State v. Meder

Decision Date16 November 1993
Docket NumberNo. WD,WD
Citation870 S.W.2d 824
PartiesSTATE of Missouri, Respondent, v. John MEDER, Appellant. 46501.
CourtMissouri Court of Appeals

Ellen H. Flottman, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., David B. Cosgrove, Asst. Atty. Gen., Jefferson City, for respondent.

Before BRECKENRIDGE, P.J., and KENNEDY and LOWENSTEIN, JJ.

BRECKENRIDGE, Presiding Judge.

John Meder appeals from his conviction of three counts of class B rape under § 566.030, RSMo 1986, 1 for which he was sentenced to three consecutive terms of fifteen years imprisonment. Meder raises four points on appeal, arguing that the trial court erred in: 1) denying Meder's motion for severance and failing to sever the charge and trial of each of the three counts of rape; 2) admitting evidence of the victims' "sexual acting out" because any probative value the evidence may have had was clearly outweighed by its prejudicial impact; 3) failing to instruct the jury to disregard the prosecutor's improper closing argument or to declare a mistrial because the prosecutor improperly defined sexual intercourse to the jury; and 4) submitting Instruction No. 4, patterned after MAI-CR3d 302.04, because the definition of reasonable doubt violated Meder's right to due process.

Meder does not challenge on appeal the sufficiency of the evidence or the admission of evidence of uncharged crimes or prior bad acts testified to by the victims or others to whom the victims had made statements. Nevertheless, Meder's allegations of error require the recital of a substantial portion of the evidence. The evidence on appeal will be viewed in the light most favorable to the verdicts. State v. Graham, 587 S.W.2d 627, 629 (Mo.App.1979).

Meder is the father of three daughters, Doreen, Tina and Penny. 2 Doreen and Tina are twins who at the time of trial were eleven years old. Penny was nine years old at the time of trial. The record reveals a history of repeated sexual abuse by Meder of his three daughters. The record also indicates that Doreen, Tina and Penny had been touched and sexually abused by their adolescent uncles, Mike Woods and Steve Woods, and possibly others. The charges against Meder stem from three particular incidents of abuse in October of 1986. Doreen and Tina were five years old and Penny was either three years old or had just turned four years old at the time of the abuse that led to the charges in the instant case.

Doreen testified that in October of 1986, Meder took her downstairs at her grandparents' house and "got on top of me, and he put his penis in me." Doreen stated that Meder had engaged in similar contact with her on more occasions than she could count and that he told her he would kill her if she told anyone. Officer Robert Rogge interviewed Doreen in October of 1987. In describing Meder's sexual contact with her prior to her removal from his custody, Doreen described to Officer Rogge both vaginal and anal intercourse with Meder. Doreen told Christine Cannella, a therapist for the Metropolitan Organization to Counter Sexual Assault, that Meder touched her with his penis "in her front and back parts."

Tina testified that in October of 1986, two weeks before Penny's fourth birthday, Meder and Tina were alone at her grandparents' house. Meder told her it was too cold for her to play outside. Tina testified that she was playing in her uncles' room when Meder "came in and touched my private parts" and "put his penis in my vagina." Tina also testified that Meder touched her in this manner on many other occasions. Meder told Tina that he would kill her if she told anyone. Officer Gary Thurman interviewed Tina on October 27, 1987. Thurman testified that Tina told him that Meder inserted his penis in both her vagina and her rectum.

Steve Woods testified that he was present when a "hot line" call to the Division of Family Services was made on November 8, 1986. The call was made when Tina told the next door neighbors, the Batesons, that every Friday night after her mother went to work Meder would "get in bed, put Tina on top of him, and move her back and forth on top of his penis." Meder admitted to a juvenile officer in an interview after the children were removed for alleged sexual abuse that a teenage friend of the family had seen him holding Tina on a couch when they were both naked and he had an erection.

Penny testified that, when the family was living in a motel, Meder bothered her at bedtime when she was trying to go to sleep by touching her private parts. Penny stated that Meder touched her vagina with his penis more than once. Elizabeth Hutcheson, a caseworker employed by the Missouri Division of Family Services and assigned to the Meder case, testified that Penny spoke with her about incidents when Meder had sexually abused Penny and when Meder, Mike Woods and Steve Woods had raped Penny. Penny's foster mother, Phyllis Blowers, testified that Penny told her that Meder bathed the girls often and, when they were bathing, Meder touched their private areas. Penny also told Blowers that her father touched her rectum with his penis.

Officer Jana Rogge interviewed Penny. Penny told Officer Rogge that Meder put his "hot dog" in her "private" five times when they were in the basement of her grandparents' house. Penny told Officer Rogge that when this occurred her uncles, Mike Woods and Steve Woods, and her sisters were present. Penny said that Meder, Mike Woods and Steve Woods all put their "hot dogs" in her and her two sisters. MOSCA counselor, Cannella, testified that during counseling sessions Penny recounted a number of incidents when her father "put his hot dog" in her vagina and rectum. Penny told Cannella that she remembered a time near her birthday at her grandparents' house when Meder, Mike Woods and Steve Woods, in turn sexually abused her.

Doreen, Tina and Penny were removed from the home of their natural parents after the hotline report on November 8, 1986. They were placed in foster care on November 10, 1986. Due to severe behavioral problems the girls could not live together in the same foster home and were placed in separate foster homes. The testimony at trial showed that after their removal from Meder's custody, all three girls exhibited behavioral problems and incidents of "sexual acting out." The incidents of sexual acting out included masturbating and simulating intercourse in public and with other children and pulling their pants down and their shirts up in public. Doreen acted out by straddling men's legs in a sexual manner and rubbing her genitals against them. Penny would put her finger in her rectum when she became angry and smear feces on herself and the walls. The girls also often exhibited aggressive, combative behavior and experienced nightmares.

Meder was indicted on March 8, 1989, for three counts of class B rape, § 566.030, RSMo 1986. In each count he was charged with having sexual intercourse with one of his three daughters between October 1, 1986 and October 31, 1986. Trial was held on January 21, 1992. The jury was unable to reach a verdict and the trial court declared a mistrial. The case was again called to trial on May 11, 1992 and the jury returned verdicts of guilty. In accordance with the recommendation of the jury, Meder was sentenced to three consecutive terms of imprisonment of fifteen years each. Timely notice of appeal was filed thereafter.

In Point I, Meder argues that the trial court erred and abused its discretion in denying his motion for severance of the three counts of rape under § 545.885, RSMo Cum.Supp.1992, and Rule 24.07. Meder contends that he was denied a fair trial in that he was substantially prejudiced by the trial court's refusal to sever.

Meder's contention of error requires a two-part analysis. State v. Harris, 705 S.W.2d 544, 547 (Mo.App.1986). The first issue is whether the offenses were properly joined. Id. Upon a finding that joinder was proper, the appellate court then considers whether the trial court abused its discretion by denying the motion to sever and trying the offenses in a single prosecution. Id.

Joinder involves the basic question of what crimes can be charged in a single proceeding as a matter of law, while severance assumes that joinder is proper and allows the trial court discretion to determine whether prejudice would result if the charges were tried together. State v. Olds, 831 S.W.2d 713, 718 (Mo.App.1992). "A defendant does not have either a federal or state constitutional right to be tried on only one offense at a time." State v. Baker, 524 S.W.2d 122, 126 (Mo. banc 1975). In a criminal case, liberal joinder is favored in order to achieve judicial economy. Olds, 831 S.W.2d at 718.

Joinder of offenses is governed by § 545.140(2), RSMo 1986, which provides:

Notwithstanding Missouri supreme court rule 24.07, two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or infractions, or any combination thereof, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Rule 23.05 also provides for joinder of more than one offense in an information or indictment as follows:

All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

Joinder is proper if any one of the criteria in § 545.140(2), RSMo 1986, exists. State v. Clark, 729 S.W.2d 579, 582 (Mo.App.1987), cert. denied, 507 U.S....

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  • State v. Hopkins, WD
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    • Court of Appeal of Missouri (US)
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    ...from the last charged robbery. The evidence showed that the same persons were likely to have committed all charged offenses. State v. Meder, 870 S.W.2d 824 (1993). The trial court did not err in joining the B. SEVERANCE OF THE OFFENSES WAS NOT REQUIRED Mr. Hopkins claims that even if the of......
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