dissenting.
I respectfully dissent.
The majority erroneously treats Urban’s conviction as though barred by the double jeopardy provision of the United States Constitution and, in so doing, reverses the trial court’s judgment and orders defendant acquitted.
This case involves a defendant who, in concert with his wife, arranged a disgusting photographic session, displaying an infant child, while nude, engaged in various offensive poses and repugnant activities with a nude adult woman. The 33 photographs and the testimony tell the story with deplorable clarity that the infant child was directed and posed by the adults who employed a variety of props to accomplish their aims, including marshmallows, a rubber ball and a small dog. Defendant photographed these graphic tableaus, contrary to the criminal statutes of our state, which included two particularly egregious acts for which he was charged and tried before a jury in April, 1987. The charges tried to the jury were in two counts.
COUNT I — “ABUSE OF CHILD”
Section 568.060, RSMo 1986, proscribes filming a child less than seventeen years of age engaging in prohibited sexual activities or the simulation of such an act for the purpose of photographing the act. The specific allegations of the information were:
... the defendant, acting in concert with Patsy J. Urban, photographed A.G., a child less than seventeen years old, engaging in the simulation of a sexual act, to-wit: A.G. touching Patsy J. Urban’s vaginal area, ...
(Emphasis added.)
That charge was submitted to the jury by instruction in the format of M.A.I. — CR 2d 22.12.2, which in pertinent part provided:
If you find ... the defendant photographed A.G. engaging in the simulation of the sexual act of touching Patsy J. Urban’s vaginal area; and
Second, that A.G. was then less than seventeen years old, then you will find the defendant guilty under Count I of abuse of a child. (Emphasis added.)
The jury found defendant guilty and the record reveals abundant evidence supportive of the verdict. The majority, by down playing the record, insinuates the evidence perhaps did not support submission of the case and, in so doing, casually refers to the situation as photographs “showing the defendant’s wife and grandson, aged 15 months, in various unclad poses.” This skillful understatement would be of little moment were it not followed by the assertion that the trial judge, when sustaining the motion for new trial as to Count I, “was of the opinion either that Count I did not state an offense or that the evidence did not support the charges’’ (Emphasis supplied.) Opinion, pages 601-602.
With the purpose of hopefully avoiding the necessity of attaching 33 vivid colored photographs introduced in evidence, suffice it to say that no reasonable person could suggest these photographs are other than disgusting exhibitions of a woman with an infant manifesting a studied intention of the woman and the photographer to infringe the rights of this small child. Further, I challenge the majority to dispute the fact that one of the photos served as the precise basis and proof of the charge of photographing a child “engaging in the simulation of the sexual act of touching Patsy Urban’s vaginal area.” This was the specific proof of the key element of the charge under Count I. The offending photograph graphically depicts Patsy Urban with legs spread, her private part displayed to the camera and laughing (or at least mouth agape) as the child enacts this sad *605performance. This and the other photos are piously characterized by defendant as the grandmother and grandson “engaged in playful activity before the child’s afternoon bath.” If there was a “bath,” the photos of that scene are not of record; it exceeds the bounds of credulity to suggest that defendant’s preposterous excuse be deemed plausible. The evidence supports the allegation of the information’s first count and its submission under the referenced instruction.
The majority states that the trial judge when he “purported to sustain” the motion for new trial “was of the opinion either that Count I did not state an offense or that the evidence did not support the charges made.... 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,” citing Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The majority misses the mark by a substantial margin when it suggests the possible application of the holding in Burks v. U.S., for indeed, the charge was specific, the proof precise, and the verdict of guilt on Count I fully justified by the record.
The trial court’s comments made when granting a new trial on Count I expressed concern centered on the instructions and the allegations of the information. He perceived what he characterized as a “roving commission” and though his somewhat rambling comments1 at the time he set aside the verdict are less than models of clarity, the fact remains that he set aside the conviction, granted a new trial and allowed the state five days to replead. It is apparent the uncertainty he expressed was not shared by the jury. More important, the sufficiency of the information and the efficacy of instructions under Count I are questions of law. I submit they were proper in form and content, and the majority does not seem inclined to dispute this conclusion. Most certainly, on the retrial of the issues raised in the amended information, the photograph of the nude child touching the vaginal area was not barred by double jeopardy doctrine. The state was given five days to refile an information; this was done and the newly amended information charged:
the defendant, David L. Urban, acting in concert with Patsy J. Urban: 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, knowingly photographed [A.G.], 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; and all against the peace and dignity of the State. (Emphasis added.)
Having waived a jury, defendant was tried this time by the court, and again found guilty under the allegations of the amended information.
COUNT II — “PROMOTING CHILD PORNOGRAPHY”
The second charge submitted to the jury under Count II of the information in April, 1987, fell under a different statutory section which prohibits “Promoting Child Pornography.” Under Section 573.025, RSMo 1986, a person commits the crime of promotion of child pornography if he knowingly photographs child pornography, and here the information charged:
... the defendant, acting in concert with Patsy J. Urban, knowing its content and character, photographed child pornography consisting of [A.G.] touching the breasts o/Patsy J. Urban, and all against the peace and dignity of the State. (Emphasis added.)
*606That specific charge was submitted to the jury by the appropriate instruction which in pertinent part provided:
... the defendant photographed certain material consisting of [A.G.] touching the breasts of Patsy J. Urban, and
Second, that such material depicted sexual contact, and, ... (Emphasis added.)
Here, too, the record discloses more than ample evidence supporting this count’s submission. There were 19 explicit photographs depicting the key element of the charge of “touching the breasts” in a variety of unseemly poses. As aptly noted by the dissent of Judge Lowenstein, who disagreed with the reversal of the conviction by the 6-5 margin in the Court of Appeals, Western District, when commenting on the facts of the case under the applicable statute: “I cannot imagine the legislature intended to allow or condone naked infants to be photographed munching sweets off their naked grandmother’s nipples. The judgment should be affirmed.” Nevertheless, the jury acquitted the defendant on this charge and it may not be retried.
The acquittal terminated the charge under § 573.025 (Count II), but as noted above, the amended information was filed within five days from the order granting the new trial on Count I. The amended information was brought under the same statutory section as that of Count I though the operative feature of the offense was nudity, vis-a-vis touching the vaginal area in the original information. Defendant was convicted in the ensuing trial on April 14, 1988, and from that conviction, he appealed.
The majority mistakenly relies on Grady v. Corbin, - U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), for the proposition that the new trial was barred by double jeopardy doctrine. In that case, Corbin, following involvement in an auto accident, was charged in case # 1 with “driving while intoxicated.” He was separately charged in case # 2 with “failing to keep to the right” of the median. Defendant pled guilty to both misdemeanor charges. Thereafter, the state by indictment charged Corbin with assault and reckless manslaughter in which the gravamen of the charges were (1) driving while intoxicated (the same as case # 1); (2) failing to keep to the right of the median (the same as case #2); and (3) driving too fast.
The majority of the court made clear that the indictment for matters arising from the auto accident was not per se prohibited by double jeopardy considerations, but instead only that conduct for which defendant had been put in jeopardy, i.e., (1) intoxicated driving, and (2) failing to keep to the right, and that evidence of this conduct was impermissible. However, as to the new charge of driving too fast, the holding of Corbin would not bar a subsequent prosecution on that ground. As stated by Justice Brennan, author of the 5-4 majority opinion, the Corbin holding would not stand in the way of a later prosecution on the new charges of homicide and assault if the evidence as to the (1) intoxication and (2) not keeping to the right was not relied on by the state; however, evidence of (3) driving too fast may be adduced and could serve as the evidentiary base for the new trial. This is clearly enunciated by the majority at 110 S.Ct. at 2087:
This holding would not bar a subsequent prosecution on the homicide and assault charges if the bill of particulars revealed that the State would not rely on proving the conduct for which Corbin had already been convicted (i.e., if the State relied solely on Corbin’s driving too fast in heavy rain to establish recklessness or negligence). (Emphasis added.)
In the case sub judice, we have two original charges under separate statutes each with discrete proof of its identifiable act of misconduct. Examining this evidence, it should be reiterated that proof of Count I (touching of the vaginal area) is found in photograph # l.2 This was properly admit*607ted in the first trial resulting in defendant’s conviction from which the new trial was ordered. No possible objection based on double jeopardy considerations could exclude it in the new (second) trial and this offensive photo shows Patsy Urban and A.G. nude in the manner described and accordingly was material to the issues in the amended information.
As to Count II (touching the breasts), nineteen photographs (# 2 through # 20) were admitted in the first trial depicting this specifically charged act of misconduct. Defendant’s acquittal on this count would seem to serve as a basis for objection to and refusal of photos # 2 through # 20 in a subsequent trial.3
The amended information charging as its essential act of misconduct the photographing of the child “engaging in nudity” is depicted in photographs # 21 through # 33. These 13 separate photos are evidence of “nudity” and solidly analogous to the evidence of “speed” in Corbin. As in Corbin where the prior conviction of (1) intoxicated driving and (2) not keeping to the right excluded evidence of those acts, exhibits # 1 and # 21 through # 33 are not barred by double jeopardy considerations. If the trial court erred in allowing # 2 through # 20, this is an evidentiary error and its prejudicial effect should be weighed. Keeping in mind the case was court tried, if the admission of # 2-# 20 is deemed erroneous and prejudicial, the cause should be remanded for consideration of the other evidence, sans # 2 through # 20 or, at the most, reversed and remanded for a new trial with directions to exclude # 2 through # 20 in any subsequent proceeding.
. Among his comments, the trial court remarked: "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. That’s what I'm doing.” (Emphasis supplied.)
. For ease of understanding, the 33 objectionable photographs in the counts to which they relate are as follows:
Count I
Photograph # 1 [Exhibit 10-0]
*607Count II
Photographs ##2-20 [Exhibit 10 D-G, 10 I-L, 10 N, 10 Q, 10 S, 12 N-U]
Amended Information
Photographs ##1 + 21-33 [Exhibit 10-0, 10 A-B, 10 H, 10 M, 10 O-V, 10 X, 12 L-M, 12 V-X]
. Arguably, the evidence of photos #2-# 20 could be admitted in the second trial charging photographing of the child nudity depicted for the purpose of sexual stimulation or gratification because photos # 2-# 20 taken serially over a space of time display vulgar nudity and would be relevant to that fact issue as well as the issue of defendant’s "knowing” what he was photographing and the "purpose” and intent for so doing. Under Louis Steinbaum Real Estate Co. v. Maltz, 247 S.W.2d 652 (Mo.1952), evidence admissible for one purpose is not necessarily excluded because it is inadmissible for another purpose. Id. 656.
Similarly, evidence of "other crimes” though typically inadmissible may be shown in a proper case to demonstrate motive, intent or the common scheme exceptions. State v. Kornegger, 255 S.W.2d 765, 768 (Mo.1953) (Court noting this exception is frequently recognized for "crimes involving sexual relations such as adultery, incest, sodomy, seduction, rape and lewdness.”).