State v. Ek
| Decision Date | 14 July 1992 |
| Citation | 834 S.W.2d 828 |
| Parties | STATE of Missouri, Respondent, v. Joseph A. EK, Jr., Appellant. WD 44770. |
| Court | Missouri Court of Appeals |
Homer D. Wampler, II, Springfield, for appellant.
William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for respondent.
Before HANNA, P.J., and FENNER and ULRICH, JJ.
The defendant, Joseph A. Ek, Jr., was found guilty by a jury of sexual abuse in the first degree pursuant to § 566.100 RSMo 1986 1 and was sentenced to the Missouri Department of Corrections for five years and fined $500.00. He raises three points on appeal. The defendant claims error because the court admitted two photographs of his stepdaughter (T.K.) arguing they depicted events too remote in time to have probative value and they should have been excluded because they were evidence of other crimes. Defendant further claims the state failed to prove the element of sexual contact required by § 566.100.1(2), and the state failed to produce the defendant's telephone records pursuant to his written request for disclosure.
Defendant was charged with forcible rape and sexual abuse in the first degree. He was acquitted of the rape charge. A third count of abuse of a child was dismissed before trial.
The defendant began living with the victim (J.B.), her brother (T.B.) and their mother in October of 1982. J.B. was eight years old at that time. It was the state's testimony that in the early winter months of 1983, when she was nine years of age, the defendant began to pat J.B. on the behind and touch her breasts. The defendant told the victim it was their little secret and she should not tell anyone. This conduct continued for about two weeks. One night the defendant took her to his bedroom and had sexual intercourse with her. Afterwards he forced her to perform oral sex on him. The defendant subjected the victim to sexual intercourse over the course of the next two or three years. During this time the defendant took various photographs of J.B. in the nude and kept nude photographs in his house of both adult females and young girls.
When J.B. was in the sixth grade, she told her mother the defendant was touching her in places she did not want to be touched. When confronted with this accusation the defendant broke down, crying; "Well, I don't know why I have to have this problem when everybody else is normal." The victim's mother eventually made the defendant leave the house.
The fact which gave rise to the sexual abuse charge was a specific incident witnessed by Kay Creason in November 1984. Ms. Creason went to the defendant's home on an errand, and as she stepped onto the porch, she observed through a window in the door the defendant lying on a couch fully clothed, with J.B. naked, straddling the defendant over his crotch area. The defendant had his hands on the victim's buttocks. Ms. Creason knew both the defendant and the victim. When she knocked on the door J.B. jumped up and ran out of the room. The defendant straightened himself up and went to the door.
In his first point, the defendant charges the court erred by allowing two photographs in evidence of the defendant's stepdaughter (not the victim) which depicted her in the nude. The defendant objected to these exhibits claiming they were too remote in time to be probative and that they were evidence of other crimes and did not fall within any of the exceptions.
Before the photographs were offered in evidence, J.B. testified that the defendant not only took pictures of her in the nude, but had in his possession nude photographs of other females. The following testimony, on direct examination by the state, was given by J.B. without any objection from defense counsel:
On cross-examination J.B. again testified about nude pictures of other women. In addition to J.B.'s testimony, her brother, T.B., testified without objection that he had been at the defendant's residence during the years of 1982, 1983, 1984 or 1985, where he found pictures of nude little girls.
A careful review of the transcript shows no objection to the descriptive testimony by J.B. and T.B. about the defendant photographing young girls and older females in the nude, or to the photographs of the victim herself. Both witnesses viewed these photographs, located in a chest of drawers, where they were found by the sheriff.
When the photographs were received in evidence, they were cumulative evidence on the point of defendant's photographing his nude stepdaughter. It is not error to admit normally inadmissible evidence over objection when the evidence is cumulative. State v. Richardson, 102 S.W.2d 653, 656 (Mo.1937); State v. Bailey, 783 S.W.2d 490 (Mo.App.1990); State v. Carey, 599 S.W.2d 71 (Mo.App.1980); State v. Umfleet, 587 S.W.2d 612 (Mo.App.1979). See also State v. Williams, 566 S.W.2d 841 (Mo.App.1978).
In Williams, 566 S.W.2d at 843-44, the defendant objected to evidence obtained during a locker search, claiming it was in violation of his constitutional rights. The objection was overruled. On appeal, the court denied relief because the defendant had failed to object earlier to a picture of the contents of the locker seized in the illegal search.
To the same effect, the photographs in this case were merely duplicative of the oral testimony, which was received without objection. The defendant's objections to these photographs were waived by the witnesses' oral testimony of the same nature without objection. Defendant cannot complain of the admission of the photographs where evidence of the same tenor was received without objection. The point is denied.
The defendant's second point claims the state failed to prove all the elements of the crime because it failed to establish "sexual contact" within the meaning of § 566.010.1(3). We accept as true all evidence tending to prove the defendant's guilt and all reasonable inferences supporting the verdict. State v. Dagley, 793 S.W.2d 420, 423 (Mo.App.1990). All evidence to the contrary is disregarded. Id. at 423.
The state offered the testimony of Ms. Creason to prove the "sexual contact." The primary focus of defendant's argument is directed to Ms. Creason's credibility, but that is not an issue before this court. It is the jury's responsibility to evaluate a witness' credibility and the weight to be given to her testimony. As a general rule, the decision of the jury on this issue is not subject to review by this court. State v. Williams, 652 S.W.2d 102, 111 (Mo. banc 1983).
Sexual contact as defined in § 566.010(2) is "any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person." Ms. Creason testified that when she approached the home of the defendant in November of 1984, she observed the following:
Defendant claims this testimony failed to show a touching, either directly or through the clothing, of either J.B.'s or defendant's genitals.
In State v. Edwards, 657 S.W.2d 343, 346 (Mo.App.1983) the evidence was sufficient to sustain the sexual contact where the defendant took off the victim's pants, placed her on the bed, and touched her bottom. Her mother testified the child had pointed to the area between her legs when asked where she had been touched. See also State v. Eastin, 735 S.W.2d 50, 53 (Mo.App.1987), where the prosecutor asked the victim to show the jury in a general area where the victim was touched and her response was, "[T]here and back here." The court found this was sufficient to support the charge.
The evidence in this case showed the victim was on top of the defendant, straddling him, and the evidence is such that their pelvic regions touched, albeit through their clothing, and that the defendant had his hands on the victim's buttocks. This evidence is more than sufficient to prove sexual contact within the meaning of the statute. See State v. Seemiller, 775 S.W.2d 273 (Mo.App.1989). The point is denied.
For his final point, the defendant argues the state failed to produce the defendant's telephone records after a proper request for them had been made. We first...
To continue reading
Request your trial
-
State v. Evans, s. 20530
...was appropriately received into evidence, any similar, improperly admitted testimony of abuse was cumulative. See Id.; State v. Ek, 834 S.W.2d 828, 831 (Mo.App.1992)(it is not error to admit normally inadmissible evidence over objection when the evidence is cumulative). We determine that De......
-
State v. Pride
...subpoena duces tecum as an illegal search warrant rather than as a means to produce evidence for trial. Mr. Pride cites to State v. Ek, 834 S.W.2d 828 (Mo. App. 1992), which found a subpoena duces tecum was used improperly because it failed to give information as to the place, time, and dat......
-
State Of Mo. v. Pride, WD 54962
...subpoena duces tecum as an illegal search warrant rather than as a means to produce evidence for trial. Mr. Pride cites toState v. Ek, 834 S.W.2d 828 (Mo. App. 1992), which found a subpoena duces tecum was used improperly because it failed to give information as to the place, time, and date......
-
State v. Wilkins
...against the child's anal area for the purpose of arousing or gratifying Doolen's deviate sexual desires." Id. at 385. In State v. Ek, 834 S.W.2d 828 (Mo.App.1992), defendant's conviction was affirmed on testimony that the eight-year-old victim was nude, and was found straddling defendant ov......