State v. Urban

796 S.W.2d 599, 1990 Mo. LEXIS 82, 1990 WL 131966

• Court: Supreme Court of Missouri
• Decided: September 11, 1990
• Docket: No. 72282
• Status: Published

Opinions

BLACKMAR, Chief Justice.

The defendant was convicted of child abuse by means of photographing, in violation of § 568.060, RSMo 1986, reading as follows:

1. A person commits the crime of abuse of a child if he:

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(2) Photographs or films a child less than seventeen years old engaging in a prohibited sexual act or in the simulation of such an act or who causes or knowingly permits a child to engage in a prohibited sexual act or in the simulation of such an act for the purpose of photographing or filming the act.

2. As used in this section “prohibited sexual act” means any of the following, whether performed or engaged in either with any other person or alone: sexual or anal intercourse, masturbation, bestiality, sadism, masochism, fellatio, cunnilingus, any other sexual activity or nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction.

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He appeals, raising numerous points of error. The Missouri Court of Appeals, Western District, sitting en banc, reversed the conviction by a vote of 6 to 5. The case was transferred here by the certificate of a dissenting judge, asserting conflict with several cases. We take the entire case as on initial appeal and do not find it necessary to determine whether there is conflict. We conclude that the defendant’s claim of double jeopardy is well taken and reverse on that issue alone. So concluding, we find only minimal discussion of the facts necessary.

The defendant is a professional photographer. The charges have to do with 33 color pictures, in two rolls, taken and developed at the same time, showing the defendant’s wife and her grandson, aged 15 months, in various unclad poses. Although the defendant had the equipment for developing the pictures, the rolls were delivered to a commercial developing facility, which reported to the public authorities. The prints and negatives then came into possession of the police.

Trial commenced on a second amended information and was submitted on two counts against the defendant as follows (emphasis supplied):

COUNT I: In violation of Section 568.-060, RSMo, committed the Class C felony of abuse of a child, punishable upon conviction under Sections 558.011.1(3) and 560.011, RSMo, in that on or between the 1st day of April, 1986, and the 30th day of April, 1986, in the County of Boone, State of Missouri, the defendant, acting in concert with Patsy J. Urban, photographed ... a child less than seventeen years old, engaging in the simulation of a sexual act, to-wit; ... touching Patsy J. Urban’s vaginal area, and

COUNT II: In violation of Section 573.-025, RSMo, committed the class B felony of promoting child pornography in the first degree, punishable upon conviction under Section 558.011.1(2) and 573.025.2, RSMo, in that on or between the 1st day of April, 1986, and the 30th day of April, 1986, in the County of Boone, State of Missouri, defendant, acting in concert with Patsy J. Urban, knowing its content and character, photographed child pornography consisting of ... touching the breasts of Patsy J. Urban, and all against the peace and dignity of the State.¹

The jury found the defendant guilty under Count I, recommending a sentence of one year, and not guilty under Count II. The trial court granted a new trial on Count I. The trial judge did not file a formal opinion stating reasons for this latter ruling, but the substance of his conclusions can be gleaned from the colloquy reported in the transcript as follows (emphasis supplied):

MR. WOLFF [counsel for the defendants].

It seems to me that for the Court to grant the Motion for New Trial and to deny the Motion for Judgment of Acquittal would be irreconcilable. The issues in the ease which make the count for which she (sic.) was convicted because it didn’t state a crime would call for an acquittal more so than it would call for a Motion for New Trial. If the court agreed with the reasoning as to why the new trial should have been given, then that would have been the basis for a judgment of acquittal as opposed to a Motion for New Trial.

THE COURT

... I know what you’re saying about judgment of acquittal. I hear what you’re saying, but that’s not the basis for the Court ruling what it did....

On Count I in the David Urban case and Counts I and II in the Patsy Urban case, I think it’s possible for the prosecutor to charge correctly. Whether the prosecutor can charge correctly is another matter....

Which doesn’t mean that the prosecutor may not be able to state all the elements of the offense, I don't know. They should have that opportunity if they — I would put it this way, if there is not an Amended Information filed, a Motion to Dismiss would be well taken at that -point.

******

... My whole point in this case, Mr. Wolff, to put it very simply to you is I do not believe that the use of the information charged the way it did in the instructions is a valid way of submitting the case. I permitted the case to go to the jury. I always have the opportunity to correct what I think is a mis-submission of the case.

... Up to this point I’ve assumed the State would correct the Information and that he would not stand with what I call a roving commission using the charge “sexual activity.” I think they have to get within the meaning of the statute.... I’m going to give them the opportunity because I’m very mindful of the fact that the state will have the right to appeal once I do dismiss this case and I intend for it to be in a posture that when it goes up in their appealing the dismissal there be a clean record. I’m going to give them every opportunity in the world to get the Information in the correct form. If they can’t do it, then I’m going to dismiss the case.

The court then sustained the motion for new trial on Count I and granted the prosecution five days to file an amended information. The operative portion of the “third amended information” then filed charges that the defendant violated § 568.060, RSMo 1986, by:

acting in concert with Patsy J. Urban, knowingly photographed ..., a child less than seventeen years old, engaging in nudity depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction. (Emphasis supplied).

The defendant was afforded a preliminary hearing on this third amended information.² Trial proceeded before a different judge, without a jury. The parties agreed to submission on the evidence taken at the first trial. The defendant was found guilty and sentenced to three years’ imprisonment.

The defendant claims that the continued prosecution is barred under the double jeopardy clauses of the federal and state constitutions. Our state constitutional provision (Article I, Section 19) is more limited than the federal and could apply only to Count II, as to which the defendant was acquitted. We conclude, however, that the federal constitutional claim has merit, particularly in the light of the recent decision in Grady v. Corbin, - U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

In Grady, following an automobile accident, the driver was charged with reckless driving and driving while intoxicated. Before he was brought to court on the charges, the victim died. The defendant then pleaded guilty to the pending charges and paid a fine. The New York Court of Appeals held that he could not be prosecuted for manslaughter and the Supreme Court of the United States affirmed, holding that he could not be again tried on charges arising out of the identical conduct that had been the subject of the guilty pleas. The court pointed out that the state intended to prove the very same conduct charged in the proceedings in which the guilty pleas were entered, the driver’s recklessness and intoxication, to support the manslaughter charge. That holding clearly applies to the case before us, in which the record of the first trial was used in the second and the state introduced no additional evidence. The defendant was charged in both trials on account of the same conduct, this being the taking of the photographs.

We of course recognize the rule that a defendant who is found guilty and asks for a new trial cannot plead double jeopardy when tried again. Although a motion for new trial was filed, and the trial judge purported to sustain it, it is clear that the judge was of the opinion either that Count I did not state an offense,³ or that the evidence did not support the charges made. Otherwise there would be no basis for dismissal, which he said would follow if the information were not amended.⁴ Clearly the court was not willing to permit a new trial on the information as it then stood.

Being of the views he indicated, the judge should have terminated the first proceeding either by dismissing the remaining count or by entering judgment of acquittal. If the information did not state an offense, the court had no jurisdiction to proceed.⁵ If the evidence was not sufficient to support the verdict, then the defendant was entitled to judgment of acquittal, and the state was not entitled to proceed with a new trial.⁶ The trial court’s ruling effectively terminated the first trial. Rule 23.08 permits amendment of an information only before verdict. The state, as the trial court recognized, could have appealed.⁷ Its failure to do so, and its election to file a further amended information, operated as an abandonment of Count I of the initial proceedings.⁸ This Count I, then, must be treated as though it had never been filed.

The dissent argues loudly and at length that Count I was properly charged and supported by the evidence, so that dismissal by the court would be improper. We do not need to decide this question, and do not decide it. Instead of abiding the dismissal and appealing, the prosecution filed a new information setting forth different charges, thereby abandoning Count I. There was, then, no effective charge to support a new trial.

The allegations of the third amended information, even though laid under the same statute, constitute a substantial departure from the charges in the first trial. The substance of the third amended information could have been included in the initial charges, because it involved different statutory violations arising out of the same conduct. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Under Grady v. Corbin, the charges of the third amended information could not be the basis for an additional prosecution, once the initial prosecution for the same conduct terminated. Treated as a new proceeding, as it must be, the second trial is barred by principles of double jeopardy, inasmuch as the first trial resulted in a verdict and final judgment was entered on one count of that verdict. It makes no difference whether the first trial resulted in a conviction, as in Grady, or, as here, in an acquittal. Under Grady the state may not prosecute the defendant seriatim for the same conduct by employing different statutory alternatives.

The dissent is predicated on the mistaken assumption that a judge in a criminal case has the same authority that a judge in a civil ease has — to vacate a judgment and permit the filing of an amended pleading after trial. The trial judge apparently took the same erroneous view. This procedure is not known to Missouri criminal procedure. By filing the amended information the state abandoned the existing prosecution and commenced a new one. This was quite in order, so long as the bar of double jeopardy could be overcome.

We are not called upon to, and do not, express an opinion as to what the situation would be if a defendant had been found guilty on one or more counts of an information, without any acquittal, and all convictions had been set aside because of insufficiency of the information. There it could be argued that vacation of the conviction or convictions on the defendant’s motion did not subject the defendant to such jeopardy as to preclude further trial on amended charges. Cf. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977). Nor would our holding apply to a case in which there had been an acquittal of one count and conviction on another properly joined count that was then set aside for trial error, with a new trial being held on the same charge. In that situation the state should be entitled to proceed to judgment on each count properly stated and joined. Here it is patent that the defendant was in jeopardy of the charges in Count II. Because that count and the present charges depend on identical conduct, Grady v. Corbin applies to prevent the processing of an additional charge.

We believe that the second prosecution also runs afoul of the holding of State ex rel. Westfall v. Campbell, 637 S.W.2d 94 (Mo.App.1982), which we approve. There the court quoted several cases for the proposition that

if a statute makes criminal the doing of ... several things disjunctively, there is but one offense, which may be committed in different ways....

Id. at 97. It also held that

under the double jeopardy doctrine, the state cannot split a single crime and prosecute it in separate parts; ... otherwise the state could prosecute the defendant as many times as there are parts into which an offense is susceptible of being divided.

Id.

There the defendant had received a stolen collection of rare coins. He was tried and convicted of transferring a portion of the coins. He was then discovered to be in possession of the balance of the collection, and was charged with receiving stolen property by retaining the remaining coins. The state conceded that he had received all of the coins at the same time. The trial court dismissed the second proceeding on double jeopardy grounds and the court of appeals refused to disturb the ruling. The case is manifestly like the one before us, in which the state has presented multiple charges, in different proceedings, all based on photographs taken and developed together.

The question before us is not whether the state may impose cumulative punishments. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), teaches that the legislature may prescribe cumulative punishments for different aspects of the same conduct, if it so intends. That case involved a single trial on several counts of a single information. Different considerations are involved when the state tries to prosecute the same conduct in separate trials. In addition to Campbell and Grady, see State ex rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989).

The state cites State v. Bolen, 731 S.W.2d 453 (Mo.App.1987), which held that a defendant could be charged in the same trial with sodomy and attempted sodomy, so that a conviction of the latter offense could stand even though there had been an acquittal of the sodomy charge. The case is distinguishable because it involved a single trial rather than successive trials.

Our holding is dispositive of the case, and so we do not need to consider the numerous additional points raised by able counsel. Suffice it to say that the state would face numerous additional hurdles. We of course refrain from considering constitutional challenges to statutes when other points suffice for decision. That is the situation here. Nor is there any need to consider the sufficiency of the evidence to support conviction, which is the turning point of the court of appeals opinion.

The judgment of conviction is reversed and the case is remanded with directions to enter judgment of acquittal.

ROBERTSON, HIGGINS and COVINGTON, JJ., and SEILER, Senior Judge, concur. RENDLEN, J., dissents in separate opinion filed. HOLSTEIN, J., dissents and concurs in separate dissenting opinion of RENDLEN, J. BILLINGS, J., not sitting.

1 . The statute reads in pertinent part as follows:

1. A person commits the crime of promoting child pornography in the first degree if, knowing its content and character, he photographs, films, videotapes, produces, publishes or otherwise creates child pornography, or knowingly causes another to do so.

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2 . The third amended information was later modified, in immaterial respects, by affidavit.

3 . The sufficiency of the information was challenged by motion before trial, at the close of the plaintiffs case, and at the close of all the evidence.

4 . The dissent suggests that we intimate that the evidence was insufficient. We have no occasion to express an opinion on this point. We do observe that the trial court thought that there should be a dismissal. The only grounds we can fathom for such a ruling would be insufficiency of the information or insufficiency of the evidence.

5 . State v. Harrison, 276 S.W.2d 222 (Mo.1955); State v. Gladies, 456 S.W.2d 23 (Mo.1970). State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983), appeal after remand 697 S.W.2d 172 (Mo. banc 1985); cert. denied 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986).

6 . Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Mo.R.Ct. 27.07.

7 . §§ 547.200, 547.210, RSMo 1986.

8 . Rule 29.14, dealing with proceedings following the arresting or setting aside of a judgment, clearly demonstrates that a new prosecution is necessary. The rule deals with the circumstances in which the defendant may be further detained.