State v. Brigman, WD

• Decision Date: 12 December 1989
• Docket Number: No. WD,WD
• Citation: 784 S.W.2d 217
• Parties: STATE of Missouri, Respondent, v. James D. BRIGMAN, Jr., Appellant. 41341.
• Court: Missouri Court of Appeals

Page 217

784 S.W.2d 217

STATE of Missouri, Respondent, v. James D. BRIGMAN, Jr., Appellant.

No. WD 41341.

Missouri Court of Appeals,

Western District.

Dec. 12, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 30, 1990.

Application to Transfer Denied March 13, 1990.

Sean D. O'Brien, Public Defender, David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

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

Before LOWENSTEIN, P.J., and KENNEDY and GAITAN, JJ.

GAITAN, Judge.

Defendant, James D. Brigman, Jr. was convicted by a jury of forcible rape and felonious restraint, §§ 565.120 and 566.030.2 RSMo 1986, and received a sentence of five years on the charge of forcible rape and a fine of one thousand dollars on the felonious restraint charge. The defendant appeals his conviction, contending that the trial court erred in: (1) finding sufficient evidence to support conviction; (2) permitting the admission of allegedly hearsay testimony by a State's witness; (3) giving Instruction Number Eight because it allegedly was not supported by the evidence, and (4) giving Instruction Number Seven because it allegedly failed to include an essential element of forcible rape. Judgment affirmed.

The victim testified that she traveled by train from St. Louis to Kansas City on June 13, 1987, to visit and live with her boyfriend. She arrived at the Kansas City Amtrak Station at approximately 1:30 p.m. Because her boyfriend did not know what time she was arriving, the victim proceeded to walk from the train station to the boyfriend's apartment, which was located at 40th and Main. As she walked down the street, a car pulled up and stopped beside her. A man jumped out of the vehicle, grabbed the victim and shoved her into the automobile. A second man, the driver of the car, held the victim while the first man threw her luggage into the vehicle.

The two drove the victim to a house, later identified as located at 4132 Locust in Kansas City, Missouri. During the drive to the house, the victim began screaming; her abductors ordered her to stop or they would kill her. The two men led the victim into the house. After drinking some beer, the abductors took the victim into a bedroom. She testified that the defendant held her as the other man, identified by the victim as Shawn Schuyler, raped her. Once finished, Schuyler held her as the defendant raped the victim. Following the defendant's rape of the victim, Schuyler once again raped her. The victim stated that during the time she was in the bedroom, she was ordered to keep quiet and that the two men spoke of possessing a gun. However the victim admitted that while she believed that her two abductors had a gun, she never saw it.

After the victim was raped for a third time in the bedroom, Schuyler ordered her to put on her clothes and she was taken back to the car. The victim sat between Schuyler and the defendant in the front seat of the vehicle as Schuyler drove around town, stopped for some beer at a bar, and then continued to drive around. The victim testified that the two men told her that if she made any noise, they would hurt her. After approximately one hour, the abductors drove the victim to a field located at 12900 East 99th Street. There Schuyler pulled the victim out of the car, threw her on the ground, and raped her. Schuyler and the defendant then drove away, leaving her in the field.

The victim ran down the street until she encountered a woman, Virginia Batson, outside mowing her lawn. After hearing the victim's account of the events, Batson telephoned the police. Patrol Officer, Earl Nuckolls, responded to the call. Upon arriving at the scene, Officer Nuckolls spoke with the victim, who described the events of the afternoon. After members of Crime Scene Investigations, as well as back up officers, arrived at the scene, Officer Nuckolls proceeded to take the victim to St. Luke's Hospital. On the way to the hospital, the police officer drove her around the area of 40th and Main. The victim recognized the house at 4132 Locust. Officer Nuckolls then took her to the hospital where she was examined.

Detective Marjana Rogge of the Sex Crimes Unit investigated the case. She testified that during a search of the house at 4132 Locust, the victim's luggage was found. Detective Rogge also showed the victim a photo array which included defendant Brigman's photograph. The victim identified the defendant as one of her abductors.

At trial, Kathleen Hentges, latent fingerprint examiner for the Kansas City, Missouri, Police Department testified that the defendant's fingerprints were lifted from beer bottles found at the house on Locust. Doctor Robert Ayres, the emergency room physician who treated the victim on the day of the rape, testified that in cases of rape he generally looks for bruises or abrasion on the body or on the genitals; that during his examination of the victim, he found no bruises or abrasions. However on cross-examination, Doctor Ayres stated that in the vast majority of rape cases, very little trauma, if any, is found.

Defendant Brigman testified in his own defense, asserting that he and Schuyler had picked up the victim at her own request and that he had consensual sexual intercourse with her. The defendant further claimed that the victim and Schuyler left together by themselves, and that he did not see her after that.

A.

In his first point, defendant contends that there was insufficient evidence to support his conviction. He argues that the testimony of the victim was uncorroborated; that her testimony was so contradictory and uncertain that it left the mind of the court clouded with doubt. We disagree.

In testing the sufficiency of the evidence to support the conviction, the appellate court must accept the State's evidence as true and give the State the benefit of all reasonable inferences, while disregarding all evidence and inferences to the contrary. State v. LaRette, 648 S.W.2d 96, 98 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).

A victim's uncorroborated testimony is sufficient to support the submission of charges of rape or sodomy. State v. Kuzma, 751 S.W.2d 54, 58 (Mo.App.1987). "Corroboration is not mandated unless the victim's testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is thereby rendered doubtful." State v. Harris, 620 S.W.2d 349, 353 (Mo. banc 1981). The corroboration rule does not apply where the inconsistency or even contradiction bears on a proof not essential to the case. State v. Salkil, 659 S.W.2d 330, 333 (Mo.App.1983).

Defendant alleges that the victim contradicted herself as to how many children she had; that her assertion that she came to Kansas City to live with her boyfriend was contradicted by his testimony; that there was contradictory evidence of how many beers she drank or whether she changed clothes during the afternoon of the rape; that the victim's assertion that she began to walk to her boyfriend's house, carrying three suitcases estimated to have weighed approximately one hundred and twenty pounds, was unbelievable; and that her identification of various photographs of various locations after she admitted she was unfamiliar with the Kansas City area was also unbelievable. None of the alleged inconsistencies or contradictions bore upon any proof essential to the case. State v. Edgar, 710 S.W.2d 2, 4 (Mo.App.1986). Rather, any apparent discrepancies and their explanations went to the credibility of the witness, which is an issue for the jury. State v. Harris, 620 S.W.2d at 354.

Evidence presented at trial indicated that the defendant's fingerprints were found at the Locust street address, along with the victim's luggage. The victim identified the defendant as one of her abductors. Virginia Batson, Officer Nuckolls, and Doctor Ayres testified as to the victim's distraught emotional condition. The victim testified about the threats made to her by the two men. We find that there is nothing in the victim's testimony so contradictory or uncertain as to make the testimony doubtful as to the essential proof of the offense. There was sufficient evidence to have submitted the cause to the jury and to support its verdict. Defendant's first point is denied.

B.

Defendant next contends that the trial court erred in admitting hearsay testimony of Officer Nuckolls. The officer testified that when he arrived at the Batson residence, he found the victim there, visibly shaken and crying. Over the objection of defense counsel, Officer Nuckolls gave a brief recitation of the victim's statements to him about what had just occurred.

The Court's review in matters of admission of evidence must focus on prejudice and not mere error. State v. Tyler, 676 S.W.2d 922, 924-25 (Mo.App.1984). The general rule is that it is impermissible for an officer to testify as to a victim's extrajudicial statements, State v. Nimrod, 484 S.W.2d 475, 479 (Mo.1972). However, various exceptions mitigate the general rule. Such testimony has been found to be admissible to show the course of an investigation, State v. Hill, 735 S.W.2d 117, 118 (Mo.App.1987); a victim's statement that she has been raped is admissible as an excited utterance, State v. Wilson, 719 S.W.2d 28, 33 (Mo.App.1986); see also, State v. Griffin, 662 S.W.2d 854, 858 (Mo. banc 1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984); and cumulative testimony is considered non-prejudicial if the victim is an in-court witness, subject to cross-examination and the testimony of the court witness is consistent with the hearsay statements of the same witness, State v. Tyler, 676 S.W.2d at 925.

Defendant cites State v. Seever, 733 S.W.2d 438, 441 (Mo. banc 1987), for the proposition that testimony presented in multiple forms creates an undue advantage. In Seever a videotaped...