State v. Taylor

• Decision Date: 24 July 1987
• Docket Number: No. 14795,14795
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles TAYLOR, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 412

735 S.W.2d 412

STATE of Missouri, Plaintiff-Respondent, v. Charles TAYLOR, Defendant-Appellant.

No. 14795.

Missouri Court of Appeals,

Southern District,

Division Two.

July 24, 1987.

Motion for Rehearing and Transfer

Denied and Overruled Aug. 7, 1987.

Application to Transfer Denied Sept. 15, 1987.

Nancy A. McKerrow, Columbia, for defendant-appellant.

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

MAUS, Judge.

The defendant was charged with having deviate sexual intercourse with A.W., to whom he was not married and who was less than 14 years of age. § 566.060. The information also alleged the defendant was a persistent sexual offender within the meaning of § 558.018 in that on October 8, 1982, the defendant pleaded guilty to the felony of sodomy. A jury found him guilty of the instant charge. The trial court found the defendant was a persistent sexual offender and sentenced him to imprisonment for 50 years without probation or parole. The defendant presents six points on appeal.

The defendant does not question the sufficiency of the evidence. Considering the evidence in the light of the verdict, State v. Cooper, 673 S.W.2d 848 (Mo.App.1984), the following is a summary of that part of the evidence necessary for consideration of those points.

The victim A.W. was the defendant's stepdaughter. She was born August 13, 1973. Her mother was divorced from the victim's father. The mother subsequently married the defendant. She and defendant were the parents of a daughter who was approximately three years old at the time in question. During this period, January to June, 1985, the victim and her mother and half sister lived in an apartment in Joplin.

On October 8, 1982, the defendant entered a plea of guilty to the felony of having committed sodomy upon A.W. He was sentenced to imprisonment for five years. He was released on parole in late 1984. He returned to Joplin where he lived with his parents. As a condition of his parole, he was obligated to visit in his wife's home only in the evenings on Monday, Wednesday and Sunday and not when the children were alone.

The testimony of A.W. was to the following effect. After his release from prison, the defendant was in the apartment much of the time. This was true both in the daytime and in the evening. Many times when the defendant was there her mother would leave. In January, 1985, the defendant started abusing her. He took her into his bedroom. He showed her "dirty" movies on the VCR. He showed her books depicting among other things sexual intercourse. He fondled her genitals and performed cunnilingus upon her. This occurred two or three times a week.

A.W. also testified that the defendant molested her several times in 1981. Then he did the same things he did in 1985. In addition, in 1981 he had her perform fellatio upon him and pose for nude pictures. He took one picture of her performing fellatio. They looked at the pictures together. She identified the pictures. The trial court excluded them from evidence. In 1982, the defendant went to prison. For a time A.W. was in a foster home.

In 1985, the defendant warned her not to tell of his sexual activities. He would go to prison and she would be put in a foster home. She was frightened of being in a foster home again. She did not tell of those activities for several months. In June, 1985, a juvenile officer took A.W. to the police station. There she first told police officer Vickie Myers of the defendant's sexual activities. At the trial, A.W. identified and read to herself a report of the interview prepared by the officer. The victim said everything in the report was true.

For a reason not in the record, the victim's mother arranged for a daily "baby sitter" starting in May, 1985. The baby sitter was a girl 14 years of age. The state presented the testimony of the baby sitter which may be summarized as follows. She first went to the apartment on Thursday, May 30. The defendant was there. The mother was not. The baby sitter waited 10 to 15 minutes. After the mother did not return, the baby sitter left. On Friday when the baby sitter reported for work in the morning, the mother and the defendant were there. The mother left and the defendant stayed. On the following Monday, the mother went to work and the defendant was there all day. The same was true on Tuesday and on Wednesday. Wednesday was the last day the baby sitter worked.

The defendant testified. On direct examination, he admitted he was convicted of sodomy upon A.W. in 1982. Apparently to establish extenuating circumstances, he recited the pressures of his employment, a diagnosis that his wife was suffering from a brain tumor and his excessive drinking. He also admitted that he was found guilty by a judge of a sexual offense in 1985. He said in his own mind he was not guilty. He later testified he did not perform those acts. He stated that after his release from prison, his greatest desire was to reunite the family. He denied the instant charges. He stated that he had no sexual desire for A.W. He thought of her as his own daughter.

On cross-examination, the state elicited the details of the offense committed in 1981. Cross-examination also developed the following. The defendant rented x-rated movies every other week in 1985 to view on his VCR. He had in his bedroom in the apartment the books "The Joy of Sex"; "The Art of Massage"; "The Sex Book, A Modern Pictorial Encyclopedia"; and "Sex, The Facts, The Acts and Your Feelings." He acknowledged that he violated the conditions of his parole by being in the home at unauthorized times and by being alone with the children. He also acknowledged that in November of 1985, following a trial, he was found guilty of deviate sexual intercourse upon the baby sitter.

The defendant's first point is that the trial court erred in permitting the state to elicit details of the 1981 acts of sodomy from the victim A.W. and from the defendant and to refer to those details in the opening statement and closing argument. In his argument the defendant concedes evidence of the fact of the prior conviction was properly admitted as evidence of his guilt. However, he contends that evidence should have been limited to showing motive "by informing the jury that appellant had been convicted of sodomy in 1982 and that A.W. had been the victim at that time." This point, as well as defendant's second point, involves the general subject of the admissibility of a prior conviction or a prior criminal act as proof of a defendant's guilt of the offense being tried.

This general subject was the focus of a recent opinion of this court. State v. Arney, 731 S.W.2d 36 (Mo.App.1987). As noted therein, it is the general rule that evidence of other crimes is not admissible to prove the criminal character of a defendant. The most repeated maxim on the subject is as follows.

It is also established that although proof of commission of separate crimes is generally not admissible, such proof is admissible if it 'has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial....' '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 that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.'

State v. Wing, 455 S.W.2d 457, 464 (Mo.1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 566, 27 L.Ed.2d 621 (1971) (emphasis added). The following is a recognized affirmative statement concerning the admissibility of such evidence. "But, whenever the case is such that proof of one crime tends to prove any fact material in the trial of another, such proof is admissible, and the fact that it may tend to prejudice the defendant in the minds of the jurors is no ground for its exclusion." People v. Peete, 28 Cal.2d 306, 169 P.2d 924, 930 (banc 1946).

The courts of various jurisdictions have not been uniform concerning an analysis or a maxim to be followed concerning the admissibility of evidence of other sex crimes. See Annot., Evidence--Similar Sexual Offenses, 77 A.L.R.2d 841 (1961); Annot., Rape--Evidence--Other Rapes, 2 A.L.R.4th 330 (1980); Annot., Evidence--Other Sexual Offenses, 88 A.L.R.3d 8 (1978). It is clear the great majority of the courts recognize, perhaps depending upon the nature of the act, the commission of a sex crime has an inherent significance as evidence the perpetrator has previously committed or subsequently committed the same or other similar sex crime. Common sense dictates that most sex crimes are the result of a mental or an emotional state not often terminated by one act.

Certain crimes today are recognized as stemming from a specific emotional propensity for sexual aberration. The fact that in the near past one has given way to unnatural proclivities has a direct bearing upon the ultimate issue whether in the case being tried he is guilty of a particular unnatural act of passion. The importance of establishing this fact far outweighs the prejudicial possibility that the jury might convict for general rather than specific criminality. Even granting the general rule of inadmissibility of evidence of independent crimes to prove the offense charged, many courts recognize a limited exception in the area of sex crimes to prove the nature of the accused's specific emotional propensity.

State v. McDaniel, 80 Ariz. 381, 298 P.2d 798, 802-803 (1956). This inherent significance is recognized by the establishment of a program for treatment, education and rehabilitation of perpetrators of sexual offenses. § 566.140.

The recognition accorded this inherent significance has received the following summarizations. "Moreover, in sex crimes generally a...