State v. Barnard

• Decision Date: 26 November 1991
• Docket Number: No. WD,WD
• Citation: 820 S.W.2d 674
• Parties: STATE of Missouri, Respondent, v. James W. BARNARD, Jr., Appellant. James W. BARNARD, Jr., Appellant, v. STATE of Missouri, Respondent. 42632.
• Court: Missouri Court of Appeals

Page 674

820 S.W.2d 674

STATE of Missouri, Respondent, v. James W. BARNARD, Jr., Appellant.

James W. BARNARD, Jr., Appellant, v. STATE of Missouri, Respondent.

No. WD 42632.

Missouri Court of Appeals Western District.

Nov. 26, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Dec. 24, 1991.

Application to Transfer Denied Jan. 28, 1992.

David S. Durbin, Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P.J., and KENNEDY and BRECKENRIDGE, JJ.

BRECKENRIDGE, Judge.

James W. Barnard, Jr. appeals from his convictions for sodomy, § 566.060, RSMo 1986, and for child abuse, § 568.060, RSMo 1986, for which he was sentenced to fifteen and seven years respectively, said sentences to run consecutively, and the denial of his motion for post-conviction relief. He presents five points in this appeal, claiming that the trial court erred in: (1) admitting evidence of crimes and offenses not charged and allowing the prosecution to refer to such incidents during the opening statement; (2) failing to dismiss the cause or remand it for preliminary hearing because Barnard was denied his right to counsel when he had to proceed without legal assistance at the arraignment and preliminary hearing; (3) overruling his motion to dismiss for lack of specificity in the allegations, denying him his right to a unanimous jury trial as it was impossible to tell whether all jurors agreed with respect to any one incident of sodomy or abuse; (4) refusing to give Instructions B and C, offered by Barnard and in giving Instruction No. 4; and (5) failing to declare a mistrial after the judge read an incorrectly worded instruction to the jury. The judgment of conviction is affirmed. The appeal from the denial of the post-conviction motion is dismissed.

In 1981 James Barnard married a woman who had three children from a previous marriage, B.C. and J.C., both boys, and S.C., a girl. The marriage lasted until 1988 when Barnard's wife walked out on him because of his drinking, his cruelty and his violence. After the separation B.C. and J.C. told their mother that Barnard had abused them sexually on many occasions. They had been afraid to tell about the abuse before the separation because of the threats Barnard had made to them.

Barnard began abusing the boys when B.C. was eight and J.C. was eleven. The family was living in a trailer at the time. B.C. and J.C. slept in a small camper outside the trailer. This is where the abuse occurred. Testimony by B.C. and J.C. developed the course of Barnard's conduct. Barnard initiated the commission of acts of oral sodomy upon the boys and directed the boys to perform those same acts upon him. J.C. resisted, but B.C. complied out of fear. Barnard punished the boys by pulling on their genitals. Another punishment devised by Barnard consisted of his putting vaseline on a toothbrush handle and inserting it in the boys' anuses. Barnard called the boys vile names. He hit them in their genitals and beat them with a belt. Sometimes he would hold their faces in a pillow, attempting to smother them. Barnard told the boys that they would get AIDS if they did not comply with his requests.

In 1986, the family moved to an earth-contact home where the boys had a bedroom in the house. Barnard's abuse of B.C. continued. In November, 1986, Barnard broke his arm and could not work. He was at home more than usual and began to drink heavily. His abuse of B.C. escalated. He began punishing B.C. by violating him anally with a plunger handle covered with Vaseline.

In May, 1988, B.C. came home from school sick one day. Barnard had been drinking and asked B.C. to bring him a beer. Barnard then committed an act of sodomy on B.C., sticking his penis into B.C.'s anus.

Barnard was charged by information filed January 10, 1989, which read:

JAMES W. BARNARD, JR., in violation of Section 566.060, RSMo, committed the Class D felony of sodomy, punishable upon conviction under Section 558.011.1(2), RSMo, in that between the dates of September 1, 1986 to August 21, 1987, in the County of Cass, State of Missouri, the defendant had deviate sexual intercourse with [B.C.], to whom defendant was not married and who was then less than fourteen years old.

COUNT II--JAMES W. BARNARD, JR., in violation of Section 568.060, RSMo, committed the Class C felony of abuse of a child, punishable upon conviction under Section 558.011(3) and 560.011, RSMo, in that between the dates of November 1, 1986 and November 30, 1986, in the County of Cass, State of Missouri, the defendant knowingly inflicted cruel and inhuman punishment upon [B.C.], a child less than seventeen years old, by inserting a toothbrush into [B.C.'s] anus.

Barnard filed for a Bill of Particulars. The first amended Bill of Particulars described the offenses in more detail:

Count I, James W. Barnard had deviate sexual intercourse with [B.C.] by placing his mouth on [B.C.'s] penis between the dates of September 1, 1986 to August 31, 1987 at [B.C.'s] home, Rt. 3, Box 94, Peculiar, Missouri.

Count II, James W. Barnard abused [B.C.] by inserting a toothbrush into [B.C.'s] anus with his hand between the dates of November 01, 1986 and November 30, 1986, at [B.C.'s] home, Rt. 3, Box 196, Peculiar, Missouri.

The information was amended, conforming to the details in the Bill of Particulars.

Barnard appeared pro se at his arraignment. The court found that Barnard was indigent and appointed a public defender to represent him. The information was read to Barnard and he entered a plea of not guilty. Prior to this arraignment, Barnard was without counsel at his preliminary hearing. Barnard was tried by a jury and found guilty. He was represented by counsel at his trial.

The record also reflects that Barnard filed a 29.15 motion which, after an evidentiary hearing, was denied. Barnard appealed from the denial of this motion; the notice of appeal was filed November 20, 1990, with this court. An examination of Barnard's brief, however, reveals no point of error challenging the denial of the 29.15 motion. As the brief assigns no claim of error as to the denial of the 29.15 motion, Barnard has abandoned his 29.15 appeal and the 29.15 appeal is dismissed. State v. Gillispie, 790 S.W.2d 519, 520 (Mo.App.1990); State v. Mayo, 784 S.W.2d 897 (Mo.App.1990).

Barnard's first point on direct appeal claims that the trial court erred in admitting, over objection, evidence of crimes and offenses not charged and in allowing the prosecuting attorney to refer to this evidence during her opening statement. Barnard claims that such evidence was irrelevant, immaterial and violative of his right to due process.

At trial B.C. testified to numerous incidents of sexual abuse, punishment and name-calling, beside the incidents for which Barnard had been charged. J.C., the victim's brother, also testified to Barnard's efforts to make J.C. take Barnard's penis in his mouth. J.C. also testified that Barnard may have placed his penis in J.C.'s anus when J.C. was five or six years old. J.C. testified that Barnard would make the brothers hold each other down while Barnard stuck a toothbrush handle in their anuses. He testified that Barnard physically abused him, hitting him in his stomach, mouth and genitals. J.C. also testified that Barnard called him names.

The boys' mother testified that Barnard was "physically violent to the kids." She stated that B.C. acted afraid of Barnard. She also testified that Barnard cursed at the boys a lot and called them names.

Generally, evidence of crimes and offenses, other than those for which a defendant is on trial, is inadmissible. State v. Courter, 793 S.W.2d 386, 388 (Mo.App.1990). However, exceptions to the rule regarding inadmissibility exist. Such evidence is deemed admissible, "when it tends to establish motive, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime." State v. Mallett, 732 S.W.2d 527, 534 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987). It is not enough to merely argue that such evidence of prior criminal acts demonstrates a propensity to repeat the conduct. State v. Courter, 793 S.W.2d at 389. Furthermore, such evidence, under one of the stated exceptions, will only be admissible on the condition that its probative value outweighs its prejudicial effect. Id. Barnard argues that the evidence does not fit any of the recognized exceptions and was highly prejudicial to him.

As the court noted in State v. Kerr, 767 S.W.2d 344, 345 (Mo.App.1989), the current trend is toward a policy of liberally allowing the admission of evidence of prior sex crimes under one of the exceptions to the inadmissibility rule. Missouri allows for such testimony under both the motive exception and the common scheme or plan exception. Evidence of a defendant's prior sexual abuse of the same victim is admissible under the motive exception. In State v. Graham, 641 S.W.2d 102 (Mo. banc 1982), the Missouri Supreme Court articulated the reason for allowing such evidence under the motive exception. It stated, "[p]rior sexual intercourse or intimacy between defendant and victim indicates sexual desire for the victim by defendant and tends to establish a motive...." Id. at 105; See also State v. Courter, 793 S.W.2d at 388.

Evidence of a defendant's sexual misconduct with other children in his custody or control is admissible under the common scheme or plan exception. State v. Schaal, 806 S.W.2d 659, 664 (Mo. banc 1991); State v. Erickson, 793 S.W.2d 377, 383 (Mo.App.1990); State v. Taylor, 735 S.W.2d 412, 417-18 (Mo.App.1987).

The Eastern District in State v. Lachterman, 812 S.W.2d 759 (Mo.App.1991), recently discussed the Missouri decisions on this topic. The court examined the cases in great...