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678 S.W.2d 834

State v. Munoz

Missouri Court of Appeals

Decided July 24, 1984

Missouri Court of Appeals · decided 1984-07-24

Relies on State v. Raspberry · State v. Burnett · State v. Brown

Good law ✅— No negative treatment on recordhow we know

Decided 1984-07-24

How this case has been cited

Cited by 7 later decisions — most recently April 2012

7 state decisions

301984199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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DOWD, Judge.

¶1Appellant Ramon Munoz was found guilty by a jury and was convicted of sodomy in violation of § 566.060 RSMo 1983 Supp. He was sentenced to fifteen years’ imprisonment. We affirm.

¶2On December 28, 1982, appellant was living in St. Louis with his wife and her two minor sons. That evening, appellant sodomized the nine year old son. The evidence was overwhelmingly against appellant: The mother took her son to Cardinal Glennon Hospital where a physician discovered that the child had a rectal injury consistent with a sexual assault. A criminalist with the St. Louis Metropolitan Police Department performed several tests on the underpants worn by the child at the time of the incident. The tests revealed semen stains in the rear area of the underpants. Further tests revealed that the stain was deposited by a “Type A secreter;” the appellant is a “Type A secreter.” The child is a “Type O secreter.”

¶3The sole issue on appeal arises as a result of statements made by the prosecuting attorney during closing argument. He referred to appellant as a “monster” and called sodomy a “nasty crime.” Appellant contends that the trial court committed error when it allowed these statements to be made during closing argument.

¶4The appellant relies on plain error since no objection was made below. In the first place, if the remarks resulted in such an inflammatory and prejudicial error, it seems certain that an objection would have been made at trial. Furthermore, a statement in closing argument will rarely affect the substantial rights of a defendant so as to result in plain error. State v. Brown, 528 S.W.2d 503, 505 (Mo.App.1975). Although a prosecutor should not apply unbecoming names to a defendant, State v. Burnett, 429 S.W.2d 239, 246 (Mo.1968), not every instance of improper argument requires a mistrial or a new trial. State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970). Courts have held that such name-calling, while ill advised, is not prejudicial, especially where there is evidence to support such a characterization. State v. Mayfield, 562 S.W.2d 404, 412 (Mo.App.1978). Thus, cases in which the defendant was called such names as “young punk,” “lying thief,” “desperado,” “hoodlum,” “drunken killer,” and “pimp” have been reviewed by *836our courts and have not resulted in reversal. See State v. Poole, 556 S.W.2d 493, 495 (Mo.App.1977). After reading the text of the closing argument, we do not find that the appellation given by the prosecutor to the appellant in context of the entire argument was “so offensive or of such gravity as to have impaired defendant’s fundamental right to a fair trial.” Cloud v. State, 507 S.W.2d 667, 669 (Mo.App.1974). Nor do we find the characterization of sodomy as a “nasty crime” unduly prejudicial to the appellant. Thus, no plain error occurred.

¶5Judgment affirmed.

REINHARD, C.J., and CRIST, J., concur.
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