State v. Ellis, 59241

• Court: Missouri Court of Appeals
• Writing for the Court: SMITH
• Citation: State v. Ellis, 820 S.W.2d 699 (Mo. App. 1991)
• Decision Date: 10 December 1991
• Docket Number: No. 59241,59241
• Parties: STATE of Missouri, Respondent, v. Franklin L. ELLIS, Jr., Appellant.

Page 699

820 S.W.2d 699

STATE of Missouri, Respondent, v. Franklin L. ELLIS, Jr., Appellant.

No. 59241.

Missouri Court of Appeals,

Eastern District,

Northern Division.

Dec. 10, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 10, 1992.

James C. Ochs, Schwartz & Ochs, St. Louis, for appellant.

William L. Webster, Atty. Gen., Geoffrey W. Preckshot, Asst. Atty. Gen., Jefferson City, Branson L. Wood, II, Pros. Atty., Hannibal, for respondent.

SMITH, Presiding Judge.

Defendant appeals from his conviction of deviate sexual assault in the first degree, § 566.070 RSMo 1986, and the sentence of one year in the county jail imposed by the jury and a $2500 fine imposed by the court. We reverse and remand.

Defendant managed a pet store in the neighborhood of the victim's residence. The victim was an illiterate fifteen year-old boy with some impairment of learning ability. His sixteenth birthday was on March 9, 1990. The amended information alleged that "on or about December 25, 1989, to March 1, 1990" the defendant had deviate sexual intercourse with the victim. The original information had alleged the time frame as "on or about February, 1990". The amended information was filed on September 17, 1990, one week prior to the date of trial. The trial court denied defendant's motions for a bill of particulars and for continuance.

The victim testified that at some time after Christmas and prior to February 28 he had gone to the pet store of defendant three times. On the first occasion he merely looked at items on display and asked if the store had any snakes. Upon receiving a negative answer he left. On the second occasion several days later he asked the defendant if he wanted his "thing sucked". The defendant declined the offer and the victim left. Within a day or two the victim returned and made the same inquiry. The victim testified that defendant suggested that the victim follow him upstairs to an apartment rented by another person. Upon his arrival in the apartment victim observed the defendant using a plunger on the sink in the kitchen of the apartment. Upon the victim's arrival he and defendant went into a bedroom where the victim performed an act of oral sodomy on defendant. Defendant gave the victim a dollar in the apartment and fifty five cents additional when they returned to the pet store so the victim could purchase cigarettes. Except for what went on in the apartment the victim's testimony was corroborated by the resident of the apartment, James Burks, who was present in the pet store during the occurrence. Burks also testified to incriminating statements made by defendant after the victim left. That witness was at the time of trial incarcerated on charges involving his sexual activities with the same victim. Burks also had several prior felony convictions and by his own admission had a long history of drug and alcohol abuse.

The defendant testified substantially identically to the victim as to the first two appearances in the pet store of the victim. He further stated that on the third occasion he was utilizing a plunger in the sink in the apartment, of which he was landlord, when the victim entered the apartment. Defendant ordered the victim to leave because he did not want to be responsible for any theft and the victim left the apartment. When defendant returned to the pet store the victim was present. Defendant gave him money for cigarettes in order to get him to leave and told him not to return to the store. Defendant had no prior convictions. Defendant offered alibi testimony for the day of January 7, 1990, from his girlfriend and several other friends. That was the date which the victim had identified in his deposition as the day of the occurrence. On cross-examination at trial he again indicated that to be the date. The victim's testimony at trial, and the testimony of Burks, identified the occurrence in the apartment as being sometime in February. Defendant's testimony of the apartment episode also indicated it occurred sometime in February.

For two of his points the defendant premises error on the failure of the trial court to sustain his motions for continuance and for a bill of particulars and in utilizing a verdict director encompassing the extended time period contained in the amended information. It is defendant's contention that these actions of the court prevented him from utilizing an alibi defense. Time is not of the essence in sex offense cases. State v. Hoban, 738 S.W.2d 536 (Mo.App.1987) ; State v. Meyers, 770 S.W.2d 312 (Mo.App.1989) . It is not necessary here for us to discuss the circumstances under which imprecision in identifying the time or date of the alleged sex occurrence may place such a burden on the defendant's ability to defend himself that fundamental fairness and due process require greater specificity. See State v. Hoban, supra, (Smith, J. dissenting). The testimony of defendant here, as well as that of the other two witnesses present in the pet shop, identifies the occasion of the alleged sexual encounter. Defendant admitted his presence in the apartment with the victim, he simply denied that any sexual encounter took place. There was no confusion or dispute that defendant and the victim were present at the time and place where the alleged sodomy occurred. Alibi was not a viable defense in view of defendant's own testimony of his presence at that time and place. The issue was simply one of credibility of the two competing versions of what occurred at that time and place. We find no error in the court's denial of the defendant's motions and in the giving of the verdict-directing instruction.

Defendant also premises error on three evidentiary rulings of the court. We find all three rulings to have been erroneous and prejudicial to defendant. Early in the testimony of the first witness, James Burks, the prosecutor asked whether in the witness' opinion the defendant was a homosexual. A proper objection was overruled. The witness responded in the affirmative. Shortly thereafter the prosecutor elicited from the witness, again over proper objection, that some thirteen to fifteen years previously the defendant had had the witness "suck his dick" and "had fucked me in the ass". These events had occurred in the pet shop when the witness was sixteen or seventeen years old. Later in the trial the defendant presented as a witness a police officer who had taken two statements from the victim. The defense elicited from the officer that in the initial statement the victim had discussed sodomitic activities with other persons but had made no reference to any such activities with the defendant. The defense also elicited that certain statements contained in the statement were inconsistent with Burks' testimony and that the statement contained no identification of the date of the occurrence and that such information would be of importance in an investigation. During cross-examination of the police officer the prosecution moved the admission of the two statements. Over proper objection the exhibits were admitted and again over objection given to the jury to read. After an hour and a half of deliberations the jury requested and received the exhibits. The statements contain extensive, vivid and graphic descriptions of the victim's sodomitic activities with various men other than the defendant. They also describe attempts by men other than the defendant to have sexual relations with the victim's thirteen year-old sister. None of the activities with other men were in any way indicated as involving the defendant or as being known to him.

The state attempts to justify the testimony regarding homosexuality and the earlier incident with Burks on the basis that it establishes a common plan and general proclivity to commit the offense. To the extent this contention is based upon the proposition that homosexuality per se establishes a propensity to engage in sexual activities with...