State v. Danback, s. 61955
| Decision Date | 01 November 1994 |
| Docket Number | 64844,Nos. 61955,s. 61955 |
| Citation | 886 S.W.2d 204 |
| Parties | STATE of Missouri, Respondent, v. Keith DANBACK, Appellant. Keith DANBACK, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Raymond L. Legg, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals after a jury convicted him of forcible rape, in violation of § 566.030, RSMo Supp.1993, and the motion court denied his Rule 29.15 motion. We affirm.
Since Defendant does not challenge the sufficiency of the evidence, only a brief recitation of the facts supporting the jury's verdict is necessary. On June 4, 1990, Victim, who was then fourteen years old, travelled with her parents and her younger cousin, Angie, from Jonesboro, Arkansas to Desoto, Missouri, to attend a graduation party. There were about fifty people at the outdoor barbecue, including Defendant and Victim's younger cousins Debbie and Jennifer. Victim did not know Defendant before they met at the party. He supplied her and her younger cousins with beer, although they were not allowed to drink. He also gave Victim some kind of mixed drink. At approximately 9:30 p.m., Victim went to the camper trailer where she was supposed to sleep with her three cousins: Angie, Debbie and Jennifer. She was feeling drunk and she "passed out" as soon as she reached the camper and got into the top bunk.
At some point after Victim had fallen asleep, she was awakened by the sound of Angie, Debbie and Jennifer yelling at Defendant to get off of her. Defendant was on top of Victim, holding her arms down and having intercourse with her. Victim yelled at Defendant to get off her and tried to push him away. Defendant put his hand over Victim's mouth and continued to rape her. Defendant yelled at Victim's cousins and told them to leave. They went to get Kurt Kemp, one of their older cousins, but he refused to help because he did not believe Defendant would do such a thing.
When the girls got back to the camper, Defendant was getting off Victim. He stated he was "through with her anyway" and called Victim a slut and a whore. After Defendant left, Victim began crying, but she would not let her cousins go for help because she was afraid that they would get in trouble for drinking, or that Defendant would come back and hurt her. Around 5 a.m., Victim asked Jennifer and Angie to accompany her to the house because she wanted to take a bath and was afraid to be alone. When Victim undressed, they saw she had bruises on both arms, both legs and one hip.
The next day Victim returned to Arkansas with her family. Approximately one week later, Angie and Jennifer told their Aunt Mary what had happened to Victim. Aunt Mary told Victim's mother, who took Victim to be examined by the family physician. Victim's mother then brought her back to Missouri to file charges against Defendant.
At the close of all evidence, arguments and instructions, the jury found Defendant guilty of forcible rape and recommended a sentence of seventeen years' imprisonment. On April 28, 1992, the trial court sentenced Defendant pursuant to the jury's recommendation. On August 27, 1992, Defendant filed his pro se Rule 29.15 motion. Counsel was appointed, and Defendant filed a waiver of an amended motion and an election to stand on his pro se motion. After holding an evidentiary hearing, the motion court entered findings of fact and conclusions of law denying Defendant's Rule 29.15 motion.
In Point I, Defendant alleges the trial court abused its discretion by sustaining the prosecutor's motions in limine and precluding Defendant from presenting evidence of: (A) Victim's "sexual conduct" with James Kline earlier in the evening of the rape because it was admissible under § 491.015.1(3), RSMo 1986, as evidence of the immediate surrounding circumstances of the crime; (B) Kline's father's abusive behavior toward Defendant and the Defendant's investigator, as it was evidence of Victim's and her cousins' motive to fabricate their stories; and (C) Kline's statement that he "did it" with Victim because it was a statement against penal interest.
On appeal, Defendant argues the trial court erred in excluding evidence of Victim and Kline's sexual contact earlier on the night of the rape because it was admissible as evidence of the immediate surrounding circumstances of the rape under § 491.015.1(3). Section 491.015, the Rape Shield Statute, states in pertinent part:
1. In prosecutions under chapter 566, RSMo, or prosecutions related to sexual conduct under chapter 568, RSMo, opinion and reputation evidence of the complaining witness' prior sexual conduct is inadmissible; evidence of specific instances of the complaining witness' prior sexual conduct or the absence of such instances or conduct is inadmissible, except where such specific instances are:
(3) Evidence of immediate surrounding circumstances of the alleged crime;
2. Evidence of the sexual conduct of the complaining witness offered under this section is admissible to the extent that the court finds the evidence relevant to a material fact or issue.
3. If the defendant proposes to offer evidence of the sexual conduct of the complaining witness under this section, he shall file with the court a written motion accompanied by an offer of proof or make an offer of proof on the record outside the hearing of the jury. The court shall hold an in camera hearing to determine the sufficiency of the offer of proof and may at that hearing hear evidence if the court deems it necessary to determine the sufficiency of the offer of proof.
Prior to trial, the court sustained the prosecutor's motion in limine to exclude evidence of any prior sexual contact between Victim and Kline under § 491.015. The trial judge invited Defendant to make an offer of proof to rebut the prosecutor's argument. Defendant failed to make any such offer of proof either at the pre-trial hearing or at trial; therefore, he failed to comply with the mandatory requirements of § 491.015.3. At trial, defense counsel questioned Victim about her previous sexual contact with Kline as follows:
(Discussion at the Bench out of the hearing of the jury.)
First, defense counsel's own statements at trial indicate there was no "sexual contact" between Victim and Kline earlier on the night of the rape. Further, the Missouri Supreme Court has held evidence of specific instances of a rape victim's prior sexual conduct is admissible only when it falls within one of the specific exceptions contained in § 491.015.1(1)-(4), and then only to the extent the trial court finds it relevant to a material fact or issue under § 491.015.2. State v. Jones, 716 S.W.2d 799, 800 (Mo. banc 1986); State v. Miller, 870 S.W.2d 242, 245 (Mo.App.1994). Defendant failed to show how evidence that Victim and Kline were holding hands and kissing earlier on the evening of the rape was relevant to any issues in this case. It was not being offered to rebut the State's physical evidence, as in State v. Douglas, 797 S.W.2d 532 (Mo.App.1990), as no physical evidence was offered by the State. Further, it was not evidence of the "immediate surrounding circumstances" of the rape as Defendant alleges, as the rape occurred after Kline had already left the party and was witnessed by Victim's three cousins who all identified Defendant as the rapist. See, State v. Osterloh, 773 S.W.2d 213, 218-19 (Mo.App.1989).
In the second subpoint of Defendant's Point I, he argues the trial court abused its discretion in excluding evidence of Kline's father's threats to Defendant and his investigator because they were relevant to show Victim had a motive to fabricate. In the argument portion of his brief, Defendant also argues the evidence was relevant to show Kline's father was attempting to protect him from prosecution. However, because Defendant did not include this argument in his point relied on, it is not preserved for review on appeal. Rule 84.04(d); State v. Hill, 812 S.W.2d 204, 208 (Mo.App.1991). Moreover, Defendant fails to cite any legal authority to show the evidence of Kline's father's alleged threats is admissible under either theory. See, State v. Fraction, 782 S.W.2d 764, 768 (Mo.App.1990) (). In his brief, Defendant merely argued, "[b]ecause the evidence of [Victim] and [Kline's] sexual contact ... was...
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