State v. Strughold

Citation973 S.W.2d 876
Decision Date23 June 1998
Docket NumberNo. 73107,73107
PartiesSTATE of Missouri, Respondent, v. James E. STRUGHOLD, Appellant.
CourtCourt of Appeal of Missouri (US)

Albert S. Watkins, Richard B. Hein, Kodner, Watkins, Muchnick & Dunne, Clayton, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel W. Follett, Asst. Atty. Gen., Jefferson City, for Respondent.

AHRENS, Presiding Judge.

Defendant, James Strughold, appeals from the judgment entered on his convictions of sexual misconduct in the first degree, Section 566.090 RSMo 1994, in reference to M.B. (Count III); furnishing pornographic material to a minor, M.B., Section 573.040 RSMo 1994 (Count IV); furnishing pornographic material to a minor, K.C., Section 573.040 RSMo 1994 (Count VII); sexual misconduct in the first degree, Section 566.090 RSMo 1994, in reference to J.B. (Count VIII); furnishing pornographic material to a minor, K.J., Section 573.040 RSMo 1994 (Count X); and furnishing pornographic material to a minor, D.L., Section 573.040 RSMo 1994 (Count XI), following a jury trial. In addition to a $1,000.00 fine, the trial court sentenced defendant to a term of one year in the St. Louis City Medium Security Institution on each of the six class A misdemeanors, all sentences to run consecutively. Execution of sentence was suspended, except for a term of thirty days. The state concedes error regarding each of the six counts. We reverse and remand Counts III, IV, VII, X, and XI for a new trial. We reverse Count VIII.

Viewing the evidence presented at trial in a light most favorable to the verdict, we find the following: Defendant worked as a teacher, assistant principal and principal in the St. Louis City Public School system for thirty-five years. Defendant worked as principal at Mark Twain Elementary School up to and including the start of the 1995-96 school year. Upon promotion, defendant left Mark Twain Elementary on November 6, 1995 to become a principal at the Wilkinson School. Dr. Rosalyn Mason succeeded defendant as principal at Mark Twain Elementary.

On November 7, 1995, during a lesson about the Million-Man March, four of the five alleged child victims to whom the guilty verdicts correspond, 1 made allegations about defendant. Monica Johnson, a third grade teacher at Mark Twain Elementary, went to see Mason about the allegations. Mason told Johnson she would discuss the situation the next day.

On November 8, 1995, Johnson entered Mason's office with A.B., the mother of J.B. (one of Johnson's third grade students). A.B. expressed concern about defendant's unprofessional behavior. A.B. had previously had a conversation with her daughter in which J.B. had alleged misconduct.

Mason sent for J.B. J.B. reported to Mason's office, accompanied by her third grade classmate, K.C. J.B. repeated her allegations with K.C. and the named adults present. K.C. then stated allegations about defendant, with J.B. present. Mason then called M.B and K.J. to her office. Both told stories which also contained allegations about defendant. Again, the statements were made to everyone present in the office. Mason contacted her supervisor for advice. With Johnson's assistance, Mason obtained written statements from the four students on November 15, 1995.

On December 13, 1995, Officer Sheldon Wright of the Child Abuse Unit, executed a consent to search defendant's residence. Wright seized the following four magazines located in a closet of the residence: a 1989 issue of Playboy, a 1989 "swimsuit" issue of Sports Illustrated, a 1986 issue of Penthouse, and a 1977 issue of Playgirl. On December 21, 1995, Detective Robert Muffler executed a search warrant to examine any computer system located in defendant's residence. Muffler located twelve suspect graphic images in the files on the computer's hard drive. Muffler copied the twelve graphic images onto a diskette, brought the diskette to police headquarters, and printed off the images on multicolored ink-jet and laser printers. Defendant did not have a multi-colored laser or ink-jet printer in his residence or at Mark Twain Elementary.

M.B., age 10 at trial, testified he would periodically get in trouble during class and would be sent down to defendant's office. M.B. testified that one time, defendant locked his door and told M.B. to "bend down and suck his dick." M.B. testified that on another occasion, defendant took him into the private bathroom attached to the office, where defendant pulled down his pants and exposed his penis to M.B. Defendant then lifted up M.B.'s shirt, rubbed his penis on M.B.'s chest, and ejaculated on M.B.'s chest. M.B. testified defendant cleaned off M.B.'s chest with a paper towel and threatened to handcuff him to the radiator if M.B. told anyone what happened. M.B. further testified that another time defendant showed him "nasty comic books" which had pictures of naked people on beds on top of each other and he could see their "privacies".

K.J., age 9 at trial, testified he repeatedly got in trouble for disrupting his class by talking and getting out of his seat. He was also sent to defendant's office on a regular basis. Additionally, he went to defendant's office to deliver the daily attendance report. K.J. testified that one time, after arriving at defendant's office, defendant showed him pictures in a book entitled The Sex Machine. The book contained pictures of two women dancing on a bed in bras and panties. In his written statement, K.J. claimed the pictures showed a woman having sex.

K.C., age 11 at trial, would get in trouble for running in the halls, not doing his work, fighting, and talking back to teachers. Defendant would call K.C. to his office for punishment. K.C. testified defendant showed him "nasty books", containing pictures which showed naked women having sex with men, women with their legs spread wide open, and women performing oral sex on men. K.C. also testified defendant showed him a Playboy. In his written statement, K.C. said a book called The Dark Side contained some of these photographs. K.C. further testified that one time defendant took a picture of his penis in the bathroom with an instant camera and showed it to K.C. K.C. stated that defendant threatened to kidnap K.C. and have sex with him if he told anyone.

J.B., age 11 at trial, testified that defendant watched Johnson's class one day while Johnson stepped into the hallway to speak with A.B. J.B. testified that defendant rubbed "on her behind" or rubbed her "butt" outside of her clothes with his hand and whispered to her that he wanted to have sex. She further testified that she had also been sent to defendant's office for fighting and defendant told her to "suck his dick." In her written statement, J.B. testified that while at recess defendant walked up to her and felt on her behind with his fingers. J.B. stated that defendant threatened to throw a bomb into J.B.'s house if she told anyone.

D.L.'s mother saw a news report on defendant's arrest, panicked and started questioning D.L. Ella Owens, an investigator for the Division of Family Services, interviewed D.L. Owens stated that D.L. told her he saw one book with one picture in it. D.L. was eight years old when he testified at trial. D.L. testified that defendant showed him "nasty books", containing photographs of naked men and women. He identified the magazines found in defendant's residence and the computer printouts of the graphic images found on defendant's home computer as things defendant showed him.

Defendant raises fifteen points on appeal. The state concedes error on three points. We address the remaining points relating to these counts so that the trial court may avoid future error upon retrial.

The state concedes the trial court erred in denying defendant's motion for judgment of acquittal as to Count VIII, corresponding to sexual misconduct against J.B., because there was insufficient evidence adduced at trial to support a conviction for sexual misconduct under Section 566.090 RSMo 1994. We agree the trial court erred.

A conviction for sexual misconduct in the first degree requires proof beyond a reasonable doubt of "sexual contact" through the clothing. Section 566.010(3) RSMo 1994 defines "sexual contact", in part, as "any touching of the ... anus of another person ..." Review is limited to a determination of whether there is substantial evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995).

The state presented no evidence that defendant "touched the anus of J.B. through the clothing." J.B. testified defendant "rubbed on [her] behind" or "rubbed [her] butt", outside of her clothing. J.B. testified in her written statement that defendant "walked up to [her] and felt on [her] behind with his fingers."

"Anus" is defined as "the posterior opening of the alimentary canal." Webster's Third New International Dictionary 97 (15 th ed.1966). "Behind" and "butt" are both defined as "buttocks." Webster's Third New International Dictionary 199 & 304 (15 th ed.1966). The state presented sufficient evidence to show defendant touched J.B.'s buttock(s). However, to constitute "sexual contact" as set out in Section 566.010 RSMo 1994, the legislature specifically required a touching of the "genitals or anus of another person, or the breast of a female person."

Missouri courts have sustained convictions under Section 566.090 RSMo 1994 where child witnesses testified that the defendant touched their "butt" or "behind" when specific evidence supported an inference that the contact was with the "anus". See State v. White, 873 S.W.2d 874, 878 (Mo.App.1994); State v. Durbin, 834 S.W.2d 837 (Mo.App.1992); State v. Moore, 721 S.W.2d 141, 143 (Mo.App.1986). In White, the victim's foster mother, doctor, and two social workers testified the victim told them the defendant put his penis "up his butt" and did "push-ups" on him....

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