Lewis v. State, WD

• Decision Date: 19 March 1991
• Docket Number: No. WD,WD
• Citation: 806 S.W.2d 89
• Parties: Leslie J. LEWIS, Appellant, v. STATE of Missouri, Respondent. 42740.
• Court: Missouri Court of Appeals

Page 89

806 S.W.2d 89

Leslie J. LEWIS, Appellant, v. STATE of Missouri, Respondent.

No. WD 42740.

Missouri Court of Appeals,

Western District.

March 19, 1991.

Sharlie Pender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.

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

FENNER, Judge.

Leslie J. Lewis appeals his convictions for first degree sexual assault and forcible sodomy for which he received seven years and twenty years, respectively.

The sufficiency of the evidence to support the convictions is not challenged. Suffice it to say that the victim, S.M., was the youngest of four step-children of Lewis. Allegations arose that Lewis was sexually abusing his step-daughter, S.M., who was 15 years old at the time. Charges against Lewis were filed alleging sodomy committed on February 7, 1989, and sexual assault, committed on February 10, 1989. Other pertinent facts will be discussed as they relate to the various points raised on appeal.

Lewis raises nine points on appeal. In point one, which is reviewed for plain error under Rule 29.12(b), Lewis alleges that the trial court erred by sustaining the state's motion in limine to bar the introduction of any evidence in regard to the victim's prior sexual conduct pursuant to § 491.015, RSMo 1986, the Rape Shield Statute, thereby violating his Sixth Amendment right to a fair trial and his Fourteenth Amendment Right to Equal Protection. Lewis argues that the State's introduction of testimony from a Dr. Watts that the victim's hymen was not intact conferred upon him the right to show an alternative reason this physical evidence exists. Specifically, he argues that it was error to exclude testimony regarding the victim's suspected affair with her brother-in-law. Cited in support is the case of Douglas v. State, 797 S.W.2d 532 (Mo.App.1990).

In Douglas, this court reversed a conviction for first degree sexual assault because Douglas was not allowed to offer evidence that the alleged victim had engaged in intercourse with another, following expert testimony that an examination of the victim disclosed the absence of hymenal tissue. In reversing the conviction this court held:

"To allow the State to show that [the victim's] hymen was absent, with the clear and calculated implication that its absence was caused by intercourse with the defendant, then to forbid defendant to show that [the victim] had had intercourse with another, was violative of defendant's right to a fair trial." pp. 535-536.

What distinguishes the facts in Douglas from those in the present case was that in Douglas, following the victim's direct examination, a request was made to cross-examine her with respect to other sexual activity during the time intervening between the defendant, Douglas' alleged intercourse with her and the time of the doctor's examination when the absence of the hymen was noted. Herein, no such request or attempt was made. Also distinguishing is that in Douglas, there was direct evidence from a doctor's report that the victim had indicated she had been sexually active with her boyfriend in the few months prior to the event in question. No such direct evidence existed here that S.M. had actually been sexually involved with someone else.

Furthermore, during the hearing on the motion in limine, defense counsel specifically denied that the purpose of his proposed witnesses was to show prior sexual conduct of the victim, but to show that the victim had made similar accusations of sexual contact. No error, plain or otherwise can arise under the present circumstances where there was no attempt to admit the testimony of which Lewis now complains.

Evidence was presented through the testimony of Judy Glauser, an employee of the Division of Family Services. She testified that when S.M. was originally removed from the home, she was placed in the foster care of her sister and brother-in-law. On cross-examination, it was established that S.M.'s mother was dissatisfied with this placement because she believed S.M. and the brother-in-law were involved sexually and S.M. was removed from that placement. This is not direct evidence of the type held admissible in Douglas, but there was no objection and it negates Lewis' complaint that evidence regarding S.M.'s suspected affair was improperly excluded.

Contrary to the assertion of Lewis, evidence was presented from which the jury could find that S.M. had engaged in sexual activity with someone other than Lewis. Point one is denied.

In point two, Lewis alleges error in the trial court's refusal to allow testimony of family grievances, specifically that S.M. was barred from babysitting for her sister and brother-in-law because members of the family suspected an affair between S.M. and her brother-in-law.

Point one is referred to as it disposes of the allegations of error in point two. As previously stated, this evidence was before the jury through the testimony of Judy Glauser.

Point two is denied.

In points three and four, Lewis takes issue with the trial court's allowance of testimony by S.M.'s sister who testified to occurrences of sexual assault by Lewis upon the sister. Lewis argues that said testimony constituted evidence of other crimes for which he was not charged and that the occurrences were too remote to be relevant.

Once again, these points are reviewed only for "plain error" pursuant to Rule 29.12(b) as no objection was made to said testimony either at trial or in a motion for new trial. Under the plain error standard of review, the error complained of must impact so substantially upon the rights of a person that manifest injustice or a miscarriage of justice will result if left uncorrected. State v. Driscoll, 711 S.W.2d 512, 515 (Mo. banc 1986), cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986).

The victim's sister testified that Lewis had previous sexual relationships with her, occurring when she was 12 years old, approximately ten years prior to the events in question. The sister also testified as to her mother's hostile reaction when her mother caught Lewis and her in bed. S.M. corroborated this testimony when explaining her fear of confronting her mother regarding Lewis' behavior.

Evidence of other crimes is not admissible unless it tends to establish motive, intent, absence of mistake or accident, a common scheme or plan, or the identity of the person charged with the commission of the crime charged. State v. Fraction, 782 S.W.2d 764, 786 (Mo.App.1989).

In the case of State v. Cutler, 499 S.W.2d 387 (Mo.1973), Cutler's conviction for child molestation was reversed because testimony of an older daughter to alleged similar events occurring seven to eight years before the event in question was held inadmissible because the incident was too remote. The Cutler court held that the remoteness of the incident precluded the use of such evidence to show a common scheme or plan. 499 S.W.2d at 388. This court is bound by the decision in Cutler. The admission herein of the testimony of S.M.'s sister as to events occurring ten years previously was error. However, the prejudicial effect of the admission must be examined.

Error in a criminal case is presumed to be prejudicial, but the presumption may be overcome by the facts and circumstances. State v. Ford, 639 S.W.2d 573, 575 (Mo.1982). Error, which in a close case might call for reversal, may be disregarded as harmless when the evidence of guilt is strong. Id. at 576. The judgment should not be reversed when the court is fully satisfied that the error did not contribute to the result reached in the trial court. State v. Baker, 741 S.W.2d 63,...