STATE OF MISSOURI,                           )
                                             )
       Plaintiff-Respondent,                 )
                                             )
vs.                                          )              No. SD33239
                                             )
BRETT SANDERS,                               )              Filed: November 6, 2015
                                             )
       Defendant-Appellant.                  )

           APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                       Honorable Calvin R. Holden, Circuit Judge

AFFIRMED

       A jury found Brett Sanders (“Defendant”) guilty of two counts of statutory

sodomy in the first degree of A who was less than twelve, and one count of statutory

sodomy in the first degree of B who was less than twelve, two counts of child molestation

in the first degree (one of A and one of B), and one count of sexual misconduct by

indecent exposure to A. The jury assessed punishment at life on each count of statutory

sodomy, ten years on each count of child molestation, and four years on the count of

sexual misconduct. The trial court imposed the punishment assessed by the jury.

Defendant appeals claiming (1) the trial court “abused its discretion” in admitting A and




                                            1
B’s recorded statements under section 491.0751 because the “time, content, and

circumstances” of A and B’s statements “did not provide a sufficient indicia of

reliability” in the absence at the section 491.075 hearing of the person who conducted the

interviews; and (2) the trial court erred in admitting A and B’s recorded statements

because the absence at the section 491.075 hearing and at trial of the person who

interviewed A and B violated Defendant’s constitutional “right to confront[]” the

interviewer. We reject Defendant’s claims and affirm the trial court’s judgment.

                                           Standard of Review

                                                   Point I

                   This Court reviews the trial court’s decision regarding the
           admission of a child’s out-of-court statements under section 491.075 for
           an abuse of discretion. State v. Wadlow, 370 S.W.3d 315, 320
           (Mo.App.2012). . . . The trial court abuses its discretion only where the
           trial court’s findings are not supported by substantial evidence in the
           record, State v. Thompson, 341 S.W.3d 723, 729 (Mo.App.2011), and the
           decision to admit evidence is clearly against the logic of the circumstances
           then before the court and is so unreasonable and arbitrary that the decision
           shocks the sense of justice and indicates a lack of careful, deliberate
           consideration, State v. Kennedy, 107 S.W.3d 306, 310 (Mo.App.2003). If
           reasonable persons can differ as to the propriety of the trial court’s action,
           then it cannot be said that the trial court abused its discretion. State v.
           Hawkins, 328 S.W.3d 799, 808 (Mo.App.2010).
                   The trial court decides whether to admit the victim’s out-of-court
           statements based on the information provided at the 491 hearing. State v.
           Sprinkle, 122 S.W.3d 652, 661 (Mo.App.2003). Based upon that
           evidence,
                   [t]o determine the reliability of a child’s out-of-court
                   statements for the purposes of section 491.075, Missouri
                   courts look to the totality of the circumstances. In making
                   this determination, the following non-exclusive factors are
                   considered: (1) spontaneity and consistent repetition; (2)
                   the mental state of the declarant; (3) the lack of motive to
                   fabricate; and (4) knowledge of subject matter unexpected
                   of a child of similar age.
           Wadlow, 370 S.W.3d at 320 (internal citations and quotations omitted).


1
    All references to statutes are to RSMo, Cum.Supp. 2008, unless otherwise specified.


                                                      2
State v. Nelson, 465 S.W.3d 533, 539-40 (Mo.App. S.D. 2015).

                                          Point II

       “The question of whether a defendant’s rights under the Confrontation Clause

were violated by a ruling of the trial court is a question of law that we review de novo.”

State v. Hill, 247 S.W.3d 34, 39 (Mo.App. E.D. 2008) (citing State v. March, 216

S.W.3d 663, 664–65 (Mo. banc 2007)); see also State v. Hosier, 454 S.W.3d 883, 896

(Mo. banc 2015) (“Whether testimony violates the confrontation clause is a question of

law this Court reviews de novo.”).

                                 Section 491.075 Hearing

       On December 8, 2010, Casie Lee, a case coordinator and trained forensic

interviewer with the University of Florida Child Protection Team (“Team”), interviewed

A and interviewed B. The interviews were audio/video recorded. Lee did not appear at

trial because she left the Team after the interviews and moved outside Florida.

       Nicole Heise, an assistant team coordinator at the Team, testified (1) she trains

new employees, leads peer review sessions and “oversee[s] the day-to-day operations” of

the Team, (2) she has a bachelor’s degree in psychology with “45 credits towards” a

master’s degree in mental health counseling, (3) she has been trained as a forensic

interviewer and has trained new employees on the “protocols . . . for forensic

interviewing,” and (4) her “responsibilities” “include dealing with children who are the

victims of physical and sexual abuse.”

       The Team’s facility is “child friendly,” and includes a lobby where children and

families wait, an interview room with recording equipment, and an

observation/monitoring room. Law enforcement and child protection investigators are




                                             3
able to view an interview as the interview occurs. Members of the child witness’ family

are not permitted to “communicate” with the child during the interview. Child witness

interviews are recorded, and, typically, the recording equipment is started before the

interviewer goes to the lobby to get the child and stopped after the interviewer returns

from taking the child back to the lobby. The recording is stored in the child’s file in a

“locked file room” until the recording subsequently is transferred to an offsite storage

facility “usually” after two years.

       Typically, the interviewer has access before the interview to information gathered

by the child protection investigator, and first meets the child on “the walk from the lobby

to the interview room.” The interviewer does not discuss “allegations” with the child

“prior to initiating the interview.” Forensic interviews are done “to obtain information in

a child-friendly, neutral manner,” and are not done to “prov[e] allegations” in a referral.

The Team follows the guidelines of the American Professional Society on Abused

Children in interviewing a child witness.

       At the time of the interviews, A was eleven and B was nine. A child protection

investigator observed the interviews, but not family or friends of A and B. Although

Heise did not observe the interviews of A and B as the interviews occurred, she

subsequently reviewed the recording of the interviews and believes the interviews were

“conducted properly.”

       The trial court found at the hearing that A and B’s statements to Mother had

sufficient indicia of reliability, and, after reviewing the recording of the interviews, found




                                              4
in a docket entry on January 7, 2014, that A and B’s statements in their recorded

interviews with Lee also had sufficient indicia of reliability.2

           Defendant’s first point challenges the admission of recorded statements of both

victims on the basis that the person who conducted the hearings was absent and, thus, the

statements did not provide “sufficient indicia of reliability.” Defendant objects to the

admission of the recording of A and B’s interviews on the grounds (1) Heise cannot

testify the recording “accurately depicts” the interviews, (2) Defendant was not able to

cross-examine Lee in violation of the confrontation clause, and (3) the foundation for the

recording was insufficient.

                                                   Analysis

         Point I – Admission of A and B’s Recorded Statements under Section 491.075

           In his first point, Defendant asserts that the trial court “abused its discretion” in

admitting A and B’s recorded statements under section 491.075 because the “time,

content, and circumstances” of A and B’s statements “did not provide a sufficient indicia

of reliability” in the absence at the section 491.075 hearing of the person who conducted

the interviews.

           Section 491.075.1 provides in part that a “statement made by a child” relating to

the type of offenses charged in this case is “admissible in evidence in criminal

proceedings . . . as substantive evidence to prove the truth of the matter asserted if . . .

[t]he court finds . . . that the time, content and circumstances of the statement provide

sufficient indicia of reliability” and the “child testifies at the proceedings.” The children

testified at the proceedings. Defendant acknowledges in his brief that he is not aware of


2
    The trial court ordered portions of the interviews with Lee redacted.



                                                        5
any judicial authority that requires the interviewer of the child to testify at the section

491.075 hearing in order to permit the trial court to find sufficient indicia of reliability.

Defendant argues that, without the interviewer’s testimony, the trial court is “left without

vital testimony” – for example, whether there were conversations before the recording of

the interview began and with whom, and the interviewer’s mental impressions during the

interview that are necessary to give “context” to the interview – that precludes a finding

of sufficient indicia of reliability.

        We disagree. In this case, (1) a supervisor with the Team described the

organization’s prescribed procedure for forensic interviews and regular practice for

creating and preserving the recording of the interview, (2) A and B’s interviews complied

with the organization’s prescribed procedures based on the recording of the interviews,

(3) there was evidence the recording was created and preserved in accordance with the

organization’s regular practice, (3) the recording was reviewed by the trial court before

the recording was ruled admissible, (4) there was evidence of the timing of the offenses,

the children’s initial disclosures of the offenses, and the interviews, and (5) there was

evidence of the circumstances of the children’s initial disclosures and the interviews. The

totality of the circumstances shown by this evidence provided substantial evidence to

support a finding that the time, content and circumstances of the children’s statements in

the interviews provide sufficient indicial of reliability. The trial court did not abuse its

discretion in so finding.

        Section 491.075 does not expressly require the person conducting the interview of

the child to testify at the section 491.075 hearing, but rather utilizes a general standard

requiring a finding that the time, content and circumstances of the statement provide




                                               6
sufficient indicia of reliability. Given the totality of the evidence before the trial court in

this case, the testimony of the person who conducted the interviews was not required to

meet this general standard. Point I is denied.

               Point II – Defendant’s Right to Confront Absent Interviewer

        In his second point, Defendant contends that the trial court erred in admitting A

and B’s recorded statements because the absence at the section 491.075 hearing and at

trial of the person who interviewed A and B violated Defendant’s constitutional “right to

confront[]” the interviewer.

        The Sixth Amendment to the United States Constitution provides in part that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him . . . .” In Ohio v. Clark, 135 S.Ct. 2173, 2179 (2015), the Supreme

Court recently stated:

                In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
        L.Ed.2d 177 (2004), we adopted a different approach [than in Ohio v.
        Roberts, 448 U.S. 56 (1980)]. We explained that “witnesses,” under the
        Confrontation Clause, are those “who bear testimony,” and we defined
        “testimony” as “a solemn declaration or affirmation made for the purpose
        of establishing or proving some fact.” Id., at 51, 124 S.Ct. 1354 (internal
        quotation marks and alteration omitted).

Much earlier, the Supreme Court said “[o]rdinarily, a witness is considered to be a

witness ‘against’ a defendant for purposes of the Confrontation Clause only if his

testimony is part of the body of evidence that the jury may consider in assessing his

guilt.” Cruz v. New York, 481 U.S. 186, 190 (1987). And, in Crawford v. Washington,

541 U.S. 36, 59 n.9 (2004), added that the Confrontation Clause “does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter




                                               7
asserted.” The Supreme Court reaffirmed this principle in Williams v. Illinois, 132 S.Ct.

2221, 2228 (2012).

       Without referencing any authority that supports his position, Defendant argues

that the forensic interviewer who interviewed A and B was a “witness against” Defendant

within the meaning of the Confrontation Clause. To the contrary, the forensic

interviewer was not a “witness against” Defendant because the interviewer’s questions

and statements during the interview were (1) not made for the purpose of proving any

fact, (2) not used to establish the truth of any matter, and (3) not evidence of Defendant’s

guilt. The forensic interviewer had no personal knowledge of the offenses under

investigation, and made no statements during the interview that were relevant in any way

to the offenses under investigation or that were introduced to prove the truth of the matter

asserted in the statement. The forensic interviewer’s only role during the interview was

to ask questions that allowed A and B to tell what A and B knew about Defendant’s

conduct. A and B were the witnesses against Defendant under the Confrontation Clause,

not the person who interviewed A and B.

       Just as Defendant had no constitutional right to confront the prosecutors with

respect to questions they asked witnesses at Defendant’s trial, Defendant had no

constitutional right to confront the interviewer who asked A and B questions in A and B’s

forensic interviews. Point II is denied, and the trial court’s judgment is affirmed.



Nancy Steffen Rahmeyer, J. - Opinion Author

Gary W. Lynch, J. – Concurs

William W. Francis, Jr., J. - Concurs




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