State v. Berry, 10977
| Decision Date | 11 January 1980 |
| Docket Number | No. 10977,10977 |
| Citation | 593 S.W.2d 254 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Billy R. BERRY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Gail L. Fredrick, Forsyth, for defendant-appellant.
Defendant was charged with the rape of a 23 year old woman. He waived jury trial. After a trial before the circuit judge, defendant was convicted and sentenced to twelve years in prison. § 559.260, RSMo 1969.
On the evening of August 30, 1977, the prosecutrix was with her boyfriend in downtown Branson, Missouri, when they were approached by defendant and his two brothers. She and her boyfriend had just moved to the area, but knew them slightly. They were talking when two men in a car stopped and asked the five of them if they would like to ride around. They drove around for about two and one-half hours. All but the prosecutrix were drinking. Then one of defendant's brothers told the driver to stop in front of a house in Branson. Apparently no one was in the house at that time. The three brothers, the prosecutrix, and her boyfriend got out of the car. She can walk only with the aid of crutches. One of the defendant's brothers carried her inside the house and sat her on the davenport and sat down beside her. Defendant, his other brother and the boyfriend also entered the house. The brother who carried the prosecutrix started making sexual advances toward her. When she resisted, he carried her into the kitchen. While this was occurring, defendant struck her boyfriend and threatened him. She was struck in the kitchen and threats made there to hurt her boyfriend. Defendant prevented her boyfriend from leaving the house, apparently to get help, while his two brothers had sexual intercourse with her. Then he had intercourse with her.
Defendant raises two points on appeal: 1. that the evidence was insufficient to establish that he had intercourse with prosecutrix against her will or without her consent, and 2. that the testimony of the prosecutrix on the use of force was contradictory and uncorroborated, and therefore insufficient to sustain a conviction. Defendant contends that as there was no evidence that the defendant hit the prosecutrix, threatened her, or used force against her, her testimony that the intercourse was against her will is contradictory and uncorroborated. As the argument under both points is essentially the same, we consider them together. In determining if the evidence is sufficient to support the charge, the evidence and all favorable inferences must be considered in the light most favorable to the state and all evidence and inferences to the contrary disregarded. State v. Buffington, 588 S.W.2d 512, 514 (Mo.App.1979); State v. Sherrill, 496 S.W.2d 321, 323 (Mo.App.1973).
When defendant had intercourse with prosecutrix she did not resist further and he did not then threaten her or hit her. She had earlier been hit by his brother and defendant had hit her boyfriend. The brothers had threatened to hurt him. She testified that they did the acts without her consent, due to physical abuse and fear for herself and her boyfriend. Intercourse not resisted because of fear is not with consent. State v. Davis, 557 S.W.2d 41, 43 (Mo.App.1977). Lack of consent may be established by a showing of actual force or that the victim submitted through fear induced by violence or threats of violence. State v. Boone, 519 S.W.2d 27, 29 (Mo.App.1975). While there...
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State v. Harding
...circumstances in common experiences as to be unconvincing. State v. Cooper, 673 S.W.2d 848, 849 (Mo.App.1984). See, State v. Berry, 593 S.W.2d 254, 255 (Mo.App.1980). In the present case, there is sufficient evidence to support a finding that appellant committed robbery, kidnapping and sexu......
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State v. Naasz
...of actual force or a showing that the victim submitted because of fear induced by violence or threats of violence. State v. Berry, 593 S.W.2d 254, 255 (Mo.App. S.D.1980).9 "Intercourse which is not resisted because of fear is not consensual." State v. Hannett, 713 S.W.2d 267, 271 (Mo.App. T......
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State v. Miller, WD 30995.
...when the underlying facts are juxtaposed with the prevailing case law of this state. Judgment affirmed. All concur. 1 State v. Berry, 593 S.W.2d 254, 255 (Mo.App. 1980), and State v. Davis, 557 S.W.2d 41, 43 (Mo.App.1977), are examples of cases applying the same legal rationale. Also, it is......
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State v. Hannett, WD
...of actual force or a showing that the victim submitted because of fear induced by violence or threats of violence. See State v. Berry, 593 S.W.2d 254 (Mo.App.1980); State v. Davis, 557 S.W.2d 41, 43 The victim testified that her state of mind upon seeing the pistol was fearful. She obviousl......