State v. Giaimo, 72681

• Decision Date: 31 March 1998
• Docket Number: No. 72681,72681
• Citation: State v. Giaimo, 968 S.W.2d 157 (Mo. App. 1998)
• Parties: STATE of Missouri, Respondent, v. Anthony Martin GIAIMO, Appellant.
• Court: Missouri Court of Appeals

Page 157

968 S.W.2d 157

STATE of Missouri, Respondent, v. Anthony Martin GIAIMO, Appellant.

No. 72681.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 31, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 4, 1998.

Charles E. Bridges, St. Charles, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for respondent.

CRANDALL, Judge.

Defendant, Anthony Martin Giaimo, appeals from the judgment of convictions, entered pursuant to jury verdicts, of six counts of sodomy and one count of sexual misconduct in the second degree. The trial court sentenced defendant to consecutive terms of imprisonment of 15 years on each of the five counts of sodomy and of seven years on the sixth count of sodomy, in addition to a concurrent term of six months on the sexual misconduct count. The trial court also fined defendant. We affirm.

Defendant does not challenge the sufficiency of the evidence. The evidence, viewed in the light most favorable to the verdicts, established that defendant's wife owned and operated day care centers in St. Charles, Missouri. According to defendant, he owned the property on which the day care centers were located, but otherwise merely served in the capacity of an occasional maintenance man at the facilities.

K.B., who was the victim of the sodomy counts, was a girl of thirteen years of age at the time of trial. From 1987 through 1989, she attended one of the day care centers. On January 1, 1990, when K.B. was in first grade, she told her mother that she did not want to return to the after-school program at the day care center. She then detailed several sexual encounters with defendant which had occurred in the office of the day care center and which formed the bases of the sodomy charges. The victim told similar accounts to the Division of Family Services representative, to the police, and to a nurse who took the victim's history prior to a physical examination by a physician at the Sexual Abuse Management (SAM) Clinic of a local children's hospital. At trial, the examining physician testified that he found his evaluation of the victim consistent with the occurrence of sexual abuse.

The second victim, who attended another day care center, was involved only in the sexual misconduct count. At trial, the mother of the second victim testified that her daughter told her that defendant had exposed himself to her at the day care center. The incident occurred between January 1 and July 14, 1995. The second victim, who was less than four years of age at the time of the incident, testified at trial; but stated that she could not remember anything about the incident or about what she told her parents.

Several parents whose children attended the day care centers as well as several former day care employees testified on behalf of defendant. These witnesses basically testified that defendant did not supervise the children and that the office where the victim alleged she was sodomized contained windows with sheer curtains. Defendant testified at trial. He denied all the allegations, stating that he was never alone with the children.

During rebuttal, other parents and former employees testified that defendant had supervised classes at the day care centers as the only adult present and had taken children out of the classes. There was evidence that the curtains covering the office windows were opaque. The former employees also reported that defendant and his wife coached them about what to say to the police when they were questioned about defendant's conduct at the day care centers.

In his first point, defendant contends the trial court erred in denying his counsel's request to withdraw, made at the request of the defendant, as well as his own request for a continuance in order for a different attorney to prepare for trial. He claims the first attorney he hired to represent him was suspended from the practice of law and that there was an irreconcilable conflict with his second attorney which resulted in a total breakdown in communication.

We first address the trial court's ruling on counsel's motion to withdraw. In his point on appeal, defendant claims the trial court's refusal to grant the motion "denied [him] effective assistance of counsel." Defendant also couched his argument in terms of counsel's failure to represent him adequately. He specifically alleged that counsel failed to retain experts suggested by defendant, deposed the victim "less than 18 hours before the...