State v. Dizer

• Decision Date: 07 October 2003
• Docket Number: No. ED 82376.,ED 82376.
• Citation: 119 S.W.3d 156
• Parties: STATE of Missouri, Respondent, v. Jamel R. DIZER, Appellant.
• Court: Missouri Court of Appeals

119 S.W.3d 156

STATE of Missouri, Respondent, v. Jamel R. DIZER, Appellant.

No. ED 82376.

Missouri Court of Appeals, Eastern District, Division Two.

October 7, 2003.

John M. Morris, Anne Edgington (co-counsel), Jefferson City, MO, for respondent.

Henry B. Robertson, St. Louis, MO, for appellant.

OPINION

GLENN A. NORTON, Presiding Judge.

Jamel Dizer appeals the judgment entered upon his convictions on two counts of forcible sodomy and one count of false imprisonment. We affirm.

I. BACKGROUND

Dizer, thirty-seven, met A.C., sixteen, outside a convenience store in January of 2001. A.C. was in a fight with several other people when Dizer appeared and told the others to leave the boy alone. Dizer pulled out what seemed to be a gun, which caused the others to flee. Dizer went with him to A.C.'s friend's house where A.C. and his mother had been staying. When they arrived, A.C. and his mother were told they could not stay there any longer, and Dizer offered to let them stay at his house. Dizer, A.C. and his mother then went to Dizer's friend's home where they played cards; Dizer and A.C. smoked marijuana outside of the house. At about 2:00 a.m., they left and went to Dizer's home. A.C. and his mother slept in the basement, and Dizer went upstairs. In the morning, A.C.'s mother left the house, and A.C. continued to sleep on a mattress on the basement floor. He awoke to find Dizer lying next to him on the mattress. When A.C. started to get up, Dizer told him he wanted to have sex with him. A.C. told Dizer "it wasn't going to happen," and Dizer started to choke him saying he would get it one way or the other. Dizer turned A.C. over onto his stomach, held him down flat on the mattress and sodomized him. After Dizer ejaculated, he wiped himself and A.C. off and went upstairs. A.C. blacked out; when he awoke, he could not find a way out of the basement. Ultimately, Dizer let him go. Dizer made A.C. promise not to tell anybody what happened.

A.C. went back to the convenience store, found his mother and told her what happened. The police were called, and, while A.C. was explaining to the police what had happened, a young woman at the store mentioned that her brother, D.E., had been sodomized by Dizer also.

In the fall of 1994, when he was fifteen, D.E met Dizer while hanging out with some friends at a park. He ran into Dizer a few other times in the neighborhood. Late one night, he found Dizer in the alleyway behind his house. Dizer asked D.E. if he wanted to make money. D.E. thought he meant selling drugs, which was not an unexpected question in his neighborhood, and told Dizer no. Dizer said he would not ask again. The next time D.E. saw Dizer was when he and his friends went to Dizer's house one night. D.E. had not been to Dizer's home before. Dizer had started living there, with other relatives, after getting out of prison in May of 1994. Everyone was on the second floor watching television and playing cards; some people were drinking alcohol and smoking marijuana, but D.E. had only half of a beer. At around midnight, everyone else left; D.E. stayed to avoid violating curfew. Dizer told D.E. that he wanted to have sex with him, and D.E. told him no.

When D.E. tried to go for the door, Dizer got in front of him and told him that even if he made it past him, he would shoot D.E. in the back of the head. Dizer then pinned D.E. to the ground and put his fingers around D.E.'s throat. Dizer told D.E. what he was going to do to him and threatened to kill him and his parents if he told anybody. Dizer then dragged D.E. into a bedroom, and with D.E. face-down on the bed, Dizer sodomized him. Afterwards, Dizer told D.E. that no one would believe him if he told anyone about this and that Dizer would deny it if asked. D.E. slept at Dizer's and left the next morning. D.E. did not tell anyone about the incident right away because he believed Dizer—that no one would believe him and that Dizer would come find him. He was scared and felt uncomfortable talking to somebody else about it.

A couple of days after the incident involving A.C., both victims identified Dizer during separate viewings of a live lineup at the police station. A.C. had also previously identified Dizer at the hospital the day of the incident from a stack of photographs the police gave him. Both victims also identified Dizer during trial.

At trial, Dizer testified that A.C. had approached him at the convenience store and that they had then spent that day and evening hanging out at various places in the neighborhood smoking marijuana with A.C.'s friend and A.C.'s mother. He claimed that A.C. and his mother asked if they could go back to Dizer's house with him, where "things started getting freaky." A.C. and his mother engaged in sexual behavior with each other, while A.C.'s mother initiated sex with Dizer.¹ He explained that he had just been released from another stint in prison² and was interested in having sex. He testified that he had sex with A.C.'s mother, and then she rubbed his ejaculate everywhere, which he claimed explained why semen with his DNA was found on A.C. He denied having sex with A.C. Dizer denied that he even knew D.E., claiming he had never seen him before the day of trial.

II. DISCUSSION

A. Joinder and Severance

These two incidents were charged in one information. Four counts related to A.C.: forcible sodomy or, in the alternative, statutory sodomy in the second degree, felonious restraint and assault in the third degree. Dizer was acquitted of the assault charge. Three counts related to D.E.: forcible sodomy or, in the alternative, deviate sexual assault and felonious restraint. The felonious restraint count ultimately was not submitted to the jury. Dizer moved to sever the counts relating to A.C. from those involving D.E. as improperly joined. The motion was denied, and the counts were tried together.

Rule 23.05 provides that the State may charge, in the same indictment or information, all offenses "of the same or similar character."³ We review the trial court's refusal to sever joined offenses in two steps. State v. Davis, 860 S.W.2d 369, 372 (Mo.App. E.D.1993). First, we determine, based on the State's evidence only, whether the offenses were properly joined as a matter of law. Id.; State v. Morrow, 968 S.W.2d 100, 109 (Mo. banc 1998). If not, then prejudice is presumed and we must reverse and order new separate trials of the offenses. Morrow, 968 S.W.2d at 109. If joinder was proper, however, then we consider whether the trial court abused its discretion in refusing to sever. Davis, 860 S.W.2d at 372.

1. Joinder

Liberal joinder is favored to achieve judicial economy. Id. Joinder is proper if the manner in which the crimes were committed is so similar that it is likely the same person committed all charged offenses. Id. Similar tactics are sufficient to constitute acts "of the same or similar character," but identical tactics are not required. State v. Tobias, 873 S.W.2d 650, 653 (Mo.App. E.D.1994). Rather, joinder is permissible if the tactics "resemble or correspond in nature." State v. Vinson, 834 S.W.2d 824, 827 (Mo.App. E.D.1992). Similar tactics include, but are not limited to, commission of the same type of offenses, against victims of the same sex and age group, occurring at the same location and closely related in time. State v. Hyman, 37 S.W.3d 384, 393 (Mo.App. W.D.2001).

In this case, the tactics Dizer used were similar. The offenses are virtually identical, involving forced and other illegal sex acts and restraint. The victims were both teenage males from the neighborhood whom Dizer befriended. Both of the crimes were committed at Dizer's home after having spent time socializing with the victim and others. In each instance, Dizer initially told the victims that he wanted to have sex with them and, when they refused, he choked them and used threats to subdue them or prevent them from leaving. He had each victim lie on their stomachs while he sodomized them from that position. After each incident, Dizer attempted to ensure that the victims would not tell anyone.

Admittedly, the tactics were not identical: Dizer had known D.E. longer; D.E. and A.C. had different reasons for ending up at Dizer's home; the threats he made to D.E. were more specific; and the incidents took place in different parts of the house, at different times of day, over six years apart. In our view, however, the strength of the similarities of these crimes overcomes the differences in the details.

Dizer argues that the six-year lapse between the two incidents defeats joinder because it vitiates the likelihood that the same person committed the crimes. We disagree. A lapse in time between offenses, without more, does not automatically defeat joinder; especially here, where the other circumstances of the crimes so strongly suggest that the same person committed them both. See State v. Kelley, 953 S.W.2d 73, 79-80 (Mo.App. S.D.1997).

Dizer also contends that there is nothing distinctive about forcible sodomy, citing to State v. Kelly, 956 S.W.2d 922 (Mo.App. W.D.1997). In Kelly, the Western District held that there was nothing distinctive about the tactics used in the four incidents charged together other than that they all involved armed robberies by two men. Id. at 926. One incident in Kelly involved stealing a wallet at gunpoint on the street, another involved robbing from and riding around in a car with a group of people who asked for directions, another involved robbery of a convenience store in a mask and another involved shoplifting that turned into a robbery when security got involved. Id. "If these were sufficiently similar, then so would be any armed robbery committed by two people." Id. This danger of condoning arbitrary joinder is not present here. As discussed above, the victims were similar, the tactics were similar and the location was the same. These circumstances not only make these forcible sodomy cases sufficiently similar to...