State v. Allen, 42799
| Decision Date | 30 June 1981 |
| Docket Number | No. 42799,42799 |
| Citation | 622 S.W.2d 275 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. James Henry ALLEN, Jr., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John Ashcroft, Atty., Gen., Kristie Green, Mark W. Comley, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
John T. McCaffrey, St. Louis, for defendant-appellant.
Defendant was convicted by a jury of the crime of sexual abuse in the first degree. § 566.100(2) RSMo 1978. He was sentenced to a term of five years in the Department of Corrections in accordance with the verdict of the jury.
On appeal, defendant contends that (1) the court erred in denying his motion to dismiss the indictment because it failed to notify him adequately of the charge against him in that it did not contain sufficiently specific dates upon which the acts complained of occurred; (2) the evidence was insufficient to sustain the verdict; and (3) the court erred in admitting into evidence the results of the polygraph examination under stipulation of the parties.
We first consider the sufficiency of the indictment. The indictment charges that "JAMES HENRY ALLEN, JR. between January 1, 1979 and July 1, 1979, at the City of St. Louis aforesaid, in violation of Section 566.100, RSMo, committed the class D felony of sexual abuse in the first degree, punishable upon conviction under Sections 558.011.1(4) and 560.011, RSMo, in that the defendant subjected (C. D.), a person less than twelve years old, to sexual contact."
Defendant filed a motion for a bill of particulars asking for the specific conduct which formed the basis of the indictment and the specific dates upon which such conduct occurred. The State set out the conduct and as to the time stated, "(t)he specific dates of occurrence are unknown to plaintiff in that the victim is a 6 year old child and can only state that the criminal acts of defendant occurred frequently when her mother was not home, between the dates alleged in the indictment."
The recent case of State v. Healey, 562 S.W.2d 118 (Mo.App.1978) closely parallels this case. That case involved child abuse which extended over a period of time. The indictment charged that the assaults took place "during the months of June, July and August." The court there held that the specific date and time of the assaults was not an essential element of the crime. As in Healey the indictment here follows the language of the statute. We are of the opinion that Healey is dispositive of this case and we hold the indictment to be sufficient.
Defendant next questions the sufficiency of the evidence to sustain the conviction. Although defendant acknowledges that the credibility of witnesses is for the jury, in his argument he primarily attacks the victim's credibility.
As required we view the evidence in the light most favorable to the State. State v. Kelly, 539 S.W.2d 106, 109 (Mo.banc 1976). The victim, aged 6, and her brother, aged 4, lived with their mother and defendant, her stepfather, on Bowen Street in St. Louis between January...
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