State v. Sladek

835 S.W.2d 308, 1992 Mo. LEXIS 106, 1992 WL 147086

• Court: Supreme Court of Missouri
• Decided: June 30, 1992
• Docket: 74230
• Status: Published

Opinions

WILLIAM E. TURNAGE, Special Judge.

Martin Sladek was convicted in a jury-waived trial of first degree sexual assault, § 566.040, RSMo 1986,¹ and first degree deviate sexual assault, § 566.070. The court assessed punishment at a term of seven years on each count with the sentences to be served concurrently. On appeal to the Court of Appeals, Eastern District, the conviction was affirmed, and this Court ordered the case transferred. It is now before this Court the same as if on original appeal. Art. V, § 10 Constitution of Missouri. Reversed and remanded.

Sladek is a licensed dentist in the State of Missouri and at the time of the offense was employed by another dentist. The victim was an 18-year-old girl who was employed in the same dental office as an assistant. On February 11, 1989, the victim called Sladek at his home and told him that she thought she had chipped a tooth. They agreed to meet at the dental office for Sladek to examine the tooth.

After the two met at the office the victim assembled a tray of instruments. Sladek then placed the victim under nitrous oxide plus oxygen sedation (relative analgesia). The victim testified that the nitrous oxide was strong and the gauge on the analgesia machine indicated a flow rate of 5 to 6 liters per minute of nitrous oxide and 2 to 3 liters per minute of oxygen. The victim testified that after the administration of nitrous oxide she was unable to move her arms and legs.

She testified that while she was unable to move her arms and legs Sladek forced her to perform an act of sodomy and thereafter raped her. The State produced an expert who testified that a patient under relative analgesia at a flow rate of 3.5 liters per minute of nitrous oxide to 2 liters per minute of oxygen could be unable to raise her arms or legs.

The State presented evidence from four of Sladek’s former patients who testified about his behavior toward them. One, L.G., testified she was treated by Sladek in October, 1988, while he was working in another dental office. She testified that while Sladek was working in her mouth with one hand he repeatedly placed his other hand on her breast. She stated when Sladek left the room, she pulled the tissue draped across her chest tight and crossed her hands over it, “to see if he was going to do this again.” When Sladek returned, he worked his hand underneath the tissue and began rubbing her breast with the back of his hand. When she became convinced Sladek was touching her breast intentionally, she pushed him away, and he immediately ended the examination.

Another witness, K.A., testified she was treated by Sladek at his previous place of employment in September, 1988. During his examination of the witness, she testified Sladek repeatedly rested his forearm on her breast.

The third witness, R.C., testified she was treated by Sladek in January, 1989, during which treatment Sladek placed his forearm against her breast. Following his treatment of this witness he brushed powder off of her breast with his hand. A fourth witness, S.B., testified she was treated by Sladek in January, 1989. When the treatment by Sladek proved to be too painful in her mouth, the witness decided to leave. Sladek told her the condition could remain a problem and told her to call him if it did and he would meet her at the office at any time to give treatment “even if it is 3:00 a.m.” The next day was Sunday, and Sla-dek called the witness at home four times and left messages for her to call him at home.

Sladek testified and denied any sexual contact with the victim. He also testified he had not inappropriately touched L.G., K.A., or R.C. With reference to S.B. he testified he normally called patients for follow-up.

Sladek first contends the State did not make a submissible case on either of the sexual assault charges. In a court-tried case the sufficiency of the evidence is determined by the same standard as in a jury-tried case and that is whether or not there was sufficient evidence from which the trier of fact could have reasonably found guilt. State v. Hams, 774 S.W.2d 487, 491 (Mo.App.1989). In determining whether or not there is evidence sufficient to support a finding of guilt, an appellate court may not weigh the evidence but accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and all contrary evidence and inferences are ignored. State v. Rousan, 752 S.W.2d 388, 389[1] (Mo.App. 1988).

The State was required to prove Sladek had “sexual intercourse with another person to whom he is not married and who is incapacitated ... ”, § 566.040, and he had “deviate sexual intercourse with another person to whom he is not married and who is incapacitated ...”, § 566.070.

The uncorroborated testimony of the victim in a case of sexual assault is sufficient to sustain a conviction. State v. Erickson, 793 S.W.2d 377, 384 (Mo.App. 1990). “Corroboration is not required unless the victim’s testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is thereby rendered doubtful.” State v. Harris, 620 S.W.2d 349, 353 (Mo. banc 1981). Conflict between the testimony of the victim and other witnesses does not require application of the corroboration rule. State v. Daniel, 767 S.W.2d 592, 593 (Mo.App.1989).

Sladek recognizes the above principles but contends the testimony of the victim did not constitute substantial evidence to support a finding of guilt because the court found her to be “not a good witness” and for the further reason that the court relied on evidence of other crimes in its finding. At the time of sentencing the trial court made the following statement:

The victim in this case was not a good witness. The State’s witness, the State’s expert, was destroyed by cross-examination. Defendant’s expert was a much much better witness than the State’s witness.

The testimony of [L.G., R.C., K.A.], the other three alleged victims of the misdemeanors, was crucial to the finding of guilty beyond a reasonable doubt.

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If the court is in err on [sic] permitting those three witnesses to testify, the judgment in this case should be reversed because their testimony was that important to the decision in the case.

Based upon their testimony I have found defendant guilty beyond a reasonable doubt, and I will therefore proceed with sentencing.

From his argument it is apparent Sladek confuses submissibility with the weight of the evidence. Here, the victim testified in detail about the sexual assaults. Her testimony was not such that the corroboration role was triggered and was sufficient to support the submissibility of the case.

The serious question in this case involves the propriety of the admission over objection of the evidence of L.G., K.A., and R.C. concerning Sladek’s improper touching of them. He contends this was the admission of evidence of uncharged crimes unrelated to the crime for which he was on trial. The State contends that the evidence from the other patients is admissible under the common plan or scheme exception to the general rule that evidence of uncharged crimes is not admissible. The State contends that Sladek had a common plan or scheme to make patients the target of his misdeeds.

The general rule concerning the admission of evidence of uncharged crimes was stated in State v. Reese, 274 S.W.2d 304, 307 (Mo. banc 1954):

The well established general rule is that proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. * * * Evidence of other crimes, when not properly related to the cause on trial, violates defendant’s right to be tried for the offense for which he is indicted. State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923.

The Court further stated that exceptions to the general rule are as well established as the rule itself and quoted from People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 294 (1901), as follows:

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 to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.

The Court further stated (quoting from State v. Lyle, 125 S.C. 406, 118 S.E. 803, 807 (1923)):

The test of whether evidence of other distinct crimes falls within any of these exceptions has been aptly stated as follows: “The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidently proves the defendant guilty of another crime.”

The Court further stated that evidence of other crimes could have a dangerous and misleading probative force and because of that the Court should require that the admission of evidence of other crimes be subjected to rigid scrutiny. The Court held that the reason for such precaution is that such evidence could “raise a legally spurious presumption of guilt in the minds of the jurors.” Id. at 307.

It will be noted that proof of the commission of separate and distinct crimes is not admissible unless such proof has a legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. This rule was stated in State v. Spray, 174 Mo. 569, 74 S.W. 846 (1903), as follows:

The testimony of a separate offense must have some tendency to prove the charge in the indictment. It is admissible only on the ground that it has some logical connection with the offense proposed to be proven. It is clearly not admissible on the theory that, if a person will commit one offense, he will commit another.

Further in State v. Buxton, 324 Mo. 78, 22 S.W.2d 635, 636[1] (1929), the Court held it is not enough to show that a person on trial committed one or more other crimes of the same general nature as the crime for which he is on trial. The Court held: “To be admissible, proof of the commission of another crime or other crimes must have some legitimate tendency to prove that the accused committed the crime for which he is being tried.”

In assessing whether or not evidence of uncharged crimes is admissible it is essential that the primary rule of evidence governing the admission of evidence of uncharged crimes be observed — that is, that the proof of such crimes has a legitimate tendency to directly establish the defendant’s guilt. The exceptions stated in Reese, though not necessarily all inclusive, simply state some material facts that evidence of uncharged crimes may prove. Thus, evidence of the commission of an uncharged crime may prove motive or intent or another material fact, but in any event the evidence must have some legitimate tendency to directly establish the defendant’s guilt.

The inquiry in this case is thus focused on whether or not the evidence from the other patients of Sladek has some legitimate tendency to directly establish his guilt of the charge of rape. An examination of the evidence does not reveal any tendency of such evidence to prove Sla-dek’s guilt of rape. The fact that he may have touched the breasts of three former patients would have no tendency to prove that he gave the victim in this case nitrous oxide in sufficient quantity to disable her and thereafter rape her. The most that can be said for such evidence is that it shows that Sladek may have committed a crime on each of these patients; but as held in Spray, evidence is not admissible on the theory that if a person will commit one offense he will commit another. In short, the evidence from the other patients would prove at most that Sladek had a propensity to be attracted sexually to female patients. However, evidence of propensity in this case does not suffice to supply the requisite nexus between the other crimes and the crime for which Sladek was on trial.

Reese further held that “if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected.” Id. at 307. Here, there is no clear perception of the connection between Sla-dek’s actions toward the other patients and the charge of rape for which he was being tried.

The State contends that Sladek had a common scheme or plan to exercise his authority over female patients in order to take advantage of them sexually. Even if it be conceded that such a common scheme or plan was shown, there remains the problem that there is no logical relevance in the acts toward the other patients to prove the commission of the rape.

The court of appeals affirmed Sladek’s conviction by relying on State v. Dee, 752 S.W.2d 942 (Mo.App.1988). In that case a caseworker with the division of family services was charged with forcible rape of a mother whose child was the object of DFS concern. The State introduced evidence by another mother with whom Dee had worked that Dee had told her that if she would cooperate that things would go her way, and if she did not, things would not go her way. He thereafter attempted to hug and kiss her. The court held that this evidence was not preserved for appellate review. The only evidence that the court reviewed consisted of the testimony of another mother with whom Dee worked that Dee had asked her out for a drink, which she declined, and had told her that he could take a woman like her and she would melt like butter in his hand. The court held that the evidence showed that Dee had a common scheme or plan to use his position as a caseworker to obtain sexual gratification. The court lumped the conduct of Dee with the two mothers together and held that such evidence was admissible.

The facts in this case are distinguishable from the facts in Dee. In this case there is no showing that Sladek had any authority or power over his patients as a person in the position of Dee would have over mothers whose children were under DFS supervision. Dee was in a position to make recommendations concerning the custody of the children, which could have a devastating effect on the mother. In this case, the patients of Sladek were there voluntarily, and the four former patients who testified were free to leave at any time they thought Sladek was doing anything improper. In fact, one of the patients did leave and refused to go back to see Sladek. Thus, Dee and this case are not comparable.

The evidence from the other patients of Sladek fails to meet the test that such evidence have a legitimate tendency to directly establish the guilt of Sladek. For that reason the evidence of the four former patients was not admissible and the court erred in receiving such evidence.

The question next arises of whether or not the admission of such improper evidence in a court-tried case calls for a reversal of the judgment. In State v. Leigh, 580 S.W.2d 586, 545[13] (Mo.App.1979), rev’d on other grounds Leigh v. State, 639 S.W.2d 406 (Mo.App.1982), the court stated:

In a jury-waived case a certain amount of latitude in the admission of evidence is allowed, and even where an error is made in the admission of some evidence, except where the trial court relied on that evidence in arriving at its findings of fact and conclusions of law, such error is ordinarily held to be non-prejudicial. This is so because the rules of exclusion in the law of evidence as applied in a court of law are largely as a result of the jury system and serve the purpose of keeping from the jury all irrelevant and collateral matters which might tend to confuse them or mislead them from a consideration of the real question in issue; when an action is to the court sitting without a jury, the rules of exclusion are less strictly enforced.

Here, it is obvious that the court relied on the improper evidence in reaching its decision. For that reason the admission of the improper evidence was prejudicial, and the judgment must be reversed.

The next question is whether or not this cause may be remanded for retrial. In State v. Wood, 596 S.W.2d 394, 398[1, 2] (Mo. banc 1980), this Court held that a retrial is constitutionally permissible if a conviction is reversed solely due to trial error. The State introduced sufficient evidence to make a submissible case but inadmissible evidence influenced the fact finder to reach a finding of guilt. A new trial is permissible because a reversal is necessitated by the trial error in admitting evidence of uncharged crimes.

The judgment is reversed and this cause is remanded for a new trial.

ROBERTSON, C.J., COVINGTON, HOLSTEIN and BENTON, JJ., and FENNER, Special Judge, concur. THOMAS, J., concurs in separate opinion filed. PRICE, J., not sitting because not a member of the Court when case was submitted.

1 . All sectional references are to RSMo 1986, unless otherwise indicated.