STATE OF MISSOURI v. JERRY STUDDARD

                               Missouri Court of Appeals
                                          Southern District

                                               In Division

STATE OF MISSOURI,                                   )
                                                     )
                         Respondent,                 )
                                                     )      No. SD37372
         v.                                          )
                                                     )      Filed: April 19, 2024
JERRY STUDDARD,                                      )
                                                     )
                         Appellant.                  )


                APPEAL FROM THE CIRCUIT COURT OF OZARK COUNTY

                                 Honorable R. Craig Carter, Judge

AFFIRMED

         A jury in Ozark County found Appellant Jerry Studdard guilty of two counts of

statutory sodomy in the first degree. Studdard appeals, raising eight points of trial court

error.

                                         Deficient Briefing

         As an initial matter, we address Studdard’s appellate brief, which significantly fails

to comply with the mandatory form and content requirements of Rule 84.04.1 State v.

Minor, 648 S.W.3d 721, 727 (Mo. banc 2022). Studdard’s brief violates the rule with an

incomplete statement of facts, multifarious points relied on, and deficient legal


1 All rule references are to Missouri Court Rules (2022).
arguments. “Deficient briefing runs the risk of forcing [the appellate court] to assume the

role of advocate by requiring [the Court] to sift through the legal record, reconstruct the

statement of facts, and craft a legal argument on the appellant’s behalf.” Id. (second

alteration in original) (quoting Murphree v. Lakeshore Ests., LLC, 636 S.W.3d 622,

624 (Mo.App. 2021)). “We cannot comb the legal file for facts to better understand

[Appellant’s] argument, nor can we do so and remain steadfast to our role as the neutral

arbiter of the case.” Hicks v. Northland-Smithville, 655 S.W.3d 641, 649 (Mo.App.

2022) (internal punctuation and citation omitted). Deficient briefing preserves nothing

for appellate review. State v. Murphy, 665 S.W.3d 377, 380 (Mo.App. 2023).

        Yet, “it is the policy of this court to decide cases on the merits whenever possible.”

Jackson v. Barton, 548 S.W.3d 263, 267 n.3 (Mo. banc 2018) (citation omitted).

“While not condoning noncompliance with the rules, a court will generally, as a matter of

discretion, review on the merits where disposition is not hampered by rule violations.”

Id. (citation omitted). Therefore, despite the glaring deficiencies in Studdard’s brief on

appeal, and with the assistance of the State’s well-organized brief, we exercise our

discretion to review the case on the merits. We affirm.

        Studdard’s points on appeal fall into three broad categories: 1) sufficiency of the

evidence;2 2) testimony and statements excluded or admitted after objections based on

privilege or hearsay; and 3) evidence of prior unadjudicated acts or propensity evidence.

                       Sufficiency of the Evidence (Points I and II)

        Studdard’s first two points on appeal challenge the trial court’s denial of two




2 We note that as a general rule, sufficiency of evidence claims on appeal in a criminal case will be reviewed

on their merits even if “not properly briefed.” State v. Claycomb, 470 S.W.3d 358, 361-62 (Mo. banc
2015), as modified (Aug. 4, 2015).


                                                      2
motions: for judgment of acquittal at the close of the State’s evidence (Point I) and for

judgment of acquittal at the close of all the evidence (Point II). Studdard argues in both

points that the verdicts were not supported by sufficient evidence to establish guilt beyond

a reasonable doubt and the weight of the evidence was against the verdicts. Both points

suggest the evidence is “circumstantial and contradictory” and does not demonstrate “the

requisite specific intent.”

       As to Point I, the record demonstrates that Studdard moved for judgment of

acquittal at the close of the State’s evidence. On this point, Studdard waived any error in

the trial court’s denial of the motion for acquittal at the close of the State’s evidence by

thereafter presenting evidence. State v. Hansen, 660 S.W.3d 45, 49 (Mo.App. 2023).

       In Point II, Studdard makes the same arguments (insufficient evidence to support

the verdict and to demonstrate specific intent) as in Point I, except that he claims the error

occurred in the trial court’s denial of his motion for judgment of acquittal at the close of

all the evidence.

       We note at the outset of the discussion that an appellate court must not engage in

a weight-of-the-evidence review in a criminal appeal. State v. Gannaway, 497 S.W.3d

819, 823 (Mo.App. 2016). Thus, despite Studdard’s erroneous claim that the weight of

the evidence does not support the verdict, our review is for sufficiency of the evidence

only. Id. In reviewing such challenges, we consider “whether the State has introduced

sufficient evidence from which a reasonable juror could have found each element of the

crime beyond a reasonable doubt.” State v. Ajak, 543 S.W.3d 43, 46 (Mo. banc 2018)

(quoting State v. Hunt, 451 S.W.3d 251, 257 (Mo. banc 2014)). We must accept as true

all evidence favorable to the State, including all favorable inferences drawn from the

evidence, and we must disregard all contrary evidence and inferences. State v. Dulany,


                                              3
781 S.W.2d 52, 55 (Mo. banc 1989), as modified (Dec. 12, 1989). On appellate review, we

give great deference to the trier of fact, State v. Jones, 479 S.W.3d 100, 105 (Mo. banc

2016), but will not “supply missing evidence or grant the State unreasonable, speculative,

or forced inferences.” State v. Smith, 551 S.W.3d 60, 62 (Mo.App. 2018) (quoting

Ajak, 543 S.W.3d at 46). “An appellate court ‘will not weigh the evidence anew since the

fact-finder may believe all, some, or none of the testimony of a witness when considered

with the facts, circumstances and other testimony in the case.’” State v. Ingalsbe, 557

S.W.3d 515, 519 (Mo.App. 2018) (quoting State v. Freeman, 269 S.W.3d 422, 425 (Mo.

banc 2008)). Credibility determinations “are the province of the trier of fact.” State v.

Porter, 439 S.W.3d 208, 212 (Mo. banc 2014). A jury is “in a better position not only to

judge the credibility of the witnesses and the persons directly, but also their sincerity and

character and other trial intangibles which may not be completely revealed by the record.”

Id. (quoting Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 652 (Mo.

banc 2009)).

       Studdard contends the judgment is not supported by substantial evidence, because

the State proffered no physical evidence to prove its case and the victim’s inconsistent and

contradictory testimony was not credible. These arguments fail as a matter of law.

Studdard asks us to reassess the credibility of a witness, which, as explained in the

preceding paragraph, is prohibited. Furthermore, “[t]he testimony of a single witness is

sufficient to support a conviction even if the testimony of the witness is inconsistent.”

State v. Dodd, 637 S.W.3d 659, 668 (Mo.App. 2021) (quoting State v. Bell, 936

S.W.2d 204, 207 (Mo.App. 1996)). In this case, the testimony of the victim, even if

inconsistent, was not the only testimony regarding Studdard’s inappropriate acts toward

the victim. Four siblings of the victim testified they saw Studdard inappropriately


                                             4
touching her. The evidence adduced at trial was sufficient to support the guilty verdicts.

Points I and II are denied.

           Trial Court’s Exclusion of Evidence (Points III, IV, and V)

       Studdard challenges the trial court’s exclusion of testimony of the family’s pastor,

the pastor’s wife, and the victim’s mother as to certain statements made by the victim in

a family counseling session in which the victim and these three people were participants.

The court excluded the testimony at issue, finding it was privileged. Studdard contends

the Missouri statute preventing a pastor from testifying about communications made to

him in his capacity as a spiritual advisor does not exclude the pastor’s testimony here.

Studdard further contends the presence of third parties (the pastor’s wife and the victim’s

mother) negated any privilege adhering to the victim’s statements, therefore the trial

court erred in excluding those statements from evidence. We disagree.

       The trial court sustained the State’s motion in limine to exclude statements the

victim made in the family counseling session asserting that Studdard gave her an

“inappropriate” skin-to-skin back rub that made her uncomfortable, but she denied the

touching was sexual. After Studdard’s offer of proof regarding the victim’s statements in

the family counseling session, the trial court determined the testimony of both the pastor

and his wife was privileged. There was no offer of proof regarding the victim’s mother’s

testimony. Studdard called the victim’s mother as a defense witness. Defense counsel

asked the victim’s mother about the meeting. The State objected. The trial court

sustained the objection.

                                   Standard of Review

       “Trial courts are ‘vested with broad discretion to admit or exclude evidence.’”

State v. Pierce, 678 S.W.3d 115, 121 (Mo.App. 2023) (quoting State v. Tisius, 362


                                            5
S.W.3d 398, 405 (Mo. banc 2012)). “On appeal, we review those decisions for abuse of

discretion and will reverse only when the error was so prejudicial as to deprive the

defendant of a fair trial.” Pierce, 678 S.W.3d at 121. “A trial court abuses its discretion

in the admission of evidence when its ruling is clearly against the logic of the

circumstances then before the trial court and the ruling is so arbitrary and unreasonable

as to shock the sense of justice and indicate a lack of careful consideration.” State v.

Robinson, 535 S.W.3d 761, 766 (Mo.App. 2017). “An error is prejudicial only if a

reasonable probability exists that the trial court’s error affected the outcome of the trial.”

Id. In other words, the admission or exclusion of the challenged evidence must have been

outcome determinative. State v. Mays, 501 S.W.3d 484, 489 (Mo.App. 2016), as

modified (Aug. 30, 2016).

                              Clergy-Communicant Privilege

       Privileges based on professional relationships grow out of the public policy

encouraging confidentiality in certain relationships “without which these relationships

cannot be effective.” Robert P. Mosteller, et al., McCormick on Evidence § 72, at 547 (8th

ed. 2020). Most privileges are not based in common law, but were created legislatively to

balance competing social values. Id. at § 75, at 566. Here, the competing public policies

or social values are confidentiality in specified relationships versus the general rule that

courts of justice are entitled to receive the full testimony of all facts known by every

witness. Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges § 3.2.3 (2d

ed. 2009). As stated by the Supreme Court of the United States:

       Testimonial exclusionary rules and privileges contravene the fundamental
       principle that the public has a right to every [person’s] evidence. As such,
       they must be strictly construed and accepted only to the very limited extent
       that permitting a refusal to testify or excluding relevant evidence has a



                                              6
       public good transcending the normally predominant principle of utilizing
       all rational means for ascertaining the truth.

Trammel v. U.S., 445 U.S. 40, 49 (1980) (internal citations and punctuation omitted).

See also Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (“When we come to examine the

various claims of exemption, we start with the primary assumption that there is a general

duty to give what testimony one is capable of giving, and that any exemptions which may

exist are distinctly exceptional, being so many derogations from a positive general rule.”).

       “The priest-penitent privilege recognizes the human need to disclose to a spiritual

counselor, in total and absolute confidence, what are believed to be flawed acts or

thoughts and to receive priestly consolation and guidance in return.” Trammel, 445 U.S.

at 51. All 50 states have created some form of statutory clergy-communicant privilege.

Imwinkelried, § 6.2.3, at 525.

       Missouri has recognized the evidentiary privilege protecting communications

between clergy and communicant since at least 1835. RSMo, Witnesses § 16 (1835) (“No

minister of the gospel, or priest of any denomination, shall be required or allowed to

disclose any confessions made to him in his professional character, in the course of

discipline enjoined by the rules or practice of such denomination.”). See also State v.

Morgan, 95 S.W. 402 (Mo. 1906) (holding that witness, minister not acting in his

“professional character,” was competent to testify in criminal trial).

       Under the current version of the statute, § 491.060(4), “Any person practicing as a

minister of the gospel, priest, rabbi or other person serving in a similar capacity for any

organized religion, concerning a communication made to him or her in his or her

professional capacity as a spiritual advisor, confessor, counselor, or comforter” shall be




                                             7
incompetent to testify in Missouri courts.3                    The statutory privilege adheres to a

communication when a person from whom testimony is sought is a minister and the

communication made to that minister fell within the context of professional duties as “a

spiritual advisor, confessor, counsel, or comforter.”4 State v. Gerhart, 129 S.W.3d 893,

898 (Mo.App. 2004).

                                                  The Pastor

        Based upon the language of the statute and the subsequent cases interpreting it, 5

we discern no abuse of discretion in the trial court’s determination that the pastor could

not testify as to the victim’s statements in the family counseling session. The pastor holds

a license from the Church of the Nazarene. He testified that his job as pastor is “[t]o

preach, to counsel, to listen, and comfort, to lead people in their walk with Christ, to teach

from the Bible.” The Studdards sought family counseling after the victim told her mother

that Studdard had touched her in a way that made her feel uncomfortable. The victim’s

statements certainly fell within the context of the pastor’s professional duties as a

counselor. The pastor was acting as a spiritual advisor in the counseling session. Thus,

under the statute, the statements of the victim to the pastor are privileged. Studdard



3 Unless otherwise designated, all statutory citations are to RSMo (2016).
4 The statute has been amended multiple times.             During one such amendment process, a 1977 House
Committee Summary stated: “This bill provides that information obtained by a minister, priest or rabbi on
communication in his professional capacity as spiritual advisor, counselor or consultant will be exempt
from any court testimony.” The summary also commented on the proponents, “[s]upporters say the bill is
needed to allow for more freedom on communication between persons and their religious counselors.
Testifying for the bill was the Missouri Association of Baptist Ministers.” Testimony of Religious Leaders:
Hearing on H.B. 175 Before the Comm. on Civ. & Crim. Just. 79th Gen. Assemb. 1st Reg. Sess. (Mo. 1977),
https://www.senate.mo.gov/legislativeLibrary/history/1977%2079th%20General%20Assembly%201st%2
0Regular%20Session/1977%20House%20Committee%20Summaries.pdf (1977 House Committee
Summaries.pdf at 24).
5 We acknowledge the uncomfortable conflict between the statutory language rendering witnesses described

in the statute (i.e., attorney, pastor, physician, et al.) incompetent to testify. Yet, the caselaw construing the
statute consistently employs the language of privilege, not incompetency. See, e.g., Mays, 501 S.W.3d at
488 (citing statute but addressing matter regarding statement to minister as one of “privilege”). The Court
of Appeals is bound by both statutory language and judicial precedent.


                                                        8
argues the privilege was waived because the victim made her statements in the presence

of third parties. As discussed below, we disagree. We find no abuse of discretion in the

trial court’s exclusion of the pastor’s testimony.

                                    Presence of Third Parties

       Studdard contends that the trial court erred in excluding the testimony of the

pastor, his wife, and the victim’s mother. Studdard claims that, as third parties to the

communication between the pastor and the victim, their presence precludes the clergy-

communicant privilege adhering to the victim’s statements.

       No Missouri caselaw directly addresses whether a third party’s presence negates

the privilege adhering to an otherwise privileged communication to clergy. For guidance,

we look to Missouri cases addressing the effect of a third party’s presence on

communications protected by other testimonial privileges. The general rule in Missouri

is that “[a] party cannot claim attorney-client privilege for communications conducted

when an unnecessary third party is included in the communications.”6 State ex rel.

Garrabrant v. Holden, 633 S.W.3d 356, 360 (Mo. banc 2021) (emphasis ours). See

also State v. Longo, 789 S.W.2d 812, 815 (Mo.App. 1990) (“The presence of a third

party, not essential to the transmission of information or whose presence is not

reasonably necessary for the protection of the client’s interest, belies the necessary

element of confidentiality and vitiates the attorney-client privilege.”) (emphasis ours);

State v. Shire, 850 S.W.2d 923, 931 (Mo.App. 1993) (“The presence of a third person,

however, such as a relative or friend of the client, who is not essential to the transmission




6 Attorneys are incompetent to testify as to “any communication made to the attorney by such attorney’s

client in that relation, or such attorney’s advice thereon, without the consent of such client.” RSMo
§491.060(3).


                                                  9
of information or whose presence is not reasonably necessary for the protection of the

client’s interest, will vitiate the privilege.”). The destruction of the privilege by the

presence of a third party is based “on the ground that the communication was never

intended to be confidential.” McCaffrey v. Brennan’s Est., 533 S.W.2d 264, 267

(Mo.App. 1976). The attorney-client privilege is not nullified, however, “by reason of the

presence of a third person if the circumstances surrounding or necessitating the presence

may be such that the communication still retains its confidential character and the

attending privilege.” State v. Fingers, 564 S.W.2d 579, 582 (Mo.App. 1978).

        Regarding doctor-patient privilege, Missouri courts hold the privilege is waived

when a patient discloses “facts freely and publicly in the presence of third persons whose

presence is not necessary to the patient’s treatment.”7 State v. Lewis, 735 S.W.2d 183,

187 (Mo.App. 1987) (citing State v. Scott, 491 S.W.2d 514, 519 (Mo. banc 1973)).

        These Missouri cases addressing other privileges created within the same statute

as the clergy-communicant privilege consistently hold that the presence of third parties

precludes the privilege when their presence is not necessary and the communication was

made without the communicator’s expectation of privacy or confidentiality.

        We also look to the law of other states to further our analysis. State v. Ingram,

662 S.W.3d 212, 223 (Mo.App. 2023) (on issues of first impression, appellate courts “look

to relevant case law from other jurisdictions which [is] instructive on [the] issue.”). As

with other privileges secured by Missouri statutes, courts in other states hold that whether

a third-party’s presence vitiates the privilege frequently depends on whether the speaker



7 A physician, chiropractor, psychologist, or dentist is incompetent to testify “concerning any information

which he or she may have acquired from any patient while attending the patient in a professional character,
and which information was necessary to enable him or her to prescribe and provide treatment for such
patient as a physician, chiropractor, psychologist or dentist.” RSMo § 491.060(5).


                                                    10
expected the communication to be confidential. “Confidentiality is a necessary factor in

establishing a testimonial privilege.” State v. Martin, 975 P.2d 1020, 1027 (Wash.

1999).     In Connecticut, “a communication is confidential if, at the time of the

communication, the communicator could have had a reasonable expectation of

confidentiality.” State v. Mark R., 17 A.3d 1, 8 (Conn. 2011) (quoting State v.

Christian, 841 A.2d 1158, 1178 (Conn. 2004)). In New York, the test is described as

“whether in the light of all the surrounding circumstances, and particularly the occasion

for the presence of the third person, the communication was intended to be confidential

and complied with the other provisions of the statute.” People v. Decina, 138 N.E.2d

799, 807 (N.Y. 1956). The Supreme Court of Georgia holds that public policy supports

maintaining the privilege between psychiatrist and patient “where a third party is present

as a necessary or customary participant in the consultation and treatment.” Sims v.

State, 311 S.E.2d 161, 165 (Ga. 1984).

         Among these cases, Sims is most instructive. In Sims, a defendant attempted to

proffer testimony of a psychiatrist who had jointly treated defendant and her husband in

marital counseling. The trial court disallowed the testimony on the basis of the Georgia

statute regarding communications between a psychiatrist and patient and between

husband and wife. On appeal, the Supreme Court of Georgia stated:

         While it is true, as defendant suggests, that the presence of a third party will
         sometimes destroy the privileged nature of communications, we join the
         weight of authority from other jurisdictions in holding that there is a strong
         public policy in favor of preserving the confidentiality of psychiatric-patient
         confidences where a third party is present as a necessary or customary
         participant in the consultation and treatment.

Id. (footnotes and internal citations omitted). The Supreme Court of Georgia went on to

find that because the evidence adduced at trial indicated that the couple was jointly



                                               11
seeking marriage counseling, the victim was a “necessary participant” in the counseling

sessions. Id. The victim’s statements were thus “entitled to protection.” Id. The

presence of the victim’s spouse, who was also a necessary party, did not vitiate the

privilege. Id. at 166.

                                     The Pastor’s Wife

       We now apply these principles to the situation before us. The pastor testified that

the Studdards “expressed that they had confidence in [my wife] and I as a pastor, that we

could discuss it and hopefully through some process of family counseling, you know, get

things worked out.” The pastor’s wife testified that it is standard for her to be present for

the pastor’s spiritual counseling when a woman is present. She stated, “He does some

counseling man-to-man, but if there’s a woman present, then I’m there.” She testified

that she is present when a woman is present because both she and the pastor believe it to

be appropriate.

       She also testified that in sensitive situations like sexual abuse, she would keep

discussion of those matters confidential. Regarding confidentiality, on cross-examination

the State asked,

       [State:]             And the counseling sessions that you attend with your
                            husband, they are, in fact, confidential, aren’t they?

       [Pastor’s Wife:]     I suppose it would just depend.

       [State:]             Ma’am, if somebody came in for counseling, and you
                            were present, and there were things of a sensitive
                            nature in the family like sexual abuse, that’s not
                            something that you would spread out to anybody else
                            –

       [Pastor’s Wife:]     Right. Yes.

       [State:]             -- would it?



                                             12
       [Pastor’s Wife:]     Correct. We would not discuss it.

       [State:]             That would be absolutely confidential, wouldn’t it?

       [Pastor’s Wife:]     Yes.

       [State:]             And that would be something that anybody would
                            expect if they were in that?

       [Pastor’s Wife:]     Right. But I don’t know, you know, confidential
                            outside of the family, but it doesn’t mean to me – I
                            don’t know where you’re going with that, I guess.

       [State:]             Well, confidential is confidential. It’s not something
                            you would talk to somebody else about?

       [Pastor’s Wife:]     Correct.

       Based on her testimony, the pastor’s wife is commonly involved in spiritual

counseling to women or when women are present. The pastor’s wife was a necessary and

customary participant in the spiritual counseling facilitated by the pastor.           This

determination is supported by the pastor’s wife’s testimony that in situations such as this,

the matter would remain confidential. Due to her customary participation in the pastor’s

counseling of women and her maintenance of privacy and confidentiality as to the content

of counseling sessions, it is reasonable to conclude that the pastor’s wife’s presence did

not vitiate the privilege as to the statements the victim made during the family counseling

session. Accordingly, we find no abuse of discretion in the trial court’s exclusion of the

pastor’s wife’s testimony about those statements.

                                   The Victim’s Mother

       There is nothing in the record to demonstrate how the victim’s mother would have

testified regarding the victim’s statements in the family counseling session. Defense

counsel asked victim’s mother whether the victim showed the extent of the alleged

inappropriate touching to the pastor during the meeting. The State objected:


                                            13
       [Defense:]           Did you attend a meeting?

       [Victim’s mother:] Yes.

       [Defense:]           And was [victim] present at one of those meetings?

       [Victim’s mother:] At one of them, yes, or more, but not at the first one.

       [Defense:]           At some point during that meeting, did she show you
                            where the inappropriate touch had taken place?

       [Victim’s mother:] She was showing [Pastor], but –

       [State:]             Objection, Your Honor. This goes to the State’s Second
                            Motion in Limine, which we discussed before, the
                            conversation in the scope of the spiritual counseling
                            with the members of the church.

       The Court:           Okay. Sustained.

Defense counsel ceased questioning victim’s mother about what victim said or did at the

meeting.

       To preserve for appeal a claim that evidence was improperly excluded, “the

proponent of the evidence must attempt to present the evidence at trial, and if an

objection is sustained, the proponent must then make an offer of proof.” State v. Jones,

299 S.W.3d 324, 327 (Mo.App. 2009) (quoting State v. Speaks, 298 S.W.3d 70, 85

(Mo.App. 2009)). The offer of proof serves a dual purpose:

       (1) it preserve[s] the record for appeal so the appellate court understands
       the scope and effect of the questions and proposed answers in considering
       whether the trial judge’s ruling was proper, and (2) it allows the trial judge
       to further consider the claim of admissibility after having ruled the evidence
       inadmissible in pretrial hearings.

State v. Woods, 357 S.W.3d 249, 253 (Mo.App. 2012) (internal punctuation and

citations omitted) (alteration in original). To achieve these goals, an offer of proof must

place in the record: “(1) what the proffered evidence would be; (2) its object and purpose;

and (3) all the facts necessary to establish its relevance and admissibility.” Menschik v.


                                            14
Heartland Reg’l Med. Ctr., 531 S.W.3d 551, 562 (Mo.App. 2017) (quoting Key v.

Diamond Int’l Trucks, 453 S.W.3d 352, 362 (Mo.App. 2015)). “Should the party

seeking to introduce the evidence fail to make the offer of proof, then nothing is preserved

for review and the claim of error must be dismissed.” Menschik, 531 S.W.3d at 562

(citing Reed v. Kansas City Missouri Sch. Dist., 504 S.W.3d 235, 243 (Mo.App.

2016)).

       Because appellant made no offer of proof demonstrating what the testimony of

victim’s mother might include, we cannot determine whether the trial court abused its

discretion in excluding her testimony. We are not permitted to speculate as to how the

victim’s mother would have testified, nor are we permitted to assume that the mother’s

testimony would have been consistent with the testimony of the pastor and the pastor’s

wife. As to the excluded testimony of the victim’s mother, there is nothing in the record

on appeal to review on this point. Since we do not know what the testimony of the victim’s

mother would have been, we cannot determine that the trial court abused its discretion

in excluding the evidence.

       As to the impact of the victim’s mother’s presence on the clergy-communicant

privilege, the victim’s mother was a necessary participant in the family counseling session

where, as discussed above, there was an expectation of confidentiality. Her presence did

not vitiate the privilege in regard to the testimony of the pastor or his wife.

       The trial court did not abuse its discretion in excluding the testimony at issue. As

there was no error, we need not discuss prejudice to Studdard as a result of the exclusion

of the testimony of the pastor, the pastor’s wife, and the victim’s mother. Points III, IV,

and V are denied.




                                             15
                 Georgia Statement of Victim’s Sister (Point VI)

       In his sixth point, Studdard argues that the trial court erred in allowing the State

to use the victim’s sister’s out-of-court statement to law enforcement officials in Georgia

that Studdard had abused the victim and had attempted to abuse the victim’s sister (the

“Georgia statement”). Studdard contends that the Georgia statement was improper

hearsay and, therefore, inadmissible.

       Hearsay 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.

Winfrey, 337 S.W.3d 1, 6 (Mo. banc 2011) (quoting State v. Sutherland, 939 S.W.2nd

373, 376 (Mo. banc 1997)). As a general rule, hearsay statements are inadmissible “unless

they fall within a recognized exception to the hearsay rule.” Winfrey, 337 S.W.3d at 6.

But, not all out-of-court statements are hearsay; only those offered to prove “the truth of

the matter asserted.” Id. Statements offered to impeach the credibility of a witness are

not hearsay. State v. Simmons, 515 S.W.3d 769, 775 (Mo.App. 2017).

       The Georgia statement was not hearsay because it was not offered to prove the

truth of the matter asserted. The State introduced the Georgia statement to cast doubt on

the credibility of the victim’s mother. In the State’s case in chief, four of the victim’s

siblings testified that they had told the victim’s mother they witnessed Studdard

inappropriately touching the victim. On direct examination, the victim’s mother testified

that none of her children, including the victim, told her they witnessed Studdard

inappropriately touching the victim. Thus, on cross examination and over Studdard’s

objections, the State presented the Georgia statement to the victim’s mother and asked

whether she had seen the statement before. The victim’s mother testified that she had

seen it, but continued to claim that she knew nothing about allegations that Studdard had


                                            16
inappropriately touched the victim. The State then had the victim’s mother read aloud

the portion of the statement that accused Studdard of inappropriately touching the victim

and her sister, thereby contradicting the mother’s earlier testimony that she was unaware

of the allegations. The victim’s mother’s awareness of the Georgia statement was offered

to show that she was aware of the allegations it contained, not to show that the allegations

contained in the statement were true. Because in this context the Georgia statement was

not hearsay, Studdard’s point fails. Point VI is denied.

                    Propensity Evidence (Points VII and VIII)

       In his last two points, Studdard argues that the trial court erred in allowing the

State to introduce evidence of other similar but uncharged acts against the victim (Point

VII) and her sisters (Point VIII). Regarding both points, Studdard contends that the

evidence was more prejudicial than probative, thus inadmissible.

       In propensity evidence cases we review for abuse of discretion as described above.

Pierce, 678 S.W.3d at 121. Relevant to our inquiry is article 1, § 18(c) of the Missouri

Constitution as amended by the Missouri electorate in 2014, which 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.

“Propensity evidence is evidence of uncharged crimes, wrongs, or acts used to establish

that defendant has a natural tendency to commit the crime charged.” Pierce, 678 S.W.3d

at 121 (quoting State v. Shockley, 410 S.W.3d 179, 193 (Mo. banc 2013)). Under § 18(c),

“relevant evidence may be excluded when the risk of unfair prejudice substantially

outweighs its probative value.” Pierce, 678 S.W.3d at 121. In assessing probative value,


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a court “consider[s] whether the evidence is ‘sufficient for the jury to conclude the

defendant actually committed the prior criminal act’” and whether the evidence tends to

show that “the defendant had a propensity to commit the crimes charged at the time they

were allegedly committed.” Id. at 122 (alteration in original). A court should consider

the similarity between the prior acts and the acts charged as well as the length of time

between the crimes charged and the prior acts. State v. Williams, 548 S.W.3d 275, 289

(Mo. banc 2018). Also relevant is the State’s need for the propensity evidence to make its

case. Id.

       Because of the secretive nature of the crime in most cases involving sexual
       abuse or molestation of a child by an adult, the only eyewitnesses to the
       crime are the defendant and the victim. The trial often becomes a credibility
       contest between the defendant and the victim. Evidence of prior crimes in
       such situations, is, therefore, probative.

State v. Bernard, 849 S.W.2d 10, 17 (Mo. banc 1993) (citations omitted).

       The probative value of the evidence is weighed against the danger of unfair

prejudice to the defendant. Pierce, 678 S.W.3d at 122. “If [a] jury is allowed to infer (or,

worse, speculate) the defendant escaped punishment in the past, it may be inclined to

convict merely to punish the defendant for past criminal acts rather than for the crime

charged.” Williams, 548 S.W.3d at 290. Also relevant are the manner in which the State

uses the propensity evidence, and whether the evidence of the prior acts overshadows the

evidence of the charged crime. Id. at 290-91.

       The alleged prior acts involved female step-children of the defendant that lived in

the same home. The acts described were similar in time, place, and manner to those

charged in this case, and the propensity victims and the victim in this case were

approximately the same age at the onset of abuse. Finally, because of the lack of any




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physical evidence to support the charges involving the victim, the State’s need for the

corroborating testimony of the victim’s siblings was high.

      Although no evidence was introduced to indicate that Studdard was punished for

the other acts against the victim and her sisters, the risk that the jury would improperly

punish Studdard for those acts and not the specific acts charged was minimized by a jury

instruction, given in writing and read aloud by the judge, that the jury may not convict

Studdard on the basis of prior conduct, but only upon the crimes charged. State v.

McFadden, 391 S.W.3d 408, 424 (Mo. banc 2013) (“The jury is presumed to follow the

trial court’s instructions.”). In closing arguments, both the State and defense counsel

discussed the importance that the jury follow the jury instruction regarding the acts

charged. Thus, any risk that the jury would punish Studdard for past acts was mitigated

by the actions of the trial court, prosecution, and defense counsel. The probative value of

the propensity evidence was high, while the risk of prejudice to Studdard was low.

Accordingly, Points VII and VIII are denied. The judgment and convictions are affirmed.



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

JENNIFER R. GROWCOCK, J. – CONCURS

BECKY J.W. BORTHWICK, J. – CONCURS




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