STATE OF MISSOURI, Respondent v. ORLANDO C. MOORE, SR., Appellant

                           Missouri Court of Appeals
                                     Southern District

                                         In Division

STATE OF MISSOURI,                             )
                                               )
                     Respondent,               )
                                               )   No. SD 38242
       v.                                      )
                                               )   Filed: September 25, 2025
ORLANDO C. MOORE, SR.,                         )
                                               )
                     Appellant.                )

             APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY

                              Honorable Robert N. Mayer, Judge

AFFIRMED

       Orlando Moore appeals his convictions, after bench trial, of second-degree domestic

assault and first-degree property damage. Because there was no abuse of discretion in the trial

court’s admission of the victim’s (“Victim”) statements to police under the forfeiture-by-

wrongdoing hearsay exception, we affirm. We decline plain error review of Moore’s Sixth

Amendment confrontation-clause claim.

                                    Factual Background

       Victim contacted the police to report incidents of domestic violence committed by Moore

in December 2022 and twice in January 2023. At trial, a Dunklin County Sheriff’s Deputy

(“Deputy”) testified that he responded to calls for service regarding Victim and Moore on
December 12, 2022, and January 4 and 18, 2023. 1 On December 12, Victim told Deputy that she

had been arguing with Moore regarding the parenting of Victim’s children. The argument turned

physical. Victim told Deputy that Moore grabbed her shirt and began choking her. Victim also

told Deputy that Moore kicked one of her children in the wrist during the encounter. Deputy

offered medical assistance for the child’s injury, but Victim indicated that she would take her

daughter to the hospital herself.

        Deputy testified that on January 4, 2023, he was dispatched to respond to a domestic

dispute between Victim and Moore. Deputy testified that Moore was “attempting to kick in the

door.” Victim told Deputy that Moore punched her in the face. She also reported that earlier that

day she had tried to obtain an ex parte order of protection.

        On January 18, 2023, Deputy was again dispatched to Victim’s residence. Victim told

Deputy that she and Moore had engaged in a verbal argument that turned physical when Moore

struck her in the face and pushed her against a wall. Victim also told Deputy that Moore had

caused damage inside the residence, including pulling a television from the wall, causing a hole in

the wall from a cable attached to the television, breaking furniture, and breaking a vase. Deputy

further testified that Victim reported that Moore slammed her against the wall, jumped on her,

struck her in the face with his fist, slapped her across the face, and punched Victim’s nine-year-

old son in the stomach.

        On January 18, 2023, Victim completed a written statement. Deputy read the statement

into the record: 2



        1
        Moore’s counsel raised a continuing hearsay objection to all of Deputy’s testimony as to
what Victim told him about the incidents.
        2
        Throughout this opinion, all quoted material is exactly as it was provided in the record;
we have not corrected any errors in spelling, grammar, or punctuation unless otherwise indicated.


                                                 2
       On 1/18/23, Orlando Moore came to my house, [location], he walked into my
       house. He assaulted me inside my home. He punched me in my face. He slapped
       me. He punched my nine-year-old son in the stomach. He knocked my head into
       the wall. My living room wall have big hole. I grabbed my mace. I maced Orlando
       at his face to protect myself, but he still grabbed me and I continued to assault me.
       So, I grabbed and broke a letter off my floor and hit Orlando Moore to protect
       myself from hit, hurting me. Orlando Moore broke my 86-inch LG TV, and he
       broke my 55-inch TV in my room. Because, he broke my glass light in my kitchen.
       He put a big hole in my living room wall. Orlando Moore continued to assault me
       in front of my nine-year-old son, [name].

       A bench trial was scheduled for July 10, 2023. The State requested a pretrial hearing

pursuant to § 491.016 (“491 hearing”), the statute that codifies the forfeiture-by-wrongdoing

hearsay exception. 3 The trial court conducted the 491 hearing on July 10, 2023, took that matter

under advisement, and continued the case for a pretrial conference. At the 491 hearing, the State

called Victim to the witness stand. She testified as follows:

       [Prosecutor]: And ma’am, you’ve been subpoenaed as a victim/witness in the
                     cases that are here today, State of Missouri against Orlando Moore.
                     Is that correct?

       [Victim]:        Yes.

       [Prosecutor]: And in prior conversations, you have indicated to me that you do not
                     intend to testify today. Is that correct?

       [Victim]:        Right.

       [Prosecutor]: You’re going to refuse to answer questions?

       [Victim]:        Right.

       The State then introduced a recording of a phone call between Moore and Victim which

was made while Moore was detained in the Dunklin County Jail. Initially, an investigator in the

Dunklin County Prosecutor’s Office testified as to the contents of the phone call. On direct

examination, the investigator testified as follows:

       Q:       While listening to those phone calls between the Defendant and [Victim],

       3
           Unless otherwise indicated, all statutory references are to RSMo. (Cum. Supp. 2021).


                                                 3
             was there conversations about [Victim] failing to abide by the terms of the
             subpoena that was issued to her?

      A:     Yes.

      Q:     Can you describe that to us?

      A:     So, Mr. Moore, essentially, was telling [Victim] that he had had some
             research done and she did not have to come to court and abide by the
             Subpoena.

      Q:     Did he say, quote, you don’t have to come?

      A:     Yes.

      Q:     Did he say, you don’t show up when I go to trial?

      A:     Yes.

      Q:     Did he say, they can’t do nothing to you after you’ve been Subpoenaed?

      A:     Yes.

      Q:     So, if they were to Subpoena you and whatnot and you don’t come, they
             can’t do, quote, a bitch ass thing about it, if I go to trial and you not there?

      A:     That’s correct.

      Q:     Was there are also conversations between the two of them about [Victim]
             simply not testifying?

      A:     I don’t recall her or anyone saying she was not going to.

      Q:     Did she indicate that she would, if she were to testify that she may testify to
             facts that she has never previously stated in court?

      A:     I’m not sure what she stated in court.

      Q:     Did the facts that she advised she might say, were they different than facts
             that had been previously relayed to law enforcement?

      A:     Yes, from my understanding.


      Subsequently, the audio recording was played for the court. The State argued that the

recorded phone call supported the admission of Victim’s statements to police because the

conversation during the phone call demonstrated Moore engaged in wrongdoing for the purpose


                                                4
of causing Victim’s unavailability. After hearing the recording of the phone call, the trial court

found by a preponderance of the evidence “that the Defendant did engage in the purpose of causing

the unavailability of the witness and the witness refusing to testify[.]” The trial court specifically

found Moore “tr[ied] to impress upon [Victim] and influence her that she didn’t have to be here

on these, these days for the hearings were scheduled.” The trial court concluded, “I’m going to

find [in] favor of the State on the [§] 491.016.”

       Victim did not appear at trial. Deputy testified about the content of Victim’s verbal and

written statements to law enforcement regarding each of the three incidents. 4 Moore testified on

his own behalf. He stated Victim was drinking on the night of January 18, 2023, and she initiated

a verbal argument with him. Moore testified that Victim threw a “temper tantrum” and destroyed

the television and furniture in her own home. Moore testified that he never touched Victim, despite

her striking him with a vase, throwing a drink in his face, and spraying him with mace. The trial

court found Moore guilty beyond a reasonable doubt of the class D felony of domestic assault in

the second degree and of the class E felony of property damage in the first degree.

       On appeal, Moore challenges the trial court’s admission of Victim’s statements to the

police on two grounds. In Point I, Moore argues that the admission of the statements violated his

Sixth Amendment right to confront and cross-examine witnesses who testified against him and

that the State failed to demonstrate that Moore engaged in wrongdoing for the purpose of rendering

Victim unavailable. In Point II, Moore argues the trial court abused its discretion in admitting

Victim’s statements, because they were hearsay and the State failed to demonstrate by a

preponderance of the evidence that Moore “engaged in … wrongdoing with the purpose of causing

the unavailability of the witness.”



       4
           See pp. 2-3, supra.


                                                    5
                                         Legal Standards

       Trial courts have broad discretion over admission or exclusion of evidence in a criminal

trial. State v. Wood, 580 S.W.3d 566, 574 (Mo. banc 2019). We will overturn an evidentiary

ruling only when this discretion is clearly abused. Id. We must not disturb a trial court’s exercise

of discretion unless it “‘is clearly against the logic of the circumstances then before the court and

is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful,

deliberate consideration.’” Id. (quoting State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016)).

On appeal, we review “for prejudice, not mere error, and will reverse only if the error was so

prejudicial it deprived the defendant of a fair trial.” State v. Hein, 553 S.W.3d 893, 896 (Mo.App.

E.D. 2018). In other words, we may reverse the trial court only “if there is a ‘reasonable probability

that the court’s error affected the outcome of the trial.’” State v. Winfrey, 337 S.W.3d 1, 5 (Mo.

banc 2011) (quoting State v. Barriner, 111 S.W.3d 396, 401 (Mo. banc 2003)).

       “In a bench trial, the court is given more latitude in the admission of evidence[,]” State v.

Coaston, 609 S.W.3d 527, 528 (Mo.App. S.D. 2020), and errors are not prejudicial “unless the

trial court relies on the inadmissible evidence in making its findings.” State v. Norman, 618

S.W.3d 570, 575 (Mo.App. W.D. 2020) (quoting State v. Dixon, 586 S.W.3d 304, 317 (Mo.App.

W.D. 2019)).

       On appeal, we presume that any improper or inadmissible evidence admitted in a
       bench-tried case was not prejudicial and that the trial court was not influenced by
       it in reaching its judgment unless it is apparent from the record that the trial court
       considered and relied on the improper or inadmissible evidence. Absent some
       showing that the evidence inflamed the fact-finder or diverted its attention from the
       issues to be resolved, the receipt of evidence even though irrelevant and immaterial,
       cannot constitute prejudicial or reversible error. As a result, it is nearly impossible
       to obtain a reversal based upon the improper admission of evidence in a court-tried
       case.

Id. (citation modified).




                                                  6
                                             Hearsay

       Any out-of-court statement offered as proof of the matter asserted and that is dependent

upon the veracity of the statement for its value is considered hearsay. State v. Reynolds, 456

S.W.3d 101, 104 (Mo.App. W.D. 2015). As a general rule, hearsay statements are inadmissible

       because they lack the conventional indicia of reliability: they are usually not made
       under oath or other circumstances that impress the speaker with the solemnity of
       his statements; the declarant’s word is not subject to cross-examination; and he is
       not available in order that his demeanor and credibility may be assessed by the [fact
       finder].

Chambers v. Mississippi, 410 U.S. 284, 298 (1973).

       In addition to its lack of reliability, admission of hearsay also implicates the Sixth

Amendment right to confront one’s accusers. “The Confrontation Clause of the Sixth Amendment

to the United States Constitution bars admission of unconfronted testimonial statements of a

witness who does not appear at trial.” State v. Hartwein, 648 S.W.3d 834, 856 (Mo.App. E.D.

2022). In Crawford v. Washington, the Supreme Court held, “[w]here testimonial evidence is at

issue, … the Sixth Amendment demands what the common law required: unavailability and a

prior opportunity for cross-examination.” 541 U.S. 36, 68 (2004).

       In Missouri, the forfeiture-by-wrongdoing hearsay exception is created by statute. Section

491.016.1 reads:

       A statement made by a witness that is not otherwise admissible is admissible in
       evidence in a criminal proceeding as substantive evidence to prove the truth of the
       matter asserted if, after a hearing, the court finds by a preponderance of the evidence
       that:

       (1) The defendant engaged in or acquiesced to wrongdoing with the purpose of
           causing the unavailability of the witness;

       (2) The wrongdoing in which the defendant engaged or acquiesced has caused or
           substantially contributed to cause the unavailability of the witness;

       (3) The state exercised due diligence to secure by subpoena or other means the
           attendance of the witness at the proceeding, or the witness is unavailable


                                                 7
           because the defendant caused or acquiesced in the death of the witness; and

        (4) The witness fails to appear at the proceeding.

                                             Discussion

        The questions presented in this appeal are (1) whether introduction of Victim’s statements

to police violated Moore’s Sixth Amendment right to confront and cross-examine his accuser; and

(2) whether Victim’s statements to police were properly admitted under Missouri’s statutory

forfeiture-by-wrongdoing exception to the general prohibition of hearsay evidence. For ease of

discussion, we address Moore’s points out of order.

                                              Point II

        Moore argues in Point II that the trial court erred in admitting Victim’s oral and written

statements to police regarding Moore’s alleged acts of domestic violence against her. Moore

contends the State failed to prove by a preponderance of the evidence that he “engaged in or

acquiesced to wrongdoing with the purpose of causing the unavailability of the witness.” We

review for abuse of discretion. Wood, 580 S.W.3d at 574.

        Under § 491.016.1, statements that are otherwise inadmissible (including hearsay) may be

admissible at trial if, after a hearing, the trial court determines by a preponderance of the evidence

that:

        (1) [t]he defendant engaged in or acquiesced to wrongdoing with the purpose of
        causing the unavailability of the witness;

        (2) [t]he wrongdoing in which the defendant engaged or acquiesced has caused or
        substantially contributed to cause the unavailability of the witness;

        (3) [t]he state exercised due diligence to secure by subpoena or other means the
        attendance of the witness at the proceeding … ; and

        (4) [t]he witness fails to appear at the proceeding.

        Moore contends that the discussion during the jail phone call does not demonstrate that his



                                                  8
actions “caused or substantially contributed to cause the unavailability of the witness.” The trial

court determined—after hearing testimony regarding the phone call, then the recorded audio of the

call itself—that the State had met its burden to demonstrate by a preponderance of the evidence

that Moore “did engage in the purpose of causing the unavailability of the witness and the witness

refusing to testify[.]” The trial court also specifically stated that Moore “tr[ied] to impress upon

[Victim] and influence her that she didn’t have to be here on these, these days for the hearings

were scheduled.”

       We have thoroughly reviewed the record, including listening to the recorded jail phone call

between Moore and Victim. We find no abuse of discretion in the admission of the challenged

evidence under § 491.016.

       During the recorded call, Moore accused Victim of cheating on him with another man,

which Victim vehemently denied. Moore stated that a woman such as Victim, who claimed to

love him and who claimed Moore was her “baby daddy,” would not want him “to be on that type

of time.” Moore inaccurately told Victim she faced no or only minimal consequences if she was

subpoenaed but did not appear at trial. Moore also inaccurately told Victim that if she testified,

Moore could be sentenced to 22 years in prison and he would be required to serve 85 percent of

that sentence. It was reasonable for the trial court to infer that Moore was attempting to manipulate

the Victim to assure she would not appear or testify.

       Moore argues that the phone call did not contain any threats of harm to Victim, thus, the

call was insufficient to show by a preponderance of the evidence that Moore’s statements

“substantially contributed to cause the unavailability of the witness.” § 491.016.1(2).

       Missouri courts have held that the intent to cause unavailability of a witness may be shown

by circumstantial evidence or inferred from surrounding facts. See Hartwein, 648 S.W.3d at 859;




                                                 9
State v. Williams, 405 S.W.3d 592, 599 (Mo.App. S.D. 2013). Cases interpreting the forfeiture-

by-wrongdoing exception in other jurisdictions support our determination. See U.S. v. Jonassen,

759 F.3d 653, 662 (7th Cir. 2014) (interpreting Fed. R. Evid. 804) (“incessant pretrial

manipulation” sufficient to support trial court’s finding of procured unavailability); State v.

Maestas, 412 P.3d 79, 81 (N.M. 2018) (“wrongdoing, for purposes of the forfeiture-by-

wrongdoing exception, need not take the form of overt threat of harm; various forms of coercion,

persuasion, and control may satisfy the requirement”); State v. Hallum, 606 N.W.2d 351, 356

(Iowa 2000) (“Misconduct sufficient to give rise to a forfeiture is not limited to the use of threats,

force[,] or intimidation…. [I]t has also been held to include persuasion and control by a defendant

….”). Moreover, “it may often be the case that the nature of the conduct is less important than the

effect of the conduct on the witness’s willingness or ability to testify at trial.” Maestas, 412 P.3d

at 88 (citing Jonassen, 759 F.3d at 662).

       Although Moore may have not directly threatened harm to Victim in the jail phone call, he

used other manipulative tactics. He accused Victim of unfaithfulness, implied that if she loved

him and he was her “baby daddy” she would not testify against him, and exaggerated the potential

sentence he faced if convicted while downplaying the consequences to Victim if she violated the

subpoena. These tactics demonstrate Moore’s attempts to render Victim unavailable through

manipulation, persuasion, and blame. Accordingly, we find no abuse of discretion in the trial

court’s finding that Moore engaged in behaviors with the intent to cause the Victim’s

unavailability. Point II is denied.

                                               Point I

       In Point I, Moore argues that the admission of Victim’s testimonial hearsay statements

violated his Sixth Amendment right to confront and cross-examine Victim and that the State failed




                                                 10
to demonstrate that Moore engaged in wrongdoing for the purpose of rendering Victim

unavailable. In Crawford, the Supreme Court held that for testimonial hearsay statements by an

unavailable witness to be admitted as evidence, the defendant must have had a prior opportunity

to cross-examine the declarant regarding those statements. 541 U.S. at 68. In Giles v. California,

the Supreme Court determined that a criminal defendant who engaged in intentional wrongdoing

which caused the absence of a witness forfeited his constitutional right to confront that witness.

554 U.S. 353, 358-59, 361 (2008). The Giles court relied on the following statement of the law

from Reynolds v. U.S.:

       The Constitution gives the accused the right to a trial at which he should be
       confronted with the witnesses against him; but if a witness is absent by his own
       wrongful procurement, he cannot complain if competent evidence is admitted to
       supply the place of that which he has kept away. The Constitution does not
       guarantee an accused person against the legitimate consequences of his own
       wrongful acts. It grants him the privilege of being confronted with the witnesses
       against him; but if he voluntarily keeps the witnesses away, he cannot insist on his
       privilege. If, therefore, when absent by his procurement, their evidence is supplied
       in some lawful way, he is in no condition to assert that his constitutional rights have
       been violated.

98 U.S. 145, 158 (1878).

       Missouri courts have described the rules in Crawford and Giles as follows:

       In Giles v. California, 554 U.S. 353, 359 (2008), the United States Supreme Court
       held that at common law, “statements of a witness who was ‘detained’ or ‘kept
       away’ by the ‘means or procurement’ of the defendant” were admissible hearsay.
       “We held in Crawford that the Confrontation Clause is ‘most naturally read as a
       reference to the right of confrontation at common law, admitting only those
       exceptions established at the time of the founding.’” Id. at 358, (quoting Crawford,
       541 U.S. at 54). Thus, because the “forfeiture[-]by[-]wrongdoing” exception
       existed at common law, admission of testimonial hearsay within the exception does
       not violate the Sixth Amendment confrontation clause.                           The
       forfeiture[-]by[-]wrongdoing doctrine applies “only when the defendant engage[s]
       in conduct designed to prevent the witness from testifying.” Id. at 359.

State v. Ivey, 427 S.W.3d 854, 862 (Mo.App. W.D. 2014) (citation modified).

       In sum, the forfeiture-by-wrongdoing hearsay exception may permit admission of even



                                                 11
unconfronted testimony as long as the defendant’s conduct was undertaken with the intent to

prevent the witness from testifying. Giles, 554 U.S. at 367-68. The Supreme Court, in dicta,

specified that forfeiture by wrongdoing is particularly relevant in cases of domestic violence.

       Acts of domestic violence often are intended to dissuade a victim from resorting to
       outside help, and include conduct designed to prevent testimony to police officers
       or cooperation in criminal prosecutions. Where such an abusive relationship
       culminates in murder, the evidence may support a finding that the crime expressed
       the intent to isolate the victim and to stop her from reporting abuse to the authorities
       or cooperating with a criminal prosecution—rendering her prior statements
       admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended
       to dissuade the victim from resorting to outside help would be highly relevant to this
       inquiry, as would evidence of ongoing criminal proceedings at which the victim
       would have been expected to testify.

Id. at 377.

        We do not plunge directly into a forfeiture-by-wrongdoing analysis because the

confrontation-clause issue was not preserved for our review, as it was not raised as an objection at

trial. Moore did object and argue that Victim’s statements were inadmissible hearsay, but he did

not object to the admission of the statements on confrontation-clause grounds. Moore specifically

requests that we review his unpreserved claim for plain error under Rule 30.20. 5

        This court has discretion to review an unpreserved claim of error on appeal, but only for

plain error. State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020). Our discretion is not

unlimited, however. Id. We may only exercise our discretion to engage in plain error review if

“the claimed error facially establishes substantial grounds for believing that manifest injustice or

miscarriage of justice has resulted.” Id. (internal punctuation and citations omitted). This is a

much higher threshold than the assertion of prejudice. State v. Stuckley, 573 S.W.3d 766, 768

(Mo.App. S.D. 2019). “The plain error rule is to be used sparingly and may not be used to justify

a review of every point that has not been otherwise preserved for appellate review.” Brandolese,


        5
            Unless otherwise specified, rule references are to Missouri Court Rules (2023).


                                                  12
601 S.W.3d at 526 (quoting State v. Jones, 427 S.W.3d 191, 195 (Mo. banc 2014)).

                Rule 30.20 is no panacea which a criminal defendant can use to obtain
       appellate review of any alleged error that is unpreserved. An appellate court is not
       required to engage in plain error review; the decision whether to grant or deny such
       a request is left to the court’s discretion. The court may simply decline to exercise
       its discretionary authority to review the point for plain error.

State v. Snyder, 592 S.W.3d 375, 379 (Mo.App. S.D. 2019) (citation modified). The burden of

demonstrating manifest injustice sufficient to warrant plain error review lies with the defendant.

Brandolese, 601 S.W.3d at 526.

       Moore argues manifest injustice befell him because Victim’s statements were the only

evidence presented by the State. Without those statements, “the State would have lacked sufficient

evidence to sustain the charges.” As demonstrated in our analysis of Point II, Moore’s own actions

caused the forfeiture of his Sixth Amendment right to confrontation. Having already determined

that there was no error in the trial court’s admission of Victim’s statements pursuant to the statutory

forfeiture-by-wrongdoing hearsay exception, we decline plain error review of the unpreserved

confrontation-clause claim asserted in Point I.

JACK A. L. GOODMAN, J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCURS

MATTHEW P. HAMNER, J. – CONCURS




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