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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 t welve, and one count of statutory sodomy in the first degree of B who was less than t welve, two counts of child molestation in the first degree (one of A and one of B), and on e count of sexual misconduct by indecent exposure to A. The jury assessed punishme nt at life on each count of statutory sodomy, ten years on each count of child molestatio n, and four years on the count of sexual misconduct. The trial court imposed the pun ishment assessed by the jury. Defendant appeals claiming (1) the trial court “abu sed its discretion” in admitting A and2

B’s recorded statements under section 491.075 1 because the “time, content, and circumstances” of A and B’s statements “did not pro vide 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 admitt ing 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 constituti onal “right to confront[]” the interviewer. We reject Defendant’s claims and affi rm the trial court’s judgment.

Standard of Review

Point I This Court reviews the trial court’s decision rega rding the admission of a child’s out-of-court statements unde r 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 d iscretion only where the trial court’s findings are not supported by substan tial 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 l ogic of the circumstances then before the court and is so unreasonable and ar bitrary 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 o f 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 victi m’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 th at evidence, [t]o determine the reliability of a child’s out-of- court statements for the purposes of section 491.075, Mis souri courts look to the totality of the circumstances. In making this determination, the following non-exclusive fac tors are considered: (1) spontaneity and consistent repetit ion; (2) the mental state of the declarant; (3) the lack of motive to fabricate; and (4) knowledge of subject matter unex pected of a child of similar age. Wadlow , 370 S.W.3d at 320 (internal citations and quotati ons omitted).

1 All references to statutes are to RSMo, Cum.Supp. 2008, unless otherwise specified.3

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 unde r the Confrontation Clause were violated by a ruling of the trial court is a q uestion 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 co nfrontation 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 Pr otection Team (“Team”), interviewed

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

trial because she left the Team after the interview s and moved outside Florida. Nicole Heise, an assistant team coordinator at the Team, testified (1) she trains new employees, leads peer review sessions and “over see[s] the day-to-day operations” of the Team, (2) she has a bachelor’s degree in psycho logy with “45 credits towards” a master’s degree in mental health counseling, (3) sh e has been trained as a forensic interviewer and has trained new employees on the “p rotocols . . . for forensic interviewing,” and (4) her “responsibilities” “incl ude dealing with children who are the victims of physical and sexual abuse.” The Team’s facility is “child friendly,” and inclu des a lobby where children and families wait, an interview room with recording equ ipment, and an observation/monitoring room. Law enforcement and c hild protection investigators are4

able to view an interview as the interview occurs. Members of the child witness’ family are not permitted to “communicate” with the child d uring the interview. Child witness interviews are recorded, and, typically, the record ing 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 recor ding 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 i nterview to information gathered by the child protection investigator, and first mee ts the child on “the walk from the lobby

to the interview room.” The interviewer does not d iscuss “allegations” with the child “prior to initiating the interview.” Forensic inte rviews 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 Pro fessional 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 famil y 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 intervie ws 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 revie wing the recording of the interviews, found5

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 r eliability.” 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 inte rviews, (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 Statement s under Section 491.075 In his first point, Defendant asserts that the tri al court “abused its discretion” in admitting A and B’s recorded statements under secti on 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 491.0 75 hearing of the person who conducted

the interviews. Section 491.075.1 provides in part that a “stateme nt made by a child” relating to the type of offenses charged in this case is “admis sible 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 t estifies at the proceedings.” The children testified at the proceedings. Defendant acknowledg es in his brief that he is not aware of

2 The trial court ordered portions of the interviews with Lee redacted.6

any judicial authority that requires the interviewe r 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 te stimony, 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 intervie wer’s mental impressions during the interview that are necessary to give “context” to t he 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 in terviews and regular practice for creating and preserving the recording of the interv iew, (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 an d 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 e vidence 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 ini tial disclosures and the interviews. The totality of the circumstances shown by this evidenc e provided substantial evidence to support a finding that the time, content and circum stances of the children’s statements in the interviews provide sufficient indicial of relia bility. The trial court did not abuse its discretion in so finding. Section 491.075 does not expressly require the per son 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 circ umstances of the statement provide7

sufficient indicia of reliability. Given the total ity of the evidence before the trial court in this case, the testimony of the person who conducte d the interviews was not required to meet this general standard. Point I is denied.

Point II – Defendant’s Right to Confront Absent Int erviewer In his second point, Defendant contends that the t rial 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 violate d Defendant’s constitutional “right to confront[]” the interviewer.

The Sixth Amendment to the United States Constitut ion 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 “witnesse s,” 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 C onfrontation 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 Confront ation Clause “does not bar the use of testimonial statements for purposes other than esta blishing the truth of the matter8

asserted.” The Supreme Court reaffirmed this princ iple in Williams v. Illinois , 132 S.Ct. 2221, 2228 (2012). Without referencing any authority that supports hi s 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 b ecause the interviewer’s questions and statements during the interview were (1) not ma de for the purpose of proving any fact, (2) not used to establish the truth of any ma tter, and (3) not evidence of Defendant’s guilt. The forensic interviewer had no personal kn owledge of the offenses under investigation, and made no statements during the in terview that were relevant in any way to the offenses under investigation or that were in troduced to prove the truth of the matter

asserted in the statement. The forensic interviewe r’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 Defend ant under the Confrontation Clause, not the person who interviewed A and B. Just as Defendant had no constitutional right to c onfront the prosecutors with respect to questions they asked witnesses at Defend ant’s trial, Defendant had no constitutional right to confront the interviewer wh o asked A and B questions in A and B’s forensic interviews. Point II is denied, and the t rial court’s judgment is affirmed.

Nancy Steffen Rahmeyer, J. - Opinion Author Gary W. Lynch, J. – Concurs William W. Francis, Jr., J. - Concurs