Bass v. State

• Decision Date: 09 September 1997
• Docket Number: No. WD,WD
• Citation: 950 S.W.2d 940
• Parties: Sandra K. BASS, Appellant, v. STATE of Missouri, Respondent. 52916.
• Court: Missouri Court of Appeals

Page 940

950 S.W.2d 940

Sandra K. BASS, Appellant, v. STATE of Missouri, Respondent.

No. WD 52916.

Missouri Court of Appeals Western District.

Sept. 9, 1997.

David Simpson, Asst. Public Defender, Columbia, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Sandra Bass appeals the motion court's denial of her Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Ms. Bass claims that the plea court did not have jurisdiction to convict her of rape because, as a female, she was incapable of committing that crime. We disagree. As have other jurisdictions addressing this issue, we hold that a female may be held guilty of rape where, as here, she has aided another to commit the rape.

Ms. Bass also argues that conviction of both rape and child abuse subjected her to double jeopardy in violation of Section 556.041(3), RSMo 1986. She claims that rape differs from abuse of a child only in that rape is simply a specific instance of child abuse. We disagree, for we find that the legislature intended to authorize cumulative punishment for both rape and abuse of a child, even if based on the same act and that the offense of rape of a child is not simply a specific instance of the general offense of abuse of a child but rather constitutes a separate offense.

Finally, we reject Ms. Bass' claims that her plea counsel was ineffective in failing to request a second medical examination after an initial exam showed that she was competent. In the absence of evidence that the first exam had serious shortcomings and in the absence of evidence which would cause reasonable counsel to believe that Ms. Bass was not competent to plead guilty or be held responsible for the crimes charged, counsel was not required to seek a second mental examination. Accordingly, denial of the post-conviction motion is affirmed.

I. STATEMENT OF FACTS

Sandra K. Bass and her eleven year old daughter, Brenda, lived with Ms. Bass's boyfriend, Bobby Clark. In April or May of 1993, Ms. Bass woke her daughter and made her go into the back bedroom, where Mr. Clark was waiting in his underwear. Ms. Bass told her daughter to change into her nightshirt and physically forced her to have sexual intercourse with Mr. Clark.

Ms. Bass was subsequently charged by separate informations with the Class B felony of abuse of a child, in violation of Section 568.060, RSMo Cum.Supp.1992, and the felony of rape in violation of Section 566.030, RSMo Cum.Supp.1992. On April 6, 1995, Ms. Bass entered pleas of guilty to both charges, and on June 21, 1995, the court sentenced Ms. Bass to concurrent terms of twenty years for rape and fifteen years for abuse of a child.

Ms. Bass timely filed a Rule 24.035 motion for post-conviction relief alleging that the trial court did not have jurisdiction over the rape charge because the information was defective in that Ms. Bass, as a female, could not commit the crime of rape. The motion also alleged that Ms. Bass' trial counsel was ineffective in failing to request a second medical examination after an earlier examination indicated that Ms. Bass was fit to proceed with a guilty plea. After an evidentiary hearing, the motion court denied Ms. Bass' motion for post-conviction relief. This appeal followed.

II. STANDARD OF REVIEW

Appellate review of denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law were clearly erroneous. Rule 24.035(k); Leisure v. State, 828 S.W.2d 872, 873-74 (Mo. banc), cert. denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Leisure, 828 S.W.2d at 874.

III. FEMALE GUILTY AS PRINCIPAL FOR AIDING IN COMMISSION OF RAPE

As Ms. Bass' first point on appeal, she claims that the motion court erred in denying her post-conviction motion because the information was defective and the plea court did not have jurisdiction to convict her of rape in that, because she is a female, she could not commit the crime of rape.

Ms. Bass was charged with rape in violation of Section 566.030.3. That Section defines rape as having sexual intercourse with another person less than fourteen years old to whom the defendant is not married. § 566.030.3, RSMo Cum.Supp.1992. Sexual intercourse is defined as "any penetration, however slight, of the female sex organ by the male sex organ." § 566.010(3), RSMo Cum.Supp.1992. Although Ms. Bass correctly asserts that, because of the statutory definition of sexual intercourse, she could not alone rape another female, the State's theory was that Ms. Bass could be convicted for aiding Mr. Clark in the commission of the rape.

In Missouri, a person is criminally responsible for another's conduct if she aids or attempts to aid that other person in committing the offense. § 562.041.1(2), RSMo 1986. Missouri has eliminated the distinction between principals and accessories, and now all persons who act in concert are equally guilty. State v. Isa, 850 S.W.2d 876, 898 (Mo. banc 1993); State v. Rehberg, 919 S.W.2d 543, 552 (Mo.App.1995). Section 562.046 specifically states that it is no defense to a conviction under Section 562.041.1(2) that "[t]he defendant does not belong to that class of persons who was legally capable of committing the offense in an individual capacity." § 562.046(2), RSMo 1986. The Comment to this section when it was proposed stated:

Subsection (2) is designed to cover the situation where the individual could not be guilty of the crime on the basis solely of his own conduct but can be an accessory. For example, a husband cannot by his own conduct be guilty of raping his wife. However, if he assists another in doing the act he can be guilty as an accessory.

Comment to 1973 Proposed Code § 562.046. As authority, the Comment cites State v. Drope, 462 S.W.2d 677 (Mo.1971). The defendant in Drope was accused of assisting four men in raping his wife by tying her to the bedpost and holding a gun to her head while the rapes were committed by his companions. The defendant argued that a husband could not, under the law as it then existed, ¹ be found guilty of raping his wife.

Drope first noted that prior Missouri cases had recognized that "[o]ne not the husband of the victim can be found guilty of rape on the basis of aiding and abetting even though he does not engage in the act of sexual intercourse." Id. at 679. Drope cited, by way of example, State v. Sheard, 276 S.W.2d 191 (Mo.1955). The latter case held that a man who drove the car while his companions took turns raping the victim could be charged with the act himself on the basis that " 'all persons present aiding and abetting another in the commission of rape are guilty as principals and punishable equally with the actual perpetrator of the crime.' " Id. at 194 (quoting 75 C.J.S., Rape § 18, page 483) (emphasis added). Accord, Mikel v. State, 550 S.W.2d 863, 868 (Mo.App.1977) (because male appellant had aided his companion in the rape he could be convicted of rape, and "[w]hether or not appellant himself committed an act of penetration therefore is essentially immaterial to his guilt of rape as charged.").

Drope noted that other jurisdictions had held that this same principle permitted holding a husband liable for rape of his wife where, as here, it was the husband who assisted others in committing the rape, holding that the fact the husband could not himself commit the rape individually was essentially irrelevant. Drope, 462 S.W.2d at 680. Drope agreed, and affirmed Mr. Drope's conviction for the rape of his wife. Id.

The State argues that the same rationale applies here, and that we should hold that a female can be held guilty of rape where she aids a male in committing the rape, even though she cannot commit a rape individually. Our review of the cases cited by the parties and our own independent research reveals that those jurisdictions to address the issue have applied the rationale used in Drope and held that a female who aids another in committing a rape can herself be convicted of rape.

For example, in State v. Carter, 66 Ariz. 12, 182 P.2d 90 (1947), Christine Griffith and her live in companion were convicted of raping Ms. Griffith's fifteen year old daughter. On appeal, Ms. Griffith argued that a female could not be convicted of rape. Pursuant to a statute making any person who aids and abets in the commission of a crime guilty as a principal, ² the Arizona Supreme Court affirmed Ms. Griffith's rape conviction. Id. 182 P.2d at 92.

Similarly, in People v. Smith, 204 Cal.App.2d 797, 23 Cal.Rptr. 5 (1962), the appellant was convicted along with a male for raping the appellant's daughter. On appeal, the appellant challenged the sufficiency of the evidence, but the California Fourth District Court of Appeal noted that the appellant admitted she could be convicted for rape as a principal "on the theory of aiding and abetting, even though she could not have directly committed the act." Id. 23 Cal. Rptr. at 7.

In Commonwealth v. Whitehead, 379 Mass. 640, 400 N.E.2d 821 (1980), two females were also convicted of rape. Although they had directly committed sexual acts against the victim, the Supreme Judicial Court of Massachusetts held that they could also be found guilty as accessories for the acts of rape committed by their male companions. The court noted that one female defendant drove the car in which the crimes took place and the other joined in threatening the victim, and therefore they had aided in the commission of the rape. Id. 400 N.E.2d at 832-33.

In People v. Merfert, 87 Misc.2d 803, 386 N.Y.S.2d 559 (N.Y.Co.Ct.1976), the court denied a female defendant's motion to dismiss a rape indictment on the...