State v. Douglas

• Decision Date: 24 November 1986
• Docket Number: No. 14294,14294
• Citation: 720 S.W.2d 390
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John M. DOUGLAS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 390

720 S.W.2d 390

STATE of Missouri, Plaintiff-Respondent, v. John M. DOUGLAS, Defendant-Appellant.

No. 14294.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 24, 1986.

James D. McNabb, Springfield, for defendant-appellant.

William L. Webster, Atty. Gen., Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

In three counts the defendant was charged with having committed two acts of sodomy upon his step-granddaughter C.W. and one act of sodomy upon his step-granddaughter T.P. A jury found him guilty of each count. In accordance with the verdicts he was sentenced to imprisonment for 15 years on each count. The sentences were ordered to run consecutively. The defendant states six points on appeal.

The following is an outline of the basic facts. The defendant and his wife lived in a small community in northwest Greene County. C.W. was born January 7, 1972. T.P. was born August 18, 1974. They lived in a mobile home with their mother and stepfather in Polk County. Two younger brothers also lived with them. Shortly before August 23, 1984, when the children started school, the defendant and his wife moved to a small house near the mobile home. The mother and stepfather left for work at 6:00 a.m. and returned at 5:00 p.m. Arrangements were made for the grandmother and the defendant to care for the children while the mother and stepfather were at work. Their duties included getting the children out of bed, dressed, fed and off to school. The children returned from school about 3:30 p.m.

On October 3, 1984, the entire family was in the mobile home. At that time the mother heard C.W. yell to the defendant, "You're not going to hurt me anymore." The mother questioned C.W. concerning the meaning of this exclamation, in the hearing of the defendant. C.W. told her mother that defendant had been committing anal sodomy upon her. She said it happened more than once. C.W. told of the acts in graphic, childlike terms. T.P. told her mother that the defendant had done the same thing to her.

The mother called the stepfather to the room. Upon being told of the girls' revelation, the stepfather asked the defendant if he really did the acts. There was no response. The stepfather slapped the defendant and dragged him to the living room. There he asked the defendant the same question five or six times. At no time did the defendant deny he committed the offenses. Apparently, the stepfather assaulted the defendant as the defendant was taken to the hospital.

The defendant had been with the children's grandmother for ten years. They had been married for seven years. The defendant was a disabled cook, 46 years old. He testified and denied the charges. His testimony also included the following. He was not in the mobile home when C.W. supposedly told of his abuse. The three persons who said he was there were lying. The stepfather, without explanation, came into the yard and hit him. He continued that he and the grandmother would go to the mobile home at 6:00 a.m. She never left him alone with the children. They made the bed in their house in the evenings. None of the children ever played outside before or after school while the mother and her husband were at work. In August it was cold in the morning. "Every morning it was cold."

The defendant called his wife, the victims' grandmother, as a witness. By parts of her testimony she corroborated the defendant. However, her testimony also included the following. The defendant was in the mobile home when C.W. told of his abuse. The stepfather did slap the defendant while in a chair in the mobile home. She did leave the mobile home in the mornings to return to her house to make the bed. Her testimony concluded with the following. "I mean, when they was out of school, they was always outside playing."

The defendant's first point is that the evidence is insufficient to support his convictions because the testimony of the victims was so inconsistent, contradictory and in conflict with common experience as to leave the court clouded with doubt and their testimony was not corroborated. He cites the rule stated in State v. Baldwin, 571 S.W.2d 236 (Mo.banc 1978), requiring corroboration in such circumstances.

The victims related the incidents of abuse to their mother. They made statements to a doctor. They testified at the preliminary hearing. They testified at the trial. Inconsistencies between those statements concerning the time of the day and dates upon which the acts of abuse occurred were developed by cross-examination. It is significant that such cross-examination was permeated with confusion of the witness by questions based upon a misstatement of the witness' prior testimony. For example, C.W. was asked, "Did you tell him that it happened on Monday, or Tuesday, or Wednesday?" She replied, "Yes." She was later asked, "You said it happened on Monday, Tuesday, and Wednesday, in the morning, on the day before you went to the doctor. Do you remember saying that?" At first C.W. did not respond. On further questioning she answered, "Yes."

There has been doubt expressed concerning the efficacy of the rule the defendant cites. State v. Ellis, 710 S.W.2d 378 (Mo.App.1986). However, assuming it to be a viable rule, for two reasons it does not establish the insufficiency of the evidence. These inconsistencies did not relate to the essential elements of the offenses. It would be unlikely the victims could so graphically describe the degenerate acts had those acts not occurred. Their statements concerning the details of those acts were remarkably consistent. For this reason the rule does not apply. State v. Ellis, supra; State v. Smith, 679 S.W.2d 899 (Mo.App.1984).

Second, the testimony of the victims was corroborated. "It is clear in Missouri that the silence of an accused when not under arrest and in circumstances such that only a guilty party would remain silent, is admissible as being in the nature of an admission against interest." State v. Peebles, 569 S.W.2d 1, 2 (Mo.App.1978). Also see State v. Samuel, 521 S.W.2d 374 (Mo.banc 1975); State v. Koster, 684 S.W.2d 488 (Mo.App.1984). Certainly, C.W.'s accusation in the presence of the defendant, the defendant's wife and the children's mother called for a reply. The repeated questions of the stepfather "naturally would call for a reply." State v. Samuel, supra, at 375. The defendant's first point has no merit.

The defendant's second point is that the trial court erred in refusing to declare a mistrial because of improper argument by the prosecuting attorney. That argument is as follows: "Sex crimes are terrible. Think, also, the facts [sic]. These girls, and this man, the girls are 10 and they're 12 when it happened. You can infer that those girls may never have normal sexual relations with anyone. Their normal sexual relations could be ruined for the rest of their lives."

The defendant cites State v. Mayhue, 653 S.W.2d 227 (Mo.App.1983). In that rape prosecution the prosecuting attorney argued, "Everyday of her life she will be raped in her mind...." Id. at 237. However, Mayhue does not aid the defendant. In that case the court merely held the trial court did not err in not declaring a mistrial sua sponte.

A prosecuting attorney should not inflame the passions or prejudices of the jury against a defendant. State v. Swenson, 551 S.W.2d 917 (Mo.App.1977). But, "[p]rosecutors are permitted wide latitude in arguing the necessity for law enforcement and the jurors' responsibility in that regard in line with the punishment to be assessed." State v. Wilkerson, 616 S.W.2d 829, 835 (Mo.banc 1981). "He may argue all the evidence and any reasonable inferences drawn therefrom." State v. Swenson, supra, at 919.

In State v. Linder, 613 S.W.2d 918 (Mo.App.1981), a prosecution for promoting prostitution of a minor, the prosecuting attorney urged the jury to consider how long the victim was going to carry scars because of the defendant's actions. That argument was found permissible. In State v. Thompson, 531 S.W.2d 63 (Mo.App.1975), a prosecution for sodomy upon a 14-year-old child, the prosecuting attorney urged the jury to consider how long the child would bear scars from the nightmare events of the incident. That argument also was found permissible. The trial court did not err in failing to declare a mistrial. State v. Hampton, 653 S.W.2d 191 (Mo.banc 1983).

The defendant's third point is that the trial court erred in not dismissing Count I because there was no evidence to support the charge he committed an offense in Polk County on August 20, 1984. He argues there was no evidence he was in Polk County before August 23, 1984. C.W. testified the defendant abused her once in his house in Greene County; that he abused her ten times in the mobile home in Polk County, but she couldn't remember the dates. In essence, the defendant asserts a variance between the charge and the proof.

Though such an assumption is not required by consideration of all the evidence, assuming there was no evidence such an offense was committed in Polk County before school commenced on August 23, 1984, the point has no merit. "Time is not of the essence of deviate sexual intercourse." State v. Ellis, supra, at 384. The charge was not invalid because of the general statement of the date. State v. Ellis, supra. Further "[w]here time is not of the essence of the offense, the prosecution is not confined in its evidence to the precise date stated in the information, but may prove the offense to have been committed any day prior to the date of the information and within the period of limitation." State v. Mitts, 608 S.W.2d 131, 133 (Mo.App.1980). Also see State v. Kammerich, 550 S.W.2d 931 (Mo.App.1977). "A variance between allegation and proof is not fatal unless the variance was material to the merits of the case and prejudicial to the defense of the defendant." State v. Jarrett, 481 S.W.2d 504, 509 (Mo.1972).

The...