State v. Baldwin, 60481

• Decision Date: 12 September 1978
• Docket Number: No. 60481,60481
• Citation: 571 S.W.2d 236
• Parties: STATE of Missouri, Respondent, v. Acie BALDWIN, Appellant.
• Court: Missouri Supreme Court

Page 236

571 S.W.2d 236

STATE of Missouri, Respondent, v. Acie BALDWIN, Appellant.

No. 60481.

Supreme Court of Missouri, En Banc.

Sept. 12, 1978.

Rehearing Denied Oct. 10, 1978.

Robert C. Babione, Public Defender, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Philip M. Koppe, David L. Baylard, Asst. Attys. Gen., Jefferson City, for respondent.

FINCH, Judge.

Defendant was convicted of forcible rape, § 559.260, ¹ and of carrying a concealed weapon, § 564.610. Having been found to be subject to § 556.280 because previously convicted of a felony, defendant was sentenced by the trial court to terms of ten and two years, respectively, to be served consecutively. On appeal to the Missouri Court of Appeals, St. Louis District, the judgment was affirmed in an opinion by Simeone, C. J., ² with a dissent by Kelly, J., as to the conviction on the charge of carrying a concealed weapon. On application of defendant, we ordered the case transferred and we now decide it as though here on direct appeal. Art. V, § 10, Mo.Const. We affirm.

In his brief and in oral argument defendant contended that the trial court erred (1) in denying his motion for judgment of acquittal on Count I at the close of all of the evidence because the evidence did not support the charge of forcible rape; (2) in failing to sustain his motion for judgment of acquittal on Count II at the close of all the evidence because the State's evidence failed to prove two elements of the crime of carrying a concealed weapon, I. e., (a) that the knife was in fact a dangerous and deadly weapon, and (b) that defendant intended to use the knife as a dangerous and deadly weapon; (3) in trying the separate counts of forcible rape and carrying a concealed weapon in a single trial; and (4) in admitting testimony of a police officer that the distance between a tavern and the victim's home "took one and one-half minutes to drive" because said testimony was "irrelevant to any legal or factual issue before the trial court."

Subsequent to oral argument defendant filed a motion to set aside the submission and to be permitted to assert the additional point that the court record concerning the prior conviction, relied on as the basis for involving the Second Offender Act, was insufficient for that purpose because it did not show any motion for new trial or allocution, did not show any waiver thereof and did not show sentencing of defendant. The request to set aside the submission was denied but defendant was granted leave to file a brief asserting this additional point. The State was allowed to file an additional brief in response thereto.

I. Submissibility of Charge of Rape

The crux of defendant's attack on the submissibility of the State's case on the rape charge is directed at whether the evidence supports a finding that the carnal knowledge was by force and against the will of the prosecutrix. Generally, these issues are to be resolved by the jury except where the reviewing court can declare as a matter of law that the evidence adduced by the State was insufficient to sustain a finding of these elements of the crime. State v. Garrett, 494 S.W.2d 336, 338 (Mo.1973). In reviewing this issue of submissibility, it is the duty of the appellate court to view the evidence in the light most favorable to the State. State v. Garrett, 494 S.W.2d at 337.

Defendant complains that the State's case rested almost entirely on the testimony of the prosecutrix and that the circumstances leading up to the alleged rape suggest that corroborating testimony was necessary. The basis for this argument is that there was evidence that they had been drinking and dancing together in a bar prior to the occurrence, that they had been acquainted for about two years and that she cooperated by removing her clothing prior to the intercourse. While these are circumstances the jury may weigh in determining the credibility of the prosecutrix, the rule in this state is that a conviction in cases of rape may be had upon the uncorroborated evidence of the prosecutrix. It is only in those cases where the evidence of the prosecutrix is of a contradictory nature or, when applied to the admitted facts in the case, her testimony is not convincing and leaves the mind of the court clouded with doubts, that she must be corroborated or a judgment cannot be sustained. State v. Burton, 355 Mo. 467, 196 S.W.2d 621, 622-23 (1946).

The prosecutrix testified that when she got ready to leave the bar and walk home the defendant offered to walk home with her. Near her home she was pushed into an alley by defendant who then said to her, "I want some." She responded, "Man, you got to be kidding. Cold as it is?" There was testimony in the case that the temperature that night was 24 degrees.

Prosecutrix testified that she attempted to dissuade him by telling him that her house was warmer but he told her he was "going to get it here" in the alley, and if she didn't do it, he was going to hurt her. He kept one hand on her shoulder and the other one in his right jacket pocket. He pushed her down towards a small pile of sawdust and ordered her to pull off her coat and lie on it. She again suggested that they go up to her house, but he replied, "I'm out on the street, I will do what I want to do." She protested that she didn't want to have to lie down there but he insisted. While she removed her coat, she continued begging him not to do this, but he said, "I'm going to make it good for you. I know you ain't going to tell nobody." She said she wasn't going to tell anyone; that she knew he meant business. She was hoping that the police who usually patrol that alley might show up. Defendant tried to help her take her pants off. She pulled her clothes off and laid down naked from the waist down and the defendant engaged in intercourse. She admitted she did not "yell" or "holler" because there "wasn't no people around there in hollering range in the project" and that to "yell" for help in that neighborhood would be fruitless.

She testified that she did not consent to the act of intercourse of her own free will but because of a fear of being hurt. She explained her invitation to defendant to go to her house by testifying that she knew that her children and her 44-year-old male cousin were there and if she could get him to go there, she could be helped.

After defendant left her, she immediately ran home, where she reported what had happened to her children and her cousin, and then notified the police. The children testified that when she arrived home she was crying and looked like she had been attacked. She was upset and she had sawdust in her hair and on her clothes.

After the police arrived at her home, she related what had happened and accompanied them to the alley where she said the attack occurred. Her coat and panties were recovered there. She then accompanied the police officers to the tavern from whence she had left with the defendant and identified him for the police officers as the rapist.

In the light of prosecutrix' testimony, we conclude that corroboration of prosecutrix' testimony was not required. Instead, this case is controlled by that line of cases which hold that consent induced by fear is no consent and that the question of whether the prosecutrix submitted to the demands of the defendant charged with forcible rape because of fear of great bodily harm to herself in the event she physically resisted is a jury question. State v. Garrett, 494 S.W.2d at 338; State v. Gray, 423 S.W.2d 776, 780 (Mo.1968); State v. Beck, 368 S.W.2d 490, 493 (Mo.1963); State v. Schuster, 282 S.W.2d 553, 556 (Mo.1955); and State v. Boone, 519 S.W.2d 27, 29 (Mo.App.1975).

We conclude that the State's evidence as hereinbefore set out made a submissible case and we rule this point against defendant.

II. Submissibility of Charge of Carrying a Concealed Weapon

Defendant's second point is that his motion for judgment of acquittal on the charge of carrying a concealed weapon should have been sustained at the close of all the evidence because the State failed to make a sufficient showing (a) that the knife was in fact a dangerous and deadly weapon, and (b) that defendant intended to use the knife as a dangerous and deadly weapon.

It was argued in the dissenting opinion in the court of appeals and in defendant's application to transfer that this is a circumstantial evidence case. We do not agree. There was direct evidence that when arrested defendant had the steak knife wholly concealed in his pants pocket. There was direct evidence of defendant's threat to harm prosecutrix. In addition, there was circumstantial evidence as to possible use of that knife under the particular circumstances, including time and place that he possessed said hidden knife. Where the evidence, as here, is partially direct and partially circumstantial, it is not necessary to give a circumstantial evidence instruction and the test as to submissibility is not that of a purely circumstantial evidence case. In deciding submissibility we accept the State's evidence as true and we give the State the benefit of all reasonable inferences deducible therefrom, disregarding all evidence and inferences to the contrary. State v. Stapleton, 518 S.W.2d 292, 296 (Mo. banc 1975).

In a prosecution under § 564.610, a submissible case is made "when the state's evidence or reasonable inferences therefrom demonstrate (a) the carrying of a dangerous or deadly weapon, (b) concealed on or about the person, (c) along with an intent to so conceal." State v. Achter, 514 S.W.2d 825, 827 (Mo.App.1974). See also State v. Jordan, 495 S.W.2d 717, 720 (Mo.App.1973). These were the issues submitted to the jury in Instruction No. 7 which corresponds to MAI-CR 13.10.

Defendant does not dispute the fact that the steak knife was found concealed in his pants pocket and he does not contend that the evidence was insufficient to permit the jury to find that he intended to conceal the knife in his...