State v. Robertson

674 S.W.3d 153

STATE of Missouri, Respondent,

v.Christopher D. ROBERTSON, Appellant.

No. ED 110552

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: June 27, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied July 24, 2023

Application for Transfer to Supreme Court Denied September 26, 2023

FOR APPELLANT: Ellen H. Flottman, Missouri Public Defender's Office, Woodrail Centre, 1000 West Nifong, Building 7, Suite 100, Columbia, MO 65203.

FOR RESPONDENT: Garrick F. D. Aplin, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Judge

Introduction

Christopher Robertson ("Defendant"), appeals from a Jefferson County Circuit Court judgment after a jury convicted him of one count of second-degree sodomy, three counts of incest, and one count of first-degree sexual misconduct. Defendant raises three points on appeal. In Point I, Defendant argues the trial court abused its discretion in overruling defense counsel's objections to the testimony of the Victims’ uncle stating Defendant was previously accused of molesting his stepdaughter and son because this propensity evidence was substantially more prejudicial than probative in that the jury was led to believe Defendant was not punished for the earlier allegations. In Point II, Defendant argues the trial court abused its discretion in overruling defense counsel's objections to the admission of a redacted court judgment finding Defendant previously sexually abused his stepdaughter and son because this propensity evidence was substantially more prejudicial than probative in that a civil judgment has a lower burden of proof than a criminal conviction. In Point III, Defendant argues the trial court abused its discretion in overruling objections to testimony from the Victims’ mother about Defendant's suicide attempts because this evidence is irrelevant to Defendant's guilt of the charged offenses and prejudicial in that the State used this evidence to bolster the Victims’ credibility when Mother testified that the suicide attempts caused her to believe the allegations about Defendant.

Because the evidence about Defendant's prior uncharged sexual acts had considerable probative value and the danger of unfair prejudice from such evidence was not great, the probative value of the evidence did not substantially outweigh the danger of unfair prejudice. Thus, the trial court did not abuse its discretion by admitting the evidence. We deny Points I and II. Because Defendant opened the door to why Mother came to believe the Victims’ allegations against Defendant and suicide attempts may be admissible to show consciousness of guilt, the trial court did not abuse its discretion in allowing Mother's testimony about Defendant's suicide attempts. We deny Point III.

We affirm.

Factual and Procedural Background

Victim 1 and Victim 2 (together, Victims) were under the age of eighteen when the crimes occurred. Victim 1 is Victim 2's older sister, and they have other siblings. Defendant was married to Victims’ mother ("Mother") and all of the children, except one, lived in the same house together at the time of the incidents.¹

Defendant was charged with one count of second-degree attempted rape (Count I), two counts of second-degree sodomy (Counts II and III), five counts of incest (Counts IV, V, VI, VII, and VIII) and one count of first-degree sexual misconduct (Count IX). Before trial, the State dismissed Counts I, II, IV, and VIII, and the remaining counts were renumbered for trial.

At trial in August 2021, Victim 1, Victim 2, Mother, Victims’ maternal uncle ("Uncle"), a Children's Division investigator, and a detective who interviewed Victims testified. Defendant did not testify. On August 10, 2021, the jury found Defendant guilty on all counts: one count of second-degree sodomy, three counts of incest, and one count of first-degree sexual misconduct. On October 14, 2021, accepting the jury's recommendations, the trial court sentenced Defendant to five years’ imprisonment as to Count I, three years’ imprisonment as to each of Counts II–IV, and six months incarceration and a $1,000.00 fine as to Count V to be served consecutively.

This appeal follows.

Standard of Review

For evidence to be admissible, it must be logically and legally relevant. State v. Prince , 534 S.W.3d 813, 817 (Mo. banc 2017) (citing State v. Blurton , 484 S.W.3d 758, 777 (Mo. banc 2016) ). "Evidence is logically relevant if it tends to make the existence of a material fact more or less probable." Id. (quoting State v. Collings , 450 S.W.3d 741, 756 (Mo. banc 2014) ). "Legal relevance weighs the probative value of the evidence against its costs—unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." Id. at 818 (quoting State v. Anderson , 306 S.W.3d 529, 538 (Mo. banc 2010) ). "If the prejudice of the logically relevant evidence outweighs its probative value, it should be excluded." Id.

"The trial court is in the best position to weigh the probative value of the evidence against its prejudicial effect." State v. Taylor , 504 S.W.3d 116, 122 (Mo. App. E.D. 2016) (citing State v. Peal , 393 S.W.3d 621, 625 (Mo. App. W.D. 2013) ). Trial courts "retain wide discretion over issues of relevancy and admissibility of evidence." Prince , 534 S.W.3d at 818 (citing Blurton , 484 S.W.3d at 769 ). We review a trial court's decision to admit evidence for abuse of discretion. State v. Williams , 548 S.W.3d 275, 287 (Mo. banc 2018) (citing Prince , 534 S.W.3d at 818 ). "An abuse of discretion occurs when a trial court's ruling is clearly against the logic of the circumstances, and is so arbitrary and unreasonable as to indicate a lack of careful consideration." Taylor , 504 S.W.3d at 122 (citing State v. Williams , 420 S.W.3d 713, 719 (Mo. App. W.D. 2014) ).

In reviewing a challenge to admissibility of evidence, "we will only reverse when the error was so prejudicial that it deprived the defendant of a fair trial." Id. (citing State v. Houston , 467 S.W.3d 894, 898 (Mo. App. E.D. 2015) ). "Prejudice occurs when the evidence is so inflammatory as to deprive the defendant of a fair trial, meaning that the evidence more likely than not had an effect on the outcome of the trial." Id. (quoting Houston , 467 S.W.3d at 899 ). "If reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Williams , 548 S.W.3d at 287 (quoting Anglim v. Mo. Pac. R. Co. , 832 S.W.2d 298, 303 (Mo. banc 1992) ).

Discussion

We address Points I and II together because both take issue with the same propensity evidence about judicial findings that Defendant previously sexually abused his son and stepdaughter. We address Point III separately.

Points I & II: Admissibility of Evidence of Prior Sexual Abuse

A. Evidence of Prior Sexual Abuse

The trial court allowed an exhibit to be published to the jury with language excerpted from a certified copy of a termination of parental rights case for Defendant's biological son which read:

Family Court Finding

The Court makes the following finding by clear, cogent, and convincing evidence*:

The juvenile, [Defendant's son] has been abused or neglected by his father [Defendant] in that the father sexually abused the juvenile and repeatedly committed severe and repeated acts of sexual abuse against [Defendant's former stepdaughter], the juvenile's sister and also sexually abused the juvenile, [Defendant's son].

This Court finds that [Defendant] sexually abused [his former stepdaughter] by placing his penis inside of her mouth, repeatedly forcing her to touch his penis with her hand and forcing her to place her naked body next to and on top of his.

The Court finds that [Defendant] abused [his son] by inappropriately touching his penis through his clothing.

*Clear cogent and convincing evidence is evidence that instantly tilts the scales in favor of a finding when weighted against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.

During the State's direct-examination of Uncle, he testified to how Defendant's sexual abuse of Victims was first discovered:

Q So I'm going to direct your attention to on or about May 28, 2018. Is that the day that the kids came over to swim?

A Roughly. Approximately. I don't know the exact date, but they came over to swim a day.

Q And you may have already said this but which kids came over to swim?

A [the Victims’ sister and the Victims].

Q Did you spend any time at your place before actually going to the pool?

A Yes, we did. We were all getting something to eat and getting dressed for the pool, you know.

Q And what kind of place were you living at, at the time? Was it an apartment complex or --

A Apartment complex. It was a three-bedroom apartment.

Q So when you were at that apartment getting ready, did any of the girls make any statements that you found unusual?

A Yes. My youngest niece, [the Victims’ sister], said that she could keep a secret. And ...

Q Is that all she said or anything else?

A Well, that was the first part. She said, I can keep a -- you know, she can keep a secret. And the more I, you know, kind of listened to what she was saying. I was, like, you know – things that I have heard before, made me start thinking, why is she saying this, you know.

...

Q Did she say anything else?

A Yes, she said she hated [Defendant].

...

Q Before you went down to the pool, did you have any further discussion with [Victims’ sister] about those statements that I hate [Defendant] and --

A No. No. I didn't have them -- go ahead.

Q Well, you said – did you keep thinking about it then?

A Yeah, I kept thinking about it.

Q Why?

A Because there was prior accusations against [Defendant] for --

...

Q Okay. So you've said that part of the reason that you kept thinking about [the Victims’ statement was because you were aware of some previous information about [Defendant]?

A Yes.

Q What was

...