801 S.W.2d 417 (Mo.App. W.D. 1990), WD 42386, State v. Weiler

• Docket Nº: WD 42386.
• Citation: 801 S.W.2d 417
• Party Name: STATE of Missouri, Respondent, v. Clyde H. WEILER, Appellant.
• Case Date: November 20, 1990
• Court: Court of Appeals of Missouri

Page 417

801 S.W.2d 417 (Mo.App. W.D. 1990)

STATE of Missouri, Respondent,

v.

Clyde H. WEILER, Appellant.

No. WD 42386.

Court of Appeals of Missouri, Western District.

November 20, 1990

Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 2, 1991.

Application to Transfer Denied Feb. 7, 1991.

Page 418

Charles E. Atwell, Madonna L. Reeves, Kansas City, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and SHANGLER and GAITAN, JJ.

KENNEDY, Presiding Judge.

Defendant Clyde H. Weiler was convicted upon jury trial of one count of sodomy by deviate sexual intercourse, § 566.060, RSMo 1986, and two counts of first degree sexual abuse, § 566.100, RSMo 1986, with a sentence of five years' imprisonment on each count, to be served consecutively. The pathic was E.B., a female child under the age of 14 years, to wit, of the age of ten years between the dates of January 1, 1988, and May 19, 1988, when the offenses were alleged to have occurred.

The 73-year-old unmarried defendant was a friend of E.B.'s mother, and of her maternal aunt and her grandmother. He performed gratuitous services for them, including taking E.B.'s mother to and from her employment, baby-sitting E.B. and her two younger brothers, running various errands and the like. The evidence favorable to the verdict shows that the acts performed upon and with E.B. came within the statutory definition of the crimes with which defendant was charged, and there is no claim to the contrary.

The proof supporting the sodomy count was that defendant on an occasion at E.B.'s home had granted E.B.'s request for a quarter on condition that she perform fellatio upon him. E.B. acceded to the condition, herself unzipping his pants and taking his penis into her mouth as he sat in a chair and she knelt on the floor before him.

The evidence tending to prove the two first degree sexual abuse counts, § 566.100, RSMo 1986, was that defendant had placed his hand on E.B.'s breast and on her vagina.

Defendant on this appeal claims that the court erred in unduly restricting proof of E.B.'s sexual activities and propensities. This proof (offered by way of one of the State's witnesses other than E.B., and also by way of cross-examination of E.B. herself) was excluded by the trial court on the ground of the rape shield statute, § 491.015, RSMo 1986.

The evidence excluded by the court was this: E.B. was a frequent masturbator. She often masturbated before her friend

Page 419

Tina, who was a witness for the State. She indicated to Tina that being around little boys made her "horny."

Defendant says that the excluded...