State v. Badakhsan, 50337

• Decision Date: 07 October 1986
• Docket Number: No. 50337,50337
• Citation: 721 S.W.2d 18
• Parties: STATE of Missouri, Respondent, v. Amin BADAKHSAN, Appellant.
• Court: Missouri Court of Appeals

Page 18

721 S.W.2d 18

STATE of Missouri, Respondent, v. Amin BADAKHSAN, Appellant.

No. 50337.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 7, 1986.

Application to Transfer Denied Jan. 13, 1987.

Norman London, John C. Pleban, London, Greenberg and Pleban, St. Louis, for appellant.

William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM.

Defendant was charged with four counts of forcible rape. Section 566.030.1 RSMo.Cum.Supp.1984. The authorized punishment for this subsection is life or a term of not less than five years. The charged crimes are class "B" felonies. See, MAI-CR 20.02, notes on use No. 3. Defendant appeals conviction of all four counts of the class "A" felony of forcible rape aggravated by subjecting the prosecuting witness to sexual intercourse with more than one person. Section 566.030.2 RSMo.Cum.Supp.1984. Defendant was tried jointly with a co-defendant. A third defendant became ill during trial and was severed from the case. All three were indicted separately and joined on motion of the State. The jury fixed punishment at ten years on each count and defendant was sentenced accordingly. Because of the nature of the charges the sentences must be served consecutively. Section 558.026.1 RSMo.Cum.Supp.1984; Adams v. State, 688 S.W.2d 401, 402 (Mo.App.1985).

We agree with defendant's claim of error that the convictions were for crimes not charged. The error is jurisdictional. We are required to reverse and remand for a new trial. State v. Nolan, 418 S.W.2d 51, 54-55 (Mo.1967). The sentences are void judgments. "[D]ue process requires that a defendant may not be convicted of an offense not charged in the information or indictment." State v. Smith, 592 S.W.2d 165, 168 (Mo. banc 1979); State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1970).

Section 566.030 RSMo.1978 was amended in 1980. Under the 1978 version rape was described as a class "B" felony unless elevated to a class "A" felony by alleging either the occurrence of serious physical injury or use of a deadly weapon. The 1980 amendment readopts serious physical injury or deadly weapon and adds, ".. or subjects the victim to [intercourse] with more than one person ..". Prior to the amendment the state could charge and describe rape as a class "B" felony, punishable under § 558.011.1(2) RSMo.1978 (amended in 1982) or a class "A" felony punishable under § 558.011.1(1) RSMo.1978. Prior to the 1980 amendment the state was also required to plead serious physical injury or display of a deadly weapon in a threatening manner to allege class "A" rape. MACH-CR 20.02 (January 1, 1979). The additional allegations elevated the crime to a class "A" felony. MACH-CR 20.02, Notes on Use No. 3. No amendment to MACH-CR 20.02 has been ordered by the Supreme Court since the 1980 amendment to § 566.030.

In the present case, the charges on all counts were as follows:

"The Grand Jurors of the County of St. Louis, State of Missouri, charge that the defendant in violation of Section 566.030, RSMo. ACTING WITH OTHERS, COMMITTED FELONY FORCIBLE RAPE, PUNISHABLE UPON CONVICTION UNDER SECTION 566.030, RSMo, IN THAT ON OR ABOUT WEDNESDAY, FEBRUARY 22, 1984, BETWEEN 1:30 A.M. AND 2:00 A.M. AT 8833 WRENWOOD, BRENTWOOD, IN THE COUNTY OF ST. LOUIS, STATE OF MISSOURI, THE DEFENDANT HAD SEXUAL INTERCOURSE WITH [COMPLAINANT], TO WHOM DEFENDANT WAS NOT MARRIED, WITHOUT THE CONSENT OF [COMPLAINANT] BY THE USE OF FORCIBLE COMPULSION."

This indictment does not allege under which class of felony defendant is charged. It does not allege the aggravating circumstance of multiple men. It is not possible to determine that the range of punishment is a minimum of ten years as provided for class "A" aggravated rape. The only punishment mentioned in § 566.030 is for rape under subsection 1 which is not aggravated. The punishment for rape under subsection 2 is found in § 558.011.1(1) RSMo.Cum.Supp.1984.

To be sufficient, an indictment must contain all the essential elements of the offense as set out in the statute to clearly apprise the defendant of the facts constituting his offense. State v. Gilmore, 650 S.W.2d 627, 628 (Mo.1983). If these elements of the offense are missing from the indictment, they cannot be supplied by intendment or implication. Id. Finally, jury instructions must be based on the specifics of the crime as set forth in the indictment. State v. Church, 636 S.W.2d 703, 705 (Mo.App.1982). Thus, when a crime may be committed by any of several methods, the information must charge one or more of those methods and the methods submitted in the verdict directing instructions must be among those alleged in the indictment, State v. Shepard, 442 S.W.2d 58, 60 (Mo. banc 1969). In order to submit a class "A" felony to the jury it must be pleaded as a class "A" felony. The state may not convict of a crime not charged. State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1971); State v. Bolden, 494 S.W.2d 61, 65 (Mo.1973); and State v. White, 431 S.W.2d 182, 186 (Mo.1968).

The state argues that the indictment is sufficient because it alleges "acting with others". This view is flawed in that the class "B" felony of rape may also be charged on that basis. The phrase "acting with others" merely notifies the defendant that he is or may be criminally liable for acts of another because of his participation. It does not address the additional element required to elevate the crime to a higher class.

The state also contends that the finding of aggravation relates only to punishment and does not indicate two different crimes. This argument fails for two reasons. First, the crime of rape is not the same as aggravated rape. They are of different class with different punishments and we determine sufficiency of charge on the basis of whether defendant was sufficiently notified of what crime is charged. Second, even if the state were correct that the additional element under § 566.030.2 RSMo Cum.Supp.1984 goes only to punishment, it still must be alleged. Both matters of aggravation, State v. Nolan, 418 S.W.2d 51, 54-55 (Mo.1967) [use of deadly weapon in first degree robbery], and matters that enhance sentence, § 558.021(1) RSMo.Cum.Supp.1984, must be pleaded. In the present case the distinction between rape and aggravated rape includes a different penalty. The failure to allege the aggravating element of rape by more than one man is fatal and the trial court was without power or jurisdiction to impose sentence for aggravated rape, a class "A" felony, based on a guilty verdict for that crime. Nolan, 418 S.W.2d at 55. The issue is not subject to waiver. State v. Couch, 523 S.W.2d 612, 614 (Mo.App.1975).

Under the circumstances we are compelled to hold that the variance between the crime charged and the crime found requires a new trial. They are separate crimes with separate punishments. State v. White, 431 S.W.2d at 186 (Mo.1968).

We address some of defendant's remaining points which are likely to arise upon retrial and have some merit. We need not rule on these issues.

In his second point defendant argues that if the class "A" rape based on "multiple men" is charged then three of four counts should be dismissed because they constitute multiple punishments for the same act thus placing defendant in double jeopardy of prosecution for the same offense. In essence, defendant argues that the legislature intended that those who subject another to "sexual intercourse with more than one person" shall be held to have committed but one criminal offense, regardless of how many others also take part and commit acts of rape. No authority has been cited and we find none deciding this issue. We look to the cardinal rule of statutory construction which requires us to ascertain the true intention of the legislature, giving reasonable interpretation in light of legislative objective. Collins v. Director of Revenue, 691 S.W.2d 246, 251 (Mo. banc 1985).

The element of multiple men added to § 566.030 by amendment in 1980 was apparently intended to punish gang rape situations. Under the circumstances of this case, where four separate acts occurred and each perpetrator was one of three men, the state would clearly be permitted to charge each of the three defendants with four counts of forcible rape, class "B". This is so because each defendant allegedly had intercourse with complainant, with whom they were not then married, without her consent and by use of forcible compulsion.

We also decide that the state may choose to charge each defendant with four counts of class "A" rape in that each defendant acted with his co-defendants in subjecting the complainant four times to sexual intercourse with more than one person. This includes the original episode of intercourse because it was part of contemporaneous events. Missouri follows the "several offense" rule whereby a defendant can be convicted of several offenses arising from the same set of facts without subjecting him to double jeopardy. State v. Childs, 684 S.W.2d 508, 511 (Mo.App.1984). Generally rape is not a continuing offense, but each act of intercourse constitutes a distinct and separate offense. State v. Dennis, 537 S.W.2d 652, 654 (Mo.App.1976). Where the events are all contemporaneous and the first crime was committed under circumstances such that a jury could find that intercourse by a second man was part of a common purpose or intent, then the first defendant shall be punished as surely as the last. We reject an argument that the first act of rape, where multiple acts involving multiple men occur, could only be a class "B" rape. Just as "it cannot be held that a man who has raped a woman may again assault and ravish her with impunity," Dennis, 537 S.W.2d at 654, neither may many men gain that advantage so as to excuse the first actor from punishment for aggravated rape.

In his third point defendant asserts that the trial court committed plain error in using the term "serious...