State v. Loazia, s. 58240

• Citation: 829 S.W.2d 558
• Decision Date: 17 March 1992
• Docket Number: 59835,Nos. 58240,s. 58240
• Parties: STATE of Missouri, Respondent, v. Ralph LOAZIA, Appellant. Ralph LOAZIA, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 558

829 S.W.2d 558

STATE of Missouri, Respondent, v. Ralph LOAZIA, Appellant.

Ralph LOAZIA, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 58240, 59835.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 17, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

April 20, 1992.

Application to Transfer Denied June 2, 1992.

William M. Barvick, Jefferson City, for appellant.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Judge.

In this jury-tried case, defendant, Ralph Loazia, appeals from a conviction of sodomy in violation of § 566.060 RSMo 1986. Defendant also appeals from the denial of his motion for post-conviction relief. Defendant was sentenced to ten years' imprisonment in accordance with the jury's assessment. We affirm.

The evidence adduced at trial established the following facts. On a Saturday in May, 1989, A.B. ¹ stayed overnight at the home of a friend, the victim in this case. At that time, A.B. and the victim were ages eleven and nine, respectively. The victim's mother had moved to the residence with her children approximately two years earlier, leaving the residence she and the children had shared with defendant for four years. With the consent of the victim's mother, defendant had maintained a relationship with the children. It was not uncommon for defendant to visit or stay at the victim's home, and defendant went to the home on the night in question in order to be with the victim and her friend, A.B. The victim's mother left for work shortly before 10:00 p.m., and defendant remained in the house with A.B., the victim, and the victim's ten year-old brother.

After the victim's mother left, defendant suggested that he, A.B., and the victim play a game of "spin the bottle" in the victim's bedroom. Defendant made the rules: the bottle was spun, and the person to whom the open end pointed was to remove a piece of clothing. A.B. and the victim testified they removed some of their clothing; defendant removed all of his. A.B. further testified that defendant kissed the victim between her legs and touched both girls with his hands. At trial, the victim testified she does not remember whether defendant touched her during the game.

After the game ended, defendant left the room; and the girls stayed in the victim's bedroom. A.B. testified defendant told the girls he wanted to show them something; they met defendant in the bathroom. While the girls were watching, defendant masturbated and ejaculated into the sink. The girls testified defendant told them not to tell anyone what they had seen. Further, A.B. testified defendant told the girls that "This is how you get women pregnant," and that he would get in trouble if they told anyone. The victim and A.B. testified that defendant then returned to the victim's bedroom and gave them ice cream. They ate the ice cream and went to bed; defendant left the room.

A.B. testified defendant later returned to the room after the lights were out; she pretended to be asleep, but was wide awake. According to A.B., defendant awoke the victim, told her to take off her underwear, and kissed her genitals for two to three minutes. A.B. first testified defendant took off the victim's underwear, but upon cross-examination stated the victim removed her own clothing and did not resist. Upon further cross-examination, A.B. testified she had her eyes closed during part of the act and was looking up at the ceiling; she also stated that although defendant didn't threaten the victim, he told her not to tell anyone about the incident. Lastly, A.B. testified the door to the hallway was open and she could see defendant; she did not see a face, but the shape of the person entering the room was the same as that of defendant, and defendant was the only adult in the house at the time.

The victim testified she did not know if defendant returned to her room after he brought the girls ice cream, and that she did not remember defendant asking her to remove her clothes or doing anything to her while she was in bed. Over defense counsel's objection, the state elicited from the victim an account of prior sexual acts with defendant: defendant had touched the victim between the legs, and had removed her clothing and kissed her between the legs on more than three occasions.

During the summer of 1989, A.B. told a friend about the incident involving defendant. A.B. explained she had not told anyone previously because defendant had told the girls not to tell, and because they were scared. After telling her friend, A.B. told her parents.

In September, 1989, two deputy sheriffs visited defendant at his home. Defendant invited the sheriffs inside, and Officer Carl Fowler informed defendant he was under arrest and read the arrest warrant to him. Fowler read defendant his Miranda ² rights and repeated some of them upon defendant's request; defendant indicated he understood the rights. The warrant identified the victim by her initials, and Fowler testified defendant asked whose name the initials represented. According to Fowler, defendant nodded his head when Fowler stated he thought defendant knew the victim's identity.

One to two weeks before the police interview, defendant had undergone surgery to replace an aortic valve. Fowler testified that defendant at the interview moved slowly and had a large scar on his chest, but there was nothing unusual about his speech, he was not perspiring excessively, and he did not appear to be under stress. Defendant never asked Fowler to discontinue the questioning, and never asked that he be allowed to take medication or call a doctor or nurse. After the questioning, defendant said he was tired; the interview was terminated. Fowler did not at that time take defendant into custody, because he was concerned about defendant's physical condition and because he had no way of providing defendant with any medical assistance he might need.

Over defense counsel's objection based upon the trial court's overruling of defendant's pretrial motion to suppress, Fowler testified concerning certain responses defendant made during the questioning. Defendant nodded ³ his head yes when confronted about touching and kissing the victim's genitals. Further, Fowler testified that after being confronted about kissing the victim between the legs, defendant stated he thought his heart condition was "God's way of punishing him for what he had done." Lastly, Fowler testified defendant stated he had known for a long time that he needed counseling, and that because he loved the victim and felt like a father figure to her, "what he had done made it seem that much worse."

Defendant testified on his own behalf. He admitted initiating the "spin the bottle game" in the victim's bedroom and stated that by the game's end, he and the girls had removed all their clothing. However, defendant denied touching either child during the game. Further, defendant admitted masturbating in front of the girls, but denied asking them to watch him. He contended they pushed open the bathroom door and found him masturbating. Defendant testified he said nothing to the girls other than telling them to leave the bathroom. Further, defendant denied bringing the girls ice cream and returning to the victim's bedroom that night. Defendant testified the victim was "mistaken" and told a "mistruth" when she said defendant had on earlier occasions touched her between the legs and on her "private parts." He further contended the victim was lying when she said his lips had on three or more earlier occasions touched her genitals.

Finally, defendant testified concerning his physical condition at the time of the police questioning. Defendant claimed that during the interview he was wearing an "infusion pump" which pumped certain medications into his arm, making him nauseated and weak; he also stated he was ingesting painkillers and metabolism regulators, which made him tired. Lastly, defendant testified that at the time of the interview, he was not working and was confined to the house, although he was able to get up and walk around by himself. He was being seen by a visiting nurse two to three times a week. To support his testimony concerning his physical condition, defendant offered the testimony of an acquaintance, Juliana Massman. Massman testified she visited defendant at home four to five times about one or two weeks after his discharge from the hospital. During those visits, defendant had trouble breathing and had difficulty following a conversation, because he easily lost his train of thought.

Defendant at trial contended he remembers only "bits and pieces" of his conversation with Fowler. He testified he does not remember asking Fowler whose name the initials in the arrest warrant represented, and he does not remember being asked about touching or kissing the victim's genitals. The interview lasted approximately thirty to forty-five minutes, during which, according to defendant, Fowler was "compassionate and understanding."

After deliberating for thirty minutes, the jury returned a verdict finding defendant guilty of sodomy and assessed a punishment of ten years' imprisonment. The trial court overruled defendant's motion for new trial and sentenced him in accordance with the jury's assessment.

Defendant raises twelve points. In his first five points, he contends the trial court erred in (1) overruling his motion for judgment of acquittal, because there was insufficient evidence of his guilt; (2) overruling his objection to the use of leading questions in the state's direct examination of the victim's friend; (3) overruling his motion to suppress his statements to Officer Fowler; and (4-5) permitting the victim to testify she had engaged in prior sexual acts with defendant. Defendant's points six through twelve concern the trial court's denial of his Rule 29.15 motion after an evidentiary hearing.

I. Direct...