State v. Couch
| Decision Date | 29 June 1990 |
| Docket Number | No. 56120,56120 |
| Citation | 793 S.W.2d 599 |
| Parties | STATE of Missouri, Plaintiff-Appellant, v. Dwight COUCH, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-appellant.
Henry B. Robertson, St. Louis, for defendant-respondent.
The state appeals the grant of defendant's motion for judgment of acquittal notwithstanding the verdict of the jury. We reverse and remand.
Defendant was charged with four counts of forcible sodomy, § 566.060, 1 three counts of armed criminal action, § 571.015, two counts of robbery in the first degree, § 569.020, and one count each of kidnapping To determine whether to grant defendant's motion for judgment of acquittal notwithstanding the jury's verdict, the trial court was required to view the evidence and inferences in the light most favorable to the verdict and disregard all contrary evidence and contrary inferences. E.g. State v. Overkamp, 646 S.W.2d 733, 736 (Mo.1983). With the evidence so viewed, the trial court was then required to determine whether the evidence was sufficient for twelve reasonable persons to have found the defendant guilty as charged beyond a reasonable doubt. E.g. State v. Porter, 640 S.W.2d 125, 126 (Mo.1982). "A reasonable doubt is a doubt based upon reason ...," and "[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt." MAI-CR 3d 302.04; State v. Nichols, 725 S.W.2d 927, 930 (Mo.App.1987).
§ 565.110, sexual abuse in the first degree, § 566.100, and attempted forcible sodomy, § 566.060. These charges arose out of four separate attacks against four different victims. After conviction on nine of these twelve counts, 2 defendant moved for a judgment of acquittal notwithstanding the verdict. The trial court granted defendant's motion. The state appeals.
The trial court set out its analysis of the evidence and its reasons for granting defendant's motion in a written opinion. We have attached that opinion as an Appendix. We will refer to it from time to time.
Defendant argues that this court has no jurisdiction because there "has been a judgment of acquittal after jeopardy attached," which precludes further prosecution by the state. Defendant has incorrectly applied this general principle to the specific facts here.
This case was tried to a jury which found defendant guilty. The trial court then entered a judgment of acquittal. Under the United States Constitution
[w]hen a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal.... When this principal is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. (citations omitted.)
United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 1011, 43 L.Ed.2d 250, 256 (1975).
The United States Supreme Court has also stated:
the Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into " 'further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.' "
Smalis v. Pennsylvania, 476 U.S. 140, 145-146, 106 S.Ct. 1745, 1749, 90 L.Ed.2d 116, 122 (1986).
None of these circumstances is present here. Reversing the trial court's grant of defendant's motion simply requires a remand for a determination of the legal claims in defendant's motion for a new trial.
Our Missouri Constitution provides: no person "shall ... be put again in jeopardy ... for the same offense, after being once acquitted by a jury." Art. 1, § 19 (emphasis added). Again, this is not the case here.
The state's evidence included an audiotaped statement of defendant made to the police as well as the testimony of the alleged victims. Briefly summarized, in the general, nonspecific parts of his statement, defendant said he could not remember the specific dates of the incidents in question. He did remember the first incident "was in the first part of December or the last part of November." The incidents "went on for "Basically," he said, he would "drive around, pick one of them up, make a deal for some sex, basically head." He would start off "with an agreement with a hooker, and, then, the knife came out and, then, it was like, do what you are told and you won't get hurt." When asked, "what kind of knife did [he] use against the victims", he answered, "a steak knife, about 6 inches long."
a couple of months", "for eight to ten weeks."
He also described his method of operation in the following answers to questions.
Q. Did you ever force any one of them to do anything that they did not want to do or what they did not agree to do?
A. Yeah. There were a couple of them who didn't want to give me any head; but, they did.
Q. Did you have to force them?
A. Yeah.
Q. Did you have to use a knife?
A. I had to show it and more and talk tougher, and stuff like that; put, you know, the fear thing in them.
. . . . .
I don't know about any specifics but I would be willing to bet, at this point in time, I probably forced some of them to anal sex, too.
Q. How many do you think?
A. I guess--three or four, maybe--I don't know for sure.
Because of the "frustrations in his life," he said, he "chose to vent them on individuals who seemed to be easy targets."
Defendant was charged in Counts I and II, respectively, with forcible oral and anal sodomy of Vicki. 3 Count III charged him with armed criminal action in connection with Count II.
"A person commits the crime of sodomy if he has deviate sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion." § 566.060.1. The elements of lack of consent and forcible compulsion are, at times, almost mirror images of one another, and proving the latter often proves the former. Thus, as succinctly stated in our criminal instructions, "[a]ssent does not constitute consent if it is induced by force or duress." MAI-CR 3d 320.08.1. And, lack of consent may be established by showing the assent was caused by actual force or by fear induced by violence or threats of violence. E.g. State v. Hannett, 713 S.W.2d 267, 271 (Mo.App.1986).
"Forcible compulsion" means physical force that overcomes reasonable resistance, or a threat, express or implied, that places a person in reasonable fear of death, or serious physical injury. § 556.061(12)(a), (b) RSMo Supp.1989. "Serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body. § 556.061(26) RSMo Supp.1989.
Thus, for the state to make a submissible case on the sodomy charges, it had to show Vicki performed the sexual acts in question because of force or threats of force which she reasonably believed would cause her serious disfigurement or physical impairment. And, to show the defendant committed the crime of armed criminal action in connection with the crime of anal sodomy, the state had to show those sexual acts were caused "by, with or through the use ... of a dangerous instrument or deadly weapon...." § 571.015. The state did make this showing.
Vicki testified she was working as a prostitute from December 15 to December 20, 1986. One day during that period, a light colored, square looking car pulled over to the curb where Vicki was standing and she got in. Vicki was nine months pregnant at the time. The car pulled away, and, as they rode around, Vicki and the driver negotiated a price for oral sex. Af Vicki told the driver she was pregnant, and he asked if she had milk in her breasts. She said yes and lifted her shirt to show him. "[T]hen," she testified, "... '... " And, when she was asked whether she saw "where the object came from", she answered:
ter driving around more looking for a suitable location, the driver stopped the car on a side street.
The driver then "made" Vicki perform oral sex on him while he held a knife to her throat. He then told her to take her pants off, and he performed anal sex. After that he told her to get out of the car, and he threw her clothes out. Vicki testified she had agreed to have oral sex with the man, but for a price and she was not paid.
In February, 1987, Vicki was arrested on a bench warrant for missing a court date. At the police station, she told the officers what had happened to her. She was taken to a lineup, and she identified defendant as the driver.
At trial, Vicki was shown state's Exhibits 2 and 13 and said they were pictures of a car that looked like the car defendant was driving.
In its opinion, the trial court focused on four parts of Vicki's testimony. According to the court, Vicki "testified that she was working as a prostitute, ... [she] agreed to perform acts of sodomy for pay, ... she did not see a weapon, and ... she did not report the alleged crimes until approximately two (2) months after the alleged crimes." "[D]efendant", the court concluded, "is at most guilty of the offense of Patronizing Prostitution, not the offenses of Forcible Sodomy and Armed Criminal Action."
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