State v. Christeson, 54791

• Decision Date: 14 November 1989
• Docket Number: No. 54791,54791
• Citation: 780 S.W.2d 119
• Parties: STATE of Missouri, Respondent, v. Melvin A. CHRISTESON, Appellant.
• Court: Missouri Court of Appeals

Page 119

780 S.W.2d 119

STATE of Missouri, Respondent, v. Melvin A. CHRISTESON, Appellant.

No. 54791.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Nov. 14, 1989.

M. Dwight Robbins, Fredricktown, for appellant.

William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.

GRIMM, Judge.

In this jury-tried case, defendant appeals his convictions of (1) first degree sexual Defendant was sentenced to consecutive terms totalling forty-nine years. We affirm in part and reverse in part.

assault, § 566.040, ¹ a class C felony; (2) first degree deviate sexual assault, § 566.070, a class C felony; (3) second degree sexual assault, § 566.050, a class D felony; (4) second degree deviate sexual assault, § 566.080, a class D felony; (5) two counts of incest, § 568.020, a class D felony; and (6) sodomy, § 566.060, a class B felony.

Defendant raises eight points of error. First, the trial court erred in overruling defendant's motion for a change of judge under Rule 32.09. We disagree, because there was no showing that the trial court abused its discretion. Second, the trial court erred in overruling defendant's motion for judgment of acquittal at the close of the State's case. We disagree, because defendant waived any error by presenting evidence following the close of the State's case; further, we find no plain error. Third, the trial court erred in permitting the State to present evidence of defendant's sexual acts with a person who was not a complaining witness. We disagree, because the evidence was admissible to show a common scheme or plan. Fourth, the trial court erred in permitting the State to present evidence of sexual acts which were not part of the acts charged. We disagree, because evidence of prior sexual acts between a victim and the defendant are admissible.

Fifth, "the trial court erred in permitting the introduction of irrelevant[,] inflammatory and prejudicial evidence, in that [a social worker] was asked to testify as to the results of an investigation of allegations that [defendant] had abused children and the trial court denied [defendant's] request for a mistrial." We disagree, because defendant waived his objection; further, the trial court did not abuse its discretion. Sixth, the trial court erred in admitting hearsay evidence. We disagree, because the evidence was admissible as an admission against interest. Seventh, the trial court erred in denying defendant's request for a mistrial during the State's closing argument. We disagree, because there was no abuse of discretion. Eighth, plain error occurred because the verdict directing instructions on counts two and four "failed to require a finding that [defendant] had deviate sexual intercourse with any particular individual." ² We agree, and reverse and remand the judgment on those two counts.

We view the evidence, together with all reasonable inferences, in the light most favorable to the verdict. State v. Mallet, 732 S.W.2d 527, 530 (Mo.banc 1987). S. ³ was born October 9, 1969. Her brother, C., was born June 1, 1971. In 1975, Dorothy Burt adopted S., C., and their older sister, J., who was born November 6, 1967. Dorothy married defendant in 1979.

In 1981, defendant, Dorothy, J., S., and C. moved to Washington County, Missouri. There, from January, 1984, to January, 1987, defendant sexually abused S. and C. repeatedly.

I

In his first point, defendant alleges the trial court erred in overruling his motion for a change of judge. The motion was filed the day before trial began, seeking a change "in accordance with the procedures of Criminal Rule 32.09." Defendant claimed that the trial court should have ordered a change of judge as a matter of fundamental fairness. Defendant alleged that the trial judge, Stanley J. Murphy, "has heard evidence concerning the material facts of this case in a Juvenile Court action." Defendant presented no evidence on his motion; rather, he let it "speak for itself."

"Where bias and prejudice are actually present, it is error for a trial judge not to Here, Judge Murphy stated that he had formed no bias or prejudice against defendant. A review of the record supports this. Defendant failed to establish the existence of any bias or prejudice. Accordingly, we find no abuse of discretion. Point denied. ⁴

                recuse himself [or herself], even if the request is not timely made."  State v. Owens, 759 S.W.2d 73, 74 (Mo.App.S.D.1988).  Yet, "whether fundamental fairness requires a judge to disqualify under Rule 32.09(c) is a discretionary matter best left to the trial judge."  Id. at 75.   The mere fact, however, that "a trial judge has previously made adverse rulings against a party or had previous contact with the defendant in criminal matters does not establish prejudice."  Id
                

II

Defendant's second point alleges the trial court erred in denying his motion for judgment of acquittal at the close of the State's case. Defendant contends the evidence was insufficient to support a conviction, because "the complaining witnesses could not testify in their own words as to what happened to them, and the acts charged were not corroborated by any other evidence."

Defendant, however, did not stand on that motion for judgment of acquittal. After the motion was denied, defendant presented evidence in his own behalf. As a result, he waived any error with respect to the denial of his motion. State v. Maxson, 755 S.W.2d 277, 280 (Mo.App.E.D.1988).

Even if we were to reach the merits of this point, we would find that the State made a submissible case. Defendant's contention that S. and C. "could not testify in their own words as to what happened to them" is without merit. S. and C. graphically described the numerous acts of sexual abuse to which they had been subjected.

Further, defendant's contention that "the acts charged were not corroborated by any other evidence" is likewise without merit. "The testimony of a victim is sufficient to sustain a sodomy conviction without other corroboration unless that testimony is so contradictory or in conflict with the physical facts, surrounding circumstances and common experience to be unconvincing." State v. Evans, 701 S.W.2d 569, 578 (Mo.App.E.D.1985). This rule is also applicable in cases of incest, State v. McElroy, 518 S.W.2d 459, 462 (Mo.App.S.D.1975), and second degree deviate sexual assault, State v. Wilson, 757 S.W.2d 622, 627-628 (Mo.App.W.D.1988). We find the rule equally applicable to the remaining charges in this case.

Here, no contradiction or conflict appears in either victim's testimony. Each testified convincingly with respect to the essential elements of the crimes charged. Corroboration, therefore, was not required; and the State made a submissible case. Point two is denied.

III

In his third point, defendant asserts, "the trial court erred in permitting the State to present evidence of sexual acts of [defendant] with [J.,] who was not a complaining witness...." J. testified that defendant began sexually abusing her when she was very young, and that this abuse continued until she moved out of the home.

While "[e]vidence of similar sex crimes against other persons is inadmissible for purposes of showing propensity," such evidence "is admissible if it tends to establish motive, intent, identity, absence of mistake or accident, or a common scheme or plan." State v. Kerr, 767 S.W.2d 344, 345 (Mo.App.E.D.1989). Further, "[t]he current trend is to liberally allow the admission of evidence of prior sex crimes under one or more of the preceding exceptions." Id.

The prior sexual abuse about which J. testified was similar to the acts of sexual abuse for which defendant was being tried. These similarities included: (1) defendant frequently sodomized each step-child when the child was alone with him; (2) defendant This evidence demonstrated defendant's common scheme or plan to sexually abuse his step-children. Accordingly, J.'s testimony was properly admitted for that purpose. Point denied.

began having sexual intercourse with each step-daughter when she was about ten-years old; (3) the sexual abuse took place in the house if Dorothy was not at home; and (4) if Dorothy was home, defendant would often take one step-daughter or the other into the woods and subject her to sexual intercourse.

IV

Defendant maintains in his fourth point that the trial court erred in permitting S. to testify to "sexual acts which were not part of the acts charged...."

"[I]t is well settled that in a prosecution of sexual offenses, evidence of prior sexual acts between the victim and the defendant are admissible even though they constitute proof of the commission of separate crimes." State v. Sandlin, 703 S.W.2d 48, 49 (Mo.App.E.D.1985). Such evidence is admissible " 'to show the probability that the specific acts charged had been committed and to show the relationship of the parties involved.' " Id. (quoting State v. Worthington, 582 S.W.2d 286, 291 (Mo.App.W.D.1979)). Point denied.

V

In his fifth point, defendant asserts "[t]he trial court erred in permitting the introduction of irrelevant[,] inflammatory and prejudicial evidence, in that [a social worker] was asked to testify as to the results of an investigation of allegations that [defendant] had abused children...." Defendant further asserts the trial court erroneously denied his request for a mistrial.

The social worker was asked on direct examination if, after 1983, she had "occasion to investigate allegations of child abuse as a result of a hot line call to your office with regard to Dorothy and [defendant]." The social worker responded that in 1987, "we had a child abuse and neglect hot line report, which alleged sexual molestation of his two step-children that were in the home." The prosecutor then asked, "Did you at that time talk--." Defense counsel object stating, "It has nothing to do with it. It's inflammatory. It has nothing to do with the case and [sic] immaterial and not...