State v. Burch, 51698

• Decision Date: 29 September 1987
• Docket Number: No. 51698,51698
• Citation: 740 S.W.2d 293
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Bradford Scott BURCH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 293

740 S.W.2d 293

STATE of Missouri, Plaintiff-Respondent, v. Bradford Scott BURCH, Defendant-Appellant.

No. 51698.

Missouri Court of Appeals,

Eastern District,

Division Five.

Sept. 29, 1987.

Motion for Rehearing and/or Transfer Denied Oct. 28, 1987.

Application to Transfer Denied Dec. 15, 1987.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Stormy B. White, Asst. Public Defender, Clayton, for defendant-appellant.

CARL R. GAERTNER, Judge.

Defendant, Bradford Scott Burch, was convicted after a jury trial on two counts of sodomy under § 566.060, RSMo. 1978, and sentenced to consecutive sentences of seven years and five years. Defendant appeals, claiming: 1) the trial court erred by denying defendant's motion for a Bill of Particulars because the indictment employed vague, indefinite and generic language; 2) the trial court erred by failing to dismiss Count III of the indictment and by accepting a jury verdict on that count because it was identical to Count I; and 3) the trial court erred by overruling defendant's motion for judgment of acquittal because the prosecutrix's testimony was uncorroborated, contradictory and doubtful. We affirm.

The evidence established that defendant and his wife separated in April, 1984. Defendant's two daughters, L____ B____ and E____ B____, continued to live with their mother but visited defendant every other weekend and on Wednesday afternoons in the family's former home in St. Louis County. L____ B____ was seven years old and E____ B____ was 18 months old at the time of the separation. On January 18, 1985, L____ B____ described to a social worker, appointed by the court in her parents' divorce action, several sexual advances made upon her and E____ B____ by defendant. The police took a report and a warrant was issued for defendant's arrest on January 22. A few weeks later, an indictment formally charging defendant with two counts of committing sodomy upon L____ B____ and two counts of committing sodomy upon E____ B____ was handed down. The jury acquitted defendant on the latter two counts.

After the trial court found L____ B____, then age 9, competent to testify, she stated that defendant had inserted his finger into her vagina more than five times during the summer of 1984. L____ B____ also stated that her father forced her to put her mouth on his penis and touch it more than three or four times. L____ B____ testified defendant threatened to beat her and to kill her mother if she told anyone of his actions. Defendant denied L____ B____'s allegations in his testimony.

In identical verbiage, Counts I and III of the indictment charge "that between April, 1984 and January 21, 1985 ... defendant had deviate sexual intercourse with [L____ B____]." Pursuant to Rule 23.04 defendant filed a pre-trial motion for a bill of particulars, requesting the trial court to order the state to plead the "exact nature of the deviate sexual intercourse" and the specific dates upon which such conduct allegedly occurred. The denial of this motion gives rise to defendant's first point on appeal. He contends the indictment was multiplicious, exposing him to double jeopardy, and the use of vague, indefinite and generic language prevented him from adequately preparing his defense.

As to defendant's contention of improper use of vague, indefinite and generic language, we note first of all, that the indictment substantially follows the language of MACH-CR 20.08.2. Rule 23.01(b) sets forth the requirements for the content of an indictment or information. Compliance with the forms approved by the Supreme Court satisfies these requirements. Rule 23.01(e); Pelham v. State, 713 S.W.2d 614, 617 (Mo.App.1986); State v. Mitchell, 689 S.W.2d 143, 145 (Mo.App.1985). Additionally, it is generally permissible and sufficient for an indictment to charge the offense in the language of the statute, provided the statute sets forth all the constituent elements of the offense. State v. Mitchell, 704 S.W.2d 280, 287 (Mo.App.1986). An exception to this general rule is found where a statute defines the offense in generic terms and does not individuate the offense with sufficient particularity as to notify the accused of what he is to defend against. Id. State v. Voyles, 691 S.W.2d 452 (Mo.App.1985), the case principally relied upon by defendant, concerns a charge of stealing by deceit. As noted in the principal opinion in Voyles, "it is clear that to the extent § 570.030 denounces stealing by deceit, it uses generic terms to define the offense." Id. at 455. Obviously, an indictment which merely charges a defendant with stealing by deceit without specifying the particulars of the alleged false representation would fail to advise the defendant of what he must defend against. Section 566.060.3 does not suffer from a comparable lack of specificity. It proscribes as the crime of sodomy "deviate sexual intercourse with another person who is less than 14 years old." Deviate sexual intercourse is "any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person." § 566.010.1(2). The essence of the offense is the sexual act with a person under the age of 14. The specific combination of body parts through which the sexual act is effected need not be particularized in order to enable the defendant to meet the charge and to bar further prosecution. As stated in State v. Mitchell, 689 S.W.2d at 145, regarding sexual abuse in the third degree, "although the manner of touching may vary, the crime can only be committed one way. Thus, it is not subject to the 'generic' rule upon which defendant relies." Defendant in the instant case suffered no prejudice from the failure of the trial court to require the state to allege the exact nature of the conduct constituting deviate sexual intercourse.

Defendant also assigns as trial court error both the denial of his motion to dismiss Count III because it was set forth in language identical to that of Count I and the submission of Count III to the jury under an instruction identical to the verdict-directing instruction on Count I. The charges and the verdict directors on Counts I and III all recited that, between April, 1984 and January 21, 1985, defendant had deviate sexual intercourse with L____ B____ who was then less than 14 years old. Because of the identical language of both counts defendant argues he was exposed to double jeopardy because a "jury so instructed could not help but believe it had the authority to impose multiple punishments for a single crime." This argument overlooks the fact the jury was also instructed, under MAI-CR2d 2.70, that "[t]he defendant is charged with a separate offense in each count submitted to you. Each offense and the law applicable to it should be considered separately."

Defendant's reliance on State v. Mitchell, 704 S.W.2d 280 (Mo.App.1986) is misplaced. In Mitchell two charges of exhibiting a lethal weapon in an angry or threatening manner, one at a residence, the other later on the same day at a cafe, were charged in identical language and were submitted to the jury under identical instructions. Because of the impossibility of distinguishing which count referred to which of the incidents, each of which was surrounded by different circumstances relied upon by defendant as extenuation for his conduct, the Mitchell court found error requiring a new trial. The court expressly noted the simple means of avoiding any possible confusion by specifically referring to the place of each distinct occurrence in the information and in the instructions. Id. 285. In so ruling the Mitchell court distinguished that case from State v. Woodfin, 559 S.W.2d 273 (Mo.App.1977), in which the submission of two counts of sale of marijuana under identical verdict-directing instructions was...