State v. Dees

• Decision Date: 23 July 1982
• Docket Number: No. 12432,12432
• Citation: 639 S.W.2d 149
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John F. DEES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 149

639 S.W.2d 149

STATE of Missouri, Plaintiff-Respondent, v. John F. DEES, Defendant-Appellant.

No. 12432.

Missouri Court of Appeals,

Southern District,

Division Three.

July 23, 1982.

Motion for Rehearing Overruled and to

Transfer to Supreme Court Denied

Aug. 16, 1982.

Application to Transfer Denied

Oct. 18, 1982.

John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Frederick H. Mayer, Thomas B. Weaver, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for defendant-appellant.

PER CURIAM.

A jury found defendant John Dees guilty of burglary (§ 569.160) ¹ and rape (§ 566.030.1), and he was sentenced to 35 years' imprisonment for the rape and 10 years for the burglary, the sentences to run concurrently. Defendant appeals.

Defendant's first point is that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence for the reason that the evidence was insufficient to support the convictions. In ruling that contention this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the verdict, and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). The defendant offered the testimony of himself and other witnesses and thus the submissibility of the case will be determined upon all of the evidence. State v. Sykes, 372 S.W.2d 24, 25 (Mo.1963).

In a circumstantial evidence case, the state is required to prove facts and circumstances consistent with each other and with the guilt of the defendant and inconsistent with any reasonable theory of his innocence, State v. Keller, 471 S.W.2d 196, 197 (Mo.1971), but the circumstances need not demonstrate an absolute impossibility of innocence. State v. Phillips, 452 S.W.2d 187, 189 (Mo.1970). A defendant is not entitled to a judgment of acquittal because of discrepancies or conflicts in the testimony of the state's witnesses. State v. Cox, 478 S.W.2d 339, 341 (Mo.1972). The fact that the testimony of a witness may to some extent be contradictory does not bar it from being substantial evidence. Inconsistencies in testimony are questions for jury resolution. State v. Hodges, 537 S.W.2d 886, 887 (Mo.App.1976).

Defendant does not challenge the adequacy of the evidence to show that the victim was raped on the occasion in question and that her apartment was burglarized. The defect, so defendant argues, is that the evidence is insufficient to identify defendant as the rapist.

In the early morning hours of Wednesday, November 26, 1980, the victim, Kay Ogborn, a 34-year-old divorcee, was asleep in the bedroom of her apartment located at 415 Sheridan Drive, Apartment G, Cape Girardeau, Missouri. Occupying the same bed was her 12-year-old son Derek. At 3:20 a. m. Mrs. Ogborn awoke and saw a man, holding a flashlight, standing over her. Neither Mrs. Ogborn nor Derek, who was awake but "played possum," was able to see the man's face but they did observe his approximate height and weight, and Derek noted the fact that he had a moustache and beard. The man had a dark "sock cap" pulled down close to his eyebrows. The intruder put his hand over Mrs. Ogborn's mouth and ordered her not to scream or struggle. The man escorted Mrs. Ogborn downstairs to her small bathroom where the rape occurred.

The rapist was in the Ogborn apartment approximately 30 minutes. Immediately after his departure the police were notified and they inspected the apartment and the general area. Mrs. Ogborn was taken to a hospital where she was examined by a physician.

The building located at 415 Sheridan contains a row of ten apartments, Apartment A being located at the north end of the building and Apartment J at the south end. The adjacent apartment building, 421 Sheridan Drive, also has ten apartments, similarly designated A through J, with Apartment A being located at the north end of that building. The two buildings are separated by a drive. 415 Sheridan is north of 421 Sheridan.

The rapist gained forcible entry to the Ogborn apartment through a door leading to the patio on the west side of the building. All of the apartments in each of the two buildings had a west patio. The rapist left tracks of mud and pieces of mud in the Ogborn apartment, and especially in the bathroom where the rape was committed. On the night of the rape Apartment J, located at the south end of 421 Sheridan Drive and rented by Kathryn Dickson, was also burglarized. While officers were investigating the area west of the two buildings, Miss Dickson notified them that her apartment had been entered and mud tracks were "all over the place."

The defendant was arrested on December 12, 1980, at his apartment which was located a mile or a mile and a half from that of the victim. Found in his apartment was a pair of Trax brand tennis shoes, basically blue in color, with red and light brown trim, which he admittedly owned.

Identification of the defendant as the rapist was based on several factors, including the following: (1) Defendant's height, weight, beard and moustache closely correspond with the descriptions given by Mrs. Ogborn and Derek; (2) through laboratory analysis of seminal stains on the victim's panties it was determined that the rapist had Type A blood and that he was a "secreter" of that blood type in his bodily fluids. Forty percent of the population have Type A blood and, of those, 85 percent are secreters. Defendant is a secreter with Type A blood; the victim is a non-secreter with Type O blood; (3) a dark blue "sock cap" was discovered in defendant's automobile at the time of his arrest and it was characterized by the victim as being "like the sock cap" which the rapist wore; (4) evidence concerning a shoe print and pieces of mud, to be discussed later.

The defendant testified that he spent the night of the rape with Regina Schiwitz in the latter's apartment located at 124 South Lorimer, Cape Girardeau. He said he arrived there at approximately 10:30 p. m. on Tuesday and remained there until 8 a. m. Wednesday. Miss Schiwitz testified to the same effect.

In rebuttal of the defendant's alibi evidence, state's witness William Wilson, a police lieutenant, testified that at 2:30 or 3:00 p. m. on Wednesday, November 26, several hours after the rape had been committed, the defendant came to the Cape Girardeau police station and wanted to sign a complaint against defendant's brother Paul Dees. According to Wilson, "[defendant] said that his brother had got so wild that morning about 2:15 that he had to leave his apartment."

State's witness Robert LeFebvre testified that at 3:00 p. m. on the same Wednesday the defendant came to his office at 1032 Broadway, Cape Girardeau. Defendant told the witness that he was concerned because his brother was behaving irrationally and that he, the brother, needed to be returned to the hospital. Defendant stated that his brother threatened defendant with his life when he attempted to get the brother to leave his apartment earlier that day "in the early morning hours." During this conversation LeFebvre observed that the defendant was wearing blue "tennis shoes" or what appeared to be "a running type of shoe." He identified state's Exhibit 14, the shoes found in defendant's apartment, as being similar to those he was wearing. The witness said the shoes looked "battered or weathered, wet, somewhat dirty."

The testimony of Wilson and LeFebvre was to the effect that defendant told them that during the early morning hours of Wednesday, November 26, he, the defendant, was at his apartment which was located at 216 Williams, Cape Girardeau, and that he engaged in an argument with his brother Paul Dees. This directly contradicted the trial testimony of defendant and Regina Schiwitz as to defendant's whereabouts at the time of the rape. Paul Dees is substantially larger than the defendant and the description of the rapist does not fit Paul Dees.

Police investigators, examining the vicinity of the rape within hours after it happened, obtained mud samples from Kay Ogborn's apartment, including pieces of mud from the bathroom. A fresh piece of mud was found at the edge of the patio of Apartment C of 415 Sheridan, approximately 50 feet from the door through which the rapist gained entry to Kay Ogborn's Apartment G. Impressed in this piece of mud was the word "TRAX." A shoe print was found in the mud near the northwest corner of 421 Sheridan, just west of Apartment A in that building, and approximately 134 feet from the victim's apartment. A plaster cast impression of this shoe print was made and photographs were taken of it.

The photograph of the shoe print, the plaster cast impression, the various pieces of mud, mud samples from Kathryn Dickson's apartment, and defendant's shoes were turned over to Robert Briner, Director of Southeast Missouri Regional Crime Laboratory, for analysis.

Dr. Briner, an expert witness for the state, testified that he examined the various items using a technique called "comparison microscopy," which involves the examination of physical items under a microscope and "looking for details, both of individual and class characteristics." Individual characteristics, said the witness, are those which appear on the item and will distinguish that item from similar items within a class. Class characteristics are general characteristics which place an item only within a class but do not give it individual identity.

Dr. Briner stated that there were five points of "individual comparison" between the photograph of the shoe print behind Apartment A and the right shoe of the tennis shoes taken from defendant's apartment. With regard to the piece of mud with the word "TRAX," Dr. Briner stated that there were eight points of "individual comparison" when it was placed alongside defendant's right shoe. In Dr. Briner's opinion the shoe...