State v. Ealey, WD

• Decision Date: 15 September 1981
• Docket Number: No. WD,WD
• Citation: 624 S.W.2d 465
• Parties: STATE of Missouri, Respondent, v. Michael Lee EALEY, Appellant. 32355.
• Court: Missouri Court of Appeals

Page 465

624 S.W.2d 465

STATE of Missouri, Respondent, v. Michael Lee EALEY, Appellant.

No. WD 32355.

Missouri Court of Appeals, Western District.

Sept. 15, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 27, 1981.

Application to Transfer Denied Dec. 14, 1981.

Fred Duchardt, Asst. Public Defender, Liberty, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

MANFORD, Presiding Judge.

This is a direct appeal from a jury conviction for rape, § 566.030, RSMo 1978 and sodomy, § 566.060, RSMo 1978. The jury affixed punishment in the Division of Corrections at 15 years on each count, the sentences to run concurrently. The judgment is affirmed.

Appellant presents two points of error on appeal. In summary, these are: (1) the trial court committed plain error in its submission of MAI-CR2d 1.02 and (2) the trial court erred in sustaining respondent's objection to defense counsel's question because of insufficient information to sustain the objection.

The sufficiency of the evidence is not challenged, thus permitting a brief summary of pertinent facts to suffice for purposes of disposition of this appeal.

The record reveals that the following facts, if believed, would support the jury's verdict. On January 15, 1980, V______, the 11 year-old stepdaughter of appellant, returned home from school around the hour of 3:30/3:35, a normal hour for her arrival. At the residence was her mother, grandmother, two younger sisters, and appellant. Appellant was intoxicated and ordered V______ to empty the ashtrays and pick up trash around the house. While V______ was performing this chore, she met appellant on the interior stairway. Appellant took the trash from the girl and threw it against the wall. He then took her to the parent's bedroom and raped her. During the attack, V______ tried to scream, but appellant placed his hand over her mouth. Moments later, V______'s mother entered the bedroom and observed V______ sitting on the bed with part of her slacks off. Appellant was nearby, fully clothed and told the mother that he had whipped V______ for being late from school.

A short while later, a second rape occurred in V______'s bedroom, and this time the mother entered the room, observing appellant adjusting either his belt or the fly on his trousers. Appellant explained that he had to again whip V______ for being late. Again, soon after this second incident, V______ was told to go to the basement for laundry purposes and a third attack occurred, which consisted of rape, oral, and anal acts of sodomy. Again, V______ was prevented from screaming because appellant placed his hand over her mouth.

Following dinner, appellant went to bed and V______ then disclosed the attacks to her mother. V______ later testified that she did not tell her mother until appellant was asleep for fear of harm to herself and other family members.

The mother took V______ to a local hospital, and then to an area children's hospital. A medical examination revealed conditions consistent with rape and sodomy, however, pregnancy and sperm tests were negative.

The defense consisted of the testimony from appellant's wife (privilege waived) and the testimony of appellant. Appellant's wife testified that she never heard or observed anything which made her aware of the attacks. Appellant's testimony consisted of his denial of the attacks and that V______ had made a similar accusation against appellant in 1976, which V______ later retracted. The evidence closed and the jury returned its verdict. Appellant's motion for new trial was overruled, parole was denied following a presentence investigation, and appellant was sentenced in conformity with the jury's verdict. This appeal followed.

In his first point of error, appellant charges that the trial court committed plain error upon its failure to correctly read MAI-CR2d 1.02 to the jury. The pertinent portion of the instruction reads: (omitted words are bracketed)

"The cases which twelve of your number will try are cases in which (it is charged by the state) the defendant ..."

Appellant contends that the omission of the words "it is charged by the state" led the jury to be instructed that appellant did in fact have sexual intercourse and did in fact have deviate sexual intercourse with the victim. Implicit within appellant's argument is the concept that the instruction, as read, erroneously assumed ultimate facts as opposed to leaving the determination of those facts to the jury, which in effect eliminated appellant's right to the presumption of innocence.

This instructional error was not challenged by objection at trial or in appellant's motion for new trial, and the point has not been preserved for review. State v. Miller, 604 S.W.2d 702 (Mo.App.1980) and Rule 28.03. It is correct that Rule 28.03 provides that a party is not required to specifically or generally object to instructions which a court, on its own, has given or failed to give. The interpretation of that portion of the rule has been held to apply only to substantive instructions given prior to the closing arguments preceding submission and not to mandated procedural instructions applicable to the beginning of a case. State v. Boyd, 600 S.W.2d 97 (Mo.App.1980).

Appellant urges this court to consider the matter as plain error (Rule 30.20). Error not properly preserved will not be considered "plain error" unless there is a finding that "manifest injustice or miscarriage of justice has resulted therefrom," Rule 30.20; and instructional error will not be considered plain error unless it is found that the trial court has so misdirected or failed to instruct the jury upon the law as to produce or cause manifest injustice or a miscarriage of justice. State v. Bell, 607 S.W.2d 796 (Mo.App.1980); State v. Hayes, 602 S.W.2d 29 (Mo.App.1980); State v. Murphy, 592 S.W.2d 727 (Mo. banc 1979); and State v. Rollie, 585 S.W.2d 78 (Mo.App.1979).

Failure to comply with any MAI-CR2d instruction constitutes error (Rule 28.02(c)), but the prejudicial effect of such failure is to be judicially determined (Rule 28.02(e)), State v. Ward, 588 S.W.2d 728 (Mo.App.1979). It has been declared that "any error associated with noncompliance 'must be deemed prejudicial unless the contrary clearly appear' ". State v. Graves, 588 S.W.2d 495, 497 (Mo. banc 1979); State v. McGrath, 603 S.W.2d 518, 519 (Mo.1980). It is the judicial determination pursuant to Rule 28.02(e) which decides the issue in each case.

Thus, the question before this court is whether or not the trial court's omission of the words "it is charged by the state", while error, were likewise prejudicial, therefore resulting in reversible error. Concerning the determination of prejudicial effect of instructions, it has long been determined that instructions are to be reviewed and construed together. State v. Holt, 592 S.W.2d 759 (Mo. banc 1979); State v. Summerland, 610 S.W.2d 392 (Mo.App.1980).

The instant record shows that MAI-CR2d 1.02, except for the above-referenced omission, was read accurately and entirely. In the paragraph immediately following the paragraph containing (in this case) the omission, the following appears:

"The defendant denies the charge. Thus, an issue of fact has arisen and must be decided by a jury, subject to instructions concerning the law which the Court will give to the jury." (emphasis added)

In addition to the foregoing language, which was read to the jury, the trial court submitted, at the close of the evidence, MAI-CR2d 2.20 (Instruction No. 4), which reads:

"The fact that the defendant has been charged with an offense is not evidence, and it creates no inference that any offense was committed or that the defendant is guilty.

The defendant is presumed to be innocent unless and until, during your deliberations upon your verdict, you find him guilty. This presumption of innocence places upon the state the burden of proving beyond a reasonable doubt that the defendant is guilty.

If the evidence in this case leaves in your mind a reasonable doubt as to the defendant's guilt on any charge against him you must return a verdict of 'Not guilty' on that charge." (emphasis added)

The record also reveals that in addition to the foregoing instructions, the trial court submitted MAI-CR2d 20.02.2 (Instruction No. 5), the correct instruction applicable to rape, and MAI-CR2d 20.08.2, the correct instruction applicable to sodomy. These verdict-directing instructions advised the jury that in order to find appellant guilty, they must find and believe beyond a reasonable doubt and from the evidence that appellant had sexual intercourse and deviate sexual intercourse with V______. Both verdict-directing instructions contained the "however clause" which instructed the jury that they must find appellant not guilty if they did not find and believe appellant guilty beyond a reasonable doubt from the evidence.

In the instant case, when the instructions are reviewed as a whole, it is obvious that the jury was instructed to the effect that appellant had been charged with offenses, that such charge created no inference of guilt, and that appellant was presumed innocent until found guilty by the jury (Instruction No. 4), MAI-CR2d 2.20. Further, it is obvious from the instructions that the jury was instructed to the effect that appellant denied the charges and that the determination of the issue of guilt was for the jury (Instruction No. 1), MAI-CR2d 1.02. The jury was instructed under I...