State v. Hoban

• Citation: 738 S.W.2d 536
• Decision Date: 01 September 1987
• Docket Number: No. 51746,51746
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles T. HOBAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 536

738 S.W.2d 536

STATE of Missouri, Plaintiff-Respondent, v. Charles T. HOBAN, Defendant-Appellant.

No. 51746.

Missouri Court of Appeals,

Eastern District,

Division Two.

Sept. 1, 1987.

Motion for Rehearing and/or Transfer Denied Oct. 6, 1987.

Application to Transfer Denied Nov. 17, 1987.

Michael M. Frank, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., Byrona J. Kincanon, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

DOWD, Judge.

Defendant appeals from the judgment of the trial court entered in accordance with a jury verdict which found defendant guilty of the offense of sodomy. Defendant was sentenced to serve a five year term of imprisonment. We affirm.

As the sufficiency of the evidence is at issue, a detailed statement of the facts is warranted. Defendant, a man in his fifties, was the neighbor of the victim, a young female child who was just nine years of age at the time of trial and seven years old when the incidents began. On June 29, 1985, the victim told her mother that defendant had touched her "on her bottom." The victim's mother notified the St. Louis County Police Department.

Detective Reinhardt of the St. Louis County Police Department testified that the victim told him that she had been touched between her legs by the man next door. The victim was able to specify Friday, June 28, 1985, as the date of one occurrence where defendant had placed his hands in her pants and fondled her. This was the day before she told her mother of the occurrences. Detective Reinhardt testified that the victim stated she had been fondled approximately ten times but could not identify when the other incidents occurred. The detective further testified that the victim stated on one occasion defendant had removed her pants and underwear and exposed his penis and placed it against her bottom.

The victim was taken to the Child Guidance Center where she met with a psychiatrist. There, the victim was shown anatomically correct dolls and was instructed as to the correct terms for the body parts of the male and female dolls. Only thereafter did the victim begin using the term vagina.

The psychiatrist testified the victim stated defendant had licked her vagina. He put his hands inside her pants and touched her and placed his penis on her in the area of her vagina. The most recent time it had happened was the day before she told her mother. She stated defendant had touched her in a sexual way maybe ten times but was not sure. The victim told the psychiatrist defendant was very gentle and the fondlings never resulted in her being hurt. She was not sure whether defendant's fingers had entered her vagina but that they may have somewhat. She finally told her mother of the incidents as she began to feel uncomfortable emotionally about the episodes.

The victim testified that she used to go to defendant's house to sell girl scout cookies or to ride a buggy owned by defendant. She testified that while in defendant's garage or basement, defendant would put his hands in her pants and move his fingers around touching her vagina. The victim stated that this occurred a number of times. Defendant told the victim that "this is our little secret" and told her that if it hurt her to tell him.

The victim related that these incidents occurred while she was in the second and third grade which would have been 1983 to 1985. The victim further testified that on one occasion, defendant put her hand on his penis and then rubbed his penis against her. On another occasion defendant licked her vagina. The victim was able to recall Friday June 28, 1985 as one specific occasion on which defendant had touched her in a sexual way. This was the day before she had told her mother of the occurrences.

Doctor Diane Merritt testified that the victim's medical exam was consistent with the victim's account of what happened to her. There was no evidence of acute trauma to the victim's rectum or vagina which was consistent with the child's story that defendant was very gentle with her. According to the Doctor, the type of touching the victim related would not necessarily leave any marks. The victim's vaginal opening measurement was seven millimeters and was a normal vaginal size opening for a child her age. The Doctor testified that the opening was large enough for digital entry without resulting in tear.

Defendant was charged in three counts. Count I was for sodomy and alleged that defendant had deviate sexual intercourse with the victim on Friday, June 28, 1985. The jury acquitted defendant on this Count.

Count II charged defendant with attempted rape of the victim between June 1983 and September 1984. Count III charged defendant with sodomy and alleged that defendant had deviate sexual intercourse with the victim between June 1983 and September 1984. The jury found defendant guilty of both counts II and III. Thereafter, the trial court sustained defendant's after trial motion for judgment of acquittal on Count II, the charge for attempted rape.

The jury recommended a sentence of not less than five years on the Count III charge of sodomy and the trial court heeded the jury's recommendation in sentencing defendant to a five year term of imprisonment. Defendant appeals from the trial court's entry of judgment on the Count III conviction of sodomy.

In his first allegation of error on appeal, defendant contends the trial court erred in submitting Instruction No. 11 to the jury, which instructed as to the Count III sodomy charge, because the time of the offense was not sufficiently stated.

The instruction at issue directed the jury that if they believed defendant had deviate sexual intercourse with the victim between June, 1983 and September, 1984, a fifteen month period, they must find defendant guilty of sodomy. Defendant offered evidence that he was not at his home alone in the presence of the victim and introduced evidence that he was away from his home on business on certain dates within the period in which the offense allegedly occurred. Defendant contends the fifteen month period charged placed an impossible burden on his ability to account for his whereabouts and thus denied him the opportunity to assert an alibi defense. Defendant further contends he was denied equal protection of the law in that the law was applied to him in a discriminatory and prejudicial manner "solely because he was an adult and the alleged victim was a minor."

As the instruction mirrors the time period charged in the indictment, the sufficiency of the indictment is at issue. The primary purpose of an indictment or information is to give general notice to the defendant of the charge against him. State v. Healey, 562 S.W.2d 118, 130 (Mo.App.1978). Missouri Supreme Court Rule 23.01 governing indictments provides that the indictment or information shall state only the time of the offense charged "as definitely as can be done." Rule 23.01(b)(3). The law does not demand impossible precision. The Rule assumes there will be situations where it will be impossible for the State to determine the exact date and time that a crime was committed and the indictment will charge an offense to have occurred during a span of time.

Section 545.030, RSMo 1986, expressly provides that an indictment shall not be deemed invalid "[f]or omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense." § 545.030.1(5), RSMo 1986. Time is not of the essence in a sodomy case. State v. Siems, 535 S.W.2d 261, 266 (Mo.App.1976). Indictments and informations containing the following general allegations of the time of occurrence have been approved: "between the dates of March 15, 1976 and November 16, 1976," State v. Murray, 609 S.W.2d 192, 196 (Mo.App.1980) (eight month time span); "between January 1, 1979 and July 1, 1979," State v. Allen, 622 S.W.2d 275, 276 (Mo.App.1981) (six month time span); "during the months of June, July, and August of 1974," State v. Healey, supra, at 130 (three month period); "during the period from the 15th day of March, 1981, to the 14th day of April, 1981," State v. Edwards, 657 S.W.2d 343, 345 (Mo.App.1983) (thirty day period); "between May 1, 1984, and May 24, 1984," State v. Woods, 723 S.W.2d 488, 503 (Mo.App.1986) (twenty-four day period).

Defendant cites three Missouri appellate court decisions for the proposition that, where an alibi defense is asserted, a rule of fundamental fairness is invoked which provides that the time span within which a crime is alleged to have occurred must not be such as to place an impossible burden on defendant to establish his whereabouts over an extended period of time. State v. Bowles, 360 S.W.2d 706 (Mo.1962); State v. Armstead, 283 S.W.2d 577 (Mo.1955); State v. Clark, 509 S.W.2d 740 (Mo.App.1974).

First of all, defendant's defense can hardly be characterized as an alibi defense. "Alibi means that defendant claims he was at another and different place than that at which the alleged crime was committed at the time it was committed." Armstead, supra, at 581. While it is true defendant contended he was away from home on business during certain dates within the charged period, he did not contend he was never at his home during the charged period. Instead, defendant's defense was that he was not alone at his home in the presence of the victim and that he was never in his basement with the victim. Defendant's defense is in the nature of a blanket denial of sexual activity with the victim as opposed to an alibi defense.

Furthermore, those cases cited by defendant to support a rule of fundamental fairness where alibi is interposed all involve indictments that charged the offense as occurring on a specific date. In the case at bar, the State could not have been any more specific as to the dates of occurrence. The child victim was unable to narrow the time span to a shorter period than the time frame while she was in second and third grade.

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