State v. Belcher, 16070

• Decision Date: 16 January 1991
• Docket Number: No. 16070,16070
• Citation: 805 S.W.2d 245
• Parties: STATE of Missouri, Respondent, v. Randy BELCHER, Appellant.
• Court: Missouri Court of Appeals

Page 245

805 S.W.2d 245

STATE of Missouri, Respondent, v. Randy BELCHER, Appellant.

No. 16070.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 16, 1991.

Motion for Rehearing or Transfer to

Supreme Court Denied Feb. 5, 1991.

Application to Transfer Denied April 9, 1991.

Kenneth C. Hensley, White, Allinder, Grate & Hensley, Independence, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

HOGAN, Judge.

By indictment presented March 9, 1988, a grand jury charged defendant Randy K. Belcher with kidnapping in violation of § 565.110, RSMo 1986, assault in the first degree in violation of § 565.050, RSMo 1986, and armed criminal action in violation of § 571.015, RSMo 1986. A jury found the defendant guilty on all three counts and assessed his punishment at imprisonment for 15 years for kidnapping, 15 years for first-degree assault, and 400 years for armed criminal action. The defendant appeals. We affirm.

The defendant's victim, a fourteen-year-old female to whom we shall refer as K., was at her home near Rushville about 4:00 p.m. on September 29, 1987. K. lived with her mother, her stepfather, and her brother John. The defendant's mother owned a residence next door. While K. and her brother were watching television, defendant's father, Robert Belcher, came to the door and asked John to help him locate a piece of wood that he, Robert Belcher, had lost from his truck earlier in the day. Shortly thereafter the defendant appeared at K.'s residence and asked her to help him with a broken water pipe. K. went next door with the defendant. After K. got inside the defendant's residence, the defendant locked the door and told K. he had lied about the plumbing. The defendant told K. "not to worry ... and that [they] were just going to go party for a couple of days and then [K. would be] back home." The defendant was smoking something; K. thought it was "crack."

Robert Belcher returned in a short time and joined K. and the defendant. The defendant showed K. a "little black box" which is referred to in the transcript as a "stun gun." K. was told the defendant would use the "stun gun" if she "tried to run or scream or tried to get away." The defendant and his father then put K. in the back of a pickup truck which had been fitted with a camper shell. K. could not see where she was being taken, but the pickup was driven some distance and was stopped at a house. K. was taken to a bedroom and told to lie down. After she had been in the house about an hour, defendant and his father put K. back in the truck. The defendant and his father then took K. to a motel room. K. was told to go into the bathroom and wait. When K. came out of the bathroom, the defendant had attached a VCR and a video camera to the television set. The defendant's father was not then present. The defendant told K. to sit on a bed, and informed her that they "were going to get high and ... have a little bit of fun, then [she] could go home." The defendant then began smoking his pipe, and required K. to inhale whatever substance was in the pipe.

The defendant then required K. to disrobe and recorded her actions with the video camera. The defendant then took several polaroid pictures of his victim lying nude on the motel bed. K. was then required to go to the bathroom and take a shower. The defendant followed K. into the shower where he touched her breasts and genitals and made her touch his penis. After the two got out of the shower, the defendant "put [K.] on one of the beds and made [her] have sex with him." He also forced K. to commit an act of oral sodomy upon him. Subsequently, the defendant's father returned, defendant left, and while the defendant was gone his father raped K. twice.

The following morning, September 30, 1987, the Belchers obtained another automobile. Some time after noon the defendant's father took K. to this automobile, "put [her] in the back seat and ... made [her] scrunch down." The defendant drove for about 15 minutes and then pulled onto a dirt road. The defendant and his father forced K. into the trunk of the car. After they had driven the car for another 30 minutes, the Belchers stopped again. K. was, in her words, "pulled out of the trunk." As she looked around, K. realized that she was close to her home, which was near the Missouri River.

The Belchers started to push K. into the river, but K. "started to scream" and promised she would tell no one what had happened. K. was put back in the trunk, and the Belchers drove about for two, possibly three, hours. They stopped at a different location on the river, and K. was again "pulled out" of the trunk. One of the Belchers "spray[ed] something in [K.'s] face." Whatever the spray was, it hurt K.'s eyes and made her face numb. The Belchers finally pushed K. into the river. The water helped K. recover her vision and she began to get out of the river. Defendant's father extended his hand, told K. "it was a mistake that [she] fell in" and offered to help her get out of the water. As the senior Belcher was helping K. out of the water, she noticed he had a metal pipe in his hand. Belcher hit K. with the pipe. She was stunned but did not go under the water. Instead, she floated out into the river. She then "turned around" and saw the defendant "pointing a gun right at [her]." The defendant fired several times; K. believed one of the shots grazed her. K. then swam as far as she could under water. When she finally resurfaced, K. "turned around and looked and neither of [the Belchers] were looking at [her] any more, they were walking back towards the car." K. then swam down the river to a tower which she recognized as being close to her house. She was eventually able to get out of the river and to a farm home, where she found some one to help her. Other facts will be noticed in the course of the opinion.

The defendant has briefed and argued eight assignments of error in this court. His point V, slightly paraphrased, is that the trial court erred in refusing to grant his motion in limine and in failing to sustain his numerous objections to evidence of other crimes. We have doubt that this point is properly preserved for review. Some time before trial, the defendant filed a motion in limine seeking to exclude all evidence or testimony "of other crimes committed in other counties." Otherwise, the defendant sought to exclude what he called "evidence of drug usage and drug paraphernalia" and "certain statements, testimony and undercover investigation of Robert Belcher in connection with charges pending against him ... for the solicitation of the murder of [K.]." Some time prior to trial the court took up this motion and others the defendant had filed, but concluded that the matters addressed by the motions in limine could be considered immediately prior to the trial. Several preliminary matters were ruled on immediately prior to trial, but we are not directed to any specific ruling on the motion in limine just quoted.

During K.'s direct examination, she was asked about the defendant's use of a bottle pipe; she replied that the pipe offered in evidence appeared to be the pipe defendant used to smoke what she described as "crack." At this point, counsel for defendant reminded the trial court that a motion to exclude evidence of other crimes had been filed and asked that "the record show a continuing objection." The court replied that it didn't believe it could grant a continuing objection and counsel was instructed to object at the time evidence of other crimes was offered. Counsel agreed.

Subsequently the State introduced evidence and elicited testimony indicating that the defendant had committed several crimes other than those with which he was charged. Some of the evidence to which objection is now made was received without objection; other evidence, e.g., the "stun gun," was received over the defendant's objection. Generally, it is true that in order to preserve an objection raised by motion in limine to exclude evidence, the defendant must object at the time the evidence is offered. This is true because a trial court's ruling on a motion to exclude or suppress evidence is, in a sense, interlocutory. The real damage is not done until the evidence is introduced or otherwise brought to the attention of the jury. A court can and sometimes does change its ruling on the basis of information received after the motion in limine is ruled upon. State v. Howell, 524 S.W.2d 11, 19 (Mo. banc 1975); State v. Brown, 749 S.W.2d 448, 451 (Mo.App.1988); State v. Simpson, 718 S.W.2d 143, 147 (Mo.App.1986). However, a discussion of the function of a motion in limine to exclude evidence and the necessity of a contemporaneous objection is not called for in this case. We are convinced that the evidence to which the defendant now objects was admissible.

As a general rule, a criminal defendant has a right to be tried only for the crime or crimes with which he is charged; the admission of evidence of other offenses unrelated to the cause on trial infringes that right because the admission of evidence of the commission of other crimes may result in a conviction actually based upon crimes of which the defendant is not accused. State v. Shaw, 636 S.W.2d 667, 671 (Mo. banc 1982), cert. denied 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982); State v. Trimble, 638 S.W.2d 726, 732 (Mo. banc 1982). There are exceptions, however, and our courts have consistently held that evidence of other crimes is admissible to prove the crime charged when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial. State v Shaw, 636 S.W.2d at 672; State v. Reese, 364 Mo. 1221, 1226, 274 S.W.2d 304, 307 (Mo. banc 1954). In this...