581 S.W.2d 875 | Mo. Ct. App. | 1979
The defendant was convicted of molesting a minor. He raises two points on ap
Defendant was charged with molesting his 11 year old stepgranddaughter by fondling her breasts. The victim testified that defendant had indeed fondled her breasts; that he had also committed an act of sodomy per anum upon her. She testified further that the defendant had molested and sodomized her in similar manner on several prior occasions. Corroborative evidence was given by the victim’s teen-age sister who, shortly after the acts had been completed, observed the defendant with his trousers unbuckled hurriedly pulling up the victim’s shorts and underpants. The medical report and attending physician substantiated a recent rectal penetration of the victim. Defendant’s statements to the police admitting the fondling of his step-granddaughter’s breasts were overheard by the victim’s sister.
Defendant’s first complaint relates to the evidence of the act of sodomy and the victim’s reference to the fact that the defendant had done the same things to her several times previously. He claims that this was improper evidence of separate crimes. Of course, proof of a separate crime is inadmissible unless it has some legitimate tendency to establish the defendant’s guilt for the crime charged and to establish motive, intent, absence of mistake or accident, a common plan or identity of the defendant. State v. Harlston, 565 S.W.2d 773 (Mo.App.1978); State v. Hamell, 561 S.W.2d 357 (Mo.App.1977). Although defendant made no objection at trial to the “several times” reference by the victim, we find no error in permitting the evidence of the accompanying and previous illicit sexual acts as corroboration for showing the disposition of defendant and support for the specific action charged. State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765 (1953), and the following cited cases give ample support to our finding. In Kornegger, separate acts by the defendant of sexual indecencies against a minor occurring at different times were held properly admissible as corroborative evidence. Kornegger is on point and fully supports the admission into evidence in this case of the testimony of the victim regarding defendant’s actions surrounding the molestation charge.
In State v. Shumate, 478 S.W.2d 328 (Mo. 1972), the defendant charged with rape complained that evidence of separate acts of other rapes and sodomizing of the victim was reversible error. The Supreme Court disagreed finding that such evidence was admissible as part of the res gestae. Evidence of separate acts of oral and vaginal copulation occurring on different days was held admissible in State v. Davis, 540 S.W.2d 122 (Mo.App.1976)—a child molestation case. The basis for the admission was that such acts had “a legitimate tendency to directly establish the defendant’s guilt of the crime charged.” Id. at 123. In State v. Torrence, 519 S.W.2d 360 (Mo.App.1975), evidence of separate acts of rape and sodomy per os of the victim was held to be part of the res gestae of the crime charged and, hence, admissible. And in State v. Gardner, 481 S.W.2d 239 (Mo.1972), the testimony of an 11 year old victim of the defendant’s salacious advances that he (the defendant) had “tried it” before was found to be admissible corroborative testimony tending to show the probability of the specific act charged. See also State v. Crosby, 564 S.W.2d 357 (Mo.App.1978).
In State v. Mazzeri, 578 S.W.2d 355 (Mo.App.1979), the court considered the admissibility of a separate act of sodomy for which the defendant was not charged in a rape case. Holding such evidence properly admissible, the court stated:
Where a defendant is on trial for a sexual offense, evidence is admissible as to other similar acts committed about the same time as part of a continuous and inseparable episode. The whole transaction is viewed as one and as parts of the res gestae of the crime charged.
Clearly, then, the evidence relating to defendant’s penetration of the victim’s rectum was admissible.
Based on the foregoing decisions we reject defendant’s first point.
Defendant’s second point is based on the trial court’s rejection of his instruction relating to intent to commit the crime of child molestation.
Additionally, the child molestation instruction, MAI-CR 12.40,
Judgment affirmed.
. The refused instruction reads:
“If you don’t find and believe from the evidence beyond a reasonable doubt that at the time the defendant put his arm around the victim he intended to fondle her breasts, you must find the defendant not guilty of child molestation.”
. MAI-CR 12.40 was effective at the time of defendant’s trial on August 8, 1977.