State v. Doney

• Decision Date: 09 June 1981
• Docket Number: No. 42701,42701
• Citation: 622 S.W.2d 227
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert Earl DONEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 227

622 S.W.2d 227

STATE of Missouri, Plaintiff-Respondent, v. Robert Earl DONEY, Defendant-Appellant.

No. 42701.

Missouri Court of Appeals, Eastern District, Division Two.

June 9, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Application to Transfer Denied Nov. 10, 1981.

Kent E. Karohl, Kirkwood, for defendant-appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, George R. Westfall, Pros. Atty., Clayton, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

Defendant appeals a jury conviction of rape and deviate sexual intercourse, violations of § 566.030 ¹ and § 566.060 respectively. He was sentenced to two consecutive 15 year terms. We affirm.

Defendant concedes that a submissible case was made, therefore only those facts necessary to establish the crime will be set forth. Early in the afternoon on March 18, 1979, the victim, a young woman employed as an Avon sales representative, made a call at a residence on Green Forest Drive in Fenton, Missouri. Defendant, a young man, answered the door. When asked, defendant told the victim his mother, the lady of the house, was asleep. The victim left an Avon brochure and told defendant his mother should telephone if she desired anything depicted in the brochure. The victim returned home. Approximately 40 minutes later, at 2:40 p. m., the victim received a telephone call from defendant. Defendant said that his mother would like to make a purchase. Shortly thereafter the victim returned to the residence on Green Forest. Defendant again answered the door. He told the victim she should proceed to the second floor because his mother had just awakened and was preparing to leave for work. Before reaching the top of the stairs the defendant grabbed the victim and placed handcuffs on her wrists. Defendant then pushed the victim down a hallway and into a bedroom. He removed her clothes and committed several acts of sexual intercourse and oral sodomy.

During the course of the assault, the door bell rang. Defendant left the bedroom to respond to the door bell. The victim immediately called her husband on a telephone in the bedroom. Meanwhile, at the front door defendant met Stacy Moore, a 14 year old female acquaintance. Defendant said nothing to Moore and returned upstairs. Moore came inside and after a minute followed. She had not seen which room defendant entered. Eventually she entered a bathroom and opened a door leading into a bedroom. There Moore saw defendant on the floor and heard a woman crying and "asking for someone to help her." The victim then informed defendant her husband was coming to her rescue. Defendant allowed her to dress and return downstairs. A few minutes later the victim's husband drove an automobile up the driveway and she ran to the car. Shortly thereafter the victim contacted the police and returned, with police officers, to the scene. Upon their arrival at the Green Forest Drive residence the police found Moore. Defendant had fled.

Defendant was charged with three crimes: Count I, rape; Counts II and III, two instances of deviate sexual intercourse. He was convicted of Counts I and II and acquitted of Count III. Defendant argues that the trial court erred in giving the state's two identical verdict directors for Counts II and III, two instances of deviate sexual intercourse, because it is impossible to distinguish the act for which he was convicted from the one for which he was acquitted. The state's verdict directors on deviate sexual intercourse were patterned after MAI-CR 2d 20.08.1. The court was obligated to give these instructions pursuant to Rule 28.02(c). We shall not declare submission of the approved instructions erroneous. State v. Grady, 577 S.W.2d 930, 931 (Mo.App.1979).

Defendant also argues that since the only evidence of the crimes charged under Counts I, II and III was based upon the uniform testimony of a single witness, the verdict of not guilty on Count III is inconsistent with the verdict of guilty on Counts I and II. While we acknowledge that all the evidence had a single source, we do not believe that reversal is required. State v. Jones, 545 S.W.2d 659, 666-667 (Mo.App.1976). "However much the jury's conclusion may tax the legally trained's penchant for consistency, the law is clear that inconsistent verdicts among the varied charges of a multi-count indictment are not self-vitiating. * * * (J)uries frequently convict on some counts and acquit on others, not because they are unconvinced of guilt but simply because of compassion or compromise." State v. McCall, 602 S.W.2d 702, 708 (Mo.App.1980).

Defendant also attacks the giving of an instruction patterned after MAI-CR 2d 33.00. This instruction defines deviate sexual intercourse to mean "any sexual act involving the genitals of one person and the mouth, tongue, hands, or anus of another person." He complains that there was no evidence from which the jury could find an act of deviate sexual intercourse affecting the hand or anus. Thus, defendant argues, this instruction prejudiced the defendant. Once again the court committed no error as it merely submitted a mandatory instruction. A separate instruction defining deviate sexual intercourse must be given if that term is used in any of the instructions, regardless of whether the definition is requested or not. MAI-CR 20.08.1, Notes on Use No. 3. Thus, the trial court committed no error in giving MAI-CR 2d 33.00.

Defendant also alleges the trial court erred by failing to grant a mistrial. Defendant complains the state violated the rules of discovery by withholding a recording which he had requested. This recording contained statements made by one of defendant's witnesses, Ronald Lindner. Defendant complains he was prejudiced because the court subsequently admitted into evidence the substance of these statements. We are unable to agree. Defendant has failed to supply us with a transcript containing Lindner's testimony. Assuming, without deciding, that the state's failure to produce the recorded statement was a violation of Rules of Criminal Procedure, we cannot determine the prejudicial effect of this error without knowing the substance of Lindner's testimony. As it was his responsibility to provide a complete transcript for review this point must be ruled against defendant. State v. Harris, 564 S.W.2d 561, 565 (Mo.App.1978); State v. Clark, 522 S.W.2d 332, 334 (Mo.App.1975); Rule 30.04(a).

Defendant also urges that it was error to allow Robert Gates to testify as to the substance of Lindner's tape recorded statements. Gates, an employee of the prosecutor's office, interviewed Lindner using a tape recording machine to preserve their conversation. This is a claim which defendant alleges for the first time on appeal. Defendant made no objection to the testimony at trial nor raised it in his motion for a new trial. Consequently nothing has been preserved for review. State v. Kelly, 539 S.W.2d 106, 110 (Mo. banc 1976).

Defendant next charges the trial court erred in failing to strike the testimony of Stacy Moore due to another instance of a discovery rule violation. The record shows that pursuant to Rule 25.32(A)(1), defendant requested the names and addresses of the state's witnesses together with any written or recorded statements, and existing memoranda, reporting or summarizing part or all of the oral statements. The state supplied the defendant with three police reports prepared by Detective Seymour and a report prepared by Officer Topper containing a summary of statements made by Moore. These reports were compiled by summarizing statements made by Moore and given to Police Officers Kallbrier and Topper shortly after their arrival at the scene of the crime. Defendant claims the court erred by failing to strike Moore's testimony because defendant was not allowed to examine the original notes taken by Officers Kallbrier and Topper. We do not agree. The record shows that after the officers wrote their reports they discarded the original notes. The officers...