State v. Davis

• Decision Date: 01 September 1981
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Denarvel DAVIS, Appellant. 31683.
• Court: Missouri Court of Appeals

Page 72

624 S.W.2d 72

STATE of Missouri, Respondent, v. Denarvel DAVIS, Appellant.

No. WD 31683.

Missouri Court of Appeals, Western District.

Sept. 1, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 29, 1981.

Application to Transfer Denied Dec. 14, 1981.

Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before PRITCHARD, P. J. and TURNAGE and CLARK, JJ.

CLARK, Judge.

Denarvel Davis was found guilty by a jury, on a five-count indictment, of rape, two counts of sodomy, kidnapping and armed criminal action associated with the kidnapping. Prior to sentencing, the state dismissed the charge of kidnapping and the court imposed punishment of ten years for rape, fifteen years for each count of sodomy and ten years for armed criminal action. By specification that the sentences for sodomy run concurrently with each other and the sentence for armed criminal action be served concurrently with the other sentences, the aggregate term of imprisonment assessed was twenty-five years.

Although the sufficiency of the evidence is not questioned, the events upon which the charges were based must be recited as a prelude to discussion of the issues.

The evidence as viewed most favorably to the state permitted the jury to find the following facts. On September 21, 1979, during the evening hours, the victim approached her automobile in a parking lot and was there confronted by Davis who held a revolver. Davis ordered the victim into the vehicle, entered the back seat himself and directed the victim to drive while Davis held the gun to her head. After approximately one hour of random travel, Davis ordered that the car be driven to a dead-end street where he pulled the victim into a nearby field, required her to disrobe and, at the threat of death, forced her to participate in various acts of sodomy and intercourse.

Davis and the victim subsequently returned to the automobile and again drove in an aimless pattern for some twenty or thirty minutes with Davis behind the wheel but with the revolver still pointed at the victim. Finally, in a somewhat inexplicable change of attitude to one of remorse, Davis opined that he should surrender, he gave his name, home address and telephone number to the victim and left, turning the automobile back to the victim. Davis was later arrested that night and this prosecution followed.

The jury returned verdicts of guilty on all five counts, including the count for kidnapping. After a motion for new trial had been filed, but before judgment and imposition of sentence, the state dismissed the kidnapping charge. Davis was then sentenced, as noted earlier, to the various terms on the remaining counts.

The indictment in this case charged that Davis committed the offenses of rape and sodomy with the aid and use of a deadly weapon, thus invoking the provisions of § 566.030.2 and § 566.060.2 which elevate the offenses to class A felonies and provide the greater punishment specified in § 558.011.1, RSMo Supp.1980. ¹ Absent the use of a weapon or infliction of serious injury, both rape and sodomy are class B felonies to which a lower range of punishment is applicable. In his first point on this appeal, Davis contends that his conviction for armed criminal action cannot stand coupled with convictions for class A rape and sodomy because the former offense is one associated generally with felonious use of a weapon while the rape and sodomy counts particularize the same prohibited conduct. The multiple convictions, he asserts, violate the Fifth Amendment to the United States Constitution and Art. I, § 10 of the Missouri Constitution. Davis also contends that § 556.041 must be construed to limit prosecution for armed criminal action to underlying felonies not otherwise containing punishment enhancement provisions where a weapon is used.

The contentions Davis advances in this first point are associated with general questions which the armed criminal action statute has provoked. Some aspects have been considered in Sours v. State, 593 S.W.2d 208 (Mo. banc 1980), vacated, Missouri v. Sours, 446 U.S. 962, 100 S.Ct. 2935, 64 L.Ed.2d 820 (1980), on remand Sours v. State, 603 S.W.2d 592 (Mo. banc 1980), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981) and, more recently, in State v. Haggard, 619 S.W.2d 44 (Mo.1981) and State v. Fletcher, 619 S.W.2d 57 (Mo. banc. 1981), both decided by the Missouri Supreme Court en banc on July 14, 1981, and State ex rel. Westfall v. Ruddy, 621 S.W.2d 42, decided by the Missouri Supreme Court en banc July 23, 1981. The present case, however, does not come within the holdings of Sours and subsequent related cases because Davis does not stand convicted both of armed criminal action and the underlying felony. Contrary to the assumption Davis indulges, his conviction for armed criminal action was not based on the companion felonies of rape and sodomy for which he was also sentenced but on the charge of kidnapping, now dismissed.

The record admits of no doubt on the subject. Count IV of the indictment charged Davis with kidnapping and made no reference to use of a weapon. Count V charged armed criminal action in the perpetration of the kidnapping and stated in its relevant part that Davis: "* * * committed the felony of kidnapping * * * by the use, aid and assistance of a deadly weapon."

Kidnapping is an offense proscribed by § 565.110 and may be a class A or class B felony. The statute contains no element of weapons use and the severity of the offense is neither enhanced nor reduced by the presence or absence of a dangerous instrument. So, too, does the kidnapping charge stand apart from the offenses of rape and sodomy, neither of which needed to be proven here to support the conviction for kidnapping. The particular argument advanced by Davis, that he cannot be twice convicted for felonious use of a weapon, simply does not apply in this case to his conviction for armed criminal action because the underlying felony, kidnapping is not a weapons offense.

It is also appropriate to note that Davis misconceives the nature of armed criminal action as a statutory offense. He contends that armed criminal action is merely a vehicle used to enhance punishment when the underlying felony is committed with a weapon. The decision in both Sours cases is to the contrary. Thus, in Sours v. State, supra, 603 S.W.2d at 599, the court states:

"Clearly, § 559.225, RSMo. Supp. 1976 provides for more than the mere enhancement of the sentence for the underlying felony. It calls for conviction of a second crime and for the imposition of a second sentence."

Of course, on the holding in Sours, Davis may not be convicted of both kidnapping and armed criminal action because the former is a lesser offense included in armed criminal action. The recent case of State ex rel. Westfall v. Ruddy, supra also holds that when offenses of armed criminal action and the underlying felony are both charged, the jury must be instructed that the offenses are submitted in the alternative, and the defendant may not be convicted of both. Although Davis makes no complaint on this account, submission in his case of both armed criminal action and kidnapping without the limiting instruction was error under State ex rel. Westfall. As Westfall points out, however, submission of both offenses is made only when the evidence could support conviction on either charge, the critical factor being whether the jury finds the crime was committed with use of a gun.

In the present case, the use of a dangerous weapon in commission of the kidnapping was not in issue. In his defense, Davis denied ever having seem the victim and offered an alibi to demonstrate he was elsewhere when the crimes were committed. There was thus no evidence on which Davis could have been acquitted of armed criminal action based on the felony of kidnapping and also have been convicted of kidnapping. State v. Hands, 260 S.W.2d 14, 22 (Mo.1953); State v. Perry, 565 S.W.2d 841, 844 (Mo.App.1978). Because Davis was not entitled to submission of the lesser included offense of kidnapping, any instruction error was remedied when the kidnapping charge was dismissed.

Davis therefore was properly convicted of armed criminal action on proof that he committed the felony of kidnapping by use of a dangerous instrument or a deadly weapon. The quality and extent of that proof is not here in question.

In the closing portion of his argument as to the initial point of error, Davis appears to recognize the deficiency inherent in his mistaken reliance upon identity of the armed criminal action...