State of Missouri, Plaintiff/Respondent v. James R. Niederstadt, Defendant/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: State of Missouri, Plaintiff/Respondent v. James R. Niederstadt, Defendant/Appellant. Case Number: SD23612 Handdown Date: 07/23/2001 Appeal From: Circuit Court of Scott County, Hon. David Dolan Counsel for Appellant: Daniel T. Moore, Keith D. Sorrell Counsel for Respondent: Stacy L. Anderson Opinion Summary: None Citation: Opinion Author: John E. Parrish, Presiding Judge Opinion Vote: REVERSED; DEFENDANT DISCHARGED. Montgomery, J., concurs. Shrum, J., concurs in separate opinion filed Opinion: James R. Niederstadt (defendant) was charged with the offense of forcible sodomy. Section 566.060.1.(FN1) He was tried by the court without a jury following waiver of his right to a jury trial. The trial court found defendant guilty. Defendant appeals the judgment of conviction on the grounds that the evidence was not sufficient to prove the offense charged. The judgment is reversed and defendant ordered discharged. This court reviews the sufficiency of the evidence in a court-tried criminal case by applying the same standard used in a jury-tried case. State v. Rehberg, 919 S.W.2d 543, 552 (Mo.App. 1995). Appellate review of the sufficiency of the evidence to support a guilty verdict is limited to a determination of whether the State presented sufficient evidence from which the trier of fact could have reasonably found the defendant guilty. Id. In determining whether the conviction is supported by sufficient evidence, the court examines the evidence and inferences in the light most favorable to the verdict, ignoring all contrary evidence and inferences. State v. Martin, 940 S.W.2d 6, 8 (Mo.App. 1997). The function of the reviewing court is not to reweigh the evidence, but to determine if the conviction is supported by sufficient evidence. Id. State v. Dawson, 985 S.W.2d 941, 946 (Mo.App. 1999).

The offense with which defendant was charged was alleged to have occurred during March 1992. Subsection Section 566.060.1 defines the elements of the offense. It provides: A person commits the crime of sodomy if he has deviate sexual intercourse with another person without that person's consent by the use of forcible compulsion. Section 566.010(1) defines "[d]eviate sexual intercourse" as "any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person." "Forcible compulsion" means either: (a) Physical force that overcomes reasonable resistance; or (b) A threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of himself or another person. Section 556.061(12). Defendant presents one point on appeal. He argues the state presented no evidence that defendant used force or a threat in accomplishing the acts the state alleged constituted forcible sodomy; that, therefore, the evidence was not sufficient for a trier of fact to have found defendant guilty of forcible sodomy. Defendant is charged with committing forcible sodomy on a 16-year-old girl, S. C., who was living with defendant and his family in 1991. Her parents were missionaries living in Africa. She came to the United States to go to school. S. C. testified that shortly after she began residing with defendant's family, defendant kissed her on her lips and touched her "on [her] private parts under [her] clothes." She was asked what she was referring to as "private parts." She answered, "My breasts and between my legs." This occurred in July or August 1991. S. C. stated the fondling continued into the school year. The incident that led to the charge of forcible sodomy occurred in March 1992. S. C. was sleeping in her room; she "woke up because [she] felt pain" and defendant "had his finger in [her] vagina." She had been sick. Defendant told her he was checking her temperature. During cross-examination at trial, S. C. was asked about a statement she had given to the prosecuting attorney. She was asked the following questions and gave the following answers. Q. So the statement you have here that you reported to Mr. Sokoloff about this March, 1992 incident is the one you say you were sick with the flu and you were asleep in your bed, and you woke up and [defendant] had touched you. Is that fair? A. Yes. Q. So you were unaware that he was even in the room until you had woke up and that had already happened? A. No, he had his finger in my vagina when I woke up.

Q. But that was the first time you knew he was in the room? A. Yes. The state contends it "presented sufficient evidence from which a rational trier of fact could find the forcible compulsion element of the crime of forcible sodomy." It argues: [M]ore than one act of abuse occurred during March 1992. [Defendant] himself admitted in an interview conducted by Corporal Rick Sanders of the Missouri State Highway Patrol and J.R. O'Daniel of the Stoddard County Sheriff's Department that he came to [S.C.'s], the victim's, bedroom on a weekly basis in the spring of 1992 and fondled her and masturbated while doing so. Likewise, [S.C.] testified that [defendant] fondled her and penetrated her vagina on more than one occasion that spring. Thus, contrary to [defendant's] assertion, review of the sufficiency of the evidence is not limited to the one instance in which [defendant] molested the victim in her sleep. [References to transcript omitted.] The fallacy of the state's argument is that defendant is charged with committing a single offense. The charge for which he was tried was stated in a single count. If an information charges more than one offense they are to be stated in separate counts. Rule 23.05. An information charging more than one offense in a single count is duplicitous. State v. Bradley, 811 S.W.2d 379, 381 (Mo. banc 1991). Evidence that defendant committed acts on different occasions that could be the subject of criminal charges does not demonstrate that defendant used forcible compulsion in committing the act that is the basis of the charge for which he was tried.(FN2) "[A]lthough proof of commission of separate crimes is generally not admissible, such proof is admissible if it 'has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial. . . .' 'Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.'" [Emphasis in original.] State v. Taylor, 735 S.W.2d 412, 415 (Mo.App. 1987), quoting State v. Wing, 455 S.W.2d 457, 464 (Mo. 1970), cert. denied, 400 U. S. 1009 (1971). The fact that there was evidence of other incidents when defendant subjected S. C. to sexual acts demonstrated his motive and his intent. The state relies on language in State v. Kilmartin, 904 S.W.2d 370 (Mo.App. 1995), in its argument that there was evidence of forcible compulsion. It is appropriate to note, however, that although Kilmartin addressed what constitutes forcible compulsion for purposes of committing the offense of forcible sodomy, that issue arose because the verdict-directing instruction hypothesized factual issues that went beyond the criminal charge in the case. The defendant in Kilmartin was charged with having deviate sexual intercourse with a person less than 14 years old to whom that defendant was not married, the offense established by Section 566.060.3, RSMo Cum. Supp. 1990, rather than the offense charge by subsection 1 of that statute. In this case the offense charged is promulgated by Section 566.060.1.

(FN3) Kilmartin concluded that to determine if forcible compulsion was exerted, it is necessary to look at the totality of circumstances in the particular case. 904 S.W.2d at 373-74. Kilmartin involved an 11-year-old child who was encouraged to succumb to a series of persuasive inquires by a man who, at the time of trial, was 30 years old. The adult had amused the child by participating in entertaining activities and making continued inquiries concerning the child's willingness to participate in the act that resulted in the criminal charges. Kilmartin concluded that forcible compulsion was exerted that was sufficient to overcome the child's reasonable resistance. The actions in Kilmartin included threats, repeatedly asking the child's consent to the point that the requests became demanding. This occurred when the defendant was alone with the child in the house the defendant controlled and dominated. Kilmartin concluded its facts were "near the outer limits as to what constitutes forcible compulsion." 904 S.W.2d at 374. Unlike in Kilmartin, there are no facts in this case of persuasion or force. Defendant appeared while S. C. was sleeping. He initiated the sexual act while she slept. Defendant's actions caused her to awaken. There was no evidence of forcible compulsion, as Section 556.061(12) defines that term, before or after S. C. awoke. The other definition of forcible compulsion for purposes of the offense in question is "[a] threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of himself or another person." Section 556.061(12)(b). There is no evidence that defendant's act was accomplished in this manner. Defendant's appeal is well taken. The evidence was not sufficient for the trier of fact to have reasonably found defendant guilty of the offense charged. The judgment of conviction must be reversed and defendant discharged. As in State v. Daleske, 866 S.W.2d 476 (Mo.App. 1993), the question of whether defendant may now be prosecuted for a different offense is not before this court. That issue is left to the sound judgment of the prosecuting officials of the jurisdiction in which this case arose. The case of State v. O'Brien, 857 S.W.2d 212 (Mo. banc 1993), may assist in evaluating that issue. The judgment of conviction is reversed. Defendant is ordered discharged. Footnotes: FN1.References to statutes are to RSMo Cum. Supp. 1991, unless stated otherwise. FN2.J. C. was asked if there were occasions, other than the one when defendant told her he was taking her temperature, during the same month when he penetrated her vagina with his fingers. She answered, "Yes." She was then asked how often it happened after the occasion she mentioned "with the temperature taking." She said it happened but she could not remember how often. FN3.The text of the statute is the same in both the 1990 Cum. Supp. and the 1991 Cum. Supp.

Separate Opinion:

The principal opinion is soundly reasoned, and I concur in it. I write separately, as did Judge Crow in State v. Keeler, 856 S.W.2d 928, 931 (Mo.App. 1993), to express chagrin that reversal results because of the State's failure to analyze its evidence and file a charge the evidence will support. Why the prosecutor chose to undertake the burden of proving forcible compulsion--an impossible task on the evidence here-- defies explanation. See State v. Palmer, 822 S.W.2d 536, 541 (Mo.App. 1992). State v. O'Brien, 857 S.W.2d 212 (Mo.banc 1993), is cited in the principal opinion as an aid to the State in deciding if Niederstadt may be prosecuted for a different offense. In that regard, Section 556.037, RSMo 1994 is also instructive, i.e., it provides that "unlawful sexual offenses involving a person seventeen years of age or under must be commenced within ten years after commission of the offense."(FN1) Footnotes: FN1.Section 556.037 was amended in 1997 so that it now provides: "The provisions of section 556.036, to the contrary not withstanding, prosecutions for unlawful sexual offenses involving a person eighteen years of age or under must be commenced within ten years after the victim reaches the age of eighteen." This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.