State v. Erickson, WD

• Decision Date: 08 May 1990
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Myron ERICKSON, Appellant.
• Court: Missouri Court of Appeals

Page 377

793 S.W.2d 377

STATE of Missouri, Respondent, v. Myron ERICKSON, Appellant.

No. WD 42387.

Missouri Court of Appeals, Western District.

May 8, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied July 3, 1990.

Application to Transfer Denied Sept. 11, 1990.

William D. Rotts, Columbia, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, C.J., FENNER, J., and WASSERSTROM, Senior Judge.

FENNER, Judge.

Appellant, Myron Erickson, appeals his conviction of two counts of deviate sexual assault in the first degree, § 566.070, RSMo 1986. Appellant was sentenced after trial by jury to two concurrent sentences of three years' imprisonment.

Taken in the light most favorable to the verdict, the evidence supports appellant's convictions. In September, 1988, C.D., ¹ the victim herein, was a boy fourteen years old and just beginning the eighth grade. Up to the eighth grade, C.D. had been in classes for students with learning disabilities. C.D. felt isolated, he wanted to be with the other kids his age and was attempting to mainstream into regular classes.

C.D. lived with his mother and little brother. They moved around a lot and C.D. had been in four different schools. C.D.'s father was in prison and hadn't lived with them for three years. C.D.'s mother visited another man in prison by the name of David. She took C.D. to visit David in prison three times a week. C.D.'s mother said that C.D. looked to David as his father.

Appellant lived in the same neighborhood as C.D. in 1988. They met in the summer of 1988 when C.D. began helping appellant with work around appellant's house, riding appellant's horses and operating appellant's riding lawn mower. After appellant had known C.D. for about two weeks, appellant told C.D.'s mother that he would like to reward C.D. for his work around appellant's house by having C.D. stay overnight at appellant's house. C.D.'s mother agreed and an overnight visit took place on September 10, 1988. The following weekend appellant again stated that he wanted C.D. to spend the night to reward him.

C.D. began school on September 6, and he was not doing well. Appellant spoke with C.D.'s mother and offered to tutor C.D. after school. Appellant was an attorney who taught business courses at the University of Missouri, Columbia, and C.D.'s mother knew of appellant's position at the University.

Appellant began tutoring C.D. on September 12, 1988. Originally, the tutoring was on Tuesdays, Thursdays and Fridays. Appellant would pick C.D. up at his house at 4:30 p.m. and return him home before 9:00 p.m.

Sometime in the third week of September, 1988, appellant told C.D.'s mother that he would be able to tutor C.D. on Mondays and Wednesdays as well as the other days. C.D. began to stay later into the night at appellant's home. After about four weeks of tutoring, appellant suggested to C.D.'s mother that they pretend they were married, but separated. Appellant explained that he could then pretend he was C.D.'s father so they could do things a father and son would do. Appellant would also send letters home with C.D. in regard to overnight visits and the need for him to spend more time with C.D.

Shortly after his tutoring sessions with appellant had begun, C.D.'s behavior changed and his mother began having trouble with him. C.D. became rude to his mother and her friends as well as his brother. C.D. would appear angry when he came home from appellant's house.

On October 15 or 16, 1988, C.D.'s mother called appellant and told him that the hours C.D. was spending with him had gotten out of control to the extent that C.D. was no longer seeing his family. Appellant became angry and said that in order to do a proper job with C.D. he needed to spend more time with him.

On October 16, 1988, C.D.'s mother saw him sitting in his room with his pants unzipped, looking at his penis. When she asked him what he was doing, C.D. said that his zipper had caught his penis. C.D. showed her two scabs on his penis. When she questioned this explanation, C.D. eventually told her that appellant had been "playing" with him. C.D. said that appellant had told him to lie about the zipper.

On October 18, 1988, C.D. was examined by a physician. The examination revealed a one millimeter lesion on the underneath surface of C.D.'s penis and another spot at a different location on C.D.'s penis.

C.D. testified that after he had been tutoring with appellant for a while, that appellant began touching his penis. The first time appellant touched C.D.'s penis, appellant unzipped C.D.'s pants, reached under his underwear and touched C.D.'s penis until C.D. ejaculated. On another occasion, the subject of Count I, C.D. was sitting on appellant's bed when appellant removed C.D.'s pants, lay C.D. down and began "playing" with C.D. Appellant had his pants "half down" and "played with himself."

On a third occasion, the subject of Count II, appellant gave C.D. a drink mixed with tequila and Mountain Dew on a night when C.D. was to spend the night. C.D. was given sufficient alcohol to cause him to feel "drunk". The two stayed up until approximately 4:00 a.m., when appellant told C.D. to go to sleep on appellant's bed. Appellant then came to bed and moved his hand toward C.D.'s body. C.D. was feeling sick and got up to go outside and get some fresh air. C.D. then went to sleep on the couch. C.D. was lying on the couch on his stomach when appellant approached him, turned him onto his back and grabbed C.D.'s penis. Appellant rubbed his hand up and down C.D.'s penis, but when C.D. did not ejaculate appellant stopped and went to bed. When two scabs appeared on C.D.'s penis, appellant told him to say that his penis got caught in his zipper.

On October 24, 1988, the sheriff's department served a search warrant on appellant's home where they found a partially empty bottle of tequila and bottles of Mountain Dew. Appellant agreed to waive his Miranda rights and was questioned by the sheriff's department. Appellant said that C.D. was very naive about his bodily functions and learning about his own sexuality and that he had decided to help C.D. in those areas. Appellant said that he had helped C.D. with his homework and stated "[e]verything I did I did for [CD], his education." When asked whether that included C.D.'s sexual education, appellant stated, "Yes, I was very explicit." Appellant stated that he believed C.D. had spent the night three times and that C.D. was undressed everytime because he would take showers. Appellant said that he didn't do anything with the intent of hurting C.D. Appellant said that in teaching C.D. about sex he had discussed masturbation with him, but that he never told C.D. to masturbate or masturbated himself in front of C.D. Appellant was told that C.D. said that appellant had masturbated him and then asked if appellant was saying that C.D. was lying. Appellant responded that he was specifically not saying that C.D. was lying.

C.D. testified that his mother was physically and mentally abusive toward him and that he did not want to live with her.

I.

Appellant first argues that the trial court erred by not recognizing the necessity of disqualifying all three circuit judges in the Thirteenth Judicial Circuit. Appellant argues that since he was an attorney who practiced within said circuit there would be "unknown prejudice" harbored against him and that the judges might hold him to a higher standard of conduct because of his being an attorney.

Appellant's case was first assigned to Judge Ellen Roper. Appellant filed an Application For Change of Venue and Motion For Order Disqualifying Judge Roper as well as the other two circuit judges, Judge Conley and Judge Hamilton. Following appellant's Application, Judge Roper entered her disqualification and transferred appellant's case to Judge Conley, the Presiding Judge.

Rule 32.08 is the applicable rule for a joint application for change of venue and change of judge in a criminal proceeding. Rule 32.08 provides in pertinent part as follows:

(c) Upon presentation of a timely application for both a change of judge and a change of venue the judge shall promptly sustain the application for change of judge, and:

* * * * * *

(4) If the case is being heard by a circuit judge in a circuit having three or more circuit judges, the judge shall transfer the case to the presiding judge for assignment by lot or the presiding judge may request this Court to transfer a judge or the case may be assigned in accordance with local rules. The assigned judge shall rule on the application for change of venue.

Judge Roper's disqualification of herself and transfer of the case to the Presiding Judge was in accordance with Rule 32.08. There is no provision in the Rules or Statutes for disqualification of all the judges in the Thirteenth Circuit as was requested by appellant. Judge Roper did not err by disqualifying herself and transferring appellant's case to the Presiding Judge. Judge Roper was obligated to disqualify herself without the need for appellant to allege any basis for her disqualification. Appellant's application before Judge Roper was a timely application under the Rules. Judge Roper was required under the terms of Rule 32.08(c) to enter her disqualification regardless of whether or not appellant alleged cause for the disqualification.

After appellant's case was transferred to Judge Conley, appellant filed a motion to disqualify Judge Conley. Appellant argued again that since he was an attorney who had practiced before Judge Conley that he was subject to "unknown prejudice" and that a higher standard of conduct might be imposed upon him. Appellant argues that Judge Conley should have disqualified himself and recognized the need to have a Judge from outside the Thirteenth Circuit hear his case.

Rule 32.09 is applicable to a second request for a change of judge in a criminal...