State v. Meyers, WD

• Decision Date: 21 March 1989
• Docket Number: No. WD,WD
• Citation: 770 S.W.2d 312
• Parties: STATE of Missouri, Respondent, v. Martin R. MEYERS, Appellant. 39805.
• Court: Missouri Court of Appeals

Page 312

770 S.W.2d 312

STATE of Missouri, Respondent, v. Martin R. MEYERS, Appellant.

No. WD 39805.

Missouri Court of Appeals,

Western District.

March 21, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied May 2, 1989.

Application to Transfer Denied June 13, 1989.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for appellant.

Susan L. Hogan, Columbia, Joseph H. Locascio, Sp. Public Defender, Kansas City, for respondent.

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

FENNER, Judge.

Appellant, Martin R. Meyers, appeals his convictions, after trial by jury, of assault in the second degree, armed criminal action, forcible rape and two counts forcible sodomy. Appellant's trial on the consolidated charges began on June 29, 1987, and ended when the jury returned its' verdicts on July 2, 1987. On August 27, 1987, the trial judge, the Honorable Glennon E. McFarland, imposed sentence in accordance with the jury's verdicts.

The appellant does not challenge the submissibility of the case and a recitation of the tragically inhumane and vicious acts of the appellant that support his conviction is not necessary for purposes of this appeal.

I. IMPROPER BOLSTERING

In his first point on appeal, appellant argues the trial court erred in overruling his Motion for New Trial on the ground of improper enhancement and bolstering of the victim's testimony. This argument is premised on the fact that the state played for the jury a videotaped statement given to the police by the victim, an eight year old girl, when the incident was reported and additionally presented in-court testimony on the same facts. In support of his argument appellant cites State v. Seever, 733 S.W.2d 438 (Mo. banc 1987). In Seever, a videotaped statement of an eight year old victim was received in evidence and then the state called the victim to the stand and presented testimony duplicative in the videotaped statement. In Seever, the videotape was received pursuant to Section 492.304, RSMo 1986, ¹ over objection on constitutional grounds as well as objection on the basis that the videotape improperly allowed the state to bolster the victim's testimony.

In Seever, the Missouri Supreme Court held that the trial court committed reversible error by not sustaining the defendant's objection to the videotape as improperly bolstering the victim's testimony given that the state first introduced the videotape and then called the victim to the stand where she gave testimony which was duplicative of her videotaped statement. Since the case was reversed on the basis of improper bolstering the court did not reach the issue of the constitutionality of Section 492.304, RSMo 1986.

Unlike in Seever, the appellant in the case at bar did not object to the introduction of the victim's videotaped statement except when the videotaped statement was being discussed prior to trial. Even then counsel's objection prior to trial, in the case at bar, was a limited objection, which went to the reliability of the videotaped statement to the extent that the victim's statements therein could be interpreted as indicating that the offense occurred on January 4, 1987. In this same discussion prior to trial, appellant's counsel stated, "I have no problem. I think the statute [§ 492.304, RSMo 1986] would allow use of the videotaped statement and I'm not objecting to that." During the trial, when the state requested permission from the court to play the videotape to the jury, appellant's counsel stated, "No objection."

Missouri courts have held on numerous occasions that even in a situation where a motion to suppress is filed and overruled, and then, during trial, defense counsel states "no objection" to the admission of the evidence which was the subject of the earlier motion to suppress, the objection presented by way of the motion is waived. State v. Holbert, 416 S.W.2d 129, 133 (Mo.1967); State v. Starr, 492 S.W.2d 795, 801 (Mo. banc 1973); State v. Lassen, 679 S.W.2d 363, 368 (Mo.App.1984); State v. Adams, 552 S.W.2d 53, 54 (Mo.App.1977). In the case at bar appellant failed to object to the videotaped statement by way of motion to suppress or otherwise and by stating that he had no objection to the videotape, he not only failed to preserve the issue for review but additionally, he affirmatively waived the issue.

Appellant's first point is denied.

II. CONSTITUTIONALITY OF SECTION 492.304, RSMO 1986

In his second point on appeal, appellant argues that Section 492.304, RSMo 1986, is unconstitutional as violating appellant's rights to confrontation. Section 492.304, RSMo 1986, is the statute which allows the introduction of videotaped statements of children under twelve in certain circumstances.

For the reasons as discussed in appellant's first point on appeal, by stating that he had no objection to the admission of the videotape, appellant waived any objection that he might otherwise have to the videotape being admitted in evidence. In addition to the other cases cited in point I of this opinion, the decision of the Missouri Supreme Court in the case of State v. Holbert 416 S.W.2d at 133, provides determinative authority on this point. In Holbert, the defendant appealed his conviction for carrying a concealed weapon. Defendant filed a motion to suppress the weapon on the grounds that it had been obtained in violation of his constitutional guaranty against unreasonable search and seizure. Defendant's motion to suppress was taken up and overruled before trial. When the weapon was offered in evidence during his trial, the defendant stated that he had no objection to its introduction. The Missouri Supreme Court held that by stating that he had no objection the defendant waived any challenge to the admission of the weapon as violating his constitutional rights and held that no ruling on the subject could thereafter be presented for review. See also, State v. Holt, 415 S.W.2d 761, 765 (Mo.1967).

Furthermore, appellant acknowledges that he raised the issue of the constitutionality of Section 492.304 for the first time on appeal. In Missouri the rule is well established that in order to preserve a constitutional issue for appellate review, it must be raised at the earliest time consistent with good pleading and orderly procedure and must be kept alive during the course of the proceedings. State v. Wickizer, 583 S.W.2d 519, 523 (Mo. banc 1979). Absent a showing of plain error, appellant's raising an alleged error for the first time on appeal does not preserve the issue. Id.

Relief will be granted under the plain error rule only when the error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice inexorably results if left uncorrected. State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc 1988). Where guilt is established by overwhelming evidence, no injustice or miscarriage of justice results from a refusal to invoke the plain error rule. State v. Goode, 721 S.W.2d 766, 770 (Mo.App.1986).

In the case at bar appellant raises the issue of the constitutionality of Section 492.304, RSMo 1986, for the first time on appeal, the evidence of appellant's guilt was overwhelming and his guilt was established independent of the videotape of which he complains.

Appellant's second point is denied.

III. NECESSITY OF INSTRUCTING ON A PRECISE DATE AND TIME

In his third point on appeal, appellant argues that the trial court erred in submitting the charges of second degree assault, armed criminal action, forcible rape and two counts of forcible sodomy under instructions which alleged that appellant engaged in the charged acts on or about the first half of January, 1986. Appellant argues that the failure of the state to precisely give the date and time of the charged offenses nullified his effort to rely on the defense of alibi. The offenses were charged as having occurred "on or about January, 1986."

At trial, Detective Rick Scarborough of the Liberty, Missouri Police Department, who conducted the first interview with the victim on June 16, 1986, testified that the victim and her mother first told him that the offenses occurred around the first of 1986. Detective Scarborough interviewed the victim a second time on June 17, 1986, at which time the victim could still not give him an exact date, but again told him that the offenses occurred sometime around the first of the year, right after Christmas while she was staying with her father. On June 18, 1986, Detective Scarborough took the victim's videotaped statement in which she states the offenses occurred on a weekend which was a few days after she received her Christmas presents. Detective Scarborough testified that the victim initially stated that the offenses occurred on a Saturday but later told defense counsel that it was on a Friday. Detective Scarborough testified that as best as the police department could piece all the information together they arrived at a date of January 3, 1986, for the offenses.

At trial the victim's mother testified that she wasn't sure when the offenses occurred, but that she thought it was a Friday because of the cartoons the victim was watching. The mother testified that the offenses could have occurred on January 3, 1986, but there were other dates that were possible. At trial the victim testified she thought the offenses occurred on a Friday, but did not give a specific date for the offenses.

Appellant argues that the jury should have been instructed to find him guilty if they determined that he committed the charged offenses on January 3, 1986, rather than being instructed to find him guilty if they determined that he committed the offenses "on or about the first half of January, 1986."

Time is not the essence of sexual offenses such as rape and deviate sexual intercourse. State v. Ellis, 710 S.W.2d 378, 383-84 (Mo.App.1986). However, when an alibi defense is presented, time may be of "decisive...