State v. Pasteur

• Citation: 9 S.W.3d 689
• Parties: (Mo.App. S.D. 1999) State of Missouri, Respondent, v. Frank A. Pasteur, III, Appellant. 22615
• Decision Date: 30 November 1999
• Court: Court of Appeal of Missouri (US)

9 S.W.3d 689 (Mo.App. S.D. 1999)

State of Missouri, Respondent, v. Frank A. Pasteur, III, Appellant.

22615

Missouri Court of Appeals Southern District

11/30/99

Appeal From: Circuit Court of Dunklin County, Hon. Joe Z. Satterfield

Counsel for Appellant: J. Martin Hadican and Mary Elizabeth Ott

Counsel for Respondent: Shaun J. Mackelprang

Opinion Summary: None

Montgomery, P.J., and Prewitt, J., concur.

Phillip R. Garrison, Chief Judge

Frank A. Pasteur, III ("Defendant") was charged by amended information with endangering the welfare of a child in the first degree, section 568.045,¹ and sexual misconduct in the first degree, section 566.090. A jury returned a guilty verdict on both counts, and he was sentenced to two consecutive one-year prison terms and ordered to pay fines of $5,000 and $1,000. Defendant appeals both convictions, asserting that the trial court erred in 1) denying his request for severance of the individual counts of the indictment, 2) allowing testimony relating to uncharged acts of misconduct, 3) submitting jury Instruction No. 6, patterned after MAI-CR 3d 322.10.2, and 4) overruling his motion for judgment of acquittal at the conclusion of the State's case and at the conclusion of all of the evidence.

As Defendant contests the sufficiency of the evidence supporting his convictions, appellate "review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998), cert. denied, __U.S.__, __S.Ct. __, 142 L.Ed.2d 458 (1999). In applying this standard, the Court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregards all evidence to the contrary. Id. Viewed in this light, the evidence most favorable to the verdicts shows:

Defendant was a band instructor at Malden High School in Malden, Missouri when both victims, A.M.T. and S.S.,² were students. During the 1995-1996 school year, he met and had conversations with A.M.T., a blind student. On May 24, 1996, A.M.T. spoke with Defendant and asked his opinion about whether she should date an older man. During their conversation, Defendant said that a younger man would ask if he could touch her but that an older man might not. Defendant then asked A.M.T. what she would do if he touched her. When she did not respond, Defendant raised her shirt, put his hand in her bra, and put his mouth on her breast. A.M.T. told him that she did not "like him in that way" and Defendant stopped. When A.M.T. told him that she felt guilty about what he had done, Defendant told her that he also felt guilty because he "wished his wife had a body like [A.M.T.'s]."

At the beginning of the 1996-1997 school year, Defendant approached A.M.T. and asked her if she would like him to teach her to play the recorder. A.M.T. agreed, and during the first lesson at Defendant's home, Defendant began to massage A.M.T.'s shoulders and asked her if he could touch her one more time. A.M.T. said "no" and Defendant remarked that lessons "usually don't come for free." A.M.T. then asked if Defendant was mad at her, and Defendant said "no." However, he said that he thought A.M.T. would eventually tell him to "take" her. After this incident, Defendant did not attempt any further sexual contact with A.M.T.

In November 1997, Defendant talked with S.S., a fourteen-year-old student at the high school, and offered to give her a ride home from a school play. When the play was over, Defendant and S.S. chatted, and Defendant told S.S. that she should call home as it was getting late. When she called home, her father told her to be careful, which made S.S. angry. Defendant asked what was wrong, and then told her that her father was just "watching out" for her, as "a lot of guys would try to take advantage of a 14-year-old." Defendant told her that she was pretty and that she looked nice. S.S. remarked that people had told her that she looked older, and Defendant responded that when she was fifteen or sixteen years old, she would be two or three inches taller and would have larger breasts. Defendant then began to talk about having a relationship. He told S.S. that they would have to keep their relationship confidential because he could get arrested or fired if she told anyone.

Defendant and S.S. left the school in Defendant's truck. On the way home, Defendant stopped by his home and took S.S. inside. Defendant said that he thought he would give S.S. a quick tour of his house in case she "needed to know for the future." He then remarked, "because you don't know what's going to happen in the future, do you?"

After leaving Defendant's house, they drove toward S.S.'s home, and Defendant again asked if they could have a relationship to which S.S. responded "yeah." As they drove, Defendant reached over and put his hand on S.S.'s breast and remarked "there's your first test." He then asked if she liked it and S.S. nodded. While his hand was on her breast, S.S. asked him, "why don't you just kiss me?" and at the next stop sign, he leaned over and kissed S.S. on the lips. Defendant told her that she was lucky that they did not have more time because if they did, he would "suck [her] nipples for [her] a little bit." Defendant then told S.S. that the first time they had intercourse "it would be so great that [he]'d worry about [S.S.]." Defendant told her, however, that she would not have to worry about becoming pregnant because he had a vasectomy. Defendant then dropped S.S. off at her home.

The following day, November 24, 1997, Defendant and S.S. met and discussed how and when they would call each other. That afternoon, Defendant called S.S., but she was not at home. S.S. returned his call, but Defendant said that he could not talk because his wife was there. A few minutes later, Defendant called S.S. from his truck.

On November 25, 1997, Defendant saw S.S. at band practice. As the students were leaving the band room, Defendant told one student to hold open the door, and Defendant turned out the lights. As Defendant and S.S. where leaving the room, Defendant walked up behind S.S. and put his hand on her breast and kissed her. Following this incident there was no further sexual contact between Defendant and S.S.³

Defendant was charged on September 25, 1998, with the class D felony of endangering the welfare of a child in the first degree (Count I), and the class A misdemeanor of sexual misconduct in the first degree (Count II). The jury returned a guilty verdict on both counts. On October 13, 1998, Defendant was sentenced to two consecutive sentences of one year in jail. Execution of the second year was suspended and supervised probation was granted. As a condition of the probation, Defendant was ordered to pay fines of $5,000 and $1,000, and complete a sex offender program. Defendant appeals.

In his first point on appeal, Defendant argues that the trial court erred in failing to grant his request for severance of the individual counts of the indictment. Defendant contends that he was denied a fair trial in that he was substantially prejudiced by the trial court's refusal to sever.

Defendant's contention of error requires a two-part analysis. State v. Tripp, 939 S.W.2d 513, 517 (Mo.App. S.D. 1997). The first issue is whether the offenses were properly joined in the information. Id. Upon a finding that joinder was proper, the appellate court must then consider whether the trial court abused it discretion by denying the motion to sever and trying the offenses in a single prosecution. Id.

Joinder addresses 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 gives 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. E.D. 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); State v. Hemme, 969 S.W.2d 865, 869 (Mo.App. W.D. 1998). In a criminal case, liberal joinder is favored in order to achieve judicial economy. State v. Kelley, 901 S.W.2d 193, 202 (Mo.App. W.D. 1995).

Joinder is governed by Section 545.140(2), 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. Joinder of more than one offense in a single indictment or information is also provided for in Supreme Court Rule 23.05 which states:

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. Similar tactics followed in the commission of crimes suffice to show acts "of the same or similar character." State v. Hopkins, 947 S.W.2d 826, 832 (Mo.App. W.D. 1997). For the purpose of joinder, the manner in which the crimes were committed should be so similar it is likely that the same person committed all the charged offenses. Tactics need only resemble or correspond with tactics used in another joined offense and need not be identical. State v. Kelley, 953 S.W.2d 73, 79-81 (Mo.App. S.D. 1997), cert. denied, __ U.S. __, __ S.Ct. __, 140 L.Ed.2d 182 (1998).

In State v. Conley, 873 S.W.2d 233, 238 (Mo. banc 1994), for instance, the Missouri Supreme Court...