State v. Cusumano

• Decision Date: 04 June 2013
• Docket Number: No. ED 98027.,ED 98027.
• Citation: 399 S.W.3d 909
• Parties: STATE of Missouri, Respondent, v. Rick CUSUMANO, Appellant.
• Court: Missouri Court of Appeals

399 S.W.3d 909

STATE of Missouri, Respondent,

v.Rick CUSUMANO, Appellant.

No. ED 98027.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 4, 2013.

Margaret M. Johnston, Assistant Public Defender, Columbia, MO, for appellant.

Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Rick Cusumano (Defendant) appeals the judgment of the Circuit Court of St. Louis County convicting him of forcible rape. Defendant contends the trial court plainly erred in: (1) allowing the State to prosecute Defendant for forcible rape in violation of his right to be free of double jeopardy; and (2) overruling Defendant's objections to the admission of victim impact testimony during the guilt phase of trial. We affirm.

Factual and Procedural Background

At approximately 10:00 p.m. on August 5, 1988, C.Z. (Victim) went for a walk in her neighborhood. As she was returning home, she passed a man who was standing at a mailbox at the end of a driveway. The man grabbed Victim from behind, covered her mouth with a gloved hand, and said, “I've got a gun, if you don't cooperate I'll blow your head off.” When Victim struggled, the man hit Victim on her head with a gun.

The man dragged Victim to a backyard where a second man was waiting. Both men wore bandanas over their faces.¹ The first man handed the gun to the second man, removed Victim's jogging shorts and underwear, and forced his penis into her vagina while the second man held the gun. Next, the first man forced Victim to put her mouth on his penis and perform oral sex. The first man then held the gun while the second man forced his penis into Victim's vagina.

The men ordered Victim not to watch them leave and threatened to kill her if she reported their crimes. After the men left, Victim put on her underwear and shorts, ran home, and told her husband about the assault. Husband drove Victim to the police department where Victim reported the crime. From the police department, Victim went to the hospital where a doctor administered a rape kit.

Forensic testing matched Defendant's DNA to DNA collected on August 5 and 6, 1988 from a beer can found at the scene of the assault and from Victim's underwear and body. On February 10, 2010, the State charged Defendant with two class A felony counts of aggravated forcible rape (Counts I and II) under Section 566.030 and one class A felony count of aggravated forcible sodomy (Count III) under Section 566.060. Mo.Rev.Stat. §§ 566.030.2, 566.060.2 (1988).² At the time of the charged crimes, Sections 566.030.2 and 566.060.2 provided that if, in the course of committing forcible rape or forcible sodomy, unclassified felonies, the defendant “display[ed] a deadly weapon ... in a threatening manner” or “subject[ed] the victim to deviate sexual intercourse or sexual intercourse with more than one person,” the defendant committed the greater offense of aggravated forcible rape or aggravated forcible sodomy, which were class A felonies punishable by ten years to life imprisonment.³Mo.Rev.Stat. §§ 566.030.2, 566.060.2; see State v. Gray, 895 S.W.2d 241, 243 (Mo.App. S.D.1995).

The trial court held a two-day jury trial in September 2010. At the instructions conference, both sides submitted jury instructions for Count I (forcible rape) and Count III (forcible sodomy). As to Count I, the State submitted Instruction 6, based on MAI–CR3d 320.01.1A Forcible Rape: Aggravated (effective Jan. 1, 1987), which provided:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about August 5, 1988, in the County of St. Louis, State of Missouri, the defendant had sexual intercourse with [Victim] and

Second, that the defendant did so by the use of forcible compulsion, and

Third, that the defendant did so knowingly,

Fourth, that, in the course of this conduct, the defendant or another person displayed a deadly weapon in a threatening manner,

Fifth, that with the purpose of promoting or furthering the commission of forcible rape, the defendant acted together with another person in committing the offense,

then you will find the defendant guilty under Count I of forcible rape.

Defendant submitted Instruction 7 for the lesser included offense of forcible rape,⁴ which did not require the jury to find that Defendant or another person displayed a deadly weapon in a threatening manner or that Defendant acted together with another person in committing the offense. Instruction 7 stated:

As to Count I, if you do not find the defendant guilty of forcible rape as submitted in Instruction No. 6, you must consider whether he is guilty of forcible rape under this instruction.

As to Count I, if you find and believe from the evidence beyond a reasonable doubt[:]

First, that on or about August 5, 1988, in the County of St. Louis, State of Missouri, the defendant had sexual intercourse with [Victim], and

Second, that defendant did so by the use of forcible compulsion, and

Third, that defendant did so knowingly,

then you will find the defendant guilty under Count I of forcible rape.

As to Count III, the State submitted Instruction 9 for aggravated forcible sodomy. Instruction 9 directed the jury:

As to Count III, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about August 5, 1988, in the County of St. Louis, State of Missouri, the defendant or another person made [Victim] put her mouth on the penis of the defendant or another person, and

Second, that such conduct constituted deviate sexual intercourse, and

Third, that defendant or another person did so by the use of forcible compulsion, and Fourth, that defendant or another person did so knowingly,

Fifth, that in the course of this conduct, the defendant or another person displayed a deadly weapon in a threatening manner,

Sixth, that with the purpose of promoting or furthering the commission of that forcible sodomy, the defendant acted together with another person in committing the offense,

then you will find the defendant guilty under Count III of forcible sodomy.

Defendant submitted Instruction 10, an instruction for the lesser included offense of forcible sodomy, which stated:

As to Count III, if you do not find the defendant guilty of forcible sodomy as submitted in Instruction No. 9, you must consider whether he is guilty of forcible sodomy under this instruction.

As to Count III, if you find and believe from the evidence beyond a reasonable doubt[:]

First, that on or about August 5, 1988, in the County of St. Louis, State of Missouri, the defendant made [Victim] put her mouth on the penis of the defendant, and

Second, that such conduct constituted deviate sexual intercourse, and

Third, that defendant did so by the use of forcible compulsion, and

Fourth, that defendant did so knowingly,

then you will find the defendant guilty under Count III of forcible sodomy.

The State's instruction for Count II, aggravated forcible rape based on accomplice liability, stated that:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about august 5, 1988, in the County of St. Louis, State of Missouri, another person had sexual intercourse with [Victim], and

Second, that another person did so by the use of forcible compulsion, and

Third, that another person did so knowingly,

Fourth, that, in the course of this conduct, the defendant or another person displayed a deadly weapon in a threatening manner,

Fifth, that with the purpose of promoting or furthering the commission of that forcible rape, the defendant acted together with another person in committing the offense,

then you will find the defendant guilty under Count II of forcible rape.

Defendant did not submit a lesser included offense instruction for Count II.

The trial court gave the jury the instructions submitted by both parties. The jury found Defendant guilty of forcible rape on Count I, as submitted in Defendant's Instruction 7, and forcible sodomy on Count III, as submitted in Defendant's Instruction 10. As to Count II, the jury was unable to reach a verdict and the trial court declared a mistrial. The trial court sentenced Defendant as a prior offender to two concurrent life sentences on Counts I and III and scheduled a new trial on Count II. This court affirmed Defendant's convictions on Counts I and III. State v. Cusumano, 358 S.W.3d 137 (Mo.App. E.D.2011).

On January 3, 2011, the trial court conducted a second jury trial on Count II. After the close of evidence, the trial court instructed the jury to find Defendant guilty of forcible rape if it found:

First, that on or about August 5, 1988, in the County of St. Louis, State of Missouri, another person had sexual intercourse with [Victim], and Second, that another person did so by the use of forcible compulsion, and

Third, another person did so knowingly, and

Fourth, that, in the course of this conduct, the defendant or another person displayed a deadly weapon in a threatening manner, and

Fifth, that neither defendant or another person was married to [Victim], and

Sixth, that with the purpose of promoting or furthering the commission of that forcible rape, the defendant acted together with another person in committing the offense[.]

The jury found Defendant guilty of forcible rape, and the trial court sentenced him to a term of life imprisonment, to run consecutive to Defendant's sentences for Counts I and III. Defendant appeals.

Discussion

In his first point on appeal, Movant claims the trial court plainly erred in allowing the State to retry him on Count II, which charged Defendant with forcible rape under a theory of accomplice liability. Defendant maintains that, because the first jury found Defendant guilty of Counts I and III pursuant to instructions that did not require findings of accomplice liability or the display of a deadly weapon, collateral estoppel precluded the State from relitigating those issues in a...