State v. Bascue

Decision Date09 October 1972
Docket NumberNo. 54870,No. 2,54870,2
Citation485 S.W.2d 35
PartiesSTATE of Missouri, Respondent, v. Larry Michael BASCUE, Appellant
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., Y. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Lloyd F. Dieckman, Pohlmann & Dieckman, Kansas City, for appellant.

HOUSER, Commissioner.

Larry Michael Bescue, charged with statutory rape of his 14-year-old stepdaughter, waived a jury, submitted his case to the court sitting without a jury and was found guilty. Sentenced to 3 years' imprisonment, Bascue has appealed. This Court has jurisdiction under Section 3 of Article V, Constitution of Missouri, 1945, V.A.M.S., as provided by that section prior to the amendment adopted at the special election of August 4, 1970, since the notice of appeal was filed prior to January 1, 1972. Article V, § 31.

Appellant's first point is that the court erred in admitting testimony of prior acts of misconduct. The testimony objected to is that of prosecutrix that on occasions when her mother was not present at the home, beginning when prosecutrix was 9 years of age, appellant started 'messing around' with her, that is, with both of them undressed and in the bedroom appellant, with his hand, would play with her private parts--with 'that which was between (her) legs.' Also he would use his private part--'the thing between his legs'--by putting it between her legs and against her privates and 'just sort of move it back and forth,' without putting it inside her. Later, after she attained age 12, he would have intercourse with her by putting his private part into hers, actually penetrating her body. This occurred once or twice a week. The specific charge was that of carnally knowing and abusing the girl on June 22, 1968. Appellant argues that the acts of 'messing around' and playing with her private parts are not so interrelated with the charge of rape as to come within the exception to the general rule of inadmissibility of other crimes, under which exception evidence of other offenses is admissible when their proof may tend to establish motive or intent, or a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to prove the other. Appellant maintains that the prior acts in question constitute nothing more than child molestation, are not reasonably related to the charge of statutory rape on June 22, 1968, and are remote in point of time; that by their admission in evidence appellant was placed on trial for acts with which he was not charged, in violation of his rights under state and federal constitutional provisions, and that his alibi defense was thereby nullified under the ruling is State v. Chittim, Mo.Sup. (1953), 261 S.W.2d 79, 80, and like cases.

The acts in question are reasonably related to the charge. In cases of statutory rape not only are prior acts of intercourse between accused and prosecutrix admissible in evidence as tending to show the relationship between the parties and the probability that the parties committed the specific act charged (as constituting 'the foundation for an antecedent probability'), or as corroborative evidence, State v. Akers, Mo.Sup., 328 S.W.2d 31, and cases cited l.c. 34; State v. Baker, 318 Mo. 542, 300 S.W. 699, but evidence of prior acts of 'lascivious familiarity between the parties, not amounting to actual intercourse' but showing the state of intimacy between them, is admissible for the same reasons. State v. Akers, supra, 328 S.W.2d l.c. 33(5). In State v. Cooper, Mo.Sup., 271 S.W. 471, 474(7), a statutory rape case, evidence of prior acts of fondling the person of prosecutrix, 'fingering' her privates and a prior partial effort to accomplish the sexual act was held properly admitted (over objection that it permitted proof of assaults of defendant upon prosecutrix other than the one mentioned in the information) to show the disposition and inclination of prosecutrix and defendant to commit the act charged in the information. After stating that such acts constitute the foundation of an antecedent probability the court reasoned that 'prior amorous acts, which ordinarily precede the sexual act, although actually constituting assaults and therefore separate offenses, may properly be shown for the same reason.' The rule had recent application in State v. Garner, Mo.Sup., 481 S.W.2d 239(4), a child molestation case.

The objection that evidence of prior acts nullified appellant's alibi defense and placed him on...

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14 cases
  • State v. Garrett
    • United States
    • Missouri Court of Appeals
    • February 19, 1980
    ...City of Webster Groves v. Institutional & Pub. Emp. U., 515 S.W.2d 444 (Mo.1974); State v. Perry, 499 S.W.2d 473 (Mo.1973); State v. Bascue, 485 S.W.2d 35 (Mo.1972); Whealen v. St. Louis Soft Ball Ass'n, 356 Mo. 622, 202 S.W.2d 891 (1947); Brock v. Steward, 519 S.W.2d 365 The appellant was ......
  • State v. Taylor
    • United States
    • Missouri Court of Appeals
    • July 24, 1987
    ...defendant concedes the admissibility of evidence of his 1982 conviction of sodomy upon A.W. He acknowledges the authority of State v. Bascue, 485 S.W.2d 35 (Mo.1972) and State v. Williams, supra, involving prior sex crimes with the same victim. However, he argues the state should have been ......
  • State v. Bernard, No. 74775
    • United States
    • Missouri Supreme Court
    • February 23, 1993
    ...and the victim was admissible despite the general rule prohibiting evidence of prior misconduct of the defendant. See State v. Bascue, 485 S.W.2d 35, 37 (Mo.1972); State v. Garner, 481 S.W.2d 239, 241 (Mo.1972); State v. Cason, 252 S.W. 688, 689-90 (Mo.1923); State v. Hersh, 296 S.W. 433, 4......
  • State v. Woods
    • United States
    • Missouri Court of Appeals
    • January 19, 1983
    ...v. State, 485 S.W.2d 424 (Mo.1972); Tyler v. State, 485 S.W.2d 102 (Mo.1972); State v. Sechrest, 485 S.W.2d 96 (Mo.1972); State v. Bascue, 485 S.W.2d 35 (Mo.1972); State ex rel. Highway Commission v. Wertz, 478 S.W.2d 670 (Mo.1972); Papin v. Papin, 475 S.W.2d 73 ...
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