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William L. Webster, Atty. Murray, Asst. The defendant, Joseph A. Ek, Jr. He raises three points on appeal. The defendant claims error because the court admitted two photographs of his stepdaughter T. Defendant was charged with forcible rape and sexual abuse in the first degree. He was acquitted of the rape charge. A third count of abuse of was dismissed before trial. The defendant began living with the victim J.

It was the state's testimony that in the early winter months of , when she was nine years of age, the defendant began to pat J. The defendant told the victim it was their little secret and she should not tell anyone. This conduct continued for about two weeks. One night the defendant took her to his bedroom and had sexual intercourse with her. Afterwards he forced her to perform oral sex on him. The defendant subjected the victim to sexual intercourse over the course of the next two or three years.

During this time the defendant took various photographs of J. When J. When confronted with this accusation the defendant broke down, crying; "Well, I don't know why I have to have this problem when everybody else is normal. The fact which gave rise to the sexual abuse charge was a specific incident witnessed by Kay Creason in November Creason went to the defendant's home on an errand, and as she stepped onto the porch, she observed through a window in the door the defendant lying on a couch fully clothed, with J.

The defendant had his hands on the victim's buttocks. Creason knew both the defendant and the victim. When she knocked on the door J. The defendant straightened himself up and went to the door. In his first point, the defendant charges the court erred by allowing two photographs in evidence of the defendant's stepdaughter not the victim which depicted her in the nude.

The defendant objected to these exhibits claiming they were too remote in time to be probative and that they were evidence of other crimes and did not fall within any of the exceptions. Before the photographs were offered in evidence, J. The following testimony, on direct examination by the state, was given by J. A: There were some pictures of middle-aged women, about 25, And there were some pictures of little girls. In addition to J.

A careful review of the transcript shows no objection to the descriptive testimony by J. Both witnesses viewed these photographs, located in a chest of drawers, where they were found by the sheriff. When the photographs were received in evidence, they were cumulative evidence on the point of defendant's photographing his nude stepdaughter.

It is not error to admit normally inadmissible evidence over objection when the evidence is cumulative. State v. Richardson, S. Bailey, S. Carey, S. Umfleet, S. See also State v. Williams, S. In Williams, S. The objection was overruled. On appeal, the court denied relief because the defendant had failed to object earlier to a picture of the contents of the locker seized in the illegal search. To the same effect, the photographs in this case were merely duplicative of the oral testimony, which was received without objection.

The defendant's objections to these photographs were waived by the witnesses' oral testimony of the same nature without objection. Defendant cannot complain of the admission of the photographs where evidence of the same tenor was received without objection.

The point is denied. We accept as true all evidence tending to prove the defendant's guilt and all reasonable inferences supporting the verdict. Dagley, S. All evidence to the contrary is disregarded. The state offered the testimony of Ms. Creason to prove the "sexual contact. Creason's credibility, but that is not an issue before this court. It is the jury's responsibility to evaluate a witness' credibility and the weight to be given to her testimony. As a general rule, the decision of the jury on this issue is not subject to review by this court.

Creason testified that when she approached the home of the defendant in November of , she observed the following:. A: I saw Joe [Ek, the defendant] laying backward, kind of leaning back on ain a lying position, andon the couch, and [the victim] straddled him, nude. Q: Could you show the jury what he was doing with his hand when you looked through the door and saw what was going on? A: I kind ofWell, when it happened, I was just kind of astonished, you know. I was just really shocked. And Joe got up and straightened himself and came to the door. Defendant claims this testimony failed to show a touching, either directly or through the clothing, of either J.

In State v. Edwards, S. Her mother testified the child had pointed to the area between her legs when asked where she had been touched. Eastin, S. The evidence in this case showed the victim was on top of the defendant, straddling him, and the evidence is such that their pelvic regions touched, albeit through their clothing, and that the defendant had his hands on the victim's buttocks. This evidence is more than sufficient to prove sexual contact within the meaning of the statute.

See State v. Seemiller, S. For his final point, the defendant argues the state failed to produce the defendant's telephone records after a proper request for them had been made. We first address a related matter not raised on appeal, but which is troublesome to us. Our concern is with the means used by the prosecutor's office to obtain these records. The prosecutor obtained the records by issuing a subpoena duces tecum pursuant to the provisions of Rule It was addressed to a phone company employee and set forth the style of the criminal case. The subpoena directed the individual to bring the following:.

The subpoena duces tecum was ed by the court clerk and deputy clerk and displayed the court seal. It gave every appearance of a proper subpoena duces tecum except that it ordered the records to the prosecutor's office and the information of the place, time and date of the deposition was left blank. The subpoena itself proves it was not the purpose of the prosecutor to notify the other party or to take the witnesses' deposition. This was an ex parte discovery request. The purpose of Rule Engberg, S. McQueen, S. Rule The procedure used here was improper.

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