 

Hu the Missourt Court of Appeals
Eastern District

DIVISION THREE
STATE OF MISSOURI, ) No. ED106224
)
Respondent, } Appeal! from the Circuit Court of
} St. Louis County
vs. } ISSL-CC06222-01
)
DASHAUN WOOTEN, ) Honorable David L. Vincent II
)
Appellant. ) Filed: April 16, 2019

OPINION

Dashaun M. Wooten appeals the judgment entered upon his convictions following a bench
trial in the Circuit Court of St. Louis County of one count of first-degree assault causing serious
physical injury, one count of armed criminal action, and one count of unlawful possession of a
firearm. The court found Wooten guilty on all counts and sentenced him to three concurrent terms
of ten years in prison. In his sole point on appeal, Wooten contends that the trial court erred when
it admitted testimony of hearsay statements the victim had made because the State failed to lay a
proper foundation for the admission of Victim’s prior inconsistent statements under § 491.074!

Finding no error, we affirm.

 

' All statutory references are to RSMo 2016 unless otherwise indicated.
Factual and Procedural Background

On September 8, 2015, St. Louis County Police Officer M.W. was dispatched to a location
in the municipality of Glasgow Village for a reported shooting. At the scene, the officer spoke
with the Victim, who told her that Keland Baker’s cousin shot him.? With respect to the events
leading up to the shooting, Victim told Officer M.W. the following: While he was at the Uptown
Market, a small grocery store located near the scene of the shooting, Victim began arguing with
Baker, who was with Wooten at the store. Victim left the store and began to walk away but Baker
and Wooten gave chase. Victim attempted to escape by running to a friend’s house nearby where
he was shot by Wooten twice in the right leg. Wooten fired five shots in all.

On September 10, 2015, while Victim was still hospitalized, he was interviewed separately
by Detective T.E. and Detective J.A. Victim told Detective T.E. about his history of conflict with
Baker and Wooten, and also described the shooting to the detective. Victim stated that two months
before the shooting, he had argued with Baker and had a physical altercation with Wooten. Victim
also told Detective T.E. that on the day of the shooting, he was at Uptown Market when Baker
entered the store and they argued again. Victim stated that Wooten shot him and described Wooten
as a black male, about six feet tall, with short dreadlocks.

Detective J.A. then interviewed Victim. He showed Victim two photograph lineups. From
the first lineup, Victim identified Baker, and from the second lineup, Victim identified another
individual unrelated to this case. Victim told Detective J.A. that while he recognized those two

individuals, neither was involved in the shooting. Detective J.A. showed Victim a recent

 

* Throughout the trial, Victim and the witnesses consistently referred te Wooten as Baker’s
“cousin” because of Wooten and Baker’s familial relationship.

2
photograph of Wooten and, without hesitation according to Detective J.A., Victim identified
Wooten as the shooter.

Several months later, just before the December 2015 preliminary hearing, Victim described
the events that led up to the shooting to Assistant Prosecuting Attorney T.R. His description was
consistent with his prior statements described above. At the preliminary hearing, Victim identified
Wooten as the shooter. Then, a year and a half later, in May 2017, Victim told Officer B.K. and
another assistant prosecuting attorney that Wooten was the shooter.

But at the October 30, 2017 trial, just five months after Victim had again identified Wooten
as the shooter, Victim testified that he no longer remembered any of the aforementioned statements
identifying Wooten as the shooter. The State then called as witnesses the four aforementioned
police officers and Assistant Prosecuting Attorney T.R. and each testified, over Wooten’s
objections, that Victim identified Wooten as the shooter. The court found Wooten guilty on ali
counts and sentenced him to three concurrent terms of ten years in prison. This appeal follows.

Standard of Review

We review for abuse of discretion the trial court’s admission ofevidence. Sate v. Freeman,
269 S.W.3d 422, 426 (Mo.banc 2008). The trial court has broad leeway in choosing to admit
evidence; therefore, we will not interfere with or disturb the trial court’s exercise of this discretion
unless “it is clearly against the logic of the circumstances.” Jd. at 426-27 (citing State v. Forrest,
183 S.W.3d 218, 223 (Mo.banc 2006)). See also State v. Edwards, 116 $8.W.3d 511, 532 (Mo.bane
2003). Moreover, to demonstrate reversible error here, the defendant must show that the trial
court’s erroneous admission of evidence deprived him of a fair trial. Forrest, 183 S.W.3d at 223-

24,
Discussion

In Wooten’s sole point on appeal, he claims that the trial court erred when it allowed those
five witnesses to testify as to Victim’s prior inconsistent statements because the State failed to lay
a proper foundation under § 491.074. Wooten claims that Victim’s inability to remember his prior
statements constituted a refusal to testify, and therefore should not have been permitted to serve as
the foundation for the admission of his prior inconsistent statements under § 491.074. We affirm
because we find the State properly laid a foundation for Victim’s hearsay testimony pursuant to §
491,074.

Hearsay is an out-of-court statement that is offered into evidence to prove the truth of the
matter asserted. State v. Reed, 282 S.W.3d 835, 837 (Mo.banc 2009). Hearsay statements are
inadmissible unless they fit within an exception to the hearsay rule. State v. Archuleta, 955 8.W.2d
12, 16 (Mo.App. W.D. 1997), One of those exceptions is codified in § 491.074, which allows for
the admission of prior inconsistent statements as substantive evidence in criminal cases:
“Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any
witness testifying in the trial of a criminal offense shall be received as substantive evidence, and
the party offering the prior inconsistent statement may argue the truth of such statement.”

To lay a proper foundation for the admission of a prior inconsistent statement, the party
seeking to introduce the statement must simply ask the witness whether he made the statement and
whether it is true. Reed, 282 S.W.3d at 838 (citing Archuleta, 955 S.W.2d at 15). The statement
may then be admitted even if the witness claims not to remember making the statement. Jd. This
court confirmed the sufficiency of this standard in State v. Stufflebean, 548 S.W.3d 334, 344

(Mo.App.E.D, 2018). Further, courts have recognized that a prior inconsistent statement can be

 

 
the sole basis for a guilty verdict. State v. Betts, 559 S.W.3d 47, 55 (Mo.App.E.D. 2018) (citing
State v. Lewis, 431 S.W.3d 7, 12 (Mo.App.E.D. 2014)).

This case is like Archuleta, where the victim testified that she could not recall the assault
or her statements to law enforcement, but the court held that it was precisely her lack of memory
under oath that laid the foundation for the admission of her prior inconsistent statements to law
enforcement. 955 S.W.2d at 16. Here, Victim’s testimony that he did not remember making
hearsay statements is adequate foundation for the admission of the other witnesses’ testimony
about what Victim told them.

We acknowledge but reject Wooten’s argument that Victim’s sudden faulty memory was
so improbable that it was therefore improper for the State to put Victim on the stand, elicit probable
perjured testimony, and then use that as the foundation to get into evidence Victim’s prior
statements that identified Wooten as the shooter. Simply put, § 491.074 contemplates
inconsistencies between testimony and prior statements made. That is what occurred here and we
therefore find no error.

Conclusion

For the reasons stated above, we affirm the judgment of the trial court.

SKA

James M. d, Judge

Sherri B. Sullivan, P.J., and
Lawrence E. Mooney, J., concur.

 
