STATE OF MISSOURI, Respondent v. AARRON MATTHEW BITTICK, Appellant

STATE OF MISSOURI, Respondent, v. AARRON MATTHEW BITTICK, Appellant.

No. SD38645

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable David B. Mouton, Judge AFFIRMED IN PART AND REMANDED WITH DIRECTIONS The State charged Aarron Bittick ("Defendant") with first-degree statutory rape (Count 1), alleging he had sexual intercourse with his daughter ("Victim") when she was less than 14 years old and first-degree statutory sodomy (Count 2), alleging he inserted a sex toy into Victim's vagina when she was less than 14 years old. A jury found Defendant guilty on Count 1 and not guilty on Count 2. Defendant was convicted and sentenced to life imprisonment on Count 1. See sections 566.032 and 566.062 RSMo (2016). Defendant raises four points on appeal, alleging the trial court plainly erred when

In Division

2 it (1) admitted evidence that Defendant "watched pornography with daddy-daughter, teen, or young themes"; (2) failed to sua sponte intervene to strike evidence from the victim's journal as inadmissible hearsay; (3) failed to sua sponte intervene to strike Detective Trevor Hole's ("Detective Hole") testimony stating Defendant asked his apartment property manager "when the trash would be picked up prior to police searching the apartment"; and (4) allowed Victim to testify that Defendant allowed her to smoke marijuana and drink alcohol as a minor. Factual and Procedural History On September 18, 2019, Victim refused to go home from a school event alleging to school officials she had been sexually abused by Defendant. An investigation followed and the matter proceeded to trial. At trial, Victim testified she had lived with Defendant since she was six years old. Defendant's inappropriate conduct began when she was seven years old. As the years passed, "the more comfortable [Defendant] got and the more he got away with it, it was more frequent." Victim did not disclose the abuse because Defendant "constantly reinforced to [her] that we don't talk about it." Victim testified Defendant told her "this is a normal thing that lots of daddies and daughters do, but you never talk about it. Just like you're taught to never talk about your private parts in school." Victim thought "that was part of what [she] was supposed to do as a daughter." Victim testified, without objection, that during Defendant's abuse he would show her pornography. Victim described the pornography that Defendant made her watch as "a lot of hentai, which would be like a Japanese animation pornography ... [a] lot of it would be daddy-daughter pornography where women were dressed as the daughter ... a

3 lot of it would be targeted towards children, including My Little Pony pornography, because [she] loved My Little Pony ... and Teen Titans Go! was also a go-to." Defendant's ex-wife also testified that Defendant liked the "barely-legal genre" of pornography with very young girls. Victim testified, without objection, that Defendant allowed her to be under the influence of alcohol and marijuana. Defendant provided the marijuana to Victim, and "[ i]t started out with him just blowing the smoke into [her] mouth, specifically, kissing it into [her] mouth." The State also offered the testimony of Detective Hole, who found Victim's journal while executing a search warrant on Defendant's apartment. The journal was offered and received without objection. In her journal, Victim recorded Defendant's rules of how he wanted her to look or dress. Defendant "would have [Victim] wear visually appealing outfits, sometimes scandalously – or scantily clad appealing outfits" during parties with his friends. Victim also recorded her thoughts regarding her hope that after her baptism Defendant's sexual abuse would stop. Detective Hole also testified he received a phone call from Defendant's property manager advising him Defendant had said "law enforcement would probably be around due to an ongoing investigation and that [Defendant] was wondering when the trash was going to be taken out because he was trying to dispose of some furniture." Detective Hole searched the apartment complex dumpsters, but no inculpatory evidence was found. Defendant waived his right to testify and presented no evidence at trial.

4 Standard of Review Defendant concedes the claims raised in this appeal are not preserved for appellate review. The following standard of review governs our analysis: Generally, this Court does not review unpreserved claims of error. State v. Cella, 32 S.W.3d 114, 117 (Mo. banc 2000). Rule 30.20 alters the general rule by giving appellate courts discretion to review "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. "Plain error review is discretionary, and this Court will not review a claim for plain error unless the claimed error 'facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.'" State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017). "The plain language of Rule 30.20 demonstrates that not every allegation of plain error is entitled to review." State v. Nathan, 404 S.W.3d 253, 269 (Mo. banc 2013). "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." State v. Jones, 427 S.W.3d 191, 195 (Mo. banc 2014). Unless manifest injustice or a miscarriage of justice is shown, an appellate court should "decline to review for plain error under Rule 30.20." Id. at 196. Finally, "the defendant bears the burden of demonstrating manifest injustice entitling him to" plain error review. State v. Oates, 540 S.W.3d 858, 863 (Mo. banc 2018). State v. Brandolese, 601 S.W.3d 519, 525-26 (Mo. banc 2020) (internal parenthetical citations omitted); see also Rule 30.20. 1

Discussion For ease of analysis we consider Movant's points out of order.

Point 2 & Point 3 – Hearsay We first address Points 2 and 3 together as they both contend the trial court plainly

1 All rule references are to Missouri Court Rules (2024).

5 erred by failing to sua sponte intervene in admitting inadmissible hearsay. Assuming, without deciding, both Victim's journal and Detective's testimony were inadmissible hearsay, Defendant has failed to facially establish grounds for believing that a manifest injustice or a miscarriage of justice has resulted. Hence, plain error review is not appropriate.

In Point 2, Defendant contends the trial court plainly erred when it failed to sua sponte intervene and allowed inadmissible hearsay from Victim's journal.

Defendant specifically contends a manifest injustice occurred when the State "introduced the journal entries for the truth of the matter asserted, i.e. that [Defendant] forced [Victim] to wear provocative clothing and that she believed she would not have to act sexual after being baptized." The Supreme Court of Missouri has observed "to the extent a declarant is available for live testimony, the dangers of hearsay are largely non-existent." State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006). The jury heard Victim's testimony regarding the incidents recorded in the journal. Defendant's counsel did not object, and cross-examined Victim twice. "No prejudice (or manifest injustice) inures where, as here, the challenged evidence is cumulative to other properly admitted evidence." State v. Kent, 693 S.W.3d 202, 204 (Mo.App. 2024). "Moreover, neither prejudice nor a manifest injustice will be found from the admission of hearsay testimony where the declarant was also a witness at trial, testified on the same matter, and was subject to cross- ex amination." Id. (internal quotation marks omitted). Defendant, therefore, fails in his burden to facially demonstrate substantial grounds for believing that manifest injustice or

6 miscarriage of justice has resulted. Brandolese, 601 S.W.3d at 526. As such, we decline to review Point 2 for plain error. Similarly, in Point 3, Defendant asserts the trial court plainly erred when it failed to sua sponte intervene to strike Detective Hole's testimony regarding hearsay statements made by Defendant's apartment manager stating that Defendant had inquired when the trash would be picked up. 2 Defendant further asserts that the apartment manager's statements "bolstered" Victim's testimony because those statements suggested Defendant "disposed of incriminating sexual items from his apartment, resulting in a manifest injustice." In his supporting argument, Defendant specifically notes that Victim alleged Defendant used certain items during acts of abuse that the police were unable to locate, specifically, a dildo, a vibrator, lubricant, and condoms. As relevant here: To obtain a new trial on direct appeal based on a claim of plain error, the appellant must show the error was outcome determinative. When, as here, the alleged error involves erroneously admitted evidence, an appellant establishes outcome-determinative error by showing that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all of the evidence properly admitted, there is a reasonable

2 Defendant alleges, he "did not object" when the state presented testimony that his apartment property manager said Defendant called to inquire when the trash would be picked up prior to police searching the apartment. However, as the State correctly notes, Defendant lodged a hearsay objection when Detective Hole first mentioned that he "received a phone call" from Defendant's property manager. The State responded to the objection by stating the information was not being offered for the truth of the matter asserted, but rather to explain why Officer Hole was searching around in the dumpster. The court overruled Defendant's hearsay objection. Defendant, however, did not include a claim pertaining to this ruling in his motion for new trial. Thus, on that basis, this claim is not preserved for appellate review. See Rule 29.11(d).

7 probability that the jury would have reached a difference conclusion but for the erroneously admitted evidence. In the absence of an error of this magnitude, no manifest injustice or miscarriage of justice exists, and the appellate court should decline to exercise its discretion to review the claim of plain error pursuant to Rule 30.20. State v. Stevens, 684 S.W.3d 379, 383-84 (Mo.App. 2024) (internal citations and quotation marks omitted). Defendant fails to make this necessary showing. The record reflects Defendant used the fact that no inculpatory evidence was found in the dumpster to his advantage when he elicited testimony from Detective that no items were found despite a search of the dumpster and it was possible that such items did not exist. Moreover, several of the alleged items, like the dildo and vibrator, were more relevant to the first-degree statutory sodomy charge in count 2, which specifically required the jury to believe Defendant used sex toys on Victim. The jury, however, acquitted Defendant of this charge and, therefore, apparently did not rely on the challenged statements to infer that Defendant possessed and used said items on Victim but later disposed of them. Accordingly, there is no reasonable probability that the apartment manager's statements were outcome determinative and Defendant resultingly fails in his burden to facially demonstrate substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. Brandolese, 601 S.W.3d at 526. As such, we decline to review Point 3 for plain error. Point 1 & Point 4 – Prior Bad Acts Defendant argues in Points 1 and 4 the trial court plainly erred in allowing Victim to testify Defendant allowed her to smoke marijuana and drink alcohol as a

8 minor, and about the type of pornography Defendant watched. Defendant argues this testimony related to inadmissible uncharged criminal acts, which were "more prejudicial than probative" against Defendant, and "not legally or logically relevant to the charged offenses." A criminal defendant has a right to be tried only for the offense for which he is charged. Mo. Const. art. I, secs. 17-18(a). Generally, evidence of uncharged misconduct or prior bad acts is inadmissible to show that the defendant has a propensity to commit such acts. ... Such evidence is admissible, however, if it is both logically and legally relevant to prove the crime charged. Evidence is logically relevant if it has a legitimate tendency to directly establish the defendant's guilt of the crime charged. The evidence has a legitimate tendency to establish guilt where the tendency is based on something other than the idea that the defendant has a poor character, and therefore, is likely guilty of the offense charged. Evidence is legally relevant if its probative value outweighs its prejudicial effect. The balancing of the probative value against its prejudicial effect on the jury rests within the sound discretion of the trial court.

State v. Campbell, 143 S.W.3d 695, 700 (Mo.App. 2004) (internal citations omitted). The Supreme Court of Missouri has repeatedly held, "prior sexual conduct by a defendant toward the victim is admissible as it tends to establish a motive, that is satisfaction of defendant's sexual desire for the victim." State v. Primm, 347 S.W.3d 66, 70 (Mo. banc 2011); see also State v. Graham, 641 S.W.2d 102, 105 (Mo. banc 1982). The State's questioning tended to show a specific aspect of what occurred during the assaults. Victim testified at trial, "there was pornography brought into the aspect of it. So I would be watching the screen. There were a lot of times that

9 he would have me select the pornography." Only then did she continue to describe what types of pornography he would have her select. In addition, the testimony of the ex-wife relating to the pornography was merely corroborative evidence. Similarly, the State elicited testimonial evidence of alcohol and marijuana use while describing how the sexual assaults on Victim occurred. Victim testified, "it started out with him just blowing the smoke into my mouth, specifically, kissing it into my mouth." Victim testified that kissing was "something else that occurred between" her and Defendant. In each point, Defendant fails in his burden to facially show manifest injustice or a miscarriage of justice occurred due to the admission of this evidence. As such, we decline to exercise plain error review. Finally, the State asks us to remand to correct a clerical error in the judgment issued by the trial court, which was not initially raised by Defendant. The State asserts the trial court's written judgment erroneously indicated that Count 2 was "Dismissed by Prosec/Nolle Pros" rather than that the jury found Defendant not guilty of Count 2. The record reflects at trial, it was announced in open court, "As to Count 2, we the jury, find [Defendant] not guilty." This Court may invoke the power to enter a nunc pro tunc order in criminal cases to correct clerical errors "if the written judgment does not reflect what was actually done." State v. Rost, 690 S.W.3d 573, 591 (Mo.App. 2024). "The failure to accurately memorialize the decision of the trial court as it was announced in open court is a clerical mistake." State v. Denham, 686 S.W.3d 357, 369 (Mo.App. 2024). If the written

10 judgment and oral pronouncement materially differ, the oral pronouncement controls. Rost, 690 S.W.3d at 591. Accordingly, we conclude that a nunc pro tunc order should be used in this instance to correct the judgment. Conclusion We affirm the judgment of the circuit court as to Count 1 and remand this matter to the trial court with instructions to amend the written judgment nunc pro tunc to conform to the oral pronouncement that Defendant was found not guilty on Count 2. BECKY J. WEST, J. – OPINION AUTHOR JENNIFER R. GROWCOCK, C.J. – CONCURS DONALD E. BURRELL, J. – CONCURS