State v. Corwin

Decision Date20 August 2009
Docket NumberNo. SD 29422.,SD 29422.
Citation295 S.W.3d 572
PartiesSTATE of Missouri, Respondent, v. Jacob Montgomery CORWIN, Appellant.
CourtMissouri Court of Appeals

Melinda K. Pendergraph, Columbia, for Appellant.

Chris Koster, Atty. Gen., and Terrence M. Messonnier, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Jacob Montgomery Corwin ("Appellant") appeals his conviction following a jury trial for the unclassified felony of attempted forcible rape, a violation of section 566.030.1 Having waived jury sentencing, Appellant was sentenced by the trial court to ten years in the Missouri Department of Corrections. He asserts three points of trial court error. We affirm.

Viewing the evidence in the light most favorable to the jury's verdict, State v. Withrow, 8 S.W.3d 75, 77 (Mo. banc 1999), the record reveals that on the evening of May 13, 2006, K.H. ("Victim"), a sophomore at Missouri State University, invited Appellant to join her and her friends at Harpo's Restaurant and Bar in Springfield, Missouri.2 Appellant arrived at the bar and spent time with Victim and her friends. Victim described herself as being "friendly" toward Appellant and they had several conversations that evening. At some point in time while they were at Harpo's, Appellant began getting "touchy" with Victim by kissing the back of her neck. Victim related at trial that Appellant's actions made her uncomfortable. Victim also stated that she was consuming alcohol that evening and, although she was not intoxicated while at Harpo's, she was "feeling" the effects of the alcohol.3

Some time before midnight, Victim invited Appellant to join her and her friends at another bar and the group went to Jordan Creek. There Appellant tried to dance with Victim but she backed away from him and did not dance with him. She testified that Appellant's attempt to dance with her made her uncomfortable, but she was not alarmed by his behavior. Victim stated at trial that she had several more drinks while at Jordan Creek and estimated she had consumed at least five rum and Diet Cokes as well as five shots of liquor that evening. She felt that when she left Jordan Creek she was "slightly" intoxicated.

Around 1:00 a.m. or 1:30 a.m., a sober driver from Victim's sorority transported Victim, Appellant, and several other people back to the university's campus. Appellant lived alone in a dormitory about a block down the street from Victim's sorority house. Victim testified that Appellant told her there was a party in his dormitory that night and Victim decided to go with Appellant to the party while the rest of the vehicle's passengers went to the sorority house. Once inside the dormitory, Victim discovered there was no party but she, nevertheless, went with Appellant to his room. Victim testified she planned on going back to the sorority house at that time but decided to spend the night in Appellant's room. Victim stated at that point she was moderately intoxicated and could feel the effects of the alcohol, but she did not feel like it affected her ability to perceive the events that followed.

While Appellant was in the bathroom, Victim, who was fully clothed, climbed into the only bed in his room and went to sleep. At some point thereafter Appellant got into bed with Victim and attempted to kiss her on the mouth. Victim pushed Appellant away and told him she just wanted to go to sleep. When Appellant, again, tried to kiss Victim she got out of bed and went to the bathroom. While Victim was in the bathroom, Appellant removed his own pants. When she returned to the bed and laid back down, Appellant tried to more forcefully kiss her. Victim told Appellant to stop and that she did not want to kiss him. Appellant then "swung his body on top of [her]." Victim testified that he was holding her down with his arms on her shoulders and she "actually started to get scared...." She related he kept trying to kiss her and was saying things to her like "`I've wanted to do this for so long; you don't know how much I like you....'" Appellant "somehow ... pulled [her] pants [and underwear] off [her], just ripped them kind of ..." and Victim began "moving all around" in an effort to get away from Appellant. Victim told Appellant to "please stop" and told him that if he did not stop she was going to scream as loud as she could. When he did not let her go, she then screamed. Appellant responded by saying "`[n]o one can hear you; no one cares.'"4

Victim continued "squirming all over the place" and Victim and Appellant somehow fell from the bed onto the floor. Once on the floor, Victim was in the "fetal position kind of and he was just pinning [her] down." She related she then said to him, "`[p]lease don't do this; I don't know why you're doing this," and Appellant responded by saying, "[i]f you don't let me do this, I'm going to break every single bone in your body." Victim then stated she "kind of gave up, and [she] was kind of preparing [her]self for whatever was going to happen." She stated she again said to Appellant that she did not know why he was doing this to her and "all of a sudden he just got off of [her]."

At that point, Victim "immediately got up and started to run for the door, but [Appellant] was already standing at the door and wouldn't let [her] leave." She related she was crying and Appellant told her he would let her leave if she promised "not to tell anyone about this." He then told her to get her "shit" and leave his room. Victim put her clothes back on and "ran out" of his room to the elevator. She related she was scared and crying when she left the building to walk back to her sorority house.5 Once back at her sorority house, her friends called the police and they responded to interview Victim. After being interviewed by the police, Victim was taken to the hospital by her friends. Victim had an injured left thumb and some visible red marks on her arms, legs, and hip which turned into bruises the following day.6

At some point later in the evening Appellant went to Ms. Leaver's apartment to talk to her. After speaking with Ms. Leaver in her bedroom, Ms. Johnston told Appellant to leave and related to him that she was going to call the police about what she overheard on the telephone. Appellant said he would do it for her and called the police himself.7

When the officers arrived at Ms. Leaver's apartment, Appellant told them that he and Victim "were getting hot and heavy and then he stopped." Appellant was then arrested and transported to jail. When interviewed at the jail, Appellant again told officers that he and Victim had been out drinking that evening and ended up making out in his room. He said Victim then told him "no" and he was upset, but he stopped what he was doing. Appellant denied assaulting or attempting to rape Victim.

A trial was held on January 29, 2008, and February 1, 2008. Appellant did not testify on his own behalf. At the close of all the evidence, the jury found Appellant guilty of the crime charged and he was later sentenced by the trial court to ten years imprisonment. This appeal followed.

In his first point relied on, Appellant asserts the trial court plainly erred in sustaining the State's objection and in denying Appellant's request to admit "Exhibit A," which was "a printout of [Victim's] Facebook entries in which she admits drinking, having a rough night and unexplained bruises...." Appellant argues his rights were violated by the trial court's ruling because Victim

repeatedly minimized the amount of alcohol she drank, the effect of the alcohol on her ability to perceive and observe events. She suggested she did nothing to lead [Appellant] to believe she was interested in him. She `guessed' she got her bruises from the struggle with [Appellant]. [Victim's] Facebook showed that she engaged in reckless, drunken behavior and had bruises to prove it, relevant to impeach her testimony that she was not drunk, her alcohol use did not affect her ability to perceive things and to test her knowledge of how she got the bruises on her body.

As part of his defense strategy, Appellant tried to suggest there were alternative sources for Victim's injuries including the notion that she might have fallen down while intoxicated and bruised herself. On cross-examination, Victim's testimony in relation to the bruises she sustained was that she was "guessing" that her bruises were the result of her struggle with Appellant. Despite this concession, Appellant's counsel then asked Victim if there were other occasions when she had gone out drinking and received bruises of unknown origin and she replied she did not know. In support of his theory and in an effort to impeach Victim, Appellant attempted to have several pages of Victim's Facebook profile admitted into evidence. One of the entries on Victim's Facebook page, which was written by Victim to a friend on February 5, 2007, stated: "I didn't pass out I just took a little cat nap to get me through the night! I feel A LOT better now th[a]n I did when I first woke up ... it was a pretty rough night and I have the bruises to prove it." In addition to the previous entry, Appellant also attempted to have other entries admitted into evidence which referred to drinking and partying by Victim as well as references to sex and several pictures of Victim drinking and dancing with young men. An offer of proof was made by Appellant;8 however, the State's objection to this evidence was sustained.

At the outset, it is important to note that although this allegation of error was argued before the trial court and an offer of proof was made by Appellant's counsel, this allegation was not included in Appellant's motion for new trial. We note that in order to preserve such issues for appeal in a jury tried case the issue must be presented in a motion for new trial...

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