State v. Chamberlain

• Decision Date: 10 March 1983
• Docket Number: No. 12886,12886
• Citation: 648 S.W.2d 238
• Parties: STATE of Missouri, Respondent, v. John Wesley CHAMBERLAIN, Appellant.
• Court: Missouri Court of Appeals

Page 238

648 S.W.2d 238

STATE of Missouri, Respondent, v. John Wesley CHAMBERLAIN, Appellant.

No. 12886.

Missouri Court of Appeals,

Southern District,

Division One.

March 10, 1983.

John D. Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, for respondent.

Terry M. McVey, Welman, Beaton, Williams & McVey, Kennett, for appellant.

TITUS, Judge.

Defendant was jury-convicted of first degree sexual assault (§ 566.040) ¹ on his 15-year-old daughter, Faye, and in accordance with the verdict was sentenced to imprisonment for a term of seven years. Defendant appealed.

On Thanksgiving Day, November 26, 1981, defendant, his wife and their children resided in Cardwell. Faye spent the day with a relative in Arbyrd but left near 6 p.m. and went to a Cardwell home where she was told to go home immediately because her younger sister was ill.

Defendant had spent part of Thanksgiving afternoon in a Cardwell bar. Upon being advised of his daughter's illness, defendant left the bar and summoned an ambulance at 6:05 p.m. Defendant arrived home with the ambulance at 6:10 p.m. and the ambulance, carrying defendant's wife, ill daughter and two attendants, departed for a Kennett hospital at 6:20 p.m. and arrived there at 6:40 p.m.

Upon the departure of the ambulance from his home, defendant returned to the bar and borrowed the bartender's truck to provide transportation to the hospital. Unaware that Faye had returned home, defendant drove to Arbyrd looking for her. When informed Faye had gone home, defendant returned to Cardwell. This court may judicially notice the geographical location of towns in this state and the distances between them. Therefore, we note it is approximately four or five miles between Cardwell and Arbyrd. State v. Vincent, 582 S.W.2d 723, 725 (Mo.App.1979); Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d 116, 118[1, 2] (Mo.App.1975).

When defendant arrived home, Faye said she did not want to go to the hospital and a brief argument ensued before Faye acquiesced to defendant's demands. En route to the hospital, defendant stopped for gasoline three miles from Cardwell. After leaving the filling station, so Faye testified, defendant drove down a side road, stopped the truck and under his threats made her disrobe. When defendant had done likewise, he had sexual intercourse with Faye before the pair proceeded to the Kennett hospital.

The ambulance driver testified that he and his partner, who was ministering unto the sick child, remained at the hospital until 7:40 or 7:45 p.m. before leaving and that neither defendant nor Faye had arrived at the hospital before their departure. This witness also stated that traveling at the legal speed limit it would take 20 to 25 minutes to drive from Cardwell to the Kennett hospital.

Faye recounted that defendant had been having intercourse with her since she "was thirteen" but that she hadn't said anything about it, except to her female cousin, because defendant "threatened me. He said if I ever mentioned it he would either hurt me or kill me." On December 2, 1981, after she said defendant had hit her in the eye, Faye called "the hot line ... the child abuse deal" and while she did not tell of the intercourse, "I told them that he was beatin' on me and stuff." She was taken to the juvenile judge on December 10, 1981, and told him of some of the acts of intercourse committed by defendant but not all "Cause it's embarrassing to me to even talk about it."

As may be expected, defendant denied ever having had intercourse with Faye. He testified that when he insisted that she accompany him to the Kennett hospital on Thanksgiving night, she finally agreed but told defendant "I'll go but you'll be sorry." Defendant's testimony, corroborated by his wife, was that Faye and her parents were into constant arguments concerning her conduct in frequenting taverns, etc. They said they let it be known to Faye that they disapproved of her absences from home for three or four days at a time and especially objected to her having, on one occasion, spent two weeks in Mississippi with a man. Faye acknowledged she and her parents had almost daily disputes and arguments anent her deportment and that she had told defendant she hated him.

"Certain fundamental tenets guide us in our review. The appellate court does not substitute its judgment for that of the jury. In reviewing the evidence in the light most favorable to the verdict, we are to determine whether there was substantial evidence from which the jury could reasonably find the issue in harmony with the evidence. The mere fact that contradictions or inconsistencies exist in the testimony does not prevent it from being substantial evidence, for conflicts, inconsistencies and the weight to be given such testimony are for the jury to resolve.... The jury may 'believe or disbelieve all, part or none of the testimony of any witness,' ... and the testimony of a single witness despite inconsistencies may be sufficient to constitute substantial evidence." State v. Williamson, 595 S.W.2d 4, 7[1-4] (Mo.App.1979), and cases there cited. Also, in determining the sufficiency vel non of the evidence to sustain a conviction, we must review to determine if there was sufficient substantial evidence to support the jury's verdict and must consider as true all evidence favorable to the state, including all reasonable inferences that may be drawn therefrom. State v. Wade, 535 S.W.2d 492, 495 (Mo.App.1976). We also note that the "[u]ncorroborated testimony of a prosecutrix will sustain a conviction of incest or rape, and it is only where her testimony is so unconvincing and contradictory as to cloud the mind of the court with doubts that her evidence must be corroborated." State v. McElroy, 518 S.W.2d 459, 462 (Mo.App.1975).

We first consider defendant's contention that the trial court erred in failing to sustain his motion for judgment...