State v. Martin

• Decision Date: 25 August 1992
• Docket Number: Nos. WD,s. WD
• Citation: 852 S.W.2d 844
• Parties: STATE of Missouri, Respondent, v. Jack G. MARTIN, Appellant. 43384, WD 45329.
• Court: Missouri Court of Appeals

Page 844

852 S.W.2d 844

STATE of Missouri, Respondent, v. Jack G. MARTIN, Appellant.

Nos. WD 43384, WD 45329.

Missouri Court of Appeals Western District.

Aug. 25, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 29, 1992.

Application for Transfer Sustained Nov. 24, 1992.

Case Retransferred March 23, 1993.

Court of Appeals Opinion Readopted May 19, 1993.

J. Gregory Mermelstein, Office of the State Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before ULRICH, P.J., and SHANGLER and FENNER, JJ.

ULRICH, Presiding Judge.

Jack G. Martin appeals his convictions and consecutive sentences of five and ten years imprisonment for sodomy, § 566.060, RSMo 1986, and the final judgment, following an evidentiary hearing, denying his Rule 29.15 postconviction motion to vacate the two sodomy convictions and sentences. Mr. Martin raises seven points in his consolidated appeal. He claims that (1) because the victim's trial testimony was not corroborated, the trial evidence was insufficient to prove his guilt beyond a reasonable doubt; (2) the court's failure to grant his motion for judgment of acquittal at the close of all the evidence as to count III permitted the jury to reach a "compromise verdict" on the two counts for which he was convicted; (3) the court erred in permitting two detectives to testify as to what the child victim told them prior to trial; (4) the court erred in allowing the state to present evidence that he made the victim engage in sexual activity with her younger brother; (5) the trial court erred in failing to declare a mistrial, sua sponte, following a statement made by the prosecutor in closing argument; (6) the trial court abused its discretion in imposing consecutive sentences and in denying him probation because he exercised his right to trial; and the motion court erred in denying his Rule 29.15 postconviction motion on the ground that defense counsel (7) failed to file a bill of particulars prior to trial, and (8) failed to object to evidence that he made the victim engage in sexual activity with her younger brother.

The judgment of conviction is affirmed. The judgment denying appellant's Rule 29.15 motion is affirmed.

Jack Martin was charged by indictment with three counts of sodomy alleging violations of § 566.060, RSMo 1986. Counts I and II were identically written, both charging that "on or about June 1, 1989-June 14, 1989 ... defendant had deviate sexual intercourse with A.M., to whom the defendant was not married and who was less than fourteen years of age." Count III charged that Mr. Martin had "deviate sexual intercourse with M.M. (A.M.'s older sister), to whom the defendant was not married and who was less than fourteen years of age." Mr. Martin was acquitted of the offense charged as count III.

The facts at trial established that in June 1987, A.M. was ten years old. A.M. lived with her mother, an older sister, and her stepfather, Jack G. Martin. A.M.'s natural parents were divorced and another sister, M.M., and a younger brother, X.M., lived with their natural father. Together the four children visited their natural parents on alternate weekends.

In August 1987, two months after Mr. and Mrs. Martin were married, Mr. Martin called A.M. into his bedroom and asked her to rub his legs. Mr. Martin frequently complained of pain in his legs and asked family members to rub his legs. On this occasion, A.M. rubbed Mr. Martin's legs, and Mr. Martin "took [her] wrist and put [her] hand on his penis." A.M. attempted to pull her hand away, but the appellant said, "It's okay," and she testified that her hand remained on Mr. Martin's genitals for "about five minutes."

Approximately one week later, A.M. was again rubbing Mr. Martin's legs in her bedroom. As she was rubbing his legs, Mr. Martin "started moving [her] hand up like he did the first time." He rested her hand "on his penis" for "about a couple of minutes."

A.M. testified that in early June of 1989 she accompanied her stepfather to a tree house located behind the family home. Mr. Martin asked A.M. to "give him a rubdown." A.M. began rubbing Mr. Martin's leg, and he grabbed her wrist and moved her hand to his penis. A.M. testified that Mr. Martin and she engaged in sexual activity in the tree house on approximately ten occasions.

A.M. testified that again in June of 1989, Mr. Martin asked her to give him a "rubdown." On this occasion, he was tucking her into bed. She began to rub his penis. A.M. testified that Mr. Martin said, "Let's try something different, and he moved [her] head down and put his penis in [her] mouth."

A.M. testified that on another occasion, while she was rubbing Mr. Martin's penis, he stated that "Maybe X.M. [A.M.'s younger brother] might enjoy something like this, too." A.M. testified that she resisted Mr. Martin's suggestion, but later "did what he told [her] to do" because she feared him. A.M. testified that Mr. Martin said her mother would send A.M. to a home and divorce him if Mrs. Martin learned what he and A.M. were doing. A.M. also testified Mr. Martin threatened that if that occurred, "he had a gun and he'd use it if he had to."

A.M. testified that Mr. Martin engaged in weekly sexual activity with her for over two years. She testified that such experiences occurred in the family car and in the family hot tub in addition to the other more specific incidents about which she testified.

A.M. stated that sexual activity between Mr. Martin and her stopped in June of 1989 when she was caught stealing goggles from a Wal-Mart store. Confronted with the theft, she informed her natural father of her sexual activity with Mr. Martin, and her father took her to a police station where, on June 16, 1989, she made oral statements to Officer Tammy L. Beard and oral and written statements to Detective William Earhart.

A.M.'s older sister, M.M., also testified at trial. She stated that Mr. Martin had asked her to rub his legs and that he placed her hand on "his penis." She testified that this activity occurred two or three times. M.M. testified that during the winter of 1989, she and Mr. Martin were in the family hot tub. She stated that Mr. Martin's hand "went into [her] swimming suit" and "went across [her] genital area, the top of it," and that Mr. Martin then pulled his hand out "very quickly like it was no big deal." M.M. testified that she was "very shocked," and she left the hot tub. This incident was the basis for count III, for which Mr. Martin was acquitted.

After A.M. reported her sexual activity with Mr. Martin, police authorities confronted Mr. Martin. He made statements to Detective Earhart. He denied culpability. However, Mr. Martin stated to Detective Earhart that he routinely tucked A.M. in bed at night and on one such occasion, he fell asleep on her bed. When he awakened, he said, his pants were around his knees and his "penis was lying on his stomach." He stated to Detective Earhart that A.M. told him not to tell her mother or anybody else what had happened. He told Detective Earhart that on two occasions he exited the shower wearing only a towel. He said that A.M. grabbed his penis through the towel. On another occasion, he said, he was "lying on his bed masturbating," and A.M. watched him "through the door." He also told Detective Earhart that A.M. changed into her swimming suit in his presence more than once when he was sitting in the hot tub located within the house. Mr. Martin told Detective Earhart that A.M. was sexually active with two boys in the neighborhood. Mr. Martin recounted that once, while both Mr. Martin and A.M. were in the hot tub together, A.M. placed one of her feet between Mr. Martin's legs, and he moved away from her. Mr. Martin acknowledged threatening to send A.M. to a foster home, but he said that he made this threat to cause A.M. to stop trying to touch his penis.

Mr. Martin was convicted of the two counts alleging that he engaged in deviate sexual intercourse with A.M. He was acquitted of engaging in deviate sexual intercourse with M.M. After his convictions, Mr. Martin filed pro se his Rule 29.15 postconviction motion. An amended Rule 29.15 postconviction motion was filed in his behalf by counsel. A hearing was held on the motion. Mr. Martin's trial attorney testified at the hearing that he had not objected at trial to testimony that A.M. was sexually active with her younger brother X.M. because the evidence demonstrated "some knowledge of sexual activity either on her part or others allegedly perpetrating it against her." Mr. Martin's trial attorney also stated that A.M. had not mentioned during her deposition her involvement in sexual activity with her brother. By permitting A.M. to state such sibling involvement at trial, defense counsel said he was able to confront her on cross examination with her failure to recount such alleged activity before trial, and to argue that A.M. was not credible and that her allegations against his client were fabricated.

Mr. Martin's trial attorney also testified at the Rule 29.15 hearing that he had not filed a motion for a bill of particulars because the "open discovery" provided by the prosecuting attorney permitted him to know what the state's evidence would be on all three counts. He also stated that he had deposed both alleged victims and their mother, so he knew what they would say at trial.

The motion court found that Mr. Martin's trial attorney's decision not to object to A.M.'s claim of sexual activity with X.M., her brother, was "a valid trial strategy to attack the veracity of this victim to state that she was pointing the finger at a number of different people and that she was expanding on her accusations toward the defendant." The court stated that "while a motion for bill of particulars would probably have been sustained if filed," Mr. Martin's attorney knew the illegal conduct the...