State v. Davis

• Decision Date: 09 May 1995
• Docket Number: No. WD,WD
• Citation: 903 S.W.2d 930
• Parties: STATE of Missouri, Respondent, v. Edwin Lee DAVIS, Appellant. 49717.
• Court: Missouri Court of Appeals

Page 930

903 S.W.2d 930

STATE of Missouri, Respondent, v. Edwin Lee DAVIS, Appellant.

No. WD 49717.

Missouri Court of Appeals,

Western District.

May 9, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 27, 1995.

Application to Transfer Denied

Sept. 19, 1995.

J.D. Williamson, Jr., Independence, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Christine M. Kocot, Asst. Atty. Gen., for respondent.

Before FENNER, C.J., P.J., and BRECKENRIDGE and HANNA, JJ.

FENNER, Chief Judge.

Appellant, Edwin L. Davis, appeals from the trial court's denial of his motion to dismiss based on speedy trial grounds and his motion for judgment of acquittal based on an insufficiency of evidence.

The evidence in the record reveals that Davis was charged by indictment on May 11, 1992 with Count I, deviate sexual assault in the first degree, § 566.070, RSMo 1986; Count II, sexual assault in the first degree, § 566.040, RSMo 1986; and Count III, deviate sexual assault in the first degree, § 566.070, RSMo 1986. Davis was arraigned and released on bond.

The State was granted trial continuances on August 24, 1992, September 10, 1992 and October 15, 1992, while awaiting results of DNA analysis. The initial indictment was later dismissed on April 15, 1993.

On May 27, 1993, the State refiled the same charges against appellant by information. Davis filed his first motion to dismiss on speedy trial grounds at this time. The motion was overruled, and the State was granted additional continuances on July 8, 1993, August 20, 1993, October 18, 1993 and November 23, 1993, alleging on each occasion that the request was necessitated by delays in receiving results of a second DNA analysis. Davis renewed his motion to dismiss on speedy trial grounds on November 23, 1993; this motion was also denied.

Appellant's counsel received a copy of the DNA analysis report from the State in mid-December 1993, and thereafter filed a motion to exclude it from evidence. This motion was denied, resulting in a request for a continuance from appellant in order to prepare an adequate defense to the DNA evidence. This motion was granted. The matter went to trial on May 23, 1994. Appellant renewed his motion to dismiss on speedy trial grounds before trial and again at trial within his motion for judgment of acquittal. All were denied by the trial court.

After trial by jury, appellant was convicted on Count III, but acquitted on Counts I and II of the information. Appellant was ultimately sentenced to 365 days in the county jail on Count III.

Because one point of error raised by appellant is a challenge to the sufficiency of the evidence for his conviction on Count III, a brief review of the facts surrounding the case is necessary. In reviewing the facts, we accept as true all the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. State v. Patterson, 806 S.W.2d 518, 519 (Mo.App.1991).

The victim, 14 year old C.B., and her family were friends of appellant and his wife. C.B. and appellant's relationship was a close one, resulting in C.B. referring to appellant on occasion as Uncle Ed. C.B. and her mother were visiting her stepfather at Fort Leavenworth and staying with appellant at the time of the alleged assaults. C.B. and her mother arrived late on Friday evening at appellant's residence while appellant was working the night shift as a Jackson County Deputy Sheriff.

Appellant arrived home from work Saturday morning shortly after C.B. woke up. C.B.'s mother and stepfather left the house shortly thereafter, as did appellant's wife. Appellant had retired to his bedroom to sleep while C.B. was watching television. Some time later, appellant called out to C.B. asking her to come to his room and give him a back rub, to which she complied. C.B. then left appellant's room and resumed watching television.

A short time later, appellant called C.B. into his room to talk. C.B. dozed off as they were talking. C.B. testified that when she awoke, appellant was lying on top of her naked and telling her that he "wanted to make her feel good." Thereafter, appellant pushed up C.B.'s nightshirt and moved the crotch area of her underwear to the side of her leg. C.B. stated that appellant touched her vaginal area with his hand and penis and that she noticed that her vaginal area and the upper part of her underwear were warm and wet. These allegations formed the basis of Count I against appellant.

When this event was complete, C.B. took a shower and dressed, segregating the underwear she had been wearing from the rest of her clothes in her travel bag. She talked to a friend on the phone for approximately 45 minutes, explaining what had happened, then returned to watching television.

A short time later, appellant emerged from his bedroom and asked C.B. to go back in the bedroom with him, which C.B. refused. When C.B. attempted to get past appellant to the bathroom, he took her by the arm and pushed her backwards into his bedroom and onto the bed. Appellant unbuttoned C.B.'s jeans and removed the right leg of her jeans and underwear. Appellant grasped C.B.'s hands, pulling them down and placing them on his penis. These actions served as the basis for Count III of the information.

C.B. testified that after appellant placed her hands on his penis, she quickly removed them. Thereafter, appellant proceeded to have sexual intercourse with her. When appellant finished, C.B. felt wetness on her upper thigh and vaginal area. These alleged acts served as the basis for Count II of the information. C.B. then went to the bedroom, cleaned herself off with a tissue, and dressed. C.B. then fled the residence without shoes or socks and began running to a neighbor's house.

While running to the neighbor's house, C.B. saw Brandalyn Ott and Julie Johnston driving by and flagged them down. Ott testified that C.B. told them she had been raped and asked to be taken to the police station. Ott also stated that C.B. appeared upset and was shaking, that her hair was messed up, and that she began crying. C.B. was taken to the Oak Grove Fire Department where she spoke to Officer Judy Ross, who then took her to Children's Mercy Hospital.

Dr. Mark Eddy treated C.B. at Children's Mercy. C.B. informed Dr. Eddy that she had been sexually assaulted. Dr. Eddy testified that his examination revealed tenderness in C.B.'s abdomen, cervix, and ovaries consistent with sexual assault. Dr. Eddy also testified that an ultraviolet screening test revealed the presence of semen on the inner aspect of C.B.'s thighs and pubic area. DNA analysis later revealed that appellant's DNA was present in the semen taken from the underwear C.B. was wearing at the time of the first incident.

Appellant testified on his own behalf, stating that when he arrived home from work, he took some medication and went to bed. As usual, he wore no clothing while sleeping. Some time after dozing off, he awoke to find C.B. astride his body with his erect penis in her hand, pulling it toward her stomach and vagina. Appellant stated that he was shocked and instructed her to leave the room. When appellant went to the bathroom, he noticed that his penis was moist. Appellant testified that after he emerged from the bathroom, he had a brief conversation with C.B., then returned to his bedroom and slept until C.B.'s parents arrived home later that afternoon. Appellant denied that the events forming the basis for Count II and III occurred.

I. SUFFICIENCY OF THE EVIDENCE

As stated earlier, in reviewing a claim challenging the sufficiency of evidence, we must determine whether the evidence is sufficient to support a conviction by viewing the evidence and all reasonable inferences therefrom in the light most favorable to the verdict, disregarding all contradictory evidence and inferences. State v. Davis, 824 S.W.2d 936, 941 (Mo.App.1992). It is necessary only that there was sufficient evidence from which reasonable persons could have found defendant guilty as charged. Id. Questions of credibility of witnesses and the effects of conflicts or inconsistencies in the testimony of any witness are questions for the jury. Id. It is within the jury's province to believe all, some, or none of any witness's testimony in arriving at its verdict. Id. The testimony of one witness may be sufficient to sustain a conviction even if the testimony is inconsistent. Id. In cases involving sexual offenses, the victim's testimony will ordinarily sustain a conviction, even if uncorroborated. Id. See also State v. Nelson, 818 S.W.2d 285, 288 (Mo.App.1991); State v. Hill, 808 S.W.2d 882, 890-91 (Mo.App.1991); State v. Dee, 752 S.W.2d 942, 944 (Mo.App.1988).

In arguing that the evidence was insufficient to support his conviction of deviate sexual assault in the first degree on Count III of the information, appellant asserts that the "corroboration rule" was triggered and not satisfied. Though often discussed with disfavor, the Missouri courts recognize a limited exception to the general rule that a victim's testimony will ordinarily sustain a conviction even if uncorroborated, requiring corroboration of the victim's testimony when: (1) the defendant is charged with a sexual offense; (2) there are inconsistencies or contradictions bearing on an issue essential to the case; (3) the inconsistencies exist within the victim's own statements; and (4) the victim's testimony is rendered doubtful by the gross inconsistencies and contradictions. Id. This exception is known as the "corroboration rule."

The corroboration rule is triggered only when the victim's testimony is so contradictory and in conflict with physical facts, surrounding circumstances, and common experience, that its validity is thereby rendered doubtful. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). The corroboration rule does not apply where the inconsistencies or contradictions are between...