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September 8, 1992


Appeal from the Circuit Court of St. Charles County. Hon. David A. Dalton, Judge

Gary M. Gaertner, Presiding Judge, Smith, J., Stephan, Jr., J., concur

The opinion of the court was delivered by: Gaertner

Appellant, Edward Albert Newman, appeals his conviction from the Circuit Court of the County of St. Charles of three counts of sodomy, RSMo § 566.060 (1986); one count of deviate sexual assault in the first degree, RSMo § 566.070 (1986); and two counts of indecent exposure, RSMo § 566.130 (1986). Additionally, appellant appeals from a denial of his Rule 29.15 motion following an evidentiary hearing. We affirm in part, remand in part.

During 1988 and 1989, appellant served as acting chaplain, recruiting officer and public affairs officer of the Civil Air Patrol (CAP) in St. Charles County. At no time during his service with CAP did appellant's duties require him to provide uniforms to the young boys involved in the organization. In April of 1988, fourteen year old T.W. attended a CAP meeting. At this gathering, appellant asked T.W. to try on some of the uniforms in a storeroom. None of the uniforms fit. Appellant, using a tailor's measure, proceeded to measure T.W.'s arms and the inside of his legs as T.W. stood in his underwear. While measuring, appellant's hand went inside TW.'s underwear, touched his genitals, and lingered there for a short time. Appellant then proceeded to measure the other leg. T.W. did not report the incident, thinking it may have been an accident.

In September or October of 1988, S.F., a thirteen year old CAP member, stopped by appellant's trailer to drop off a newspaper article concerning the organization. Appellant requested that S.F. try on a couple of CAP uniforms. Although S.F. asked to use the bathroom for changing, appellant insisted S.F. use appellant's bedroom. When the pants did not fit, appellant brought out a tape measure, measuring the inside of S.F.'s thighs a number of times. In so doing, appellant's knuckles moved inside S.F.'s underwear and against his genitals. Shocked and embarrassed, S.F. backed away and quickly left the room saying he heard his mother calling. S.F. did not report the incident at that time.

A few months later, in January of 1989, appellant contacted twelve year old M.L., a new member of CAP, to schedule a CAP-required, one-mile run. Appellant picked up M.L. and drove him to St. Charles West High School for the run. Although appellant told M.L. that other cadets would be running, no one else showed up. M.L. completed his mile, then accompanied appellant to his trailer for a soda. Upon arriving at the trailer, appellant asked M.L. to try on some of the CAP uniforms. M.L. asked to use the bathroom for changing, but appellant insisted he use the bedroom. After the first pair of pants did not fit, appellant pulled out the tape measure. While measuring M.L.'s inseam, appellant slid his hand under M.L.'s underwear touching his genitals. M.L. told appellant to stop. After squeezing M.L.'s genitals, appellant picked M.L. up, held him to his chest in a bear hug, twirled him around, then threw him on the bed, pinning him face down. As M.L. screamed, attempting to struggle from appellant's grasp, appellant ran his tongue down M.L.'s bare back, turned him over and pulled M.L.'s pants and underwear down to his ankles. Appellant touched M.L.'s genitals with his tongue, stopping only after M.L. kicked him in the groin. On the drive home, appellant asked M.L. what had happened that afternoon. M.L. told appellant he had run his mile and tried on a few uniforms. Appellant informed M.L. that if anyone was told of the actual events of the afternoon, M.L.'s home would be blown up with dynamite. M.L. told no one.

The evening of February 3rd and the morning of February 4th, 1989, CAP sponsored a "lock-in" at the local Y.M.C.A. During the evening, someone locked S.F. in a locker in the locker room. Appellant showed up and released S.F. from the locker. As they were discussing the event, appellant unzipped his pants, pulled down his underwear, and exposed his penis. It was apparent to S.F. that appellant was starting to get an erection.

That same evening, M.L., allergic to chlorine, entered the locker room to shower after swimming. Appellant was in the locker room as well. Appellant suggested that M.L. remove his swim trunks to shower because of his allergy to chlorine, but M.L. refused to do so. As he was dressing, M.L. noticed appellant standing near a mirror with his pants unzipped and his penis exposed. M.L. later sought counseling and was admitted to the stress unit of a hospital for two weeks.

Thirteen year old J.D. was also a member of CAP. In March of 1989, appellant came to J.D.'s home with uniform fatigues for J.D. to try on. As J.D. entered his brother's room to try on the pants, appellant followed him. When the pants did not fit, appellant produced his tape measure and proceeded to measure J.D.'s inseam. In so doing, appellant bumped J.D.'s groin. A few weeks later when appellant showed up with more uniforms, another bout of measuring took place. Though appellant did not touch J.D. in the groin area, his hand did bump J.D. on the outside of his underwear. J.D. never reported these incidents as he didn't feel anything had happened.

In August 1989, Mary Ruth Krueger, Captain of the St. Charles CAP, asked appellant to leave CAP. Appellant continued to attend CAP functions and in September, Krueger again told appellant he was not to be involved in CAP activities. Appellant acquiesced, yet it was not until after November 1989 that he ceased appearing at CAP-related functions.

In November of 1989, M.L. informed his father of some of appellant's behavior. Appellant was charged by Information on May 1, 1990. Said information was later amended on July 24, 1990, charging appellant as a prior and persistent offender. A jury found appellant guilty of all six counts charged. On October 1, 1990, appellant was sentenced by the trial court as a prior and persistent offender to fifteen years each on the three counts of sodomy, seven years on deviate sexual assault in the first degree, and one year in the county jail on both counts of indecent exposure. These sentences were to run consecutively.

Appellant filed a timely notice of appeal, followed by his February 7th, 1991, filing of a pro se motion for post-conviction relief pursuant to Rule 29.15. An amended motion was filed on April 12, 1991, and an evidentiary hearing was held on July 30, 1991. The motion court entered its findings of fact and Conclusions of law denying appellant's motion on August 26, 1991. This consolidated appeal followed. *fn1

Appellant's first of six points on appeal alleges the trial court erred in sentencing him to consecutive sentences on the trial court's assumption these sentences must run consecutively. Appellant asserts that under RSMo § 558.026.1 (1986), the trial court had the discretion to run the sentences for multiple convictions of sex crimes concurrent to each other. Based on recent case law from the Missouri Supreme Court and this court, we agree and remand on this point for a reconsideration of sentence.

Revised Missouri Statutes § 558.026.1 states:

Multiple sentences of imprisonment shall run concurrently unless the court specifies that they shall run consecutively; except that, in the case of multiple sentences of imprisonment imposed for the felony of rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid and for other offenses committed during or at the same time as that rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid, the sentences of imprisonment imposed for the other offenses may run concurrently, but the sentence of imprisonment imposed for the felony of rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid shall run consecutively to the other sentences.

The Missouri Supreme Court found this statute to be ambiguous. Though it was clear from the statute that sentences for convictions of "rape, forcible rape, sodomy" or an attempt of one of these were required to be served consecutively to a sentence imposed for a conviction of a non-listed crime, it was not clear as to what a court should do if defendant was convicted of multiple listed offenses. Williams v. State, 800 S.W.2d 739, 740 (Mo. banc 1990). The court decided "the ambiguity must be resolved . . . in favor of according the trial court maximum discretion." Id.

Additionally, in a recent case from this court, it was determined that, under Williams, a remand was necessary where a trial court sentenced the appellant to consecutive terms for each of two attempted rape convictions. Parker v. State, No. 59230 (Mo. App., E.D. January 28, 1992, modified February 18, 1992). Although this court agreed the above sentences were "within the parameters of the statute," there was a suggestion from the record that the court may have believed the statute required him to award consecutive as opposed to concurrent sentences for the attempted rape convictions. Slip op. at 3 and 4. Thus, a remand was required to allow the trial court to assign the disputed sentences as either consecutive or concurrent, within the court's discretion. Slip op. at 4.

On the facts before us, appellant was sentenced to consecutive terms on each separate count. The trial court imposed sentence, stating "the Court believes that under the current status of the law, . . . these sentences must run consecutively to each other." Because of the recent statutory interpretations giving the court discretion in running such sentences consecutively or concurrently, this issue requires a remand. Although at least one of the sentences for sodomy must run consecutively to the sentences for the unlisted crimes, the court, in its discretion, may ...

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