State v. Elliott
| Decision Date | 26 January 1999 |
| Docket Number | No. WD,WD |
| Citation | 987 S.W.2d 418 |
| Parties | STATE of Missouri, Respondent, v. Randy ELLIOTT, Appellant. 55319. |
| Court | Missouri Court of Appeals |
David Simpson, State Public Defender Office, Columbia, for Appellant.
Breck Burgess, Attorney General Office, Jefferson City, for Respondent.
Randy Elliott appeals the circuit court's judgment convicting him of attempted forcible rape, first-degree burglary, first-degree robbery, and first-degree assault. Randy Elliott contends that the circuit court erred in denying his motion for acquittal because the state's evidence did not prove its case and in convicting him of charges which were lesser-included offenses of one another. The circuit court erred in convicting Elliott of both first-degree robbery and first-degree assault, and we reverse the conviction for first-degree robbery. We, therefore, order that the portion of the circuit court's judgment pertaining to first-degree robbery be vacated. We find no other reversible error in the circuit court's judgment and affirm the remainder of it.
The state accused Elliott of attacking a 71-year-old woman in her Kansas City house on December 11, 1996. After the woman let Elliott into her house to use her telephone, Elliott threw her to the floor, removed her clothes, put one of his fingers into her vagina, and beat her with his fists.
In his first point on appeal, Elliott contends that circuit court erred in denying his motion for acquittal at the close of the state's evidence and in entering his conviction for first-degree burglary because the state did not prove that he "knowingly remained unlawfully" in the victim's house. Elliott argues that, because the victim invited him into her house, the state had to prove that she revoked her consent, and it did not.
The scope of review in a court-tried case is the same as that of a case tried to a jury. State v. Turnbough, 604 S.W.2d 742, 744 (Mo.App.1980). In determining whether substantial evidence existed to support the court's finding, all evidence favorable to the verdict is accepted as true, and all evidence to the contrary is disregarded. Id. At trial, the victim testified that Elliott did not have permission to be in her house when he attacked her. Further, Elliott's attorney, in her closing argument said, Elliott's first point is without merit.
In his second point, Elliott challenges his first-degree robbery conviction on the ground that the state did not show that the physical force he used to attack the victim was for the purpose of stealing her money. During the attack, she offered to give him the $20 she had in her purse if he would stop attacking her. He stopped the attack and took her money. He argues that he intended for his physical force to overcome her resistance to his raping her--he did not intend to use it to get money from her.
His argument is absurd. In State v. Kelly, 539 S.W.2d 106 (Mo. banc 1976), the Supreme Court rejected an identical argument under identical circumstances as "so utterly devoid of merit that it hardly warrants discussion:"
It is obvious that the suggestion that defendant take the money was made in order to get him to stop the beatings. It is also reasonable to assume that the victims were acting under the belief that if defendant did not get the money he would again commence beating them. Under these circumstances the jury could reasonably find that the taking was accomplished by putting the victims "in fear of immediate injury to their person and by violence to their persons" as alleged in the information.
The state established that Elliott was beating and attempting to rape the victim when she offered money in exchange for Elliott's stopping the attack. Elliott stopped the attack, got dressed, and demanded the money. The violence clearly was the cause for the taking--her fear in the middle of Elliott's attack compelled her to give up her money to save herself.
In his third point, Elliott contends that convicting him of both first-degree robbery and first-degree assault and both attempted forcible rape and first-degree assault violated his constitutional guarantee against double jeopardy. 1 He argues that first-degree assault is a lesser-included offense of first-degree robbery because the element of knowingly causing serious physical injury to another person is essential to both offenses. He also argues that first-degree assault is a lesser-included offense of attempted forcible rape because the General Assembly did not intend for assault with an intent to commit rape to be chargeable as two separate crimes.
Elliott raises the issue for the first time in this appeal. This preserves nothing for us to review, but he asks us to review the matter as plain error as Rule 30.20 authorizes us to do.
Missouri courts have long enforced the rule that a defendant must raise a constitutional attack at the earliest opportunity, and his failure to do so preserves nothing for appellate review. State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975). A number of Missouri cases have held that the constitutional protection to be free from double jeopardy is a personal right or privilege which is waived if not timely and properly asserted at trial or when entering a guilty plea. See State v. Rosendahl, 938 S.W.2d 274, 277 (Mo.App.1997); State v. Gaver, 944 S.W.2d 273, 279 (Mo.App.1997); State v. Baker, 850 S.W.2d 944, 947 (Mo.App.1993).
The state argues that, by not raising the constitutional claim at the earliest opportunity, Elliott waived the issue. The Supreme Court, however, has instructed that, because the right to be free from double jeopardy is a constitutional right which goes "to the very power of the State to bring the defendant in the court to answer the charge brought against him," an exception should be made in any case in which we can determine from the face of the record that the court had no power to enter the conviction. Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992). We have such a case here, so we grant plain error review.
The double jeopardy clause protects defendants from multiple punishments that the General Assembly did not intend. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). The protection against cumulative punishments for the same offense "is designed to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature." Id. (quoting Ohio v. Johnson, 467 U.S. 493, 498-99, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984)). When the General Assembly specifically authorizes multiple punishment under statutes which proscribe the same conduct, the circuit court may sentence cumulative punishments without offending the double jeopardy clause. Id. (citing Missouri v. Hunter, 459 U.S. 359, 366-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)).
The General Assembly did not authorize multiple punishment for first-degree assault and first-degree robbery in either § 565.050, RSMo 1994 (first-degree assault), or § 569.020, RSMo 1994 (first-degree robbery). In § 556.041, RSMo 1994, the General Assembly mandated:
When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if
(1) One offense is included in the other, as defined in section 556.046; or
(2) Inconsistent findings of fact are required to establish the commission of the offenses; or
(3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
(4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
Section 556.046, RSMo 1994, says:
1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It is specifically denominated by statute as a lesser degree of the...
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