State v. Berwald, No. WD 64445 (MO 10/25/2005)

Decision Date25 October 2005
Docket NumberNo. WD 64445,WD 64445
PartiesSTATE OF MISSOURI, Respondent, v. ALLEN B. BERWALD, Appellant.
CourtMissouri Supreme Court

Appeal from the Circuit Court of Bates County, Honorable William J. Roberts, Judge.

Before Ronald R. Holliger, Presiding Judge, Robert G. Ulrich, Judge, and Joseph M. Ellis, Judge.

JOSEPH M. ELLIS, Judge.

Appellant, Allen B. Berwald, was convicted by a Bates County jury of one count of statutory rape in the first degree and one count of statutory sodomy in the second degree, both of which concerned N.B., his adopted minor daughter. Mr. Berwald was sentenced to concurrent terms of imprisonment in the custody of the Missouri Department of Corrections of twenty-five years and seven years, respectively. We reverse his convictions and remand for a new trial.

Before stating the facts of this case, it is helpful to review its relevant procedural history. On October 20, 2003, Mr. Berwald was charged by information with three counts of statutory rape in the first degree (section 566.032);1 one count of statutory rape in the second degree (section 566.034); two counts of statutory sodomy in the first degree (section 566.062); two counts of statutory sodomy in the second degree (section 566.064); and three counts of endangering the welfare of a child in the first degree (section 568.045). He entered pleas of not guilty to all eleven charges.

Pursuant to Rule 23.04, Mr. Berwald subsequently moved for an order directing the State to file a bill of particulars, which was granted after a hearing. On June 29, 2004 (the morning of the first day of trial), the State filed an amended information dismissing both counts of first-degree statutory sodomy, leaving nine charges intact. These nine charges were as follows.

In Count I, the State alleged that in the summer or fall of 2000, when N.B. was less than fourteen years old, Mr. Berwald committed the crime of statutory rape in the first degree by having sexual intercourse with N.B. in front of the television in the living room of the Berwald family home. Count II alleged that Mr. Berwald committed statutory rape in the first degree by having sexual intercourse with N.B., who was then less than fourteen-years old, by the fireplace in the living room of the Berwald family home in winter 2000 or spring 2001, while Count III alleged that Mr. Berwald committed statutory rape in the first degree by having sexual intercourse with N.B., who was then less than fourteen-years old, on her bed in the Berwald family home in summer 2001. In Count IV, the State alleged that in winter 2002, when N.B. was less than seventeen years old, Mr. Berwald committed statutory rape in the second degree by having sexual intercourse with N.B. on her bed in the Berwald family home. In Count V, the State alleged that sometime in winter 2002, when N.B. was less than seventeen years old, Mr. Berwald committed statutory sodomy in the second degree by having deviate sexual intercourse with N.B. in the Berwald family home, during which he inserted his fingers into N.B.'s vagina. Count VI was similar to Count V, and alleged that sometime in 2003, Mr. Berwald committed statutory sodomy in the second degree by having deviate sexual intercourse with N.B., who was then less than seventeen-years old, in the Berwald family home, during which he inserted his fingers into N.B.'s vagina. Finally, in Counts VII, VIII, and IX, the State alleged that in summer 2001, winter 2002, and sometime in 2003, respectively, when N.B. was less than seventeen years old and he was her parent, Mr. Berwald committed endangerment of the welfare of a child in the first degree by having deviate sexual intercourse with N.B. in the Berwald family home, during which he inserted his fingers into N.B.'s vagina.

The State's case-in-chief was presented over the course of a day and a half. At the conclusion of the State's case, Mr. Berwald filed a Motion for Judgment of Acquittal at the Close of the State's Evidence. The trial court entered a directed verdict of acquittal on one of the second-degree statutory sodomy counts against Mr. Berwald (Count V), but denied his motion as to the other eight counts. Mr. Berwald's case-in-chief also required a day and a half to present. At the close of all the evidence, Mr. Berwald filed a Motion for Judgment of Acquittal at the Close of all the Evidence. The trial court entered a directed verdict of acquittal on two of the three counts of endangering the welfare of a child in the first degree (Counts VII and VIII), but denied his motion as to the remaining six counts, which were submitted to the jury.2 The jury found Mr. Berwald guilty on Counts III and VI, but found him not guilty on Counts I, II, IV, and IX. His motion for new trial was overruled, and he was sentenced to concurrent terms of imprisonment in the custody of the Missouri Department of Adult Institutions of twenty-five years on Count III and seven years on Count VI. This appeal followed.

Set forth in the light most favorable to the State, the State's evidence showed the following as to Counts III and VI. N.B., who was born on November 24, 1987, was a sixteen-year-old junior at Butler High School at the time of trial. She is the natural child of Kelly Berwald, who married Mr. Berwald in 1991. In 1992, Mr. Berwald, who was sixty-seven years old at the time of trial, adopted N.B. and her brother M.B. The Berwald family resided in a home located in rural Bates County, Missouri.

In the summer of 2001, N.B. was thirteen years old. Mr. Berwald came into her room one night while she was lying on her bed. He pulled N.B. over to the edge of the bed, so that she was lying across the bed with her legs hanging over the edge. He pulled off her jeans, stood between her legs, and used his hands to open the "folds" around her vagina. Mr. Berwald then rubbed his flaccid penis on N.B.'s vagina and attempted to insert his penis into her vagina, penetrating it slightly. On one occasion in 2003, prior to the end of March, while N.B. was less than seventeen years old and he was her parent, Mr. Berwald inserted his finger into N.B.'s vagina while they were in the Berwald family home. N.B. and only N.B. was the source of all this testimony.

On March 21, 2003, Mr. and Ms. Berwald separated, and Ms. Berwald moved out of the family home to live in the offices of Mr. Berwald's business. N.B. continued living in the Berwald family home for a week or two, and then went to stay with her mother. On or about April 29, 2003, N.B., who feared that her mother was going to get back together with Mr. Berwald, told Ms. Berwald for the first time about being sexually abused by Mr. Berwald, and further revealed, for the first time as well, that she was also involved in a sexual relationship with a boyfriend, B.I. Shortly after hearing these allegations, which were consistent with a "dream sequence" she had experienced a few months earlier during which she dreamed that Mr. Berwald was sexually abusing N.B. while N.B. was asleep, Ms. Berwald used a microcassette tape recorder she had found in the office to audiotape N.B.'s initial account of the abuse. Ms. Berwald then took N.B. to the circuit clerk's office to obtain a child protection order. A hotline call was placed to the Division of Family Services, and N.B. was subsequently interviewed by various law enforcement, juvenile justice, and family services personnel about the abuse prior to Mr. Berwald's eventual arrest.

The rest of the State's evidence against Mr. Berwald (in fact, the vast majority of the evidence against him) did not relate directly to the criminal acts with which he had been charged. Instead, it pertained to other instances of alleged sexual contact between Mr. Berwald and either N.B. or other persons at various other times, all of which were uncharged offenses. That evidence, all of which was admitted over Mr. Berwald's pretrial objections in a motion in limine and during trial as it was introduced, was as follows.

N.B. testified that when she was ten or eleven years old and in the fifth grade, Mr. Berwald told her that her legs were "sexy" when she "would stand on [her] tippy toes." N.B. also testified that a few years later, while she was in the seventh and eighth grades, Mr. Berwald began touching her breasts and/or rubbing her vagina with his hand about four to five times a week. She testified that, when he would rub her breasts, he would rub them just above the nipple and tell her that he was doing that to make them grow faster and mature more quickly.

N.B. further testified about one time during her seventh-grade year, when Mr. Berwald placed her hand in his pants and had her touch his penis and masturbate him. N.B. also testified that, at least on one occasion in the summer following her eighth-grade year, Mr. Berwald had her lie on a counter and spread her legs, then used his hands to open her vagina so that he could examine it, claiming to be checking to see if she was still a virgin, if she was pregnant, and if tampons were hurting her. She said that, during her ninth-grade year, he would also hide in her closet and watch her getting dressed. According to N.B., these acts continued through her ninth-grade year, and Mr. Berwald would often come into her room at night to molest her. Finally, N.B. testified that during 2002 and 2003, while she was in ninth grade, Mr. Berwald did not have any sexual contact with her involving his penis, but did touch her breasts and rub her vagina with his hand between two and four times a week. When Mr. Berwald touched her during this time, N.B. testified, he would tell her that he was "working her hormones."

The State also presented testimony from Jane Howe and Vicki Twedt, two of Mr. Berwald's adult children from his first marriage. Ms. Howe was forty-five years old at the time of trial and Ms. Twedt was forty-three. Ms. Howe testified that, during the nine-year period when she was six to fifteen years old, Mr....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT