             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

 STATE OF MISSOURI,                               )
                                                  )
                                 Respondent,      )
                                                  )    WD78926
 v.                                               )
                                                  )    OPINION FILED:
                                                  )    October 25, 2016
 ROBERT JOSEPH NEIGHBORS,                         )
                                                  )
                                    Appellant.    )


                  Appeal from the Circuit Court of Pettis County, Missouri
                           The Honorable Dennis A. Rolf, Judge

                    Before Division IV: Mark D. Pfeiffer, Chief Judge, and
                         Victor C. Howard and Gary D. Witt, Judges

       Mr. Robert Neighbors (“Neighbors”) appeals the judgment of the Circuit Court of Pettis

County, Missouri (“trial court”), which found him guilty of two counts of felony first-degree child

molestation following a jury trial. We affirm.

                             Factual and Procedural Background

       In late 2012 and early 2013, Neighbors lived in a house with several family members,

including his niece (“Mother”), nephew-in-law (“Father”), and their daughter, Neighbors’s

seven-year-old great-niece (“Victim”). At some point in early 2013, Victim’s parents separated
and Father moved out of the home. Victim continued living with Mother in the home shared with

Neighbors but visited Father on most weekends.

         While at Father’s house one weekend, Victim stated that Neighbors had touched her under

her pants. After this disclosure, Father informed Mother, and they went to the Pettis County

Sheriff’s Department to report the incident to police. Victim was then interviewed by a victim

advocate and forensic interviewer named Beth Jackman, and Victim stated that Neighbors “had

rubbed her privates with his hand both on top of and under her clothing on more than one

occasion.”

         Neighbors was charged with and convicted by a jury of two counts of felony first-degree

child molestation pursuant to section 556.067.1 Neighbors was also charged as a persistent sexual

offender pursuant to sections 558.011 and 566.067. His jury trial regarding these charges was held

on June 25-26, 2015, after which the trial court sentenced Neighbors to two consecutive terms of

life imprisonment.

         During voir dire, there were several issues disputed such that on two occasions the parties

and counsel withdrew into the judge’s chambers to resolve the disputes. Each time, two uniformed

guards escorted Neighbors into chambers, but they did not handcuff or shackle him in any way

during either occasion.

         At the conclusion of voir dire, defense counsel requested a mistrial based on the fact that

the venire panel was permitted to see Neighbors accompanied by the two guards when the parties

went into the judge’s chambers to discuss disputed issues. The trial court denied the motion.




         1
             All statutory citations refer to the Revised Statutes of Missouri 2000, as supplemented, unless otherwise
indicated.


                                                           2
         Prior to trial, the State filed a notice of intent to offer Victim’s statements into evidence

pursuant to section 491.075.2 The motion requested that Victim’s statements to Ms. Jackman

regarding Neighbors’s actions be admitted into evidence, as well as Victim’s earlier statements to

Father regarding Neighbors’s behavior. Neighbors objected to the admissibility of Victim’s

out-of-court statements, claiming them to be inadmissible hearsay.

         Following a hearing on the section 491.075 motion, the trial court granted the motion,

concluding that the time, content, and circumstances of Victim’s interview with Ms. Jackman

“provide[d] sufficient indicia of reliability to admit the statement into evidence if [Victim]

testifie[d] at trial.” The trial court’s ruling did not expressly discuss Victim’s statements to Father.

However, at trial, Father was permitted to testify regarding Victim’s statements to him over

defense counsel’s objection that Father’s testimony was inadmissible hearsay. Father testified that

Victim said Neighbors had touched her underneath her underpants.

         This timely appeal followed.

    I.       Trial court’s alleged denial of Neighbors’s request to excuse the jury panel while
             he was being escorted from the courtroom by guards

         In his first point on appeal, Neighbors contends that the trial court erred in denying an

off-the-record request during voir dire to excuse the venire panel while Neighbors was escorted by

two uniformed guards into the judge’s chambers for discussions about disputed issues relating to

voir dire. Neighbors argues that allowing the venire panel to see him escorted from the courtroom

by guards prejudiced the panel against him by making them think that he was in custody and

presumably dangerous. Neighbors has not preserved this argument for appeal.




         2
           Section 491.075 permits, in certain circumstances, the admission of out-of-court statements made by
children under age fourteen as evidence in sex-offense-related criminal proceedings.


                                                      3
        Under Missouri law, objections must be made at the earliest possible opportunity, and a

failure to object constitutes waiver of the claim on appeal. State v. Borden, 605 S.W.2d 88, 90

(Mo. banc 1980) (holding that defendant did not preserve claim of error made during voir dire,

opening statement, and direct examination where defendant did not make timely objection to

alleged error). “Timely objection to putative error affords the trial court an opportunity to invoke

remedial measures rather than relegating appellate courts to the imprecise calculus of determining

whether prejudice resulted.” Id. See also State v. S.A.N., 158 S.W.3d 863, 866 (Mo. App. W.D.

2005) (“This court, however, is bound by the record on appeal and cannot speculate as to what

evidence may have been presented below which is not reflected by the record.”) (internal quotation

omitted).

        Objections must be specific, must set forth a basis for the objection, and must be

sufficiently definite so as to alert the trial court that an objection is being made. See, e.g., State v.

Lang, 515 S.W.2d 507, 511 (Mo. 1974) (“It is universally held in Missouri that specific objections

are required to evidence, arguments, or statements of counsel, and the objection must call the

attention of the Court to the ground or reason for the objection.”); State v. Amick, 462 S.W.3d 413,

415 (Mo. banc 2015) (“To preserve a claim of error, counsel must object with sufficient specificity

to apprise the trial court of the grounds for the objection.”) (internal quotation omitted). In

addition, “[b]y failing to obtain a ruling on [an] objection, the objection is deemed to have been

abandoned.” State v. Peal, 393 S.W.3d 621, 632 (Mo. App. W.D. 2013) (quoting State v. Smith,

744 S.W.2d 476, 478 (Mo. App. W.D. 1987)).

        In the present case, the record provides no indication that Neighbors made a specific

objection regarding his guard escorts, nor is there any record that the trial court ruled on such an

objection. In fact, Neighbors’s own brief admits that any request he may have made for the venire




                                                   4
panel to be excused while Neighbors was escorted from the courtroom was made off the record.

Any off-the-record statements or objections Neighbors made to the trial court regarding the

propriety of his guard escorts were clearly insufficient to preserve the issue on appeal, particularly

where Neighbors failed to receive a definitive on-the-record ruling from the trial court on any such

objection.

         Our review is limited to those issues put before the trial court, ruled on by the trial court,

and subsequently preserved in the record. Neighbors preserved no objection on this issue for our

review and his claim of error is, thus, deemed abandoned.

         Point I is denied.

   II.       Trial court’s denial of Neighbors’s request for mistrial

         In his second point on appeal, Neighbors contends that the trial court erred in failing to

grant his request for a mistrial, because allowing the jury to see him being escorted from the

courtroom by guards “made it clear to the panel that [he] was in custody and presumably

dangerous, and therefore prejudiced the panel against him prior to the start of trial.”

                                         Standard of Review

         We review the trial court’s denial of a motion for mistrial for abuse of discretion. State v.

Clemons, 946 S.W.2d 206, 217 (Mo. banc 1997). “Judicial discretion is deemed abused only when

a trial court’s ruling is clearly against the logic of the circumstances then before it and is so

arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful

consideration.” State v. Pope, 50 S.W.3d 916, 922 (Mo. App. W.D. 2001) (internal quotation

omitted). “Control of voir dire is within the discretion of the trial court; only abuse of discretion

and likely injury justify reversal.” State v. Parker, 886 S.W.2d 908, 920 (Mo. banc 1994).




                                                   5
        “Mistrial is a drastic remedy reserved for the most extraordinary circumstances[,]” and we

presume that the trial court is in the best position to determine whether a mistrial is appropriate.

Clemons, 946 S.W.2d at 217. Reversal of the trial court’s decision is only appropriate where the

failure to grant a mistrial resulted in the denial of a fair trial. Id.

                                                Analysis

        Under Missouri law, “[a] defendant cannot routinely be visually shackled in the guilt or

penalty phase of a criminal trial unless that use is justified by an essential state interest—such as

the interest of courtroom security—specific to the defendant on trial.” State v. Taylor, 298 S.W.3d

482, 512 (Mo. banc 2009) (internal quotation omitted). However, Missouri courts have routinely

held that where uniformed officers merely escort a defendant into or out of the courtroom, and the

defendant’s body is otherwise unrestricted, there is no impermissible or prejudicial restraint. See,

e.g., State v. Vaughn, 271 S.W.3d 632, 633 (Mo. App. W.D. 2008) (holding that defendant’s escort

by uniformed guards into courtroom did not constitute “restraint” where defendant was not

shackled or handcuffed). See also Holbrook v. Flynn, 475 U.S. 560, 569 (1986) (holding that no

presumption can be made that use of identifiable security guards in courtroom is inherently

prejudicial).

        In the present case, there is no evidence that Neighbors was ever shackled or handcuffed

in the presence of the jury. At most, the record only demonstrates that two guards escorted

Neighbors into and out of the courtroom on two occasions, which does not, in itself, constitute

impermissible restraint. Because there is no evidence that Neighbors was ever restrained by

handcuffs, leg shackles, or similar restraints in the presence of the jury panel, he was not




                                                     6
impermissibly restrained in the jury’s presence.3 Accordingly, the trial court did not err in denying

Neighbors’s request for a mistrial.

           Point II is denied.

    III.       Admission of testimony by Victim’s father at trial

           In his final point on appeal, Neighbors argues that the trial court erred in overruling his

objection to the admission of testimony by Victim’s father at trial. Specifically, he contends that

Father’s testimony was inadmissible hearsay that did not fall within any hearsay exception,

including the hearsay exception outlined in section 491.075.

                                             Standard of Review

           “The standard of review for the admission of evidence is abuse of discretion.” State v.

Freeman, 269 S.W.3d 422, 426 (Mo. banc 2008). “Even if the trial court abuses its discretion in

allowing evidence in, appellant must show the admission of evidence was prejudicial to be entitled

to relief.” State v. Sprinkle, 122 S.W.3d 652, 658 (Mo App. W.D. 2003).

                                                     Analysis

           Neighbors’s third point argues that the trial court failed to make the specific findings of

reliability regarding Father’s testimony as required by section 491.075, which states as follows:

           1. A statement made by a child under the age of fourteen . . . relating to an offense
           under chapter 565, 566, 568 or 573, performed by another, not otherwise admissible
           by statute or court rule, is admissible in evidence in criminal proceedings in the
           court of this state as substantive evidence to prove the truth of the matter asserted
           if:

                   (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



           Furthermore, as we also noted in Vaughn, “[m]any appellate decisions of this state have found no prejudice
           3

in far more egregious situations than herein.” State v. Vaughn, 271 S.W.3d 632, 633-34 (Mo. App. W.D. 2008) (citing
additional cases holding that varying amount of jury exposure to handcuffed or shackled defendant did not constitute
impermissible restraint).


                                                         7
                  (2)(a) The child . . . testifies at the proceedings[.]

§ 491.075.1.

         While it is preferred that the trial court make a specific written or oral finding of reliability

regarding the witness’s proposed testimony, “reliability is implicit when the defendant’s objection

[at trial] is overruled and the witness[ is] allowed to testify.” Sprinkle, 122 S.W.3d at 661 n.4

(citing State v. Tringl, 848 S.W.2d 29, 31 (Mo. App. E.D.1993)). “We do not . . . require a specific

finding of reliability under section 491.075, although such a finding is preferred.” State v.

Brethold, 149 S.W.3d 906, 910 (Mo. App. E.D. 2004).

         The record demonstrates that the trial court did not make specific written or oral findings

as to the reliability of Father’s statements; however, it did both grant the State’s section 491.075

motion (which included the State’s request to include Father’s challenged testimony) and overrule

Neighbors’s objection to the admission of Father’s testimony at trial.

         The trial court did not abuse its discretion by admitting Father’s challenged testimony. 4

         Point III is denied.




          4
            Even assuming, arguendo, that there was any merit to Neighbors’s objection to Father’s testimony, any
prejudice to Neighbors was not outcome determinative, and accordingly, there is no error in the admission of the
challenged evidence. “Where the evidence of guilt is overwhelming and the prejudicial effect of the [witness’s]
statement is insignificant by comparison, the admission of the statement is but harmless error. Reversal is not required
unless there is a reasonable probability that the improperly admitted evidence contributed to the conviction.” State v.
Clemons, 946 S.W.2d 206, 227 (Mo. banc 1997) (internal citation omitted). Likewise, where there is “other evidence
before the court which establishe[s] the same facts[,]” no prejudice is shown. State v. Merrill, 990 S.W.2d 166, 171
(Mo. App. W.D. 1999).
          At trial, Victim testified that Neighbors “rubbed [her] private whenever [she] was sitting on his lap,” and he
also touched her “butt” on several occasions. She stated that this sometimes happened in the living room and one time
when she was in another uncle’s bedroom watching television. The forensic examiner’s testimony at trial was
essentially identical to Victim’s testimony. Accordingly, Father’s testimony as to similar facts was, at most, harmless
error given the duplicative nature of his testimony and the other admissible testimony, which overwhelmingly
supported the jury’s finding of guilt.


                                                           8
                                           Conclusion

       For the foregoing reasons, the trial court’s judgment is affirmed.




                                             Mark D. Pfeiffer, Chief Judge

Victor C. Howard and Gary D. Witt, Judges, concur.




                                                9
