State v. Elmore, WD
| Decision Date | 12 November 1986 |
| Docket Number | No. WD,WD |
| Citation | 723 S.W.2d 418 |
| Parties | STATE of Missouri, Respondent, v. Ottie ELMORE, Appellant. 36932. |
| Court | Missouri Court of Appeals |
Dan J. Pingelton, Columbia, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before SHANGLER, P.J., MANFORD and BERREY, JJ.
Appellant (hereinafter defendant) was convicted by a jury of sexual assault in the first degree and punishment assessed at two (2) years imprisonment.
The defendant alleges two points of error: (1) that the trial court erred in not giving MAI-CR 2.37.2.2 and 20.04.2 instructions because defendant had established a genuine factual dispute as to his mistaken belief of the age of the victim; and (2) that the state failed to present sufficient evidence that intercourse had occurred.
L.M.R., the victim, was born on May 8, 1968, and in January 1984, the time the crime was committed, she was fifteen years old. L.M.R. attended the eighth grade at Higginsville Junior High. Defendant lived next door to L.M.R. and had given her rides to school. L.M.R. frequently skipped school and rode around with the defendant; in January 1984, she attended school only two days, January 17 and 19.
In January 1984, L.M.R. attended a party at defendant's house where she drank liquor, smoked marijuana and took speed. At one point during the party, she left the party with defendant to buy more liquor. According to L.M.R., on the way home from the liquor store, defendant "tried to rape her" but she resisted, and they both returned to the party. Following the party, L.M.R. did not return home but lived with the defendant for approximately two weeks. She testified that in this two week period, they had sexual intercourse several times. She returned home after she received a note from her mother.
Defendant testified that L.M.R. always told him she was eighteen; however, he did not specifically testify as to her correct age. He denied having sex with her but did acknowledge she had stayed at his house for two or three days.
Defendant alleges the trial court erred by not submitting MAI-CR 2.37.2.2. This instruction provides that:
MAI-CR 2.37.2. (2) is:
* * *
Mistaken belief as to age.
(As to Count ____, if) (If) you find and believe from the evidence beyond a reasonable doubt that the defendant engaged in conduct submitted in Instruction No. ____, you will then decide whether or not at that time the defendant was reasonably mistaken as to the age of [name of victim].
If you find and believe from the evidence that it is more probably true than not true that the defendant reasonably believed [name of victim] was sixteen years old or older, then you must find the defendant not guilty (under Count ____) by reason of reasonable mistake as to age.
The Notes on Use for MAI-CR 2.37.2 direct attention to § 566.020, RSMo 1978. Sub-section (3) there states:
Whenever in this chapter the criminality of conduct depends upon a child's being fourteen or fifteen years of age, it is an affirmative defense that the defendant reasonably believed that this child was sixteen years old or older.
Defendant has failed to establish he reasonably believed L.M.R. was at least sixteen years old. He testified he had taken L.M.R. to school and dropped her off in front of the junior high school. The evidence also revealed he instructed L.M.R. to lie about her age to an elderly man. Specifically, L.M.R. testified "he [defendant] told me that, whenever I was going to see Ed Bomeyer (ph), to tell him I was older than fifteen because the man would not have anything to do with me if I wasn't." Finally, defendant denied having sexual intercourse with L.M.R. This denial is inconsistent with the affirmative defense that he had sexual intercourse with one he reasonably believed was sixteen years of age. Cf. State v. Williams, 542 S.W.2d 3, 6 (Mo.App.1976) (). In sum, the evidence presented at trial did not warrant an instruction as to mistaken belief.
In Point II defendant alleges that the mere testimony of L.M.R. that defendant "had sexual intercourse with [her] on several occasions" is insufficient to permit a conviction. The defendant would have the victim, describe in detail, the acts that took place. According to defendant, the failure of L.M.R. to state the defendant's penis...
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Blair v. State
...no supporting evidence by his testimony which was clearly directed to the position that no intercourse had occurred. See State v. Elmore, Mo.App., 723 S.W.2d 418 (1986). The Oklahoma Court of Criminal Appeals recently " * * * [T]he appellant asserts that the trial court failed to give reque......
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State v. Brooks, No. 57347
...occasions", without more, was sufficient to sustain a jury conviction of "sexual assault in the first degree." State v. Elmore, 723 S.W.2d 418, 420-421 (Mo.App.1986). Defendant notes that, when the inquiry about the fourth rape began, R.W. initially stated there was no fourth rape. "The onl......
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State v. Primm
...that T.B. referred to sexual intercourse as “doing it.” “There is no magic word necessary to describe penetration.” State v. Elmore, 723 S.W.2d 418, 420 (Mo.App.1986). The victim's testimony, viewed as a whole, supports the inference that when T.B. used the term “doing it,” she was referrin......
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State v. Long
...intercourse with her is sufficient to allow a reasonable inference of penetration of the vagina by the male sex organ. State v. Elmore, 723 S.W.2d 418, 420 (Mo. App. 1986). But we have no such testimony by the victim here. Nevertheless, we believe that the State can make a submissible case ......