State v. Davis

• Decision Date: 06 July 1976
• Docket Number: No. 36902,36902
• Citation: 540 S.W.2d 122
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Watt DAVIS, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 122

540 S.W.2d 122

STATE of Missouri, Plaintiff-Respondent, v. Watt DAVIS, Defendant-Appellant.

No. 36902.

Missouri Court of Appeals, St. Louis District, Division Two.

July 6, 1976.

Motion for Rehearing or Transfer Denied Aug. 18, 1976.

Application to Transfer Denied Oct. 12, 1976.

Ira M. Young, St. Louis, for defendant-appellant.

Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.

DOWD, Judge.

Defendant appeals his conviction for molesting a minor with immoral intent. § 563.160 RSMo 1969. The jury fixed his punishment at two years imprisonment. We reverse.

The female victim was 13-years-old at the time of the incident. The defendant is the victim's natural father, but he was never legally married to the victim's mother. Although the mother had had custody of the victim since early childhood, the defendant usually had custody of the victim every other weekend.

About 4 p.m. on March 2, 1974, the defendant picked up the victim at her mother's house. He drove her to his home to spend the night. The victim went to bed about 11 p.m. About 5 a.m. the next morning, according to the victim, defendant awakened her and forced her to have intercourse with him. Later that morning the defendant drove the victim to church services but he himself did not enter the building. Church services lasted from approximately 9:30 a.m. until 1:30 p.m. After the services the victim approached her mother and said she did not want to return to the defendant's home, but the mother told her to go with the defendant.

Later that afternoon at defendant's home the victim fell asleep. According to the victim's testimony, sometime between 4 and 4:30 p.m. the defendant awakened the victim and attempted to force her into an act of oral copulation. That evening the defendant drove the victim to her mother's home, where she informed her family about these incidents.

On March 4, 1974, a medical examination of the victim found a ruptured hymen. But there was no medical evidence of external injuries or sperm.

The defendant testified and denied any improper conduct toward the victim.

The defendant's first point on appeal is that the trial court erred when it permitted evidence of a crime other than the one charged in the indictment. The indictment charged defendant with molesting a minor on March 3, 1974, by trying to insert his penis into the victim's mouth. During his opening argument the prosecutor informed the jury that he would introduce evidence to show defendant had intercourse with the victim the night before the crime charged in the indictment. Defense counsel objected and moved for a mistrial. The trial court denied the motion for a mistrial, but it sustained the objection and instructed the jury to disregard the prosecutor's remarks. Despite a continuing objection by defense counsel, the trial court thereafter permitted the victim to testify about the intercourse and permitted the introduction of the medical records.

The established rule in Missouri is that proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant's guilt of the crime charged. Evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive (2) intent (3) the absence of mistake or accident (4) the identity of the person charged with the crime (5) a common plan or scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954).

We hold that the evidence of the intercourse is admissible because it has a legitimate tendency to directly establish the defendant's guilt of the crime charged. And specifically it is admissible under exception 5 of State v. Reese, supra, in that it is part of a common plan or scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.

In this case several circumstances point to the existence of such a common plan or scheme. Both the intercourse and the attempted sodomy occurred when the victim had been sent to spend the weekend with her father. Both acts occurred within a 12-hour period. Both the intercourse and the crime charged took place between defendant and the victim at the defendant's home. Both crimes were sexual in nature. Both crimes occurred just after defendant awakened the victim, presumably because the victim would not be alert after having slept. These circumstances indicate that both sexual assaults resulted from a plan by defendant to exercise control and custody over the victim and make her the target of his sexual excesses. See State v. Torrence, 519 S.W.2d 360 (Mo.App.1975); State v. Shumate, 478 S.W.2d 328(2--3) (Mo.1972); State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765(7--8) (1953).

In deciding this point against defendant, we are mindful that the admission into evidence of separate crimes should be subjected to rigid scrutiny, particularly when the crime are those for which there is a human abhorrence. State v. McElroy, 518 S.W.2d 459(4--6) (Mo.App.1975). However, in this case we clearly perceive a logical relevancy between the intercourse and the crime charged.

Defendant's second contention is that the trial court committed prejudicial error when it gave the following verdict directing instruction (MAI-CR No. 12.40):

'If you find and believe from the evidence beyond a reasonable doubt:

'First, that on March 3, 1974 Margaret Hamilton was 13 years of age, and

'Second, that at that time and in the City of St. Louis, State of Missouri, the defendant in the presence of Margaret Hamilton indulged in a lewd and indecent act by attempting to insert his penis into Margaret Hamilton's mouth, and took lewd and indecent liberties with Margaret Hamilton by inserting his penis in her vagina,

then you will find the defendant guilty of molesting a minor.

'However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.'

Defendant maintains this instruction was prejudicially erroneous because it required the jury to determine defendant's guilt not only of the crime charged but also of the intercourse. We find the trial court did commit prejudicial error when it gave this erroneous instruction and we reverse and remand the cause for a new trial.

Rule 24.04 permits offenses based upon two or more acts which are part of the same transaction or two or more acts or transactions which constitute parts of a common scheme or plan to be charged in separate counts in the same indictment or information. Section 563.160, supra, and MAI-CR Number 12.40 also appear to contemplate such joinder of offenses. Two specific offenses were submitted in the instruction, molestation of a minor by intercourse with the victim and molestation by attempted oral copulation. Both crimes could have been charged in separate counts in the same indictment. However, the indictment charged only the latter offense. While the instruction given by the trial court would have been correct as to form had the indictment charged both criminal acts, it is here erroneous as submitting a separate crime in addition to the crime for which the defendant had been indicted.

The state concedes the verdict directing instruction was broader than the indictment, for the instruction obviously included an additional crime not charged in the indictment. However, even though an instruction is broader in its terms than the charge, the defendant will be denied relief unless the variance is material and prejudicial to his rights. State v. Collins, 519 S.W.2d 362(4) (Mo.App.1975).

A defendant will be prejudiced if an overbroad instruction misled the jury. State v. Daegele, 302 S.W.2d 20, 20--21 (Mo.1957). In the case here we believe the jury may have been misled in two respects. First, the jury may have been confused about the nature of the crime or crimes defendant was charged with committing. Here the defendant was charged by the grand jury with child molestation by attempting to insert his penis into the mouth of the victim. During the prosecutor's opening statement the jury was informed they would hear evidence that the defendant had also had intercourse with the victim. But the judge then told the jury to...