State v. Graham, 63635

• Decision Date: 09 November 1982
• Docket Number: No. 63635,63635
• Citation: 641 S.W.2d 102
• Parties: STATE of Missouri, Respondent, v. Eddie GRAHAM, Appellant.
• Court: Missouri Supreme Court

Page 102

641 S.W.2d 102

STATE of Missouri, Respondent, v. Eddie GRAHAM, Appellant.

No. 63635.

Supreme Court of Missouri En Banc.

Nov. 9, 1982.

Ralph A. Dobberstein, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kirk Lohman, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Charged with rape for having sexual intercourse with his eleven year old stepdaughter, § 566.030, RSMo 1978, defendant was found guilty by the jury and sentenced to imprisonment for 15 years. He sought review in the Missouri Court of Appeals, Eastern District, which affirmed the conviction but on application of defendant the cause was transferred here and is determined as though on original appeal.

Defendant contends the trial court erred in (1) permitting testimony that he engaged in prior acts of intercourse and sexual contact with the victim, (2) admitting medical records of the victim not properly qualified under the Uniform Business Records as Evidence law and which denied him his right to cross-examine the maker of the record, and (3) sending to the jury room portions of the victim's medical records not previously read to the jury.

The victim testified to the following: On the evening of June 5, 1979, she was left with her six brothers and sisters in the care of her stepfather, the defendant. At approximately 10:00 p.m., the defendant took her from bed to a couch where he engaged in sexual intercourse with her. This is the incident for which he was charged. The victim then described prior instances of manual and oral sexual acts and sexual intercourse with the defendant beginning in September, 1978 and continuing until June, 1979.

The victim's mother, defendant's wife, testified to changes in the victim during the nine months preceding the charged act of rape: the victim's schoolwork deteriorated; "she would sit up and daydream, and she just acted like she was half scared at all times." One day, the mother said she found the defendant pulling her daughter's pants down. Another night, she testified to finding her daughter "laying there with her legs open" after the defendant left her bedroom; on a third occasion, she went to look for her husband after discovering he was not in bed, and found him squatting beside her daughter's bed. The mother also reported noticing during this period that her daughter's panties "were all soiled and hard in the seat and had a discharge in it."

The grandmother of the victim testified that while the victim's mother was in the hospital having a baby, defendant brought several of the victim's brothers and sisters to her house, but left with the victim for about two hours. This testimony was consistent with the victim's statement that while her mother was in the hospital the defendant took her away and raped her.

The State's final witness was Dr. A. Menon, chief resident in pediatrics at St. Louis City Hospital, who was called to testify concerning a City Hospital emergency room medical record. The record indicated that on June 6, 1979, a physical examination of the victim was conducted at City Hospital by Dr. DeSilva, then a secondary resident in pediatrics. ¹ Dr. Menon read a portion of the examination results from the record: "Genitals: Discharge present. Offensive odor. Vagina admits speculum easily. No hymen seen. No bleeding seen." He testified these physical findings were consistent with a history of sexual intercourse between the victim and her stepfather over a period of several months. It is not normal, he said, for a speculum to admit easily into the vagina of an eleven year old child, and vaginal examinations of eleven year old girls are usually conducted under general anesthesia. On cross-examination, Dr. Menon admitted that the medical records did not indicate the size speculum used or that previous sexual intercourse is not the only reason a speculum could admit easily into an eleven year old girl. He stated that previous trauma or penetrating injury could cause the same result, but that there was no indication in the record of a previous physical injury. By stipulation, a laboratory report containing the results of tests done on vaginal and vulva smears from the victim was admitted in evidence, and, reading the results of these tests, Dr. Menon testified: there was no evidence of sperm or gonococcus.

The defendant was the only witness on his behalf. He denied having sexual intercourse with his stepdaughter on June 5, 1979, or any other day. The case was submitted to the jury, which, in mid-deliberation asked to see the victim's medical records. Over defendant's objection, one page of the emergency room medical record, portions of which had been read to the jury, was sent to the jury room.

Defendant contends that the trial court erred in permitting testimony that he engaged in prior acts of intercourse and sexual contact with the victim. Such testimony, he maintains, constitutes evidence of other crimes for which he was not charged and is irrelevant and highly prejudicial. Defendant asks us to reconsider the rule enunciated in State v. Bascue, 485 S.W.2d 35, 37 (Mo.1972); State v. Baker, 318 Mo. 542, 300 S.W. 699, 702 (1927): State v. Hersch, 296 S.W. 433, 436 (Mo.1927); State v. Cooper, 271 S.W. 471, 474 (Mo.1925) and State v. Cason, 252 S.W. 688, 689-90 (Mo.1923), that in cases of statutory rape, evidence of prior intercourse or sexual intimacy between defendant and victim is admissible. We have reconsidered the rule and reaffirm its efficacy.

Ordinarily, the State may not introduce evidence of the accused's other criminal acts to show a probability that he committed the crime on trial because he is a man of criminal character. McCormick's Handbook of the Law of Evidence, § 190 at 447 (2d ed. 1972). When such evidence is relevant for some other purpose, however, it should not be rejected merely because it incidentally proves the defendant guilty of another crime. State v. Hudson, 521 S.W.2d 43, 45 (Mo.App.1975). Evidence of criminal acts may be admitted when it tends to establish a motive for the defendant to commit the crime charged. State v. Mitchell, 491 S.W.2d 292, 295 (Mo.banc 1973). Prior sexual intercourse or intimacy between defendant and victim indicates a sexual desire for the victim by the defendant and tends to establish a motive for statutory rape, i.e. satisfaction of defendant's sexual desire for the victim. As stated in State v. Bascue, 485 S.W.2d 35, 37 (Mo.1972), prior acts of intercourse and "lascivious familiarity" not amounting to intercourse tend to show the "relationship between the parties and the probability that the parties committed the specific act charged (as constituting 'the foundation for an antecedent probability'), or as corroborative evidence...." The point is denied.

Defendant argues in the alternative that though evidence of prior sexual intimacy might generally be admissible in cases of statutory rape, it should have been excluded in this case because the testimony of the victim and her mother was "vague as to what happened and when it happened." Specifically, defendant complains that no dates were given for the abuses described by the victim. We do not agree that the testimony of the victim was impermissibly "vague" or the incidents described unacceptably remote in time. The victim testified that defendant began his molestations in September, 1978, describing in detail how defendant took her to his mother's house, undressed her and had intercourse with her while her mother was in the hospital. Other instances of sexual abuse related by the victim, though not tied directly to dates or events, took place between September, 1978, and June 5, 1979, when the charged act of rape occurred. The victim testified that during this period defendant had intercourse with her "mostly every week or day."

Defendant also argues that the vagueness of the victim's testimony precluded him from effectively asserting an alibi defense. The same argument was rejected in State v. Bascue, 485 S.W.2d 35, 37 (Mo.1972). Here, as in Bascue, defendant was charged with a specific offense occurring at a particular time on a certain date and was convicted of that offense. Any alibi defense was directed to that particular time and was not nullified by evidence of prior misconduct.

Defendant next contends the trial court erred in admitting medical records of the victim which were not properly qualified under §§ 490.660--490.690, RSMo 1978, Missouri's Uniform Business Records as Evidence law.

Section 490.680 RSMo 1978 provides:

A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

At trial, the State called Ms. Valerie Phillips, a clerk in the Medical Records Department at City Hospital, to qualify State's Exhibit 1 under the Uniform Business Records as Evidence law. Ms. Phillips identified State's Exhibit 1 as the original medical records of the victim, made in the regular course of business on June 6, 1979, at or near the time the victim came to City Hospital. ² Although Ms. Phillips was not custodian of the records, she testified that she handled records in the hospital daily and that the victim's records were not made for purposes of any court proceeding. On this testimony, State's Exhibit 1 was admitted in evidence. Dr. Menon, chief resident in pediatrics at City Hospital, testified that the record contained results of a physical examination of the victim conducted by Dr. DeSilva, a former resident in pediatrics at City Hospital. Menon read physical examination findings from page one of the exhibit, and offered his opinion based on those findings.

The Uniform...