State v. Weiler, WD

CourtCourt of Appeal of Missouri (US)
Citation801 S.W.2d 417
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. Clyde H. WEILER, Appellant. 42386.
Decision Date20 November 1990

Page 417

801 S.W.2d 417
STATE of Missouri, Respondent,
v.
Clyde H. WEILER, Appellant.
No. WD 42386.
Missouri Court of Appeals,
Western District.
Nov. 20, 1990.
Motion for Rehearing and/or Transfer
to Supreme Court Denied Jan. 2, 1991.

Application to Transfer Denied Feb. 7, 1991.

Page 418

Charles E. Atwell, Madonna L. Reeves, Kansas City, for appellant.

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

Before KENNEDY, P.J., and SHANGLER and GAITAN, JJ.

KENNEDY, Presiding Judge.

Defendant Clyde H. Weiler was convicted upon jury trial of one count of sodomy by deviate sexual intercourse, § 566.060, RSMo 1986, and two counts of first degree sexual abuse, § 566.100, RSMo 1986, with a sentence of five years' imprisonment on each count, to be served consecutively. The pathic was E.B., a female child under the age of 14 years, to wit, of the age of ten years between the dates of January 1, 1988, and May 19, 1988, when the offenses were alleged to have occurred.

The 73-year-old unmarried defendant was a friend of E.B.'s mother, and of her maternal aunt and her grandmother. He performed gratuitous services for them, including taking E.B.'s mother to and from her employment, baby-sitting E.B. and her two younger brothers, running various errands and the like. The evidence favorable to the verdict shows that the acts performed upon and with E.B. came within the statutory definition of the crimes with which defendant was charged, and there is no claim to the contrary.

The proof supporting the sodomy count was that defendant on an occasion at E.B.'s home had granted E.B.'s request for a quarter on condition that she perform fellatio upon him. E.B. acceded to the condition, herself unzipping his pants and taking his penis into her mouth as he sat in a chair and she knelt on the floor before him.

The evidence tending to prove the two first degree sexual abuse counts, § 566.100, RSMo 1986, was that defendant had placed his hand on E.B.'s breast and on her vagina.

Defendant on this appeal claims that the court erred in unduly restricting proof of E.B.'s sexual activities and propensities. This proof (offered by way of one of the State's witnesses other than E.B., and also by way of cross-examination of E.B. herself) was excluded by the trial court on the ground of the rape shield statute, § 491.015, RSMo 1986.

The evidence excluded by the court was this: E.B. was a frequent masturbator. She often masturbated before her friend

Page 419

Tina, who was a witness for the State. She indicated to Tina that being around little boys made her "horny."

Defendant says that the excluded testimony would have made more credible defendant's testimony that E.B. one evening as defendant slept on the couch at E.B.'s residence unzipped his pants and was trying to get his penis into her mouth. This evidently referred to the incident described in the sodomy count, which was testified to by E.B. and also by E.B.'s friend, Tina, who was a witness to the transaction. Defendant reasons that the jury would assume that a ten-year-old child like E.B. was a sexual innocent and they would reject defendant's testimony. If they had known her sexual sophistication, says defendant, they would have found defendant's account more believable.

The rape shield statute has been interpreted to mean that evidence of prior sexual history is rigidly excluded which does not fit within one of the categories of evidence expressly permitted by the terms of subsection 1 of the rape shield statute. State v. Jones, 716 S.W.2d 799, 800 (Mo. banc 1986). Defendant says, however, that the exclusion of the evidence violated his Sixth Amendment guarantee of compulsory process, and his Fourteenth Amendment right to a fair trial, citing Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), and Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989...

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6 cases
  • State v. Miller, SC 91948.
    • United States
    • United States State Supreme Court of Missouri
    • August 14, 2012
    ...for notice and due process purposes. Sprinkle, 122 S.W.3d at 659 (indictment covered span of about three months); State v. Weiler, 801 S.W.2d 417, 418 (Mo.App.1990) (four and a half months); State v. Brass, 781 S.W.2d 565, 566 (Mo.App.1989) (four years and six months); State v. Burch, 740 S......
  • State v. Miller, SC91948
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 2012
    ...for notice and due process purposes. Sprinkle, 122 S.W.3d at 659 (indictment covered span of about three months); State v. Weiler, 801 S.W.2d 417, 418 (Mo. App. 1990) (four and a half months); State v. Brass, 781 S.W.2d 565, 566 (Mo. App. 1989) (four years and six months); State v. Burch, 7......
  • State v. Hoover, ED 87068.
    • United States
    • Court of Appeal of Missouri (US)
    • March 20, 2007
    ...in which the discovery tools available are not sufficient to pinpoint the offense and prepare an adequate defense. See State v. Weiler, 801 S.W.2d 417, 420 (Mo.App. Additionally, as noted above, the amended information did not constitute the charging of a new or different offense and Defend......
  • State v. Sprinkle, WD 62703.
    • United States
    • Court of Appeal of Missouri (US)
    • November 25, 2003
    ...an indictment is not specific enough because the dates are too broad is often made in sexual abuse cases. See, e.g., State v. Weiler, 801 S.W.2d 417, 420 (Mo.App. W.D.1990) (stating that defendant's complaint that the dates are not specific enough is often raised in cases of sex offenses ag......
  • Request a trial to view additional results

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