State v. Sladek, 74230

• Citation: 835 S.W.2d 308
• Decision Date: 30 June 1992
• Docket Number: No. 74230,74230
• Parties: STATE of Missouri, Respondent, v. Martin SLADEK, Appellant.
• Court: United States State Supreme Court of Missouri

Page 308

835 S.W.2d 308

STATE of Missouri, Respondent, v. Martin SLADEK, Appellant.

No. 74230.

Supreme Court of Missouri En Banc.

June 30, 1992.

Arthur S. Margulis, David R. Crosby, Richard J. Eisen, Lawrence G. Gillespie, St. Louis, for appellant.

William L. Webster, Atty. Gen., Barbara J. Wood, Asst. Atty. Gen., Jefferson City, for respondent.

WILLIAM E. TURNAGE, Special Judge.

Martin Sladek was convicted in a jury-waived trial of first degree sexual assault, § 566.040, RSMo 1986, ¹ and first degree deviate sexual assault, § 566.070. The court assessed punishment at a term of seven years on each count with the sentences to be served concurrently. On appeal to the Court of Appeals, Eastern District, the conviction was affirmed, and this Court ordered the case transferred. It is now before this Court the same as if on original appeal. Art. V, § 10 Constitution of Missouri. Reversed and remanded.

Sladek is a licensed dentist in the State of Missouri and at the time of the offense was employed by another dentist. The victim was an 18-year-old girl who was employed in the same dental office as an assistant. On February 11, 1989, the victim called Sladek at his home and told him that she thought she had chipped a tooth. They agreed to meet at the dental office for Sladek to examine the tooth.

After the two met at the office the victim assembled a tray of instruments. Sladek then placed the victim under nitrous oxide plus oxygen sedation (relative analgesia). The victim testified that the nitrous oxide was strong and the gauge on the analgesia machine indicated a flow rate of 5 to 6 liters per minute of nitrous oxide and 2 to 3 liters per minute of oxygen. The victim testified that after the administration of nitrous oxide she was unable to move her arms and legs.

She testified that while she was unable to move her arms and legs Sladek forced her to perform an act of sodomy and thereafter raped her. The State produced an expert who testified that a patient under relative analgesia at a flow rate of 3.5 liters per minute of nitrous oxide to 2 liters per minute of oxygen could be unable to raise her arms or legs.

The State presented evidence from four of Sladek's former patients who testified about his behavior toward them. One, L.G., testified she was treated by Sladek in October, 1988, while he was working in another dental office. She testified that while Sladek was working in her mouth with one hand he repeatedly placed his other hand on her breast. She stated when Sladek left the room, she pulled the tissue draped across her chest tight and crossed her hands over it, "to see if he was going to do this again." When Sladek returned, he worked his hand underneath the tissue and began rubbing her breast with the back of his hand. When she became convinced Sladek was touching her breast intentionally, she pushed him away, and he immediately ended the examination.

Another witness, K.A., testified she was treated by Sladek at his previous place of employment in September, 1988. During his examination of the witness, she testified Sladek repeatedly rested his forearm on her breast.

The third witness, R.C., testified she was treated by Sladek in January, 1989, during which treatment Sladek placed his forearm against her breast. Following his treatment of this witness he brushed powder off of her breast with his hand. A fourth witness, S.B., testified she was treated by Sladek in January, 1989. When the treatment by Sladek proved to be too painful in her mouth, the witness decided to leave. Sladek told her the condition could remain a problem and told her to call him if it did and he would meet her at the office at any time to give treatment "even if it is 3:00 a.m." The next day was Sunday, and Sladek called the witness at home four times and left messages for her to call him at home.

Sladek testified and denied any sexual contact with the victim. He also testified he had not inappropriately touched L.G., K.A., or R.C. With reference to S.B. he testified he normally called patients for follow-up.

Sladek first contends the State did not make a submissible case on either of the sexual assault charges. In a court-tried case the sufficiency of the evidence is determined by the same standard as in a jury-tried case and that is whether or not there was sufficient evidence from which the trier of fact could have reasonably found guilt. State v. Harris, 774 S.W.2d 487, 491 (Mo.App.1989). In determining whether or not there is evidence sufficient to support a finding of guilt, an appellate court may not weigh the evidence but accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and all contrary evidence and inferences are ignored. State v. Rousan, 752 S.W.2d 388, 389 (Mo.App.1988).

The State was required to prove Sladek had "sexual intercourse with another person to whom he is not married and who is incapacitated ...", § 566.040, and he had "deviate sexual intercourse with another person to whom he is not married and who is incapacitated ...", § 566.070.

The uncorroborated testimony of the victim in a case of sexual assault is sufficient to sustain a conviction. State v. Erickson, 793 S.W.2d 377, 384 (Mo.App.1990). "Corroboration is not required unless the victim's testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is thereby rendered doubtful." State v. Harris, 620 S.W.2d 349, 353 (Mo. banc 1981). Conflict between the testimony of the victim and other witnesses does not require application of the corroboration rule. State v. Daniel, 767 S.W.2d 592, 593 (Mo.App.1989).

Sladek recognizes the above principles but contends the testimony of the victim did not constitute substantial evidence to support a finding of guilt because the court found her to be "not a good witness" and for the further reason that the court relied on evidence of other crimes in its finding. At the time of sentencing the trial court made the following statement:

The victim in this case was not a good witness. The State's witness, the State's expert, was destroyed by cross-examination. Defendant's expert was a much much better witness than the State's witness.

The testimony of [L.G., R.C., K.A.], the other three alleged victims of the misdemeanors, was crucial to the finding of guilty beyond a reasonable doubt.

* * * * * * If the court is in err on [sic] permitting those three witnesses to testify, the judgment in this case should be reversed because their testimony was that important to the decision in the case.

Based upon their testimony I have found defendant guilty beyond a reasonable doubt, and I will therefore proceed with sentencing.

From his argument it is apparent Sladek confuses submissibility with the weight of the evidence. Here, the victim testified in detail about the sexual assaults. Her testimony was not such that the corroboration role was triggered and was sufficient to support the submissibility of the case.

The serious question in this case involves the propriety of the admission over objection of the evidence of L.G., K.A., and R.C. concerning Sladek's improper touching of them. He contends this was the admission of evidence of uncharged crimes unrelated to the crime for which he was on trial. The State contends that the evidence from the other patients is admissible under the common plan or scheme exception to the general rule that evidence of uncharged crimes is not admissible. The State contends that Sladek had a common plan or scheme to make patients the target of his misdeeds.

The general rule concerning the admission of evidence of uncharged crimes was stated in State v. Reese, 274 S.W.2d 304, 307 (Mo. banc 1954):

The well established general rule is that proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial. * * * Evidence of other crimes, when not properly related to the cause on trial, violates defendant's right to be tried for the offense for which he is indicted. State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923.

The Court further stated that exceptions to the general rule are as well established as the rule itself and quoted from People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 294 (1901), as follows:

Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.

The Court further stated (quoting from State v. Lyle, 125 S.C. 406, 118 S.E. 803, 807 (1923)):

The test of whether evidence of other distinct crimes falls within any of these exceptions has been aptly stated as follows: "The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidently proves the defendant guilty of another crime."

The Court further stated that evidence of other crimes could have a dangerous and misleading probative force and because of that the Court should require that the admission of evidence of other crimes be subjected to rigid scrutiny. The Court held that the reason for such precaution is that such evidence could "raise a legally spurious presumption of guilt in the minds of the jurors." Id. at 307.

It will be noted that proof of the commission of separate and distinct crimes is not admissible unless such proof has a legitimate tendency to directly establish the...