State v. Bolen

• Decision Date: 05 May 1987
• Docket Number: No. 51596,51596
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Teron BOLEN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 453

731 S.W.2d 453

STATE of Missouri, Plaintiff-Respondent, v. Teron BOLEN, Defendant-Appellant.

No. 51596.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 5, 1987.

Motion for Rehearing and/or

Transfer Denied

June 9, 1987.

Application to Transfer Denied

July 14, 1987.

Charles Clifford Schwartz, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., Colly Frissel-Durley, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Judge.

Defendant was charged with sodomy, § 566.060 RSMo Cum Supp. 1984 and attempted sodomy, § 564.011 RSMo 1978. According to the state's evidence defendant committed an act of manual sodomy on M.H., a twelve year old male, and simultaneously made offers of money or concert tickets to M.H. in conjunction with a request for oral sodomy. This request was refused. The jury found defendant not guilty of the class "B" felony of sodomy. It found defendant guilty of the class "C" felony of attempted sodomy. As a result defendant was sentenced to serve one year in the county jail and pay a fine of $1,000.

Defendant contends that the charged acts constituted one crime and that the not guilty verdict exhausted defendant's criminal responsibility for events that occurred simultaneously. In a related claim defendant asserts that the guilty verdict is inconsistent with the not guilty verdict and, for that reason, must fail. We reserve the defendant's alternative claims in support of a request for retrial.

The direct evidence of defendant's involvement was presented by the testimony of M.H. On February 9, 1984, defendant attended a rock concert with M.H. and two others. Sometime thereafter, and before March 28, 1984, defendant telephoned M.H. and proposed a meeting which M.H. accepted. Ostensibly, the meeting was to discuss a rock concert which would occur on March 28, 1984.

The meeting occurred. Defendant drove M.H. to the home of the father of defendant. While driving defendant asked M.H. to take a "bashful test" and began physical activities with M.H. which would have indicated improper motives to a more experienced person. At the home of defendant's father, the "test" continued which included actions of defendant in masturbating M.H. Efforts of M.H. to terminate the encounter were declined by defendant. The charge of sodomy relates to the acts of masturbation. Simultaneously therewith, defendant requested the permission of M.H. for an act of oral sodomy. In furtherance of the request he first offered a concert ticket, a payment of five dollars and a payment of ten dollars to secure permission. The offers were refused. The charge of attempted sodomy relates to the proposal supported by the offer of consideration as an act in furtherance of the crime.

M.H. first reported the events to his mother in August of 1984. Law enforcement authorities were then informed. The original informations on the charges specified the date of the offenses to be March 16, 1984. By deposition, M.H. testified that that was the date of occurrence. Defendant relied on the defense of alibi. For purposes of this opinion we consider that defendant's evidence of alibi on that date is persuasive. Two months before trial the court permitted the state to amend the information and substitute "March, 1984" for March 16, 1984. During the summer of 1984, M.H. resided with his father in Texas. The report of the offenses was triggered by a telephone call from defendant to M.H. in August, 1984. M.H. testified that the call frighted him.

Defendant was arrested on August 30, 1984. The detective who made the arrest informed defendant that there was a notation on the warrant for arrest that defendant was not to contact M.H. Defendant volunteered a response that he did not know M.H.

The thrust of defendant's first claim of error is that the simultaneous acts of masturbation and the proposal for oral sodomy constitute but one crime. If true, the state improperly split its cause of action by charging separately sodomy and attempted sodomy, therefore the not guilty verdict on the sodomy charge would be conclusive of defendant's innocence. However, Missouri follows the separate or several offense rule which means a defendant can be convicted of several offenses arising from the same set of facts without violation of double jeopardy rights. State v. Jackson, 703 S.W.2d 30, 33 (Mo.App.1985). "Multiple charges are permissible if the defendant has in law and in fact committed separate crimes." State v. Lint, 657 S.W.2d 722, 725 (Mo.App.1983). Offenses are not identical when one requires proof of an essential element or fact not required by the other. State v. Jackson, 703 S.W.2d at 33.

As a matter of fact and as a matter of law the separate charges describe separate crimes. The crimes are related only by the fact that they were committed, if at all, simultaneously. The elements of the sodomy charge involving defendant and a twelve year old male were deviate sexual intercourse with a person under the age of fourteen years, § 566.060.3 RSMo Cum.Supp.1984. This charge relates only to the alleged masturbation. The elements of attempt sodomy are an act which is a substantial step towards the commission of the offense of sodomy where the offense is not completed, § 564.011 RSMo 1978. All that was required to support the attempt sodomy charge was an intent to perform an act of oral sodomy together with the promises of consideration made and refused. The facts describe separate crimes under separate statutes. As a result the not guilty verdict on the sodomy charge does not prohibit conviction on the attempted sodomy charge.

Defendant also argues that no separate "substantial step" toward the commission of the attempt sodomy occurred. We find the successive offers of consideration are a substantial step because they are "strongly corroborative of the firmness of [defendant's] purpose to complete the commission of the offense", § 564.011.1 RSMo Cum Supp. 1984. This statute does not require that an actual or specific attempt be made to perform each and every element of the crime. State v. Thomas, 670 S.W.2d 138, 139 (Mo.App.1984). The rejected offers suffice.

The sufficiency of the evidence on the charge of attempted sodomy is contested on the further ground that the testimony of M.H. was inherently contradictory and therefore insufficient. Defendant relies on State v. McElroy, 518 S.W.2d 459 (Mo.App.1975). McElroy stands for the proposition that when a victim's testimony is so unconvincing and contradictory as to cloud the mind of the court with doubt, the evidence must be corroborated. M.H. was confused as to the exact date of the events, his description of the interior of defendant's automobile, and the conversation he had with his mother the night he reported the offenses. However, a child's testimony does not require corroboration merely because he falls into inconsistencies or contradictions on collateral points. State v. Smith, 679 S.W.2d 899, 902, 903 (Mo.App.1984). On the basic facts of the circumstances and the rejected proposal of oral sodomy the testimony of M.H. was clear and certain.

We conclude that on the state's evidence two crimes were simultaneously committed. The state did not err in bringing both charges and the court did not err in submitting both charges. The verdict for defendant on the sodomy charge does not require the verdict on the attempt sodomy charge to be set aside. See, State v. Olson, 636 S.W.2d 318, 320 (Mo. banc 1982).

In addition, or in the alternative, defendant contends that the not guilty verdict is inconsistent with the guilty verdict and, as a matter of law, must fail. Missouri case law rejects that view. Verdicts need not be consistent. State v. Clemons, 643 S.W.2d 803, 805-806 (Mo. banc 1983); State v. Doney, 622 S.W.2d 227, 229 (Mo.App.1981). Inconsistent verdicts among several charges require reversal only if there is insufficient evidence to support the jury's finding of guilt. State v. Cross, 699 S.W.2d 51, 54 (Mo.App.1985). If believed, the testimony of M.H. supported the submission and verdict on the charge of attempted sodomy. Perhaps the reason for this rule of law is that it is equally likely that the guilty verdict is "right" and the not guilty verdict is in error.

Defendant also relies on a number of claims of trial court error to justify a new trial. He claims he was denied a fair trial when the court permitted the state to amend the information and allege that the crimes occurred sometime in the month of March when the original information specified March 16; that the court erred in allowing the arresting officer to testify about a pre-Miranda statement of defendant that he did not know M.H.; that the prosecutor was permitted to commit the jury to a position adverse to defendant during voir dire examination i.e., that they could convict even if the state could not prove a specific date of the offenses; that the court erred in refusing to permit an unendorsed witness, defendant's father, to testify about physical characteristics of his home so as to contradict the description of M.H.; and, that the trial court erred in sustaining the state's motion in limine to keep out any evidence of defendant's exemplary military and work record and in refusing a character instruction.

The state was permitted to amend the information and generalize the date of the offenses. This occurred after defendant notified the state it would rely on the defense of alibi and after a deposition of M.H. In the deposition, M.H. was specific on the date. Where time is not of the essence of the offense an indictment or information will be upheld even if the statement of the charge omits to state the time of the offense, § 545.030.1(5) RSMo 1978. "Any information may be amended or substituted for an indictment any time before verdict or finding if no additional or different offense is charged and if a defendant's substantial rights are not...