State v. Muthofer, 51970

• Decision Date: 26 May 1987
• Docket Number: No. 51970,51970
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Siegbert MUTHOFER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 504

731 S.W.2d 504

STATE of Missouri, Plaintiff-Respondent, v. Siegbert MUTHOFER, Defendant-Appellant.

No. 51970.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 26, 1987.

Motion for Rehearing and/or Transfer

Denied June 24, 1987.

Daniel V. O'Brien, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

Defendant appeals from his conviction in a jury tried case of three counts of sodomy, Section 566.060 RSMo (1982 Supp.), fifteen counts of deviate sexual assault in the first degree, Section 566.070 RSMo (1978) and seven counts of deviate sexual assault in the second degree, Section 566.080 RSMo (1978), for which he received a sentence of 185 years and a fine of $22,000. On appeal he alleges that the trial court erred in admitting evidence of uncharged previous sexual acts with boys, and in not declaring a mistrial after the prosecutor made improper remarks during the opening statement and the closing argument. We affirm.

The jury could reasonably find from the evidence that the defendant engaged in various sexual acts with players under his supervision and instruction who had just attained the age of puberty. These acts usually but not always occurred at defendant's home and were tied in with the boys' desire to advance their soccer careers.

At trial, defendant faced charges for his conduct with two players he coached. Two counts were for sodomy with Y.Z. ¹ in May and June of 1982. Y.Z., a thirteen year old, went to defendant's house to help work. Defendant asked if he masturbated.

Defendant and Y.Z. then exposed themselves and, as Y.Z. put it: "[H]e had me go down on him." At another time defendant performed oral sex. Also, in May 1982, defendant anally sodomized Y.Z. Throughout these encounters defendant told Y.Z. that he wanted him and that defendant could make him the best soccer player and goalie and that Y.Z. would get a scholarship. In May 1985, Y.Z. reported defendant to the police.

The remaining counts resulted from defendant's conduct with A.B. A.B. began playing for defendant at the age of eleven. In July 1980, A.B. went to defendant's house to help with some chores. While there, defendant approached A.B. and asked him if A.B. was his friend and if he wanted to play soccer for him. After A.B. responded yes, defendant told A.B. that defendant wanted to see him "the way that you were born." After A.B. disrobed, defendant hugged him and requested that A.B. touch defendant's penis. While that was the extent of contact on that day, subsequently A.B. and defendant began sexual activities with defendant at his house at least once a month, except for two gaps when A.B. broke his leg and when he left the team for a short while. These activities, included oral sex, anal sex and masturbation. In June 1981, A.B. witnessed defendant's oral sodomy with Y.Z. Throughout this period, defendant would tell A.B. that he loved him and that if defendant did not love A.B. he would hate A.B. Defendant advised A.B. that he would not want to learn what defendant's hate was. Defendant also informed A.B. that the sexual relationship would only last until A.B. turned 18. After April 1985, when A.B. was sixteen, the visits ended.

The prosecution also offered the testimony of other victims of defendant. In 1968, E.F., then 13 and a member of a team defendant coached, visited defendant's apartment. Defendant prepared, E.F. and another boy who accompanied him, a drink which E.F. sipped. The other boy began reading aloud from a book on masturbation. Next E.F. heard defendant and the other boy discussing him, saying "is he ready" or "should we invite him?" Defendant invited E.F. to engage in masturbation with him and the other boy. E.F. declined. Later defendant asked E.F. if he "wanted to do this type of thing next weekend." E.F. declined.

Next was G.H. When he was twelve, he began playing for defendant's team. The next year, in 1979, just before his thirteenth birthday, he broke his leg and could not play. G.H. went to turn in his uniform at a team practice. While the team practiced, G.H. sat next to defendant and they conversed. During this conversation, defendant asked G.H. how he liked their friendship. After G.H.'s positive response, defendant told G.H. that they had a good relationship but that it needed something to make it better. G.H. replied no. Defendant continued, telling G.H. to think about it. G.H. again declined and from his testimony it appears that, at that time, G.H. was uncertain of the meaning of defendant's request. Later, G.H. visited defendant's house to help clean uniforms. Towards the end of the evening, defendant asked G.H. if he masturbated. G.H. admitted he did. Later, defendant telephoned G.H. who was now near 13. Defendant told him that G.H. knew what defendant needed. G.H. asked defendant to come to the point. Defendant then uttered his oft repeated request that "I have to see you the way you were born." G.H. again declined. Defendant then replied that G.H. was dismissed from the team. G.H. replied that he would tell his parents, to which defendant requested that G.H. should "forget the whole conversation" and that G.H. would continue to play soccer.

In 1975, defendant approached another player, thirteen year old I.J. while at a soccer picnic. I.J. asked defendant if he could have a beer. Defendant gave him a beer and told him that he was a good guy and a good soccer player and that defendant liked him a lot. Then, as I.J. puts it, "out of the blue," defendant asked for "a head job." I.J. said no. Defendant then requested I.J. not tell anyone to which I.J. agreed.

In 1983, K.L., a twelve year old soccer player for defendant, his family and defendant met after practice at a local restaurant. While the group sat at the table, defendant whispered to K.L. and asked if he would do anything for him. Defendant then tapped K.L. on the shoulder and motioned for him to follow. First defendant, and then K.L., went to the men's room. When K.L. entered, defendant admonished him for following too quickly. Defendant stood at the urinals with his erect penis protruding from his pants and asked K.L. whether he thought defendant's penis "was a big one." K.L. did not reply. Defendant then asked K.L. to touch it. K.L. replied no, but defendant, several times, repeated his request. K.L., feeling threatened, complied. Defendant then asked him if he wanted to be like "M." Defendant told him that M "did it" for him, that he was one of the "first little guys" and that K.L. would "have to do more stuff, too, later." K.L. left the restroom and returned to the table. As they were leaving the restaurant, defendant advised K.L. to remain silent.

A.B.'s older brother also testified. He told of joining defendant's soccer team in 1977, when he was a seventh grade student. Shortly after joining the team, while on a European trip, defendant approached A.B.'s brother. They were staying in a house. After a hard day, defendant asked A.B.'s brother if he was tired. He answered yes. Defendant told him to undress and take a nap. Later, defendant came over to A.B.'s brother, who was dressed only in his underpants, caressed his body and then inserted A.B.'s brother's penis into defendant's mouth. Previous to these acts, defendant had conversed with him, saying that they had a certain relationship, "a giving relationship," and that certain favors should be exchanged. Defendant described these favors as being sexual. A.B.'s brother, at first, was not receptive, so defendant became cool towards him and he was not included in the group.

After the first European trip, A.B.'s brother succumbed and engaged in frequent sexual encounters with defendant at his house. These meetings, three to four times monthly, involved amatory touching, anal and oral sex. During this time, defendant arranged for a discounted ticket which enabled the child to accompany the soccer team on a second trip to Europe. After four years, the encounters ceased.

Defendant's first point contends that the court erred when it admitted the testimony of the various witnesses which pertained to acts of sexual misconduct by the defendant that were not charged. State v. Howard, 714 S.W.2d 736, 738 (Mo.App.1986). Because the statute of limitations had run, these acts were uncharged. Defendant argues that he was prejudiced by these testimonies since the jury could succumb to the inference that if he "did it once before" he probably did it this time. Further, defendant states that as the jury was aware of the statute of limitations issue because of the prosecutor's opening statement, it was likely to punish the defendant via the charged offenses for the ones on which he had not been charged. These assumptions are made without any factual substance and we need not respond to defendant's speculations.

Defendant does acknowledge that there is an exception to the above rule. Evidence of other crimes is admissible if the evidence tends to establish (a) motive, (b) intent, (c) absence of accident or mistake, (d) a common plan or scheme or (e) identity. State v. Mitchell, 491 S.W.2d 292, 295 (Mo. banc 1973). Here, the state offered the evidence to prove a common plan or scheme, in that, the defendant, for many years, systematically and regularly would approach the youths in his charge, earn their respect, trust and admiration and then, cryptically, would test their vulnerability in the confines of his home. The evidence consistently revealed that if the response was not completely negative, he would persistently pursue and eventually request sexual favors. As a boy grew older, defendant's ardor would cool and he would seek a substitute or substitutes. Furthermore, defendant used the examples of other players who had fallen under his influence to dispel the doubts of those solicited. Implicit and explicit throughout was defendant's...