name?

Victim: I don't want to.

State: I know you can. How old are you? How old are you?

Victim: I don't want to.

State: Do you want to go draw me a picture? Okay ... Your honor, may we approach the whiteboard?

Court: Yes.

State: [Victim], can you draw me a picture? Can you draw me a picture of you? Did something happen to you that you didn't like? Did somebody touch you somewhere that they weren't supposed to? Can you draw me a picture of that? What did he do or what did that person do? What part of your body is he touching? It's okay. It's just me and you. What part of the body is that? Who is this? Who is that? Who is that?

Victim: I don't want to.

State: I know you don't want to. Did you look around the courtroom? Did you look around? Did you see the person that did this to you?

Victim: (Nods head).

State: Yeah? Is he here today? Is that "Yes" or "No"? Is he here? I saw you shake your head, but what did that mean? Is that "Yes" or "No"?

Victim: (Nods head).

State: You're shaking your head "Yes"?

Victim: (Nods head).

State: You see him now?

...

State: I want to show you another picture. Okay? Can you go back over there with me? Come on. It's okay, just me and you. Come on. Do you want to go that way? Don't fall. Okay. I'm going to meet you over there. Here's your coin.

...

State: I'm going to show you this picture and it's got the No. 2 on it. Doesn't it? Can you show me on this picture where someone touched you?

Victim: (Indicating).

State: There? What do you call that? Can you tell us what you call that?

Victim: (Shakes head).

State: No? [Victim], just one more question and I need you to answer for me. Okay? What's the name of the person that touched you there? And then I won't have any more questions. Can you tell us his name or her name? Then I'll be all done. Do you see him?

Victim: (Nods head).

Hawkins cross-examined Victim, as provided:

Defense: Hi, [Victim]. How are you? Are you good today? Have you got a coin? Is that money? [Victim], did the Easter bunny come see you?

Victim: (Nods head).

Defense: Did you come into the courtroom the other day? Did you practice going through this with [the State]?

Victim: (Shakes head).

Defense: You didn't? Did you get candy? Did you get candy when you came in the other night?

Victim: (Shakes head).

Defense: No? Is that money?

Victim: (Shakes head).

Defense: No? You can't spend it? So have you come in the courtroom here before?

Victim: (Shakes head).

Defense: You didn't? Can you talk to me?

Victim: (Shakes head).

Defense: No? Okay. Did the Easter bunny bring you lots of candy?

Victim: (Nods head).

Defense: He did? A big basket this year?

Victim: (Nods head).

Defense: And you got lots of candy in there? And when you came up to the courthouse, did you come in this room? No? Do you want to be done?

Victim: (Nods head).

Defense: You do? Okay.

The State returned for a brief redirect examination and asked Victim to point at the perpetrator who touched her, but Victim did not respond. At the conclusion of the Victim's testimony, the trial court ordered that a photograph of Victim's drawing on the whiteboard be included in evidence. In addition to Victim's testimony, Victim's parents, Hickman, and Wilson testified as to what Victim disclosed to them regarding Hawkins's abusive conduct.

The jury found Hawkins guilty of sodomy in the first degree. Hawkins was sentenced to life imprisonment. This timely appeal follows.

Analysis

Hawkins raises two points on appeal. Hawkins's first point argues that the trial court erred by admitting into evidence Victim's out-of-court statements made to her parents, Wilson, and Hickman because Victim failed to sufficiently "testify" for purposes of complying with section 491.075. Hawkins's second point argues that the trial court erred by admitting Victim's video-taped interview with Wilson in violation of his right to effectively confront and cross-examine Victim under the Sixth Amendment and Missouri Constitution Article I, section 18(a), because Hawkins was not afforded an opportunity for effective cross-examination when Victim failed to sufficiently testify. Before addressing Hawkins's points collectively, we first discuss the admission of out-of-court statements by a child witness under section 491.075 within the context of the Confrontation Clause.

The Confrontation Clause and Section 491.075

The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend VI.⁴ The Supreme Court of the United States has interpreted the Confrontation Clause as establishing limits on the use of prior out-of-court statements made by accusers when those statements are "testimonial" in nature. See Crawford v. Washington , 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In limiting these testimonial out-of-court statements, the Court has reasoned that "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," and those "testimonial" statements must be tested in the "crucible of cross-examination." Id. at 51 and 61, 124 S.Ct. 1354.⁵ The Court has concluded that certain prior testimonial statements, such as out-of-court witness statements, are inadmissible at trial unless "the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. 59, 124 S.Ct. 1354. "When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of [her] prior testimonial statements." Id. at 59 n. 9, 124 S.Ct. 1354 ; see also State v. Perry , 275 S.W.3d 237, 242 (Mo. banc 2009) ; State v. Biggs , 333 S.W.3d 472, 477 (Mo. banc 2011).

Section 491.075 governs the admissibility of out-of-court statements made by child witnesses. Section 491.075 provides that a child's, otherwise inadmissible, out-of-court statement made in relation to an offense under Chapter 566 is admissible to prove the truth of the matter asserted when:

(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 or vulnerable person testifies at the proceedings; or

(b) The child or vulnerable person is unavailable as a

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