State v. Enke, 19349

• Decision Date: 30 December 1994
• Docket Number: No. 19349,19349
• Citation: State v. Enke, 891 S.W.2d 134 (Mo. App. 1994)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. George ENKE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 134

891 S.W.2d 134

STATE of Missouri, Plaintiff-Respondent, v.George ENKE, Defendant-Appellant.

No. 19349.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 30, 1994.

Rosalynn Koch, Office of the State Public Defender, Columbia, for defendant-appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GARRISON, Presiding Judge.

Appellant was charged, pursuant to § 566.030.3, RSMoSupp.1992, with having committed the class B felony of rape by having sexual intercourse with a person less than fourteen years of age to whom he was not married.This appeal is from his conviction and sentence, as a prior offender, to fifteen years' imprisonment.He does not contest the sufficiency of the evidence to support the conviction, but alleges that the trial court erred (1) in permitting opinion testimony from a witness whom the State had not specified, in discovery responses, would be called as an expert, and (2) in permitting testimony which constituted evidence of prior uncharged crimes and misconduct.

At the time of the alleged offense, Appellant and his ex-wife, Harriet Enke, were living together.The victim, thirteen-year-old G.J., was one of Harriet's children from another marriage who had been removed from the home and was at the time residing with her older sister, Lilly.

On Thursday, October 29, 1992, Appellant and Harriet picked up G.J., who was not in school because of a teachers' conference, and took her, along with Harriet's three-year-old son, to a mobile home they had recently occupied.The mobile home, however, was not yet equipped with several conveniences including running water and sewer.The following day, G.J. assisted in cutting weeds around the mobile home and digging a ditch for a sewer line before her mother left for work at approximately 3:00 p.m., leaving her and her brother with Appellant.

G.J. testified that after going to bed on a couch that evening, Appellant approached her, pulled her quilt off, pulled down her panties, and told her to take off her nightgown.In response to her attempts to repel him, Appellant threatened to choke her and get her pregnant if she did not calm down.After kissing G.J. on the mouth and breasts, Appellant attempted to penetrate G.J. while she was on her back.In response to her complaints that it was painful, he told her to get on her hands and knees and penetrated her from that position.Appellant later permitted her to go to the restroom to clean up after she told him that she was bleeding.

G.J. testified that when she returned to the living room she began crying, at which time Appellant told her to shut up, that it wouldn't happen again, and that if she told anyone, her brother would be placed in foster care, her mother would lose the trailer, and he would go to jail for 40 to 60 years.When G.J. told Appellant that he should not have done what he did, he took some clothes and left the trailer with her brother.

Harriet was told by Appellant that G.J. was accusing him of rape after she found him and her son on the highway at 3:00 a.m. as she was returning from work.When they returned to the trailer, G.J. confirmed the accusation to Harriet who then, along with Appellant, took G.J. to a hospital for an examination.G.J. was first examined and interviewed by a nurse.A more thorough examination was later conducted by Dr. John Elliott who testified that G.J.'s vaginal tissues had marked redness and bleeding, along with tears in both the upper and lower portions of the vagina.

A deputy sheriff was called to the hospital where he interviewed both G.J. and Harriet but was unable to locate Appellant.After leaving the hospital, Harriet took G.J. to Lilly's, and later that evening she and Appellant left Missouri intending to go to California.The trip was interrupted, however, in Arizona where their car malfunctioned and Appellant was arrested for the incident in question.

At trial, in addition to the testimony of G.J. and Dr. Elliott, the State's evidence consisted of a nurse, a social worker, and the deputy, each of whom described G.J.'s emotional condition that night, and her statements concerning the events in question.As the only witness for the defense, Harriet, in addition to the testimony which will be discussed later in this opinion, said that her daughters had been jealous of her marriage to Appellant, had done things to try to split them up, and that G.J. had been guilty of lying during the time she lived with her.She also testified, on cross-examination, that she"took her to the hospital because she said she had been raped."

In his first point, Appellant contends that the trial court abused its discretion in admitting opinion testimony by Dr. John Elliott because the State violated Rule 25.03¹ by not disclosing that he would testify as an expert.He argues that as a result he was not prepared to rebut Dr. Elliott's opinions that it was extremely doubtful that G.J.'s injuries could have been self-inflicted, that they were less than twelve hours old, and that they were consistent with G.J.'s testimony that she had been penetrated while on her back and also while on her hands and knees.

Rule 25.03 provides, in pertinent part:

(A) ...[T]he state shall, upon written request of defendant's counsel, disclose to defendant's counsel such part or all of the following material and information within its possession or control designated in said request:

(1) The names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements;

....

(5) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.

This rule and Rule 25.12, which allows the defense to depose potential witnesses, are designed to prevent surprises at trial.State v. Whitfield, 837 S.W.2d 503, 508(Mo. banc 1992).

Appellant argues in his brief that nine months prior to trial he made a request for discovery which included "a request for any experts and their reports, pursuant to Rule 25.03(a)(5)."The record presented to us does not contain a copy of Appellant's Rule 25.03 request, but the trial transcript does include a statement by the trial court that one of the requests for disclosure was for "[a] list of any expert witnesses and any reports or statements of such experts made in connection with this particular case which the State intends to use at any hearing or at trial including results of physical or mental examinations and of scientific tests, experiments or comparisons."²

We glean from the trial transcript that Dr. Elliott's name was disclosed as a potential witness, although there was no specific delineation that he would express expert opinions.Additionally, his medical records were produced as a part of the disclosure of documents.Although those documents are also not filed with this court, they allegedly did not reveal that the doctor would testify to the opinions about which Appellant complains.

In the instant case, Appellant's contentions under his first point are without merit for several reasons.For instance, it is not disputed that Dr. Elliott was identified as a witness the State intended to call at trial.Appellant cites no authority holding that under Rule 25.03 a disclosure concerning witnesses to testify must also contain a designation of those who may testify as "experts."To the contrary, the state is not required to categorize anticipated witnesses and their testimony into various classifications.State v. Feast, 588 S.W.2d 158, 161(Mo.App.E.D.1979);State v. Tate, 543 S.W.2d 514, 518(Mo.App.E.D.1976).In addition, in the instant case, the subject witness was identified as "Dr. John Elliott."This, together with the medical records relating to the examination of G.J. signed by Dr. Elliott, would have made it apparent that his testimony would likely be as a medical expert.In addition, Appellant was entitled to depose Dr. Elliott to determine the full extent of his anticipated testimony, but apparently did not do so.

The fact that the medical reports themselves may not have contained all of the opinions to which Dr. Elliott testified is not decisive.There is no indication in the instant record that the State did, in fact, possess any document, as described in Rule 25.03(A)(1) or (5), containing the opinions by Dr. Elliott about which Appellant complains.Rule 25.03 requires the state to disclose the names and addresses of its witnesses and existing written statements or memoranda but it does not require a summarization of a witness' testimony.State v. Kerfoot, 675 S.W.2d 658, 661(Mo.App.E.D.1984).See alsoState v. Feast, 588 S.W.2d at 161, andState v. Tate, 543 S.W.2d at 518, both decided under former Rule 25.32(A)(1) which was the same as present Rule 25.03(A)(1).The instant case is similar to State v. Wolfe, 793 S.W.2d 580(Mo.App.E.D.1990), where the state identified as a potential witness an employee of the Highway Patrol lab and attached his report.At trial the witness testified to matters within his field of expertise which were not in the report.The Eastern District of this court found no error, saying the state"was under no obligation to provide a summary of the witness' testimony."Id. at 587.

Even if the State had failed to make a required disclosure, it is well settled that whether to impose a sanction, and the nature thereof, is a matter within the discretion of the trial court.State v. Wolfe, 793 S.W.2d at 588;State v. Kerfoot, 675 S.W.2d at 660.Pursuant to Rule 25.16, the trial court may order disclosure, grant a continuance, exclude the evidence, or enter such other orders as it deems just under the circumstances.The...