State v. Urban

• Decision Date: 06 November 1990
• Docket Number: No. WD,WD
• Citation: 798 S.W.2d 507
• Parties: STATE of Missouri, Respondent, v. Patsy J. URBAN, Appellant. 40902.
• Court: Missouri Court of Appeals

Page 507

798 S.W.2d 507

STATE of Missouri, Respondent, v. Patsy J. URBAN, Appellant.

No. WD 40902.

Missouri Court of Appeals Western District.

Nov. 6, 1990.

Donald L. Wolff, Clayton, William D. Rotts, Co-Atty., Columbia, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

Before FENNER, P.J., and SHANGLER and BERREY, JJ.

BERREY, Judge.

Appeal from a conviction of sexual abuse in the first degree, section 566.100, RSMo 1986, and of promoting child pornography in the first degree, section 573.025, RSMo 1986. Appellant, Patsy J. Urban, was sentenced for periods of three years and eight years respectively, said sentences to be served concurrently. The execution of these sentences was suspended and appellant was placed on probation for a period of five years.

Appellant contends that the trial court erred: (1) in denying her motion to dismiss Counts III and IV of the state's first amended information on the grounds of vagueness; (2) in giving Instruction 9, the verdict-directing instruction for Count III, as it did not contain an intent element and was also ambiguous and overbroad; (3) in refusing to give defendant's Instruction A, a converse instruction for Count III; (4) in denying her motion to dismiss in that the jury heard evidence based upon Counts I and II which were subsequently nolle prossed; (5) in denying her motion to suppress certain evidence on the basis of an illegal seizure; and (6) in excluding testimony from certain defense witnesses. The appellant also claims that the prosecutor committed prejudicial error in impeaching defense witness David Urban with a criminal conviction for which he received a suspended imposition of sentence.

On April 19, 1986, Patsy and David Urban agreed to babysit for Patsy's fifteen-month-old grandson, A.G. (David was A.G.'s step-grandfather). T.G., A.G.'s mother, dropped him off in the morning and requested that Patsy give A.G. a bath. Patsy took A.G. out to play and when they returned to the house she prepared A.G. for his bath. Patsy stripped both A.G. and herself.

Just before Patsy started to bathe A.G., David returned home. David, a professional photographer, took photographs of Patsy and A.G. playing in the nude. These photographs depict such scenes as A.G. touching Patsy's breasts, A.G. eating a miniature marshmallow off Patsy's breast, Patsy leaning over A.G. with her breasts exposed, and A.G. playing with a ball, reaching toward Patsy's pubic area.

A few weeks later, appellant took three rolls of film to K-Mart to be developed. These rolls included the pictures that David shot on April 19, even though he had the capability of developing the film in his own home studio. K-Mart sent the film on to Color Craft Corporation for processing.

David Surratt, the regional vice-president and general manager of Color Craft Corporation, was shown the film. He contacted the Boone County Sheriff's Department and subsequently sent prints and negatives from two of the rolls of film to the sheriff's department. The prints and negatives from the third roll were sent back to K-Mart.

The sheriff's department turned over the pictures to the Columbia Police Department. Detective Susan Stoltz went to K-Mart and picked up the third roll of film. She made copies using the original negatives and placed a set of copies minus the negatives back in the original envelopes and sent these back to K-Mart. K-Mart personnel were instructed to notify the police when the Urbans returned to pick up the film.

On May 2, 1986, appellant picked up the film and K-Mart immediately contacted the police. A description of appellant's vehicle (a blue van) and its license plate number was given to the police.

Officer Douglas Schwandt heard the dispatch on his radio stating that the photos had been picked up and that the person picking them up got into a blue van. He did not, however, get the license number of the van. He sighted the van and stopped it. Officer Schwandt approached the van and asked appellant, who was in the van along with her husband, whether she had picked up some photos at K-Mart. Appellant was sitting in the passenger's seat with the door partially open and the officer could see a white bag to Patsy's left side between the driver's and passenger's seats. He asked appellant, "Are these photos?" She replied in the affirmative. The officer asked to see the photos and appellant, hesitating momentarily, handed him the bag. Officer Schwandt, who had viewed the photos earlier that day at a meeting at the police station, examined the photos and realized that they were the same photos that he had seen earlier.

Appellant and her husband were taken to the police department where Officer Schwandt turned the photos over to Detective Stoltz. Appellant was then questioned after being properly informed of her constitutional rights. Appellant identified her grandson in the pictures and stated that her husband had taken the pictures. After she had given her statement to Detective Stoltz, appellant was placed under arrest.

Appellant was originally charged with five counts including two counts of abuse of a child, one count of sodomy, one count of sexual abuse in the first degree and one count of promoting child pornography although the sodomy count was later dropped. Defense counsel filed a motion to suppress evidence and a motion to suppress statements before the trial began. Both motions were denied. Trial on the matter was had on December 17-18, 1986. The jury convicted appellant on all of the four remaining counts. The court subsequently sustained appellant's motion for a new trial as to Counts I and II stating that it did "not believe that the use of the Information charged the way it did in the instructions is a valid way of submitting the case." The state eventually filed a notice of nolle prosequi as to Counts I and II. Appellant was sentenced to three years on Count III and eight years on Count IV. Execution of the sentence was ordered suspended and appellant was placed on prohibition for a period of five years.

Appellant first contends that the trial court erred in denying her motion to dismiss Counts III and IV as these counts are impermissibly vague as they fail to state plainly, concisely and definitively the essential facts constituting the offenses charged in violation of Rule 23.01(b)(2) thereby depriving appellant of due process of law.

Rule 23.01(b)(2) mandates that the information must "State plainly, concisely, and definitively the essential facts constituting the offense charged."

The informations for Counts III and IV read as follows:

Count III: In violation of Section 566.100, RSMo, committed the Class D Felony of Sexual Abuse in the First Degree, punishable upon conviction under Sections 558.011.1(4) and 560.011, RSMo, in that on or between the 1st day of April, 1986 and the 30th day of April, 1986, in the County of Boone, State of Missouri, the defendant, acting in concert with David L. Urban, subjected [A.G.] a person less than twelve years old, to sexual contact, and

Count IV: In violation of Section 573.025, RSMo, committed the Class B Felony of Promoting Child Pornography in the First Degree, punishable upon conviction under Section 558.011.1(2), RSMo, in that on or between the 1st day of April, 1986 and the 30th day of April, 1986, in the County of Boone, State of Missouri, the defendant, acting in concert with David L. Urban, knowing its content and character, photographed child pornography, and all against the peace and dignity of the State.

The elements of sexual abuse and of promoting child pornography are set out in section 566.100, RSMo 1986, and in Section 573.025, RSMo 1986. Respectively, they read as follows:

566.100. Sexual abuse in the first degree.--1. A person commits the crime of sexual abuse in the first degree if:

(1) He subjects another person to whom he is not married to sexual contact without that person's consent by the use of forcible compulsion; or

(2) He subjects another person who is less than twelve years old to sexual contact.

Section 566.100.1, RSMo 1986.

573.025. Promoting child pornography in the first degree.--1. A person commits the crime of promoting child pornography in the first degree if, knowing its content and character, he photographs, films, videotapes, produces, publishes or otherwise creates child pronography [sic], or knowingly causes another to do so.

Section 573.025.1, RSMo 1986.

Initially, it must be noted that the general rule requires the filing of a motion for a bill of particulars as the appropriate remedy in instances such as this. "Failure to file a motion for a bill of particulars waives the right to later complain of lack of detail in the information, provided the alleged lack of detail does not render the information wholly insufficient." State v. Fults, 719 S.W.2d 46, 50 (Mo.App.1986). When no such motion is made then this court assumes that appellant was satisfied with the facts and particulars describing the offense contained in the information. State v. Henderson, 750 S.W.2d 507, 515 (Mo.App.1988). Appellant's failure to request a bill of particulars acts as a waiver of any right to raise the issue of a lack of specificity on appeal. State v. Stark, 728 S.W.2d 301 (Mo.App.1987).

Appellant concedes that no motion for a bill of particulars was filed in the instant case. Appellant's contention that this constituted no waiver, as the information lacked essential factual elements of the crimes charged and was therefore insufficient, is simply not cognizable. A comparison of the information to the statutes shows that the language of the information tracks that of the elements required in the statute. The test for sufficiency of an indictment is whether all the essential elements of the offense as set out in the statute are contained therein and whether it apprises defendant of the facts which constitute the offense. State v....