text:
    STATE of Missouri, Respondent, v. Ron HEALEY, Appellant.
    No. 38154.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 3, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

      Shaw, Howlett & Schwartz, Allan Good-loe, Jr., Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Bruce Anderson, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for respondent.
   DOWD, Judge.

A child abuse case. This is an appeal by defendant-appellant, Ronald Lee Healey from a judgment of conviction of the Circuit Court of St. Louis County wherein the defendant was sentenced upon a jury verdict to consecutive sentences of imprisonment totalling 55 years. The jury found defendant guilty of 5 counts of assault with intent to do great bodily harm with malice aforethought, § 559.180 RSMo 1969, and 7 counts of mistreatment of a child, § 559.340 RSMo 1969. The five assault counts of which he was convicted were for assault with a stick, a paddle, a belt, a chemical propellant, and the spray from a garden hose. The seven mistreatment counts of which he was convicted were for depriving the boy of clothing for two weeks, forcing him to shower only with cold water, depriving him of food for two days, inserting various substances into the boy’s mouth, forcing him to lick up and ingest urine and feces, tying him to the bedposts of his bed, and depriving him of any furniture in his bedroom. Defendant appeals, raising 11 Points Relied On. We affirm.

In view of the many issues raised it is necessary to set out in some detail the facts. In so doing, all evidence and favorable inferences tending to support the verdict are taken to be true. State v. Harris, 452 S.W.2d 577, 579[3] (Mo.1970); State v. Oldham, 546 S.W.2d 766, 770[6] (Mo.App.1977).

The jury could have found the facts to be as follows: Ron Healey began dating Mrs. Carol Miller, who had been divorced for 3 years, in the early part of 1973. He moved into her home in either April or June of 1973. Mrs. Miller’s son, Danny, then aged four and ½ also lived there. Defendant lived there until his arrest on August 31, 1974.

The evidence indicates that there were no problems during the first year that defendant made his home with Mrs. Miller and Danny. There existed a “normal family relationship” among the three. Defendant played with the child and taught him how to do many things, like print in upper and lower ease letters and tell time and eat with a knife and fork. When defendant first moved in, he was unemployed. He worked in the latter part of 1973 for an electrical company but was fired in June, 1974. The termination of his job seemed to mark the onset of his mistreatment of Danny Miller. All companionship between the defendant and the boy ceased. Suddenly he began to show interest in disciplining the boy, and his methods were “very harsh,” in the words of the boy’s mother.

The above forms the background for the series of atrocities to which the boy, then aged 5½ was subjected. Mrs. Miller was the main source of evidence, although some of her testimony was corroborated by neighbors and a doctor. Defendant bought a redwood stick to strike Danny with, until it splintered, presumably from excessive use. Then defendant suggested Mrs. Miller buy a ping-pong paddle because the stick wore out. They both spanked Danny with it, although prior to June of 1974 Mrs. Miller had never spanked Danny with sticks or paddles. Eventually even the ping-pong paddle gave way from excessive use, and then Danny’s belt was employed to discipline him. Defendant showed Mrs. Miller just how to use the belt on Danny, with the buckle end in the palm of her hand. Defendant also struck Danny with his open hand and punched him in the stomach with his fist, because Danny “did not meet up with [defendant’s] standards.”

The mistreatment of the boy extended beyond direct physical assaults. In August of 1974, Danny was tied up, naked, to the footboard of his bed. All he wore was a belt, to which a piece of wire or rope was fastened and the rope was attached to the bedposts. Defendant removed the doorknobs from the door of Danny’s room to keep Danny inside in the event that he became untied from the bedposts. All the furniture in Danny’s bedroom was shoved against the wall, with only the empty bed frame remaining in the center of the room. The box springs and mattress were stood on edge against the wall so Danny could not sleep in his bed. He slept on the hardwood floor, naked, with no covers for about three to four weeks. This was to punish Danny for failing to appreciate his bed or covers. Defendant “ordered” Mrs. Miller to take all Danny’s clothes and toys from the room. He even turned the mirror to the wall so Danny could not entertain himself by looking at his reflection. The closet doors were taped shut and all pictures were stripped from the wall. At this time Danny was not allowed to use the bathroom. A potty seat was kept in his bedroom for his toilet. The potty seat cracked once when defendant broke it over Danny’s head while Danny was in the bathtub; thereafter a bucket was kept in Danny’s bedroom for his toilet. A towel was stuffed under the door of Danny’s bedroom to keep the stench of urine and feces from the rest of the house.

One day in May or June Danny was deprived of all food. Later in August of 1974, defendant suggested Danny be put on a diet of bread and water, “because Danny didn’t appreciate food,” since he did not eat all foods on his plate. Defendant set up an eating schedule for Danny, instructing Mrs. Miller as to how many pieces of bread to give him, how much water, and when to serve it to him. This lasted about one week. One morning Danny managed to escape from his bedroom in spite of the rope tying him to the bed and the lack of a doorknob. He sneaked into the kitchen and made a concoction of crackers, chocolate syrup, and food coloring. Mrs. Miller discovered Danny was not in his bedroom and reported this to defendant. Then she discovered Danny in the kitchen eating, and took the food away from him. Defendant was especially angry when he learned Danny had eaten chocolate syrup, since Danny was never allowed to have it but it was reserved to defendant who was in the habit of eating chocolate sundaes in the evening. He told Danny he was going to make him give the food back. Defendant left the kitchen and returned with a clamp light, bucket and rope. The bucket was set on the rope and the light clamped overhead. Then, as Mrs. Miller testified, “he knocked Danny down and stood on his arms and ordered me to hand him different liquid things that were on the little turntable . like red hot sauce, white vinegar, Worcestershire sauce . . . and he proceeded to pour them down Danny’s throat.” He also directed Mrs. Miller to make a mustard solution with water and mustard, and made Danny drink it. The clamp light was pointed in Danny’s face and defendant began interrogating him in the following fashion, “Are you sick? Do you feel well? If you feel you are going to be sick, you better use the bucket.” Danny finally succumbed to the combination of the bright light, the inquisition, and the spicy seasonings that had been forced upon him and he vomited into the bucket. The punishment was reduced to a barbaristic atrocity when he was forced to lick up that part of his vomit that missed the bucket and was on the floor. His mother cleaned up what he did not lick up.

The abuse became even more grotesque. On another occasion Danny was told to lick up his feces from the floor. This happened as a result of a soapwater enema defendant had administered to him since his bread and water diet had left the boy constipated. After the enema, Danny was told to stand in the activity room and respond to questions put to him by defendant through Mrs. Miller. While he was answering the questions, Danny had a bowel movement on the floor. Defendant told Mrs. Miller to order Danny to lick it up. She did so, and Danny obeyed.

Another torment Danny was forced to submit to was frequent cold showers. This was part of a daily routine which began with Danny carrying the potty-seat — later the bucket — into the bathroom, dumping the contents in the toilet, and placing the potty seat in a certain position in the bathtub to wash it out. Then Danny was to wash himself only in cold water. Defendant would turn off the hot water heater in the basement in preparation for Danny’s showers. Sometimes these showers would be as long as an hour and at least twice defendant emptied ice cube trays in the bathtub to drop the temperature even further. On one occasion defendant and Mrs. Miller left Danny in the bathtub, went to a filling station, purchased four bags of ice, and dropped three bags of ice into the tub.

Defendant bought a chemical propellant, mace, for Mrs. Miller. He told her to spray it in Danny’s face because in Mrs. Miller’s words, “he wanted me to have complete control of Danny and he wanted me to use it to get his attention. So I was to take that with me each time we went into Danny’s room and if Danny did not look at me or answer me, I was to spray him with mace.” The mace was sprayed directly in Danny’s face four or five times when he was naked and confined to his bedroom.

Danny’s treatment came to the attention of authorities in the early morning of August 31,1974. The previous evening Danny was told to clean the bucket, which contained his urine and feces. He was given elaborate orders on how it should be done, which included rinsing it out in the backyard with a garden hose. He was to be naked during the procedure.

The plan set out for Danny took him several hours because he was so thin and bruised. At four in the morning Danny was still in the process of performing his task. Then defendant noticed Danny was limping, and he told him that he needed more exercise and made him run around the yard. As Danny ran, defendant told him he was not going fast enough, so he started to spray him with the hose. The water pressure was so great that it knocked Danny down several times. Meanwhile, Mrs. Miller was told to come outside and be a “lookout”.

A next door neighbor, Mr. A. M. Horvath was awakened at 4:45 a. m. by the sound of water hitting a bucket. He walked out to his patio to investigate. He saw defendant giving instructions to Danny, who was naked and washing out the bucket with the hose. He heard defendant say, “Not like that, not like that, stupid. The bottom, wash the bottom, stupid.” These remarks were repeated several times. The boy was whining and moaning. Mr. Horvath also heard defendant say to the boy “you are always fucking up; I see the more I try to help you, the more you fuck up.” The neighbor observed this for about 20 minutes and then went to get his wife. The two of them went out to the patio and observed more of the same activity. Then the boy stopped washing the bucket and was told to walk and Mr. and Mrs. Horvath observed defendant spurting water on the boy. The boy was moaning the entire time. They also heard Danny say “You are cruel”, and “It is cold.” Then they went inside and called the Crestwood police. Mrs. Horvath corroborated her husband’s testimony.

When defendant heard the sound of a car, he stopped this activity and told Mrs. Miller to see who was in the ear. Then he brought Danny inside, and told Mrs. Miller to have Danny take his cold shower. By this time, police were at the house and eventually the defendant was taken into custody.

Defendant’s first challenge is that the court erred in admitting into evidence a photograph showing a bruise on the left arm of Mrs. Miller. He gives four theories for why this was error. Only one such theory was the ground for defendant’s objection at trial. That objection was that the photograph was “immaterial and irrelevant to any of the issues involved in this case.” We only consider this ground since assignments of error on appeal must be based upon the same theory that the objection at trial was based. State v. Jones, 515 S.W.2d 504, 506[3] (Mo.1974); State v. Sanders, 539 S.W.2d 458, 464[7] (Mo.App.1976).

We conclude that the photograph was properly admitted as it was both material and relevant.

Many of the counts for which defendant was convicted concerned acts that Mrs. Miller performed either jointly with defendant or by herself. These included the assault with the stick, paddle, belt, mace, the deprivation of clothing, food and furniture, cold water showers, forcing the child to lick his feces, and tying him to the bedposts. In particular, the evidence showed that only Mrs. Miller sprayed the child with mace, and it was she who ordered him to lick up his feces. However, we believe the evidence clearly showed that Mrs. Miller acted under the direction, control, and duress of the defendant in the perpetration of some of these crimes. Consequently, the defendant is criminally liable for her actions. State v. Favell, 411 S.W.2d 245, 248[8] (Mo.App.1967). Accordingly, evidence was introduced which established that Mrs. Miller was the agency through which the defendant perpetrated these crimes. 22 C.J.S. Criminal Law § 84, at 247-48 (1961). Therefore, the photograph of Mrs. Miller’s bruised arm was relevant and material to prove the issue of defendant’s control of and domination over Mrs. Miller and that she was acting as she did under duress due to her fear.

Defendant’s second point on appeal is that the trial court erred in admitting into evidence a note written by Mrs. Miller. It read: “8/12,1 fail to give punishment for Dan’s trouble. 8/13, I failed to support Ronnie with all-night situation.” Defendant objected on the ground that the note was an extrajudicial corroboration of an unimpeached witness. We only consider this ground since this was the theory upon which the trial objection was based. State v. Sanders, supra, 539 S.W.2d at 464. We interpret this to be an objection that the notes were hearsay and as prior consistent statements, only admissible if the witness’ credibility has been impeached. State v. Earvin, 539 S.W.2d 615, 616 (Mo.App.1976).

We believe the trial court erred in admitting the note because it is a prior consistent statement of an unimpeached witness.

However, not all trial error requires reversal. Rule 83.13(b). Error in the admission of evidence will not cause reversal if it is determined that the error was harmless without question. State v. Degraffenreid, 477 S.W.2d 57, 64[14] (Mo. banc 1972). We have determined that the error was unquestionably harmless. In fact, it seems to inure to the benefit of defendant. If anything, the notes show that Mrs. Miller was “disobeying” defendant, and thus seem to throw some doubt upon her contention that she was dominated by him and that she had no will of her own. Defendant therefore has no just cause for complaint. Rule 26.06.

Defendant’s third contention is that the court erroneously admitted into evidence the testimony of Officer Art Stuben-rouch concerning a conversation he had with Mrs. Miller. He objected at trial, claiming that the statements were immaterial, irrelevant and hearsay.

The challenged conversation took place at Mrs. Miller’s home at about 4:30 p. m. on August 31. By this time defendant was in the custody of the police, but before he left he told Mrs. Miller not to let anyone in the house during his absence. Officer Stubenrouch, a juvenile officer, talked to Mrs. Miller through her picture window. The objection was made when the prosecutor asked the officer what he said to Mrs. Miller when he was trying to convince her to let him in the house in order to see Danny. Relevant excerpts from Officer Stubenrouch’s testimony pertaining to this point are set out below.

The statements were not hearsay. A current controversy in the law of evidence concerns the admissibility of statements made outside the court by a declarant who later becomes a witness. See 1974 U.Ill.L.F. 675. Under the orthodox rule, which Missouri follows, these prior statements by a witness are excluded unless inconsistent with, and used to impeach, present testimony of the witness. State v. Granberry, 491 S.W.2d 528, 530 (Mo. banc 1973). See 39 Mo.L.Rev. 472 (1974). The basis of this view is that such statements are hearsay. McCormick, Handbook of the Law of Evidence, § 39 at 74 (1954). But they are only hearsay if offered to prove the truth of the matter stated. Mash v. Missouri Pacific Railroad Co., 341 S.W.2d 822, 827[4] (Mo.1961); Sabbath v. Marcella Cab Co., 536 S.W.2d 939, 941[4] (Mo.App.1976). Here the officer’s statements to Mrs. Miller asking her to let him in the house and telling her that defendant was in jail and could not hurt her, were offered not to prove the truth of the matter stated, but to show that the statements had been made. The hearsay rule is inapplicable to such situations. State v. Herington, 520 S.W.2d 697, 700[3] (Mo.App.1975).

Under the unorthodox rule, the statements would also not be hearsay. Under this rule, extrajudicial statements by a de-clarant who is now in court to repeat them are not hearsay, even if offered to prove the truth of the matter asserted, since the witness is present in court to be cross-examined on the former statement. This is the minority rule. Wigmore and McCormick advocate versions of it, and variations of it are followed in a few jurisdictions. See McCormick, supra, at § 39, pp. 73-82, 3A Wigmore on Evidence, § 1018 at 996 (Chadbourn rev. 1970). Judge Finch, concurring in result in State v. Granberry, would adopt one version of the minority view and suggests that Missouri abandon the orthodox view. 491 S.W.2d at 537. Since the officer was in court testifying to his own prior statements, and subject to cross-examination concerning them, McCormick’s version of the minority view would admit the statements into evidence. Under either view the statements are not hearsay. The point is without merit.

The fourth point on appeal is that the court erred in admitting evidence concerning the testimony of John Holman. John Holman was a fourteen year old boy who was called as witness for the State. He mowed the lawn at Mrs. Miller’s home once in August of 1974. The testimony reads as follows:

“Q. Who hired you to do that?
“A. I don’t know his name. He did.
“Q. Do you see him in the courtroom?
“A. No.
“Q. What did you say his name was?
“A. I didn’t.
“THE COURT: What is the name?
“THE WITNESS: I don’t know his name.
“THE COURT: Oh.
“Q. What did you say you thought it was, or did you?
“A. I didn’t say.
“Q. Do you remember what the man looked like or would you know him again if you saw him?
“A. Probably not.
“Q. But it was at the house where Danny lived?
“A. Yeah.
“Q. Who else lived in that house that you remember?
“A. His mom, I thought.
* * * * * *
“Q. Did you have a conversation in that house with someone?
“A. Yes.
“Q. With who?
“A. I don’t know his name.
“Q. Was it a man, boy or woman?
“A. Yeah, it was a man.
“Q. I will show you a photograph marked State’s Exhibit 15, and ask you if this room looks familiar.
“A. Yes, that’s where we had the conversation.
“Q. Would you tell the jury what the conversation was?”

The defense attorney objected to the conversation contending that John Holman could not identify the defendant as the man with whom he conversed. This conversation was as follows:

“Q. John, would you tell the jury what the conversation was you had with that man?
“A. Why I mind my parents and what they would do to me if I didn’t mind them.
“Q. Would you repeat—
“A. Why did I mind my parents and what they do to me when I don’t mind them.
“Q. Did you tell him why you mind them or did you answer in any fashion?
“A. Yes.
“Q. How long were you in the house?
“A. For about an hour, and then later on that night, I was in there for about three hours.
“Q. Was this same man there both times?
“A. Yes.
“Q. Did the man ever tell you anything about any sports or hobbies of his?
“A. He was building an airplane — remote control.
“Q. All right. And did he perform any demonstrations for you while you were in there?
“A. He broke a broomstick with his hand. He put it between the chair and a table and he broke it. He said he was a judo or karate expert, I don’t know.
“Q. One or the other?
“A. Yeah.
“Q. While you were there, did you see a woman in the house?
“A. Yes.
“Q. Did she talk to you at all?
“A. No.
“Q. Did the man talk to her?
“A. A little bit.
“Q. Do you recall anything he said to her?
“A. He kind of ordered her around. He told—
“Q. Do you remember what type of order?
“A. He told her to go make sure that Danny was washing himself right.
“Q. Did you see Danny in the house that day?
“A. Yes.
“Q. Where was he when you saw him?
“A. Standing right in the hall, almost, just at the end of the hall.
“Q. How was Danny dressed.
“A. He just — he didn’t have any clothes on, he had a belt around his waist with a cord on it. Like a plastic clothesline cord.
“Q. On the belt?
“A. Yes.
“Q. But Danny had no clothes on?
“A. No.
“Q. Then, you say Mr. Healey said something to the woman about what?
“A. To go and make sure that he was washing himself right.
“Q. Did you hear the little boy say anything while you were in the house?
“A. He yelled out, like, ‘Daddy, I think I am doing it right, would you come and see?’
“Q. Would you say that loud?
“A. ‘Daddy, I think I am doing it right, would you come and see?’
* * * * * *
“Q. Was there any conversation in the house that day about—
“MR. SHAW: I will object to this.
“MR. WESTFALL: I will withdraw the question.
* * * * * *
“Q. Did this man you were talking to, did he ever tell you in what way he disciplined Danny?
“A. Huh? I didn’t hear the question.
“Q. Did this man you were talking to ever tell you in what way he disciplined Danny?
“A. A cold shower, he said.
“Q. When you were back there that evening — why did you go back that evening?
“A. To mow his back yard.
“Q. Why couldn’t you mow the back yard earlier?
“A. Because it was wet.
“Q. Do you know why it was wet?
“A. He said he washed off Danny after he got sick.
“Q. Did he say what he washed him off with?
“A. The hose; he washed him off with the hose, hosed him down.”

Even though John Holman could not identify by sight defendant as the man he spoke with, it was readily inferable that the man was defendant. The conversation took place at the house where Danny and his mother and defendant lived, and John Holman identified a photograph of the living room as the room where he spoke with defendant. We believe the court properly admitted Holman’s testimony. The trial was 16 months after John Holman’s sole encounter with defendant. It is of no consequence that a fourteen year old boy could not remember the face of a man he had met only one time sixteen months earlier. Furthermore, John Holman’s father testified that he picked up his son at Carol Miller’s on the day his son mowed the lawn, and positively identified defendant in court as the man who was with Mrs. Miller at her house on that day. The point is without merit.

Defendant’s next point is that the trial court erred in admitting four photographs of the child into evidence. He argues that they were so gruesome and horrible that they aroused the passions of the jury; that they were irrelevant and immaterial since they were unnecessary to identify the victim, the defendant, or how the injuries were inflicted, especially since there had been eyewitness testimony regarding the child’s injuries.

The photographs in question showed the extent to which the boy suffered from malnutrition, and showed that he was severely bruised and battered. According to the doctor who treated the boy the various colors of the bruises showed that some of them were from very recent blows and others were from blows that could have been inflicted months ago.

We believe the complaint regarding the admission of four photographs of the victim is disposed of by State v. Jackson, 499 S.W.2d 467 (Mo.1973). Therein it is pointed out that trial judges have wide discretion in determining the admissibility of photographs. The court states at 472:

“It has generally been held that even though a photograph may be inflammatory it is admissible if it tends to prove any material element of the State’s case; this includes the issues of identity, condition and location of the body, nature or location of wounds, and the cause of death; and, generally, if the photograph corroborates the oral testimony of the state or refutes defense testimony it is admissible.”

Our court has noted that photographs are superior to words as a means of description. State v. Blair, 531 S.W.2d 755, 761[11] (Mo.App.1975). Thus, even if everything depicted in the photograph was developed by oral testimony, the photograph is admissible because it “gives a much clearer impression of many things than does oral testimony and is consequently admissible to corroborate and clarify the testimony of the witnesses.” State v. Davis, 515 S.W.2d 181, 183[4] (Mo.App.1974).

Furthermore, the photograph was necessary to establish elements of the State’s case. Defendant here contends that there is no evidence of intent to do great bodily harm, no evidence of defendant’s malice, and no evidence of injury to Danny’s person or health to support the mistreatment counts. The photographs are material evidence going to these issues. Even though they may have been inflammatory, it was an “unavoidable incident of a proper purpose.” State v. Smith, 485 S.W.2d 461, 468[17] (Mo.App.1972).

Defendant next contends that the State failed to prove any assault by defendant upon Danny Miller. The indictment charged defendant with 11 counts of assault with intent to do great bodily harm with malice aforethought. These assaults on Danny Miller were charged to be assaults by a stick, a paddle, a belt, fist and feet, a burning cigarette, a chemical propellant, pulling Danny’s hair, stepping on Danny’s fingers, stomping on his head, spraying him with a hose and standing on his arms. The trial court sustained defendant’s motion for judgment of acquittal regarding the assault charges pertaining to stepping on the victim’s fingers and standing on his arms. There was sufficient evidence to submit all of the other charges to the jury. Mrs. Miller testified to all the assaults and her credibility was for the jury to determine. State v. Atkins, 494 S.W.2d 317, 321[11] (Mo.1973), State v. Wade, 535 S.W.2d 492, 495[4] (Mo.App.1976). Any contradictions are also to be resolved by the jury. State v. Harris, 539 S.W.2d 793, 794[2] (Mo.App.1976).

The record shows that defendant seemed obsessed with inflicting upon Danny various cruelties and gauging his reaction. For example, certain notes written by defendant in the middle of August, 1974 were introduced by the State. On that night, according to Mrs. Miller, Danny was reprimanded and was told to stand in the kitchen indefinitely. Defendant and Mrs. Miller left Danny alone in the house. They were gone until dawn. When they returned, Danny was lying on the floor. Defendant sat beside Danny and took careful notes of how Danny would respond to various things defendant did to him. The notes say, for example, “stepped on fingers, left toes. Did not move or speak.” “Dropped plate 12 inches from back of head. Shoulders jerked and eyes moved.”

Defendant’s contention that the State failed to prove “any assault by defendant upon Danny Miller” is without merit.

Next defendant claims that there was insufficient evidence of “malice” or “intent” on the part of the defendant to support the charge of assault with intent to do great bodily harm with malice aforethought. We disagree.

The requisite intent may be shown by the circumstances. State v. Mathis, 427 S.W.2d 450, 453[1] (Mo.1968). Severe lacerations can be considered as evidence of intent to do great bodily harm. State v. Patterson, 443 S.W.2d 104, 107[3] (Mo. banc 1969). Malice aforethought is distinguished from assault without malice by weighing all the facts and circumstances, including the comparative strength and positions of the parties, the presence or absence of provocation or mitigating circumstances, the weapon or means of force employed, and the injury sustained. State v. Webb, 518 S.W.2d 317, 321[3] (Mo.App.1975). An examination of these factors makes it clear that defendant committed these assaults with malice aforethought. The relative strengths of the parties were grossly disproportionate, there was no provocation to justify the assaults, the instruments used, even though not ordinarily deadly weapons, were such as were likely to produce great bodily harm, State v. Tettamble, 394 S.W.2d 375, 380[17] (Mo.1965), especially to a small child. The injuries sustained made death “a real possibility” for Danny seven days after he entered the hospital, according to medical testimony. Danny required immediate surgery when he was admitted to the hospital. This surgery was a 3-hour operation and consisted of placing holes in the skull to release pressure. Later complications were treated by repeated spinal taps. Danny was hospitalized a total of 2½ to 3 months. The doctor testified that the blood clots inside Danny’s head were caused by a trauma to the head. There was sufficient evidence of defendant’s intent and malice.

Defendant next complains that the State failed to prove its charges of mistreatment of a child because the State failed to prove that defendant had care and control of Danny Miller, as required by § 559.340.

Defendant was charged with nine counts of mistreatment of a child over whom he had custody and control, for the following acts: 1) forcing a plastic container onto Danny’s head, 2) depriving him of clothing for two weeks, 3) forcing him to shower with only cold water, 4) depriving him of food for two days, 5) inserting various substances into Danny’s mouth, 6) forcing him to lick up and ingest urine and feces, 7) tying him to the bedposts of his bed, 8) depriving him of any furniture in his bedroom, and 9) forcing him to stand up continuously during his waking hours. The court sustained defendant’s motion for judgment of acquittal for the last count. The jury found defendant not guilty of forcing a plastic container on Danny’s head. The jury convicted defendant of the other seven counts and sentenced him to two years on each count.

Defendant argues that he never had care or control over Danny since he never married Mrs. Miller, adopted Danny, or otherwise took an action of assuming responsibility for Danny.

The transcript is replete with evidence that defendant had care and control of Danny even though he never married Mrs. Miller or adopted Danny. The requisite care and control is not restricted to legal control or control originating from a tribunal decree. State v. Smith, 485 S.W.2d 461, 466-67[5, 6] (Mo.App.1972). Rather, any person who stands in loco parentis or who otherwise has the care and control of a child comes under the sweep of § 559.340. A person in loco parentis is “one who actually assumes a parental relation without the formalities of a legal adoption.” State v. Smith, supra at 467[9]. The existence of such a relationship is usually a question of fact. State v. Smith, supra at 467[10].

It is apparent that defendant had care and control of Danny, and we believe he also stood in loco parentis to Danny. He testified “I wished to be Danny’s father. He wanted a daddy and you could see it. I no longer had my little girl. He was like my son, that is all.” The fact that defendant assumed this role of a parent, voluntarily receiving the child and treating the child as a member of the family, is an important factor in determining whether defendant was standing in loco parentis to the child. State v. Smith, supra, at 467[11]. Also, defendant had been living with Danny and his mother for over a year before the incidents occurred. John Holman, who mowed the lawn at the house of Carol Miller, heard Danny refer to defendant as “Daddy” when he was at the house. The point is without merit.

Defendant complains that the instructions pertaining to mistreatment of a child are not supported by the evidence. He mainly argues that evidence does not show that the child was “injured” by his actions. He also argues that the evidence shows that Mrs. Miller was the guilty party relative to some of the mistreatment. We have previously held in this opinion that Mrs. Miller was the agency through whom defendant perpetrated the crimes. We believe the evidence clearly showed the child was injured. The resulting injuries from the mistreatment are set out in detail in a discussion of a prior point. Point is without merit.

Defendant’s next point is that the indictment and evidence were so vague as to time that the defendant is unable to determine if he is being subjected to more than one prosecution for a single act and intent.

The rules for judging the sufficiency of an information or indictment are that it must state essential facts constituting the offense charged and must adequately notify a defendant of the charge against him and constitute a bar to further prosecution for the same offense. Hodges v. State, 462 S.W.2d 786, 789[1] (Mo.1971); State v. Bott, 518 S.W.2d 726, 728[2] (Mo.App.1974). We feel that the indictment is sufficient in this regard. The indictment does not isolate the day and time on which each assault took place. It charges defendant with committing the assaults “during the months of June, July, and August of 1974.”

Defendant relies for his point on Ex parte Sydnor, 222 Mo.App. 798, 10 S.W.2d 68 (1928). However, Sydnor was specifically overruled by Honey v. Kaiser, 352 Mo. 1120, 181 S.W.2d 492 (Mo. banc 1944). Also see State v. Cook, 463 S.W.2d 863, 865[1] (Mo.1971). Section 545.030 RSMo 1969 states that “1, No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: . . . (5) for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense.” The point is dismissed.

Defendant also contends that the jury could not determine whether there were separate assaults or whether some of these assaults were part of a single act. “The test whether the offenses charged are one and the same has been expressed to be whether each offense necessitates proof of an essential fact or element not required by the other.” State v. Chambers, 524 S.W.2d 826, 829[1] (Mo. banc 1975); State v. Carter, 535 S.W.2d 537, 538[2] (Mo.App.1976). Each of the assaults in the counts charged require proof of an element not required by another. Each of the counts were specific as to manner and method of assault and required separate proof. Count I requires proof of the use of a stick, count II requires the use of a paddle, count III requires proof of use of a belt. As said, each count required different proofs. Appellant’s point has no merit.

The prosecutor’s closing arguments are the subject of appellant’s next point. Defense counsel objected to the characterization of defendant as having an “irrational mind”, but he did not raise this in his motion for new trial. The issue is not preserved for our review. State v. Hill, 539 S.W.2d 521, 528-29[21] (Mo.App.1976). The defendant did not object at the trial to the use of the word “egomaniac”; so it is also not preserved for our review. Cloud v. State, 507 S.W.2d 667, 669 (Mo.App.1974). Neither characterization is “so offensive or of such gravity as to have impaired defendant’s fundamental right to fair trial.” Cloud v. State, supra, at 669[5]. Plain error is not present here.

Defendant also objects to the prosecutor’s comment: “[I]t was a diabolical situation and he is a devil.” Whether remarks of counsel are so prejudicial as to necessitate a mistrial rests largely within the trial court’s discretion, State v. Hunter, 499 S.W.2d 787, 788[3] (Mo.1973), and the appellate court will not interfere unless there has been an abuse of discretion which prejudices defendant. State v. Wintjen, 500 S.W.2d 39, 42[1] (Mo.App.1973). Generally, a prosecutor should not apply personal epithets to the accused. State v. Granberry, 530 S.W.2d 714, 727[17] (Mo.App.1975). Although the characterization of the defendant as diabolical may have been improper, not every use of improper argument requires a mistrial. State v. Raspberry, 452 S.W.2d 169, 173[7] (Mo.1970), State v. Scott, 535 S.W.2d 281, 286[7] (Mo.App.1976). A mistrial is a drastic remedy not to be taken unless the prejudice can be removed in no other way. State v. Raspberry, supra, at 173[8], State v. Westmoreland, 541 S.W.2d 769, 772[4] (Mo.App.1976). In the context of this record the phrase objected to was not of such nature as to influence the jury’s verdict. State v. Wallace, 504 S.W.2d 67, 72[10] (Mo.1973). The court did not manifestly err in not declaring a mistrial. State v. Turnbull, 403 S.W.2d 570, 573[6] (Mo.1966).

Defendant next questions the sequestration of the jury. He contends the jurors were not properly sequestered because they had available in their motel rooms telephones, radios, and televisions. At the hearing on the motion for new trial the court received into evidence affidavits of the jurors which attested to the fact that they were not subjected to any improper influence while sequestered. We believe the jury was properly sequestered. As stated in State v. Bayless, 362 Mo. 109, 123, 240 S.W.2d 114, 123[15] (1951), “The mere possibility that something prejudicial could have happened, of which there is no proof, is insufficient to require a new trial, where such possibility is rebutted by other facts and circumstances.” See also State v. O’Neal, 436 S.W.2d 241, 246 (Mo.1968). With nothing in the record indicating that appellant was prejudiced or that the jury was subjected to any improper influences, we believe the evidence heard by the court and the affidavits received in evidence were sufficient to show that no improper influences were exerted on the jury and that appellant was not prejudiced. The point is denied.

Defendant’s final point is that the trial court committed prejudicial error when it refused to submit to the jury defendant’s instruction “A”, conversing the issue of defendant’s care and control of Danny Miller. The critical portion of the refused instruction read, “If you do not find and believe from the evidence beyond a reasonable doubt that during the months of June, July, and August of 1974, the defendant, Ronald Lee Healey, had the care and control of Danny Miller, you must find the defendant not guilty. . . . ” This was to converse the court’s Instructions 33-40 wherein the second finding required of the jury was “That at the time and in the county of St. Louis, State of Mo., the defendant and another had care and control of Danny Miller.” (Emphasis added.)

Defendant is entitled to a converse instruction, and it is error not give one if defendant so requests by tendering an accurate converse instruction. See, e. g., State v. Fraley, 342 Mo. 442, 116 S.W.2d 17, 20[3] (1938); State v. Jewell, 473 S.W.2d 734, 740[6] (Mo.1971); State v. Sanders, 541 S.W.2d 782, 785[5] (Mo.App.1976). However, if the instructions are improper because confusing or incorrect the trial court is fully justified in refusing them. State v. Smith, 515 S.W.2d 761, 762[2, 3] (Mo.App.1974); State v. McCoy, 530 S.W.2d 8, 10[11] (Mo.App.1975). Here the proper converse would state “the defendant, Ronald Lee Healey, and another had the care and control of Danny Miller, . . . .” It was an essential part of the state’s case to prove many acts of mistreatment which were perpetrated on the infant by using the mother as the agent. If the words “and another” were omitted, the jury would have been misled into thinking that they would have found him to be in exclusive control of Danny Miller. The trial court properly rejected defendant’s converse.

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.

      . Mrs. Miller’s testimony revealed that she acquiesced in defendant’s treatment out of fear. Defendant had threatened to kill her and her son and her parents. On one occasion he laid out the bullets from his gun and told her which one was for her, which one was for her son, which ones were for her mother and father. As a result, she fell totally under his domination. He was constantly giving her orders as well as Danny. On one occasion he told her to write a 500 word essay on how to discipline children.

      . “Q. Do you remember what you told Carol Miller?
      “A. Yes, sir.
      “Q. What—
      “MR. SHAW: Well, Judge, that would not be important, what he told Carol Miller. The defendant is not there. It is immaterial and irrelevant, and hearsay.
      “MR. WESTFALL: I think it is extremely relevant.
      “MR. SHAW: Judge, we have no way of testing the sincerity of that.
      “MR. WESTFALL: The witness is on the stand.
      “MR. SHAW: What he said to somebody else when the defendant was not around—
      “THE COURT: I will sustain the objection and permit the Prosecutor to come up and make an offer of proof. Then, I may change my ruling.”
      * * * * * *
      The following took place outside the hearing of the jury:
      “THE COURT: For what reason are you offering the testimony?
      “MR. WESTFALL: To show she was under fear with Ron Healey and the reason she did not want the police to see the boy was because she was afraid. She was questioned a half day on that issue.
      “THE COURT: Do I understand you are not offering the testimony to prove the statements, what he will say, the truth of what he will say from the witness stand? In other words, if you are offering his testimony to prove that, in fact, the defendant was in custody of the police at the time in question, that seems to be hearsay.
      “MR. WESTFALL: No, I am offering it to show how he persuaded her to let them in. Whether it was true, I could care less. It happens to be true. I want the jury to know how he—
      “MR. SHAW: That is immaterial evidence against this defendant.
      “THE COURT: I believe I see the significance. You are objecting to the offer of proof?
      “MR. SHAW: Yes. To the question and offer of proof.
      “THE COURT: I will overrule the objection to the offer of proof. I reverse my ruling and I will permit the question to be put to the witness, what he said to Mrs. Miller through the window; simply what he had asked.”

      . See, e. g., Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975); Jett v. Commonwealth, 436 S.W.2d 788 (Ky.1969); Gelhaar v. State, 41 Wis.2d 230, 163 N.W.2d 609 (1969).

      . Section 559.340 RSMo 1969 reads: “If any mother or father of any infant child under the age of sixteen years, whether such child was born in lawful wedlock or not, or any person who has adopted any such infant, or any other person having the care and control of any such infant, shall unlawfully and purposely assault, beat, wound or injure such infant, whereby its life shall be endangered or its person or health shall have been or shall be likely to be injured, the person so offending shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding three years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars or by both such fine and imprisonment.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    John M. COLLINS, Respondent, v. Marvin Donald LINK, Appellant.
    No. 38310.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 3, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

      Theodore F. Schwartz, Clayton, for appellant.
    Joseph R. Soraghan, Coburn, Croft, Shepherd, Herzog & Putzell, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

By his petition plaintiff sought to impose a resulting trust on certain real estate which was titled in the name of defendant alone, and on certain personal property, both of which were acquired by the use of jointly owned funds. Plaintiff prayed that the court decree that the personal and real property be held by plaintiff and defendant as “joint tenants,” subject to the interest of Clayton Federal Savings and Loan Association in the real estate, that the plaintiff’s interest be declared to be 64% of the total, and that the property be sold, after the interest of the Savings and Loan Association be paid, and the proceeds be divided between plaintiff and defendant according to their respective interests. The trial court held that plaintiff is entitled to a resulting trust in the real estate to the extent of one-half interest, that plaintiff is entitled to one-half interest in the described personal property which has a value of $22,-325, and that plaintiff have judgment against defendant in the amount of $11,-162.50, which may be satisfied by payment in cash or by the delivery to plaintiff of items of the described personal property of that value. Defendant has appealed. We affirm.

Plaintiff, John M. Collins, and defendant, Marvin Donald Link, both unmarried, lived together from September 1,1963 until September 13, 1974. At first they shared an apartment, each paying one-half of the rent and other expenses. About the first of 1965 they established a joint checking account from which all household expenses were paid. Plaintiff contributed his entire paycheck to that account, while defendant gave cash to plaintiff to be deposited in the joint account. He at first gave $100 a week, later $110 and finally $120, but defendant occasionally, but not regularly, contributed the entire amount of his check. Plaintiff usually would deposit all the money he received from defendant in the joint account, but at times he would use some of the money to pay the expenses of the household with cash and then deposit the remainder. All of plaintiff’s personal expenses, and some of defendant’s, were paid from the cash so received or from the joint account, but the evidence does not show the precise amount of personal expenses of either party.

In February, 1965 plaintiff and defendant moved to a single-family residence at 7342 Drexel Drive which was purchased in defendant’s name alone. The purchase price was paid by defendant, in part with money he received from his parents, and he executed a promissory note, secured by a deed of trust, for the balance. Plaintiff made no contribution to the down payment, and he did not sign the note representing the balance due. All installment payments on the note and the cost of at least some of the furnishings were paid from the joint account. Plaintiff testified that he considered himself “bound” to defendant to pay part of the installment payments on the note. The reason, according, to plaintiff, that the title was taken in defendant’s name alone was that plaintiff had recently been divorced and they “weren’t quite sure as to the legal involvements in the event that [his] former wife decided to take additional legal action against [him], and it seemed at the time advisable to put the property in [defendant’s] name to avoid problems of any kind.”

In the spring of 1971, plaintiff and defendant enlisted the services of a real estate agent to find another residence. At least eight offers to buy residences were made, and in each case the earnest money check was drawn on the joint account. In their conversation with the agent, plaintiff and defendant repeatedly referred to the fact that “we are buying a house.” Their efforts resulted in the purchase of a residence at 6 Hortense Place in the City of St. Louis for $35,250. As the result of a discussion between plaintiff, defendant and the real estate agent, it was decided that the sales contract should be submitted in the name of defendant alone. This decision was reached because (a) it was believed, perhaps mistakenly, that the subdivision restrictions which limited the use of the property to a single-family residence would preclude ownership in the names of two unmarried men, (b) the owner had expressed the desire that the house be purchased by people with a large family and the owner might not be receptive to selling the property to two unmarried men, and (c) since the Drexel Street property was in defendant’s name alone, it was believed, again perhaps mistakenly, that it would be easier to obtain financing for the Hortense Place property. As a part of this discussion, mention was made that an attorney could later be consulted to change the record ownership to plaintiff and defendant.

An earnest money deposit for the Hor-tense Place property in the amount of $1,000 was paid by cashier’s check purchased by a cheek drawn on the joint account.

The Drexel property was sold, and $6,100.66, the amount received after the payment of the balance due on a secured note and the payment of expenses, was deposited in the joint account, which prior to this deposit had a balance of $7,756.53. A check in the amount of $12,377.99 was then drawn against the joint account for the purchase of a cashier’s check to pay the balance of the down payment on the Hor-tense Place property. Defendant alone executed documents assuming the obligations of the seller under an existing note and deed of trust. Subsequent installment payments of principal and interest on the note were paid from the joint account. Defendant claimed the interest and tax payments as deductions on his income tax returns, but he deposited the total of his tax refunds in the joint account. Some of the furnishings of the Hortense Place residence were purchased with money from the joint account, and all money paid for the Hortense Place property, including the earnest money deposit, the down payment, and the monthly installments, came from the joint account.

In its findings of fact the trial court found that plaintiff’s evidence established an “intention shared by the parties” that “the title to the Hortense [Place] property be taken in the name of defendant alone for the benefit of both.” It also found that “plaintiff’s theory under which he claimfed] a 57.18% interest” was not established by the evidence. The court then reviewed certain facts, namely, that the parties maintained a joint account to which each contributed and had free and unlimited access and, “absent * * * any contrary intention, ownership of a one-half interest,” that the net proceeds from the sale of the Drexel property were placed in that account, that the earnest money and down payment for the Hortense Place property were paid from that account, and that these acts were “performed in the shadow of the history of nine years of sharing the monthly installment payments on Drexel and the expectation of continuing the same course with regard to the installment payments on Hor-tense.” The court then concluded that “at the time the title to [the] Hortense [Place property] was acquired, it was the intention of the parties that each was to have an equal one-half ownership interest therein, that the title was taken in the name of defendant alone for convenience of financing and because of their mutual misunderstanding of subdivision restrictions, and that as a consequence thereof the defendant holds an undivided one-half interest in the real estate in trust for the benefit of plaintiff.” As to the personal property, the court found that a list, introduced in evidence and not contradicted by defendant, of the items of property with a value stated for each item, “were purchased jointly by the parties with funds from the joint account over the years that they lived together,” and that plaintiff is entitled “to a one-half interest therein.”

We review this case upon both the law and evidence giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3). This has been construed to mean that the decree of the trial court “will be sustained * * * unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Appellant asserts in his points that the court erred in decreeing a resulting trust because (a) “a resulting trust never arises by agreement but only by operation of law,” and (b) “plaintiff did not furnish the consideration for the purchase.” He also asserts the court erred in decreeing that the trust was created “in an amount equal to fifty percent of the real estate and personal property for the reason that said proportional interest was not pleaded.”

In making the contention that a resulting trust does not arise by agreement, appellant relies on the finding of fact by the trial court that the evidence established “an intention shared by the parties that the title to the Hortense [Place] property be taken in the name of defendant alone but for the benefit of both.” He then argues that “a resulting trust is created only by operation of law and never from what the parties agree to do,” and further that the “law is unequivocally clear that a resulting trust does not arise by agreement, either expressed or implied.”

The substance of this argument is that by agreement the parties created an express trust, and assuming for the purposes of this discussion that this is so, a court of equity is not bound by an erroneous classification or label, if that is what occurred. This would mean that defendant held title to the property in question in trust pursuant to an agreement, and the result of this case, absent some other controlling factor, would be the same.

We are of the opinion, however, that appellant has misconstrued the basic elements of a resulting trust. “A resulting trust, as distinguished from an express trust, is one implied by law from the acts and conduct of the parties and the facts and circumstances which at the time exist and attend the transaction out of which it arises.” Little v. Mettee, 338 Mo. 1223, 93 S.W.2d 1000, 1009 (1936). Usually the claimed beneficiary must have furnished the consideration, or a fixed proportionate part, and there must be a presumed intent on the part of the legal owner to hold for such beneficiary. Jacobs v. Jacobs, 272 S.W.2d 185, 188 (Mo.1954). From the evidence the trial court found that this intention existed. The fact that there was an agreement between the parties that certain acts be done or not done does not, of itself, preclude a resulting trust. That agreement constitutes a circumstance or fact, with others, from which a resulting trust may arise by operation of law. The statement to the effect that a resulting trust “never arises by virtue of an agreement” which appears in cases such as Woodard v. Cohron, 345 Mo. 967, 137 S.W.2d 497, 498 (Mo.1940); Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392, 399 (1940); Fulton v. Fulton, 528 S.W.2d 146, 158 (Mo.App.1975), pertains to an agreement to create a trust; not to an agreement that certain acts be done which in turn give rise to the creation of a trust by operation of law. We agree with the general statement by appellant in his first point that “a resulting trust never arises by agreement but only by operation of law,” but the statement is not applicable when applied to the facts of this case.

It is not clear what is meant by appellant’s point that “plaintiff did not furnish the consideration for the purchase” of the Hortense Place property. If he means that plaintiff did not furnish all the consideration for the purchase he is correct, but if he means that it was necessary that he do so before a trust would result, he is in error. It is the accepted rule, as stated in Restatement of Trusts, 2d ed., § 454, that “Where a transfer of property is made to one person and a part of the purchase price is paid by another, a resulting trust arises in favor of the person by whom such payment is made in such proportion as the part paid by him bears to the total purchase price, unless he manifests an intention that no resulting trust should arise or that a resulting trust to that extent should not arise.” See also 76 Am.Jur.2d Trusts § 219; and 89 C.J.S. Trusts § 122. All payments toward the purchase of the Hortense Place property were made from a joint account to which plaintiff had contributed a substantial portion if not a majority of the funds. The trial court expressly found that the conduct of the parties evidenced an intention that title to the real property should be taken in the name of defendant for the benefit of both, and that the parties also intended that each have an equal interest in the joint account. “Where the consideration proceeds from two or more persons jointly, and a conveyance of the legal estate is taken in the name of one alone of them only, or of a third person for their benefit, a resulting trust, as a general rule, will arise in favor of the parties not named in the conveyance, in proportion to the amount of the consideration they have respectively contributed. In the absence of proof to the contrary, in such cases, the law presumes that the different parties contributed equally.” 89 C.J.S. Trusts § 122, p. 977. We find no merit to appellant’s contention that “plaintiff did not furnish the consideration” for the purchase of the Hortense Place property.

There also is no merit to appellant’s contention that it was error for the court to decree the existence of the trust in an amount equal to 50% of the real and personal property because “said proportional interest was not pleaded.” Plaintiff pleaded that he had an interest in the amount of 64% of the property, and at trial he attempted to prove an interest of 57.18%. The evidence upon which the court based its findings came in without any objection that it was outside the pleadings. In that event the pleadings are deemed to be amended to conform to the proof. Rule 55.33(b); Heald v. Erganian, 377 S.W.2d 431 (Mo.1964); Anderson v. Dyer, 456 S.W.2d 808 (Mo.App.1970).

Appellant asserts that the “evidence was insufficient as a matter of law” to show a trust “by operation of law,” and that plaintiff did not “prove what proportion [his] contribution bore to the total purchase price.” As to his first contention, he does not state in what respect the evidence was insufficient. In support of his latter contention he cites cases, such as Dougherty v. Duckworth, 388 S.W.2d 870 (Mo.1965); and Shelby v. Shelby, 357 Mo. 557, 209 S.W.2d 896 (1948). These cases, and others cited, have been carefully reviewed but they are not helpful to appellant in view of the express findings of the trial court, which are supported by substantial evidence, that all payments toward the purchase of the property were made from the joint account, and that it was the intention of the parties that each have an equal interest in that account.

The judgment is affirmed.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Freddie Eugene BALL, Appellant.
    No. 37878.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 10, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

      Tofle, Mack & Oxenhandler, Marvin To-fle, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, James G. Gregory, Pros. Atty., Montgomery City, for respondent.
   CLEMENS, Presiding Judge.

Second-degree burglary of a television appliance store. Defendant’s only point on appeal challenges evidence he threatened and assaulted a witness.

Defendant was a friend of state’s witness Janiece Preston who lived next door to the burglarized store. She testified that before the burglary defendant and a friend were at her home and said they were going to try to enter the store.

Defendant challenges Ms. Preston’s further testimony that two days after the burglary defendant came to her home and — with a pistol in hand — warned her not to say anything about having heard of his intention to break into the store. She also testified that three days later defendant broke into her home, told her he had seen her talking to a police officer and had given her a black eye.

Defendant relies on the general rule that evidence of other crimes is inadmissible, citing State v. Reece, 274 S.W.2d 304 (Mo.1954). This general rule excepts evidence of other crimes that are “so related that proof of one tends to establish the other.” The principle was laid down in State v. Kilgore, 447 S.W.2d 544[3] (Mo.1969), and applied to a like issue as now before us in State v. Corlew, 463 S.W.2d 836[5] (Mo.1971) a burglary case where defendant threatened and assaulted potential witnesses. Upholding admission, the court ruled: “It has long been recognized that evidence of threats by the defendant against witnesses against him may be produced in order to establish his guilt on the original charge.”

The challenged evidence here tended to show defendant’s consciousness of guilt and was properly admitted.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: SNYDER, Judge.

text:
    B. W., Petitioner-Respondent, v. F. E. W., Respondent-Appellant.
    No. 38383.
    Missouri Court of Appeals, St. Louis District, Division 4.
    Jan. 10, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

      John D. Connaghan, St. Louis, for respondent-appellant.
    Milton Schaeffer, Clayton, for petitioner-respondent.
   SNYDER, Judge.

This is an appeal by the husband, respondent in the trial court, from a decree entered June 30, 1976 by the Circuit Court of St. Louis County which, among other rulings, dissolved the marriage of the parties, awarded custody of three minor children to the wife and divided the marital property. The husband contends that the trial court erred in: (1) failing to make a finding that the marriage was irretrievably broken; (2) failing to set off to the wife her equity in real property owned by the parties and failing to dispose of an encumbrance on the real property; (3) failing to make any custody or child support award in the case of D. R. W., a child born during the marriage; and (4) awarding custody of the minor children to the wife without a more extensive hearing on the custody issue.

The parties were married in January of 1970. The wife had three children at the time of the marriage. The children were subsequently adopted by the husband. The parties separated in July of 1974, and the wife’s petition for dissolution was filed on August 20, 1974. In September of 1974, before the divorce was granted, the wife became pregnant and in due time gave birth to a daughter, D. R. W. The wife’s testimony was that a man not her husband was the father.

We review this case upon both the law and evidence giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3). This has been construed to mean that the decree of the trial court “will be sustained * * * unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

The trial court in its decree failed to find that the marriage was irretrievably broken, the decree stating only “Decree of Dissolution granted.” Section 452.320, RSMo Supp.1975 imposes a statutory duty on the court to “make a finding whether or not the marriage is irretrievably broken.” Paragraph 1 of § 452.320 requires this finding to be made even though both parties state under oath that the marriage is irretrievably broken or when one party so states and the other party does not deny it. Paragraph 2 of § 452.320 sets forth the procedures which must be followed if one of the parties denies under oath or affirmation that the marriage is irretrievably broken and specifies the facts which must be proved in order to find irretrievable breakdown after denial by one of the parties. Although the husband in his answer denied that the marriage was irretrievably broken, his testimony under oath at the trial could have been construed by the trial court as refuting or overcoming the denial of irretrievable breakdown in the answer. We defer to the trial court’s opportunity to judge the credibility and demeanor of the witness when he testified on this point and hold that under all the evidence the husband did not finally deny that the marriage was irretrievably broken. Nonetheless, the husband’s contention that the court erred in failing to make a specific finding that the marriage was irretrievably broken is correct and the cause must be remanded for this reason.

An even stronger reason for remand is the failure of the court to make any order relating to the fourth child, D. R. W., born during the marriage. Two issues arise relating to this fourth child. Is she legitimate and if so, must the court make an award of custody? Her existence was not disclosed in the pleadings nor in the testimony at the trial but only in the deposition of the wife which was received in evidence and became a part of the trial record. The child was conceived in September of 1974 and born June 24, 1975, a year before the decree of dissolution was granted. The wife denied that her husband was the father of the child and there was evidence to the effect that he was not, but no finding was made as to her legitimacy. “The strongest presumption known to law is that a child born in wedlock is the child of the marriage, (citing) The presumption may be rebutted.” J.M.L. v. C.L., 536 S.W.2d 944, 945 (Mo.App.1976). The fact of the child’s existence was before the court. If indeed the child is a child of the marriage and the evidence justifies it, the court must award custody and provide for her support as it did for the other three children of the parties. The court erred in failing to make a finding as to the legitimacy of the child.

If she is found to be a child of the marriage, it is mandatory that the court make an award of custody in the dissolution decree. An award of custody was required under the old divorce law. In Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974), the court said, “The court in a divorce action has the statutory duty to award the custody of the minor children of the parents and is enjoined to make such orders touching their maintenance and support as shall be reasonable in view of the circumstances of the parties and the nature of the case.”

The repealed law which was in effect when Rodgers v. Rodgers was decided reads in part, “ * * * the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as * * * shall be reasonable * * *.” § 452.070, RSMo 1969. The new dissolution statute has a separate section on custody alone, § 452.375, RSMo Supp.1975, which contains the following language, “The court shall determine custody in accordance with the best interests of the child.” We construe this as a direction to make an award of custody of all minor children in dissolution cases. The same compelling reasons which existed when the old law was in effect for requiring the courts in dissolution cases to dispose of matters relating to minor children of the parties are present today. The best interests of children from broken homes require that the courts determine custodial questions and provide for support when justified by the evidence so that the maximum stability and security possible under the circumstances can be provided for them.

There is no merit in the husband’s claim that the court erred in failing to apportion to the wife her equity in the real estate and to dispose of the encumbrance on the property. The trial court heard the evidence as to the marital property from each party and made the division based on that evidence. There was no abuse of discretion. Contrary to the husband’s contention, the decree of dissolution in fact granted to the wife a one-half interest in the real property owned by the parties. There is no requirement that the court “dispose” of an encumbrance on real property.

Nor did the court abuse its discretion in awarding custody of the minor children to the wife without a more extensive hearing. If the husband felt a more extensive hearing was needed, he should have offered more evidence at the time of the trial. There was sufficient evidence before the court to enable it to make a custody decision based on the best interests of the children.

Reversed and remanded for further proceedings on the questions of irretrievable breakdown and the status of D. R. W., the minor child born during the marriage.

SIMEONE, P. J., and DOWD, J., concur.


text:
    STATE of Missouri, Respondent, v. Oscar Lee HUGHES, Appellant.
    No. 38454.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 10, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John Morris, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., James F. Booth, Asst. Circuit Atty., St. Louis, for respondent.
    John J. Allan, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

By indictment the state charged defendant Oscar Hughes with felonious assault. The victim was Rodney Crenshaw, the two-year-old son of defendant’s paramour, Rose Crenshaw. After verdict the trial court sentenced defendant to seven years’ imprisonment and he has appealed, raising two issues.

Defendant first contends he was improperly tried for felonious assault instead of child mistreatment, a graded felony. Further, defendant contends the trial court erroneously refused to admit the grand jury testimony of an unavailable medical witness. These in turn after summarizing the evidence.

Defendant was home alone with Rodney in their second-floor apartment. He said he heard a bumping noise and found Rodney lying unconscious at the foot of the stairway. At Children’s Hospital medical examination showed Rodney was in shock and suffering from recent thermal burns on his face, ears and abdomen, puncture wounds on his back and multiple bruises. Prompt abdominal surgery revealed internal hemorrhaging and a lacerated pancreas, part of which was removed. Dr. Jessie Ternberg, Rodney’s pediatric surgeon, testified his injuries could not have been sustained by falling down steps, as contended by defendant.

Defendant does not challenge the sufficiency of the evidence, but contends it only supported conviction under the child-mistreatment statute, § 559.340, VAMS, and that statute was exclusive of the felonious assault statute, § 559.180, VAMS. We disagree.

In State v. Koen, 468 S.W.2d 625 (Mo.1971), defendants were charged with felonious assault. The victim was a police officer and defendants contended it was error to convict them of felonious assault instead of the statutory offense of striking a police officer. The supreme court held: “It is often true that a single act will constitute an offense under two different statutes. In that situation it is generally held that the State may elect to prosecute for either offense. [Citations omitted.] We rule that the facts shown in this case would have supported a conviction for either assault or striking a police officer, and that the State could elect to prosecute either offense.”

We hold the evidence here supported the felonious assault submission. The evidence may have also supported submission under the child-mistreatment statute. Defendant may not complain that the state elected to prosecute him under the statute carrying the more severe penalty and his first point is denied.

By his second point defendant challenges the trial court’s ruling denying his offer to read part of Dr. James Keating’s grand jury testimony. According to defendant’s proffer, Dr. Keating had then testified that information obtained from other doctors caused him to believe that “some, but not all of Rodney’s wounds could have been received in the fall.” This would have partly impeached Dr. Ternberg’s opinion. The parties stipulated that by trial time defendant had not subpoenaed Dr. Keating, who was then out of town. In the parties’ briefs they discuss such issues as whether the grand jury action was a judicial proceeding, whether Dr. Keating’s testimony was hearsay, the absence of cross examination and defendant’s failure to timely subpoena Dr. Keating.

We need not resolve these issues because defendant failed at trial to have the grand jury transcript marked as an exhibit and offered in evidence, nor has defendant included it in the appellate transcript. Colloquy at trial indicated the grand jury transcript was in the hands of counsel but the record is silent as to whether it was shown to the trial court. Not having been marked as an exhibit, offered in evidence, nor preserved here, we cannot convict the trial court of error in declining to allow defendant to read from Dr. Keating’s reputed testimony.

Judgment affirmed.

SMITH and MeMILLIAN, JJ., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Daniel Lee ESTES, Appellant.
    No. 38376.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 17, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

      Hayes & Heisler, Robert E. Heisler, Clayton, Vogel & Frye, Tom K. O’Loughlin, II, Kenneth Gibbar, Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., A. J. Seier, Pros. Atty., Cape Girardeau County, Cape Girardeau, for respondent.
   NORWIN D. HOUSER, Special Judge.

Daniel Lee Estes, convicted of kidnapping Ronald Terry, § 559.240, RSMo 1969, has appealed.

The state’s evidence showed these facts: At gunpoint defendant ordered Terry to get in defendant’s station wagon. Terry demurred. Defendant threatened to shoot him. Because defendant was armed and because of the threat Terry got in the vehicle. Defendant drove out of town, onto a gravel road, to a deserted area, where he stopped the vehicle. Defendant pointed a gun at Terry, told the latter he was going to “end it” for Terry, opened the door and started to put some distance between the two. Terry pushed the gun aside, slid out of the seat on the same side with defendant, and tried to keep the gun “out of [his] direction.” After leaving the vehicle the two scuffled. Defendant struck Terry with his fists, swung the gun at him but missed. While they were scuffling, the gun hit Terry in the back. While Terry had hold of defendant, and defendant had hold of the gun, the weapon discharged down the side of Terry’s leg, but did not wound him. The scuffling ended when defendant heard the sound of a police siren on nearby Highway 72. Defendant then threw some handcuffs to Terry and required him to put them on. With Terry handcuffed, and defendant still holding the pistol, defendant told Terry to get in the car, which Terry did. Defendant then drove to a small town in the county, where, from a telephone booth outside Owl Shanty, calls to Terry’s girl friend were made by defendant, and by Terry at defendant’s direction. Defendant told the girl friend that he had Terry handcuffed; that he had a gun and that he, defendant, had tried to shoot Terry. Defendant required Terry to speak to the girl and confirm what he had told her. On information supplied by the girl friend officers of the law traced the call, arrived at the telephone stand, and arrested defendant.

I. Suppression of evidence?

A few days after defendant was jailed he indicated to Deputy Sheriff Cheek that “he wanted some powder residue tests taken of the gun,” and asked if fingerprints had been taken from the gun. Fingerprints had not been taken. Deputy Sheriff Shannon testified that fingerprints were not taken because, for his own safety, the officer had seized the gun immediately at the scene, “thereby contaminating fingerprint evidence on the weapon.” Furthermore, the officer did not consider scientific evidence— fingerprints — necessary because he felt he had adequate information at the time. He did not take gun residue tests because he did not feel that a gunshot residue test of a person who handled firearms would have been probative.

Appellant asserts on appeal that the state’s failure to obtain and preserve a powder residue test on Ronald Terry and fingerprints from the gun, upon appellant’s request, was tantamount to a suppression of such evidence, and resulted in a denial of due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant’s defense was that Terry consented to the trip, and he claims that fingerprints on the gun and a powder residue test taken on Terry “would have been material evidence relating to the guilt or innocence of the appellant”; that this evidence “could have shown that the victim had handled the weapon”; that “[h]ad the victim’s fingerprints been found in the gripping position or had significant powder residues been found on his hands indicating that he had discharged the gun, the defense of consent would have been aided considerably”; that appellant’s “opportunity to defend was rendered impotent when the police refused to administer the tests which he requested”; that evidence never preserved “is but a variant of the failure to disclose cases deriving from Brady v. Maryland," and that “the intentional nonpreservation by investigators of discoverable evidence amounts to its illegal suppression,” citing United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971); People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (Cal. banc 1974); Torres v. State, 519 P.2d 788, 795 (Alaska 1974), and People v. Anderson, 42 Mich.App. 10, 201 N.W.2d 299 (1972).

This point is disallowed, both on the facts and on the law.

As to fingerprints: There is no evidence that appellant requested that fingerprints be taken. He merely inquired if they had been taken. Furthermore, the evidence shows that any fingerprints on the gun were contaminated by the officer who seized the gun at the scene to insure his own personal safety. The test therefore, if taken, would have been useless in determining who held the gun.

As to the powder residue tests: Appellant made no request that such tests be taken of Terry. The only request appellant made was that the test be taken of the gun. It was not until the motion for new trial was filed that he complained of the failure of the officers to take such tests of Ronald Terry. Another impediment is the fact that powder residue tests, to be of value or significance, must be taken within reasonable proximity in point of time after the discharge of the gun. The request in this case was made “a few days” (an indefinite, unspecified time) after the discharge of the gun. There is no evidence that a test taken at the time requested would have revealed anything of probative significance.

More important than these discrepancies is the speculative and conjectural nature of the suggestion. Appellant presented no evidence or intimation that the victim fired the gun. It was appellant’s gun. The only testimony as to who fired the gun is Terry’s testimony that appellant did so. There is nothing to suggest that in the scuffling Terry wrested the gun from appellant and fired it. There is testimony that in appellant’s telephone conversation with Terry’s girl friend appellant admitted he tried to shoot Terry. Appellant did not take the stand and testify that Terry fired the gun. The closest appellant comes to a direct contention that Terry fired the gun is the statement in his brief that a powder residue test could have shown that Terry “handled the weapon.” There is no firm suggestion that the gun was not in appellant’s possession at all times during this series of events. The idea that Terry fired the gun is theoretical, hypothetical, “iffy” and without support in the record.

Not only is appellant short on facts to support this proposition but also he is without support in law. While under Brady v. Maryland the intentional suppression by the prosecution of material evidence favorable to an accused, requested by accused, violates due process, and while under the Bryant, Hitch, Torres and Anderson cases, supra, intentional nonpreservation of discoverable evidence amounts to its illegal suppression, it is important to inquire into the nature of the evidence being discussed. These courts were dealing with evidence that is or at one time was existing, developed, matured, actual, and in most cases tangible, evidence. In Brady the evidence in question was an existing extrajudicial statement; in Bryant, a tape recording; in Hitch, the results of a breathalyzer test and a test ampoule; in Torres, a girl’s under-panties; in Anderson, photographs, all of which were in existence at one time or another. Therein lies the difference between those cases and this case. Here no powder residue test had been run. No fingerprints had been lifted. There was no developed, existing evidence. Appellant is contending that there was a duty on the state or its officers to run the powder residue test and lift and preserve the fingerprints (and, it would follow, a duty to make comparisons with appellant’s and Terry’s fingerprints and make available to appellant a report of such comparisons). In other words, appellant is taking the position that in order to accord due process the state is obligated, at the request of an accused, to conduct research and make, produce or perfect evidence which possibly might aid the accused in his defense. We are unable to accept this proposition. The state has no duty, on request of an accused, to assist him in the preparation of his defense. In State v. Snipes, 478 S.W.2d 299, 302 (Mo.1972), the Supreme Court quoted with approval the following statement: “Moreover, police officers are not required to take the initiative or even to assist in procuring any evidence on behalf of a defendant which is deemed necessary to his defense.” In State v. Holmes, 389 S.W.2d 30 (Mo.1965), the court said, 1. c. 34: “It was not incumbent upon the state to take defendant’s fingerprints from the articles he touched or, if taken, to produce them in evidence. Nor is the state required to account for their absence.” In State v. Miller, 560 S.W.2d 45 (Mo.App.1977) opinion filed November 22, 1977, quoting from State v. Wiggley, 515 S.W.2d 791[2] (Mo.App.1974), we said, “It is not incumbent on the state to search for fingerprints * * If a powder residue test had been made; if fingerprints had been taken from the gun, and if the results of such a test and the fingerprints and comparisons had been in the possession of the officers, and had been relevant and otherwise admissible, and they had been suppressed by the state, we would have a different situation. In the case before us, however, there was no denial of due process.

II. Prosecutor disqualified?

Defendant filed a motion to disqualify the prosecutor “because of his bias or prejudice.” Defendant filed suggestions in support of the motion, alleging the following: Defendant was released on bail with directions not to make contact with Terry or Terry’s girl friend. He was rearrested for violation of the “no contact” condition of bail. In open court the prosecutor indicated to the judge and to defense counsel that he believed defendant made phone calls to the girl friend and to Terry’s residence concerning the pending case, in which he used the name of the prosecutor, thereby impersonating the latter. It was further alleged that the prosecutor expressed his resentment of what he believed to have been defendant’s actions and impersonations of the prosecutor.

The suggestions were not verified, and the record does not show that testimony was taken on the motion to disqualify.

Error is assigned in overruling the motion. Appellant contends that his case was prejudiced because of the prosecutor’s personal interest in the case; that he was thereby denied his constitutional right to a fair trial; that the motion to disqualify was denied “even though there was a clear indication that because of [the prosecutor’s] belief that appellant had been impersonating him, he might be influenced thereby and might not be altogether fair to the appellant in the trial of the case.” Appellant further argues that “actual prejudice was manifest in this trial.”

The charge that the prosecutor expressed resentment about the alleged impersonation is unsubstantiated. Unsupported allegations in motions, suggestions or appellate briefs do not prove themselves. This charge is rejected for lack of proof.

The charge that actual prejudice was manifested at the trial likewise fails. The only support appellant offers for this charge is as follows: (1) two statements in the prosecutor’s opening statement to the jury, (2) questions asked the girl friend about harassing telephone calls by appellant and certain tape recordings, and (3) a question asked Terry on direct examination. None of the proposed examples of unfairness was considered significant by the trial court, except the prosecutor’s reference in the opening statement to defendant having illegal plates on a vehicle. Objection to that statement was sustained. We concur in the court’s ruling that the prosecutor erred in making that statement. This one minor error, however, is insufficient to attribute to the prosecutor unfairness or prejudice in the trial of appellant. The other examples were innocuous, nonprejudicial, and did not reflect on the prosecutor’s fairness in presenting the case. As in State v. Egan, 272 S.W.2d 719, 726 (Mo.App.1954), “ * * * careful review of the record in the instant case leaves us unconvinced that the prosecuting attorney evidenced more than a proper and commendable official interest in vigilant discharge of the duties entrusted to him.” The cases cited by appellant in which a prosecuting attorney was held disqualified, State v. Nicholson, 7 S.W.2d 375 (Mo.App.1928), and State v. Jones, 306 Mo. 437, 268 S.W. 83 (1924), are so different on their facts that they are of no assistance in this case.

III. Error in Refusing Instructions?

Appellant claims the court erred in refusing to give instructions on common assault and assault without malice, and that he was thus prevented from presenting to the jury his defense of consent.

“An instruction on a lesser offense is not proper unless it is impossible to commit the greater without first committing the lesser, for otherwise the lesser is not properly a lesser offense to the greater. United States v. Eisenberg, 469 F.2d 156, 162[13] (8th Cir. 1972).

“The test to determine if one offense is ‘necessarily’ included in another has been described by our Supreme Court as follows: ‘If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not generally included in the greater. State v. Amsden, 299 S.W.2d 498, 504[11, 12] (Mo.1957); * * *.” State v. Fleming, 528 S.W.2d 513, 515[4] (Mo.App.1975).

Under this test neither common assault, nor assault with intent to do great bodily harm, without malice, is a lesser included offense within a charge of kidnapping. Paragraph 1 of § 559.240, defining the offense of kidnapping, provides, in part: “If any person shall, willfully and without lawful authority, forcibly seize, confine, inveigle, decoy or kidnap any person, * *.” As pointed out by the Attorney General, the force referred to in the statute need not rise to the level of an assault. Appeals to fear, such as a threat to kill or do bodily harm, are sufficient to make a case under the statute, without the necessity of using actual physical force or violence. State v. Knighton, 518 S.W.2d 674, 678 (Mo.App.1975); 51 C.J.S. Kidnapping § 1(4), p. 498; 1 Am.Jur.2d Abduction and Kidnapping § 13, pp. 168-169. Indeed, the crime of kidnapping under § 559.240 may be committed “without any violence to or degradation of the victim.” State v. Weir, 506 S.W.2d 437, 440 (Mo.1974). The assaults shown in evidence were ancillary and incidental to the charge, State v. Weir, supra, 506 S.W.2d l. c. 440, and were not necessary to make the case.

Appellant does not explain why refusal of instructions on assault prevented him from presenting to the jury his defense of consent. As a matter of fact that defense was submitted by Instruction No. 6, which directed a verdict of not guilty of kidnap upon a finding and belief that Terry “was not secretly confined within this state against his will.” Furthermore, the defense of consent was the principal theme of defendant’s final argument to the jury, the gist of which was that Terry was not confined against his will.

Judgment affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.