             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT


 STATE OF MISSOURI,                              )
                                                 )
                                 Respondent,     )
                                                      WD82404
 v.                                              )
                                                 )
                                                      OPINION FILED:
                                                 )
                                                      March 24, 2020
 SHAYNE LANCE GARRETSON,                         )
                                                 )
                                   Appellant.    )


                Appeal from the Circuit Court of Moniteau County, Missouri
                        The Honorable Matthew P. Hamner, Judge

               Before Division One: Thomas N. Chapman, Presiding Judge, and
                      Mark D. Pfeiffer and Anthony Rex Gabbert, Judges

       Mr. Shayne Garretson (“Garretson”) appeals from the judgment entered by the Circuit

Court of Moniteau County, Missouri (“trial court”), following a jury trial in which he was found

guilty of one count of statutory rape, four counts of statutory sodomy, and five counts of incest.

Garretson seeks plain error review of unpreserved evidentiary and opening statement claims of

error on appeal. We affirm.
                                       Facts and Procedural History1

         Garretson (whose relationship to the victims was as a grandfather) was married to

“Grandmother.” They had a home in Sedalia, Pettis County, Missouri, as well as a lake house in

Morgan County, Missouri. Garretson and Grandmother had three adult biological children,

“Mother,” “Uncle 1,” and “Uncle 2.” Mother had two biological daughters of her own, J.C. and

K.M.2

         Garretson sexually abused J.C. and K.M. at his home in Sedalia and at the lake house during

the summers of 2014 and 2015.

         J.C. testified that the first time Garretson did something inappropriate was at the house in

Sedalia when she was nine years old. While clothed, Garretson touched her breasts and put her

legs on his penis. Another time at the Sedalia house, he put his finger in her vagina, telling her,

“This is what it feels like to have a baby.” J.C. screamed and started crying because it “hurt really

bad.”

         On two occasions when only Garretson and J.C. were at the lake house, Garretson put his

fingers in her vagina. The first time, after he was done, she bled from her vagina, vomited, and

soiled herself. She felt “shocked,” “traumatized,” and “really scared.” She used a sanitary napkin

and wore Grandmother’s underwear home. J.C. also bled the second time Garretson put his fingers

in her vagina while at the lake house. She screamed and told him to stop. She asked him why he

was doing this to her, and he replied, “God chose him.”




         1
           On appeal from a jury-tried case, we view the facts in the light most favorable to the jury’s verdict. State
v. Ryland, 533 S.W.3d 745, 746 n.2 (Mo. App. W.D. 2017) (citing State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc
2009)).
         2
           Pursuant to section 595.226.1 of the REVISED STATUTES OF MISSOURI 2016, we have used initials to identify
the victims and family members so as to protect their identity. We have also used pseudonyms to refer to the victims’
mother, grandmother, and uncles—again, to protect the identity of the victims.


                                                          2
       Garretson would tell J.C. that he was taking her skating, shopping, or out to eat, but either

instead of or after those activities, he would take her to the lake house. The sexual assaults at the

lake house occurred in Garretson and Grandmother’s bedroom. He licked J.C.’s vagina at the lake

house multiple times. He would rub his penis on or inside her vagina. Sometimes he would put a

lubricant in her vagina. Garretson told J.C. not to tell anyone because “bad things would happen

or something else.”

       K.M.’s first sexual encounter with Garretson was in the bedroom of the Sedalia house when

she was eight years old. She woke up and Garretson was licking and putting his finger in her

vagina. She screamed and yelled for help. Uncle 1 came to the bedroom door and knocked.

Garretson went to the door and cracked it a little bit so he could see Uncle 1. Uncle 1 asked what

was going on, and Garretson told him that the television was turned up. Another time at

Garretson’s house in Sedalia, K.M. saw J.C. go into Garretson’s bedroom with him. The door was

locked, and K.M. sat outside on the stairs, listening in case she heard screams. When J.C. came

out of the bedroom, K.M. asked her if Garretson had been “doing anything” to her. J.C. asked

why, and K.M. told her that Garretson had been molesting her. J.C. told K.M. that Garretson had

been molesting her too.

       Garretson also sexually assaulted K.M. at the lake house. Multiple times, Garretson licked

K.M.’s vagina. He also put his fingers in her vagina multiple times, and a couple of times he

rubbed his penis on her vagina. Another time Garretson attached handcuffs to K.M.’s ankles and

the bed frame to restrain her so she could not close her legs. Once when J.C. and K.M. were

together at the lake house alone with Garretson, J.C. and K.M. took shifts sleeping and staying up

during the night “so that he wouldn’t come and get one of us.” On one occasion when Garretson

was driving J.C. and K.M. to the lake house after skating, they cried and told him to take them




                                                 3
home. When asked why, K.M. yelled, “Because you’re going to rape us!” Garretson told K.M.

not to tell anyone because “[y]our mom will get hurt.”

       On September 25, 2015, Garretson was planning to visit Uncle 1 in Colorado. He wanted

to take eleven-year-old J.C. and nine-year-old K.M. with him. Mother called J.C. and K.M.’s

schools to arrange for Garretson to pick them up. When J.C. received a note from the school office

that she was going to be a car rider instead of a bus rider and that her grandfather was going to

pick her up, J.C. went to the counselor’s office and called Mother. She told Mother that she wanted

to ride the bus home and did not want to go to Colorado with Garretson.

       When J.C. arrived home from school, Mother asked her why she and K.M. all of a sudden

did not want anything to do with Garretson. J.C. told Mother, “every time we go with Papa he

tries to rape us.” J.C. further explained that Garretson had been raping her and K.M. Mother

immediately called her mother, Grandmother, and asked her to intercept Garretson, who had

picked up K.M. at school. When Garretson and K.M. arrived at Mother’s house, Grandmother

was waiting for them, and she immediately took K.M. to meet Mother and J.C. J.C. told K.M. that

she had told Mother what had happened with Garretson. K.M. then also confirmed to Mother that

Garretson had touched her “private.”

       Mother reported J.C. and K.M.’s disclosures to law enforcement. On September 30, 2015,

J.C. and K.M. were interviewed at Child Safe of Central Missouri in Sedalia. J.C. was emotional

as she related multiple incidents of Garretson sexually assaulting her. K.M. also spoke to the

interviewer about Garretson’s abuse.

       On October 6, 2015, Garretson’s case file was referred by Pettis County to the Morgan

County Sheriff’s Department. On October 14, 2015, Garretson was present when a search warrant

for the lake house was executed. Garretson’s truck was searched, and in the toolbox officers found




                                                4
a bag with children’s underwear and a swimsuit top inside. J.C.’s DNA was on the underwear. In

the search of the truck cab, officers found handcuffs, a handgun, and condoms. In the search of

the lake house, officers found a black backpack with another set of handcuffs, Vaseline, a plastic

tube, condoms, and nine firearms. Garretson was arrested on October 15, 2015.

       Garretson posted bond and called Mother the next day to ask her to meet him. They went

to a cemetery where he threatened to commit suicide. He told her, “I did not have sex with [J.C.].”

But when Mother asked him how J.C. ended up bleeding, he stated that he “pushed his finger in

too hard.” When Garretson returned home from the cemetery, Garretson’s brother-in-law, R.B.,

was there. Garretson told R.B. that “there’s a demon in me.”

       On October 21, 2015, a child abuse and neglect pediatrician conducted sexual assault

forensic examinations (“SAFE”) of J.C. and K.M. at Children’s Mercy Hospital in Kansas City.

Her diagnosis for both girls was sexual abuse.

       Garretson was charged with the following offenses: (1) one count of statutory rape in the

first degree for knowingly having sexual intercourse with J.C., a child less than twelve years old;

(2) one count of the class D felony of incest for engaging in sexual intercourse with J.C., knowing

she was his descendant by blood; (3) one count of statutory sodomy in the first degree for having

deviate sexual intercourse with J.C., who was then less than twelve years old, by placing his finger

in her vagina; (4) one count of the class D felony of incest for engaging in deviate sexual

intercourse by placing his finger in her vagina, knowing she was his descendant by blood; (5) one

count of statutory sodomy in the first degree for having deviate sexual intercourse with J.C., who

was then less than twelve years old, by licking her vagina with his tongue; (6) one count of the

class D felony of incest for engaging in deviate sexual intercourse by licking J.C.’s vagina,

knowing she was his descendant by blood; (7) one count of the felony of statutory sodomy in the




                                                 5
first degree for having deviate sexual intercourse with K.M., who was then less than twelve years

old, by licking her vagina with his tongue; (8) one count of the class D felony of incest for engaging

in deviate sexual intercourse by licking K.M.’s vagina, knowing she was his descendant by blood;

(9) one count of the felony of statutory sodomy in the first degree, by having deviate sexual

intercourse with K.M., who was then less than twelve years old, by placing his finger in her vagina;

and (10) one count of the class D felony of incest for engaging in deviate sexual intercourse by

placing his finger in K.M.’s vagina, knowing her to be his descendant by blood.

       A jury trial was held September 11-13, 2018. Garretson testified in his own defense,

denying all allegations against him. The jury found Garretson guilty of all ten counts. The trial

court sentenced Garretson to thirty years’ imprisonment on the statutory rape charge and on each

of the statutory sodomy charges and to four years’ imprisonment on each of the incest charges,

with all sentences to run concurrently.

       Garretson timely appealed.

                                                  I.

       In Garretson’s first point on appeal, he asserts that the trial court erred in overruling his

request for an acquittal at the close of the State’s opening statement.

                                          Standard of Review

       At trial, Garretson made a limited argument regarding the substance of the State’s opening

statement as it related to some, but not all, of the counts with which Garretson had been charged.

On appeal, Garretson changed his argument and broadened the scope of his objection to the State’s

opening statement by changing his theory of objection and making arguments relating to all, not

some, of the charges against him. “[A] point is preserved for appellate review only if it is based

on the same theory presented at trial.” State v. Rice, 573 S.W.3d 53, 63 (Mo. banc 2019) (internal




                                                  6
quotation marks omitted). “An appellant cannot broaden the scope of his objections on appeal

beyond that made in the trial court.” Id. (internal quotation marks omitted). “[Garretson] attempts

to do just that; thus, this claim is not preserved and is subject to review for plain error only.” State

v. Simmons, 515 S.W.3d 769, 776 (Mo. App. W.D. 2017).

       Under Rule 30.20, this court is authorized to review, in its discretion, “plain errors affecting

substantial rights . . . when the court finds that manifest injustice or miscarriage of justice has

resulted therefrom.” Plain error review involves a two-step process:

       The first step requires a determination of whether the claim of error facially
       establishes substantial grounds for believing that manifest injustice or miscarriage
       of justice has resulted. All prejudicial error, however, is not plain error, and plain
       errors are those which are evident, obvious, and clear. If plain error is found, the
       court then must proceed to the second step and determine whether the claimed error
       resulted in manifest injustice or a miscarriage of justice.

State v. Baumruk, 280 S.W.3d 600, 607-08 (Mo. banc 2009) (citations omitted) (internal quotation

marks omitted).

                                                 Analysis

       “The State is required to make an opening statement in a criminal case.” State v. Johns, 34

S.W.3d 93, 110 (Mo. banc 2000) (citing § 546.070(1)). Accord Rule 27.02(f).3 “As a general rule

the opening statement should be brief and general, rather than detailed, and should be confined to

statements based on facts which can be proved . . . .” State v. Feger, 340 S.W.2d 716, 724 (Mo.

1960) (internal quotation marks omitted). “‘[T]he primary purpose of an opening statement is to

inform the judge and jury of the general nature of the case, so they may appreciate the significance

of the evidence as it is presented.’” State v. Pennington, 493 S.W.3d 926, 930 (Mo. App. W.D.

2016) (quoting State v. Thompson, 68 S.W.3d 393, 394 (Mo. banc 2002)).




       3
           All rule references are to I MISSOURI COURT RULES—STATE 2019.


                                                      7
         “An opening statement is sufficient when, taken with the reasonable inferences drawn

therefrom, the defendant is apprised of the charges against him.” Johns, 34 S.W.3d at 110 (internal

quotation marks omitted). A trial court should enter a judgment of acquittal in a criminal

prosecution on the opening statement of the prosecutor “only when it clearly and affirmatively

appears from the statement that the charge against the accused cannot be sustained under any view

of the evidence and only when the opportunity to correct or embellish the statement has been given

to the prosecutor subsequent to the accused’s motion for a [judgment of acquittal].”4 Id.

         In his opening statement, the prosecutor stated that Garretson “molested and sexually

assaulted two of his granddaughters, [J.C.], who was 11 years old at the time, and [K.M.], who

was 9 years old at the time.” The prosecutor recounted what J.C. told her mother as to why she

did not want to go on the Colorado trip with Garretson: because Garretson “rapes” them. The

prosecutor stated that J.C. would testify “about the multiple sexual assaults that she endured at the

hands of her grandfather, . . . specifically you’ll hear about an incident in Morgan County where

Shayne Garretson inserted his fingers into her vagina hard enough to make her bleed.” The

prosecutor told the jury that they would hear from K.M. “how her grandfather licked her vagina

and also put his fingers in her vagina.” The prosecutor concluded his opening statement by

requesting that, when the trial ended, the jury find Garretson guilty of all ten counts: “Find Shayne




         4
           Motions for judgment of acquittal are used in the place of a motion for directed verdict. Rule 27.07(a). We
also note that after the State’s opening statement and Garretson’s motion for judgment of acquittal, the prosecutor
offered to “correct or embellish” the opening statement to the extent the trial court believed the opening statement
failed to apprise Garretson of the charges against him and Garretson objected to allowing the prosecution to do so.
The trial court refused to permit the prosecutor to “correct or embellish” the opening statement, but also concluded
that it was unnecessary to do so. Though we agree with the trial court that the State’s opening statement sufficiently
apprised Garretson of the crimes he was charged with, we also note that Garretson’s position on appeal ignores the
holding of State v. Johns, which would permit a judgment of acquittal of the defendant “only when the opportunity to
correct or embellish the [opening] statement has been given to the prosecutor” upon the assertion of the motion for
judgment of acquittal. 34 S.W.3d 93, 110 (Mo. banc 2000). Here, at defendant’s request, the prosecutor was not
provided such opportunity to “correct or embellish” the opening statement even though the prosecutor had requested
an opportunity to do so.


                                                          8
Garretson guilty of statutory rape, statutory sodomy[,] and the incest that he took out on these two

girls.”

          Here, the State’s opening statement, taken with the reasonable inferences drawn therefrom,

was sufficient to apprise Garretson of the charges against him. Garretson was informed of the

evidence J.C. and K.M. and other witnesses would be giving at trial, the physical evidence

supporting the allegations, and the location of the alleged offenses.

          Garretson’s claim of error does not facially establish substantial grounds for believing that

manifest injustice or miscarriage of justice resulted from the opening statement of the State;

therefore, we decline to review for plain error.

          Point I is denied.

                                                    II.

          In Garretson’s second point, he asserts that the trial court erred in not sua sponte declaring

a mistrial when the State played a recording that contained prior bad acts, specifically that

Garretson tried to make J.C. and K.M. smoke and drink alcohol.

                                          Standard of Review

          Garretson concedes that he did not preserve this issue below and, therefore, requests plain

error review.

                                                Analysis

          Prior to trial, Garretson filed a motion in limine to preclude the State from offering evidence

of Garretson’s prior bad acts. The trial court ruled that “the only acts of [Garretson] that should

be discussed by the witnesses at trial are those allegations charged in this case and those allegations

related to the offenses in Pettis County for which we have had the propensity hearing on.”




                                                    9
        On the first day of trial, during defense counsel’s cross-examination of K.M., he questioned

K.M. about whether she talked to her mother about her grandfather’s sexual abuse on the day of

the initial disclosures:

        Q:      Okay. Even on September 25th you didn’t talk to you mom about it?

        A:      Huh-uh. My grandma when she picked me up, she asked about it, and I had
                told her very little. All I told her was that he had made me and my sister
                drink and smoke. And then she asked what else, and they said all of it was
                a finger, with my finger (indicating).

Though K.M.’s volunteered testimony was arguably not responsive to defense counsel’s question,

defense counsel did not object to K.M.’s response, ask that it be stricken from the record, nor

request that the jury be instructed to disregard it. Yet, it is this same evidence (i.e., smoking and

drinking testimony) that was played to the jury in a video recording of the forensic interviews of

J.C. and K.M. that Garretson claims required the trial court, sua sponte, to declare a mistrial.

        On the second day of trial, State’s Exhibit 8, a video recording of the forensic interviews

of J.C. and K.M., was admitted into evidence and played for the jury. During J.C.’s interview, she

related that Garretson had tried to get her to drink liquor and smoke but she refused. Defense

counsel requested that the trial court stop the video and allow counsel to approach the bench. The

following exchange occurred:

        Defense counsel:       I guess I don’t know what the remedy is.

        Prosecutor:            Well, [J.C.] testified exactly to that yesterday, and so I’ll
                               cut out the remainder and not draw any attention to this, but
                               it’s—there isn’t one. You didn’t find it earlier. And that’s
                               exactly what she said yesterday in direct.

        Defense counsel:       Just because someone said it before doesn’t make it
                               admissible now.

        Trial court:           But you didn’t object to it.

        Defense counsel:       What?



                                                 10
       Trial court:             You didn’t object to it.

       Defense counsel:         I did.

       Trial court:             No, you didn’t. I asked specifically for the [prior bad act]
                                references, and you told me which ones they were. I asked
                                if there were any others and you said no.

       Defense counsel:         Well, that was one of them.

       Prosecutor:              No, it wasn’t.

       Trial court:             No, it was not.

       “A mistrial is a drastic remedy that should be granted in only extraordinary circumstances.”

State v. Vickers, 560 S.W.3d 3, 27 (Mo. App. W.D. 2018) (internal quotation marks omitted). “The

trial court is in the best position to determine whether the incident caused prejudice.” Id. (internal

quotation marks omitted). In determining the prejudicial effect of an uninvited reference to other

crimes, Missouri courts generally examine five factors:

       (1) [w]hether the statement was, in fact, voluntary and unresponsive to the
       prosecutor’s questioning or caused by the prosecutor; (2) whether the statement was
       singular and isolated, and whether it was emphasized or magnified by the
       prosecution; (3) whether the remarks were vague and indefinite, or whether they
       made specific reference to crimes committed by the accused; (4) whether the court
       promptly sustained defense counsel’s objection to the statement, and instructed the
       jury to disregard the volunteered statement; and (5) whether, in view of the other
       evidence presented and the strength of the State’s case, it appeared that the
       comment played a decisive role in the determination of guilt.

Id. (quoting State v. Goff, 129 S.W.3d 857, 866 n.7 (Mo. banc 2004)).

       In reviewing these five factors, it is clear that the trial court did not err, plainly or otherwise,

in not declaring a mistrial sua sponte. First, J.C. voluntarily shared the smoking and drinking

information in response to an open-ended question by the forensic interviewer. Second, the

reference was brief and isolated, and there is nothing in the record to suggest that the prosecutor

emphasized the statement.       Third, the remark indicated that J.C. did not succumb to her



                                                   11
grandfather’s proffer. As to the fourth factor, defense counsel did not request a mistrial. And, as

to the final factor, there is no reason to believe that this isolated reference played a decisive role in

the jury’s verdict. Rather, it was the overwhelming evidence of Garretson’s sexual abuse as

testified to by the two victims and as corroborated by physical evidence. Moreover, Garretson was

not prejudiced because the evidence was cumulative of the same evidence elicited by defense

counsel during his cross-examination of K.M. earlier in the trial. And, as previously noted, this

cross-examination testimony of K.M. came into evidence without objection.

        Point II is denied.

                                                  III.

        In Garretson’s third point, he asserts that the trial court erred in overruling his request for

a mistrial after the prosecutor mentioned “propensity hearing” during his cross-examination of

Garretson.

                                         Standard of Review

        “To properly preserve an issue for an appeal, a timely objection must be made during trial.”

State v. Tolentino-Geronimo, 571 S.W.3d 214, 216 (Mo. App. W.D. 2019) (internal quotation

marks omitted). “The objection at trial must be specific and made contemporaneously with the

purported error.” Id. (internal quotation marks omitted). Here, Garretson failed to make a

contemporaneous objection to the prosecutor’s mention of a propensity hearing during Garretson’s

cross-examination.

        Typically, an objection made after a question has been asked and answered is untimely.

State v. Rice, 573 S.W.3d 53, 73 (Mo. banc 2019). Here, when the prosecutor’s question

mentioned “propensity hearing,” the grounds for any potential objection from Garretson were

evident, but he failed to object at that time. Rather, Garretson’s objection was not made until much




                                                   12
later in the State’s continued line of questioning. Because Garretson’s objection was untimely, the

issue was not preserved for appeal.       Id.    “‘When a defendant fails to make an objection

contemporaneous with the purported error, on appellate review, the issue is evaluated for plain

error, which requires a showing that the error resulted in manifest injustice or a miscarriage of

justice.’” State v. Nelson, 505 S.W.3d 437, 442 (Mo. App. W.D. 2016) (quoting State v. Shockley,

410 S.W.3d 179, 189 n.4 (Mo. banc 2013)).

                                                Analysis

       During cross-examination, the prosecutor asked Garretson:

       Mr. Garretson, you want this jury to believe that all these people that have testified
       here these last few days, that [J.C.] and [K.M.] when they went to that child
       advocacy center and told what you’d done and then went to a deposition and then
       went to—[K.M.] went through a preliminary hearing and then [K.M.] testified in a
       propensity hearing here two weeks ago, so did [J.C.], and then they testified here
       today or the last few days, they’re lying every time that they’ve come here and said
       that to a court after being under oath?

Garretson answered: “They have been schooled by their mother. The stories were all invented.”

The prosecutor asked seven more questions, which Garretson answered, before defense counsel

asked to approach the bench. Defense counsel requested that the trial court declare a mistrial

“based upon the State’s mention of a propensity hearing because of the prejudicial nature of that

term.” The trial court observed that the evidence related to the propensity hearing was already in

front of the jury, and asked the prosecutor not to refer to the propensity hearing further. The trial

court denied Garretson’s motion for mistrial.

       “‘[P]ropensity evidence is evidence of uncharged crimes, wrongs, or acts used to establish

that [a] defendant has a natural tendency to commit the crime charged.’” State v. Boss, 577 S.W.3d

509, 519 (Mo. App. W.D. 2019) (quoting State v. Shockley, 410 S.W.3d 179, 193 (Mo. banc 2013))

(internal quotation marks omitted). “‘[Propensity evidence] is evidence of specific and distinct




                                                  13
prior acts.’” Id. (quoting Shockley, 410 S.W.3d at 193). “The law permits the State to try a

defendant only for the offense for which he is on trial[,] and [t]his precludes the State from

unjustifiably introducing evidence of a defendant’s prior, uncharged crimes or bad acts.” State v.

Lutes, 557 S.W.3d 384, 390 (Mo. App. W.D. 2018) (internal quotation marks omitted).5

        A passing reference to a “propensity hearing” is at best a vague reference to misconduct.

“Vague references are not clear evidence of associating a defendant with other crimes.” Boss, 577

S.W.3d at 520 (internal quotation marks omitted). “Vague and indefinite references to misconduct

do not warrant a mistrial unless the reference is clear evidence of the defendant’s involvement in

another crime.” State v. Jensen, 524 S.W.3d 33, 41 (Mo. banc 2017).

        A passing reference to a “propensity hearing” in a question to a witness is also not evidence

of prior bad acts. The jury was instructed that they “must not assume as true any fact solely because

it is included in or suggested by a question asked a witness. A question is not evidence, and may

be considered only as it supplies meaning to the answer.” Furthermore, Garretson’s answer did

not address the State’s mention of a propensity hearing.

        Garretson argues that the State’s reference to a propensity hearing “inject[ed] a

presumption of uncharged crimes” into the trial. However, virtually the identical argument was


        5
            We note that article I, section 18(c) of the Missouri Constitution provides:

        [I]n prosecutions for crimes of a sexual nature involving a victim under eighteen years of age,
        relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose
        of corroborating the victim’s testimony or demonstrating the defendant’s propensity to commit the
        crime with which he or she is presently charged. The court may exclude relevant evidence of prior
        criminal acts if the probative value of the evidence is substantially outweighed by the danger of
        unfair prejudice.

“[I]n the context of sex crimes involving minors, the provision unequivocally supersedes the Supreme Court of
Missouri’s evidentiary rulings that once prohibited propensity evidence.” State v. Lutes, 557 S.W.3d 384, 390 (Mo.
App. W.D. 2018) (internal quotation marks omitted). “Article I, section 18(c) applies to all trials on or after
December 4, 2014, irrespective of when the crimes are alleged to have occurred.” Id. at 390 n.4 (citing State ex rel.
Tipler v. Gardner, 506 S.W.3d 922, 928 (Mo. banc 2017)). Thus, even if the prosecutor’s mention of “propensity
hearing” could be considered propensity evidence, which it cannot, the evidence in question was legally relevant
propensity evidence and would have thus been admissible under article I, section 18(c) as referenced above.


                                                           14
rejected in State v. Simmons, 654 S.W.2d 190 (Mo. App. E.D. 1983). In Simmons, the appellant

contended that the trial court erred in denying his motion for mistrial when the prosecutor

questioned the victim about the victim’s identifying the defendant at the preliminary hearing. Id.

at 191. Appellant argued that the testimony impermissibly suggested to the jury that there had

been a prior judicial determination of his guilt. Id. The Simmons court found that appellant’s

contention that he was prejudiced by the State’s reference to the preliminary hearing was frivolous

and concluded that it “[did] not believe that the mere mention of a preliminary hearing suggested

to the jury that there had been a prior judicial determination of defendant’s guilt.” Id. Similarly,

here, we do not believe that the prosecutor’s mere mention of a propensity hearing suggested to

the jury that there was evidence of prior bad acts.

         Garretson’s claim of error does not facially establish substantial grounds for believing that

manifest injustice or miscarriage of justice has resulted from the prosecutor’s mere mention of a

propensity hearing during Garretson’s cross-examination; therefore, we decline to review for plain

error.

         Point III is denied.

                                                 IV.

         In Garretson’s fourth point, he asserts evidentiary error in the admission of hearsay

testimony regarding a comment that Garretson had made to his brother-in-law that “there’s a

demon in me.”

                                          Standard of Review

         Garretson concedes that he did not preserve this issue in his motion for new trial, and

therefore, requests plain error review.




                                                  15
                                             Analysis

       At trial, the following colloquy occurred in the prosecutor’s direct examination of

Garretson’s brother-in-law, R.B.:

       Q:      [R.B.] . . . [w]ould you please testify with regards to your memory as to the
               substance of the conversation that you had with Mr. Garretson?

       A:      Yes. He had told me that he couldn’t go to jail, that he had a bad back. And
               I implored him to ask God for forgiveness, and then he had said to me,
               there’s a demon in me.

       Q:      There’s a demon in him?

       A:      Uh-huh.

       “‘A hearsay statement is any out-of-court statement that is used to prove the truth of the

matter asserted and that depends upon the veracity of the statement for its value.’” State v. Clark,

503 S.W.3d 235, 238 (Mo. App. W.D. 2016) (quoting State v. Tisius, 362 S.W.3d 398, 405 (Mo.

banc 2012)). “A hearsay statement is inadmissible unless it falls under a recognized hearsay

exception.” Id. “‘Generally, statements of the defendant are excepted from the hearsay rule.’”

State v. Evans, 992 S.W.2d 275, 290 (Mo. App. S.D. 1999) (quoting State v. Basile, 942 S.W.2d

342, 358 (Mo. banc 1997)). See also State v. Voss, 488 S.W.3d 97, 115 (Mo. App. E.D. 2016)

(“[T]he admission of a criminal defendant is not considered to be hearsay.” (citing State v.

McFadden, 369 S.W.3d 727, 753 (Mo. banc 2012)). In State v. Isa, the defendant contended that

her comments to a police officer at the crime scene were inadmissible hearsay. 850 S.W.2d 876,

894 (Mo. banc 1993). The Missouri Supreme Court disagreed, concluding that the statements

were non-hearsay admissions:

       An admission is the statement . . . of a party that tends to incriminate or connect her
       with the crime charged, or which manifests a consciousness of guilt. In determining
       whether a defendant’s statement constitutes an admission, the court must consider
       the defendant’s statement in light of the surrounding circumstances. . . . Moreover,




                                                 16
       a statement need not express an acknowledgment of guilt to qualify as an
       admission.

Id. See State v. Clark, 503 S.W.3d 235, 239-40 (Mo. App. W.D. 2016) (same).

       Garretson made the statement, “there’s a demon in me,” after he bonded out of jail and met

with his daughter at a cemetery where he threatened to commit suicide and told her that J.C. bled

because he pushed his finger in too hard. When Garretson returned home from the cemetery, his

brother-in-law, who was aware of the allegations that had been made against Garretson, was there.

R.B. described the circumstances of his conversation with Garretson: “Well, the family was

together[,] and we were concerned about him. You know, he was threatening to kill himself. He

was distraught. And, you know, we were together to support my sister basically.” Garretson told

R.B. that he could not go back to jail because he had a bad back. In response, R.B. implored

Garretson to ask God for forgiveness. That is when Garretson told R.B. that “there’s a demon in

me.” Under the circumstances, Garretson’s claim that “there’s a demon in me,” by which he

deflected blame to appear less culpable, was a non-hearsay admission that manifested a

consciousness of guilt. See State v. Fitzgerald, 778 S.W.2d 689, 691 (Mo. App. E.D. 1989)

(“Appellant’s statements that demons caused the cuts on [her eleven-month-old daughter’s] wrist

and that she was present when [her daughter] suffered the injuries were admissions. Untrue denials

can constitute admissions as well as manifesting a consciousness of guilt. A permissible inference

of guilt may be drawn from acts or conduct of an accused subsequent to an offense if they tend to

show a consciousness of guilt by reason of a desire to conceal the offense or role therein.” (citations

omitted)). See also State v. Matthews, 552 S.W.3d 674, 689-90 (Mo. App. W.D. 2018) (finding

defendant’s explanations of victim’s injuries that directed attention away from defendant’s

responsibility was evidence of consciousness of guilt).

       Point IV is denied.



                                                  17
                                            Conclusion

       Because none of Garretson’s claims facially establish substantial grounds that manifest

injustice or miscarriage of justice has resulted, we decline to exercise our discretion to review the

claimed errors under Rule 30.20. The trial court’s judgment is affirmed.



                                              /s/Mark D. Pfeiffer
                                              Mark D. Pfeiffer, Judge


Thomas N. Chapman, Presiding Judge, and Anthony Rex Gabbert, Judge, concur.




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