State v. Faulkner

• Decision Date: 27 March 2003
• Docket Number: No. 24851.,24851.
• Citation: 103 S.W.3d 346
• Parties: STATE of Missouri, Respondent, v. Glenn E. FAULKNER, Appellant.
• Court: Missouri Court of Appeals

Page 346

103 S.W.3d 346

STATE of Missouri, Respondent, v. Glenn E. FAULKNER, Appellant.

No. 24851.

Missouri Court of Appeals, Southern District, Division One.

March 27, 2003.

Motion for Rehearing or Transfer Denied April 18, 2003.

Application for Transfer Denied May 27, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Emmett D. Queener, Assistant State Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Andrea Mazza Follett, Assistant Attorney General, Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Glenn E. Faulkner ("Appellant") appeals his conviction and sentence, after a jury trial, of forcible rape, § 566.030; forcible sodomy, § 566.060; kidnapping, § 565.110; and armed criminal action, § 571.015.¹ The Circuit Court of Jasper County imposed consecutive terms of life imprisonment for forcible rape, life imprisonment for forcible sodomy, fifteen years for kidnapping, and thirty years for armed criminal action. Appellant raises five points of trial court error, discussed below. We affirm.

"The evidence is restated below in the light most favorable to the trial court's judgment, including all reasonable inferences tending to support that judgment and ignoring all contrary inferences." State v. Shaw, 847 S.W.2d 768, 771 (Mo. banc 1993).

Viewed from this perspective, the evidence shows that on October 31, 2000, fourteen-year-old C.P. ("Victim") left her home in Joplin at approximately 7:20 a.m. to go to a friend's house with whom she was to walk to school.² As she was walking, she saw a van drive by. Victim noticed the van when it came back and pulled in front of her. A man wearing a camouflaged hunting mask got out of the van holding a gun. The man opened the sliding door on the driver's side of the van while keeping the gun pointed at Victim. He grabbed Victim's backpack and told her to get into the van. Victim at first thought this was a Halloween prank, but when the man cocked the pistol, she believed that she was in danger.

The man put the gun to Victim's head and threatened to shoot her if she did not get into the van. He threw her backpack into the van, pushed her inside, and told her to lie down and not to look up. Victim asked the man if she would ever see her mother again, and the man replied she would if she did what he said. The man got into the van, closed the door, and began to drive.

When the van stopped, Victim heard the man rummaging in the glove box. The man got out of the van and opened the door. He then told Victim to sit up and keep her eyes closed, which she did. While her eyes were closed, the man began to touch Victim's breasts through her clothing. The man then forced Victim to get on her knees and perform oral sex on him. Afterwards, the man made Victim get back onto the seat, put a camouflage mask over her head, and resumed fondling her breasts. A few minutes later, the man took the camouflage mask off of Victim and told her to keep her eyes closed. He proceeded to remove Victim's shirt and place it over her face so she could not see.

After fondling her breasts again, the man removed Victim's pants and underwear, and began to move the gun in and out of her vagina several times. Victim was crying and screaming during this time, but the man told her to shut up. Victim next heard the sound of metal on metal and thought he had placed the gun on the roof of the van. The man then pulled Victim closer to him and forced her to have sexual intercourse with him.

Although Victim did not know how long it lasted, at some point the man stopped having intercourse with her, threw some of her clothes at her, and told her to get dressed. As she dressed, Victim could not find her underwear, and the man said he had thrown them out. The man told her to get out of the van and returned her backpack. He pointed off into the distance and told Victim to start walking toward a house located in that direction. He then told Victim not to look back or he would shoot her. At no time during the rape did Victim see the man's face or any facial feature.

On the morning of the assault, Belinda Elliston was traveling north on County Road 303 in Carl Junction at approximately 8:00 a.m. taking her children to school. Ms. Elliston saw a bluish-green van driving on an unpaved lane on her property. She paid attention to the van because her family had had problems with trespassers on their property in the past. The van turned south onto 303 and passed Ms. Elliston as she was headed northbound, nearly clipping the front corner of her car and causing her to swerve to miss it. As the van passed, Ms. Elliston saw the driver's face. The following day Ms. Elliston assisted the police in preparing a computer generated composite of the man. Ms. Elliston later identified Appellant as the driver of the van from a photographic lineup. At trial, Ms. Elliston identified Appellant as the driver of the van.

Meanwhile, Linda DeGraff was driving on Gum Road in Carl Junction toward her daughter's house sometime between 8:00 and 8:30 a.m. when she saw Victim walking along the road. Ms. DeGraff stopped to check on Victim because she saw the girl was crying. Victim told Ms. DeGraff that she had been kidnapped and raped, and that she didn't know where she was. Ms. DeGraff took Victim to her daughter's house where they called the police. Victim was taken by ambulance to the Children's Center.

Once at the hospital, a pediatric nurse practitioner performed a sexual abuse forensic examination on Victim. The nurse found dried secretions in Victim's pubic hair and secretions in her vagina. Suspecting that semen was present in Victim's vaginal area, the nurse took samples of the vaginal secretions with a "rape kit" and gave the evidence she collected to Detective Darren Gallup of the Joplin Police Department. The detective delivered the rape kit to the Missouri Southern State College Crime Laboratory (Missouri Crime Lab).

On the afternoon of the crime, Jasper County sheriff's deputies found a pair of girl's underwear in the area of Carl Junction where Victim had been raped, which Victim later identified at trial as the underwear she was wearing when she was abducted.

On November 15, 2000, approximately two weeks after the rape, Detective Bill Hawkins took Victim to various car lots and parking lots to see if she could point out a van similar to the one her abductor drove. Victim had described the van as an aquamarine or topaz blue color with sliding doors and a light-colored interior. She further described the second and third row of seats as being bench style with no headrests. When Victim spotted a van in a parking lot that resembled the one used in her abduction, the detective photographed it.

In the course of investigation, some tire tracks were found near the rape scene. These tire tracks were photographed, and plaster casts were made of portions of them. Goodyear Conquest tires were the only ones the director of the crime lab could come up with that matched the pattern and the letter "T" seen in the impression of a sidewall of one tire. Further investigation revealed that Goodyear Conquest tires were placed on all Chrysler, Dodge, and Plymouth minivans from 1996 to 2000.

At some point during the investigation, an anonymous caller contacted the Carthage police department. In that phone call, the caller described Appellant and reported that Appellant worked at H.E. Williams. The caller further identified the van Appellant drove.

On November 16, 2000, the day after Victim had spotted a van similar to that of her assailant's, Officer Hawkins and Corporal Roger Renken of the Missouri Highway Patrol went to the H.E. Williams parking lot where they saw Appellant's 1997 Plymouth van, which matched the description Victim had given them as well as that of the anonymous caller. Appellant's van had Goodyear Conquest tires on it. The officers ran the license plate numbers from the van and discovered the plate was registered to Appellant, but for a Pontiac car instead of the van. Furthermore, the license check revealed that Appellant's driver's license was suspended.

The officers contacted an employee in the personnel department where Appellant worked and learned that Appellant had not been at work on October 30 or October 31, 2000, the day Victim was raped. Appellant was not scheduled to have either day off from work, and he did not arrange in advance to be gone. The officers returned to their car and waited for Appellant.

When Appellant approached the van, the officers identified themselves and told him they were investigating a kidnapping and rape. The officers also told Appellant that he and his van matched the suspect's description. At some point the officers also confronted Appellant with the improper registration on the van and the suspension of his driver's license. Although Detective Hawkins did not recall if he told Appellant that he could go to jail for those offenses, he did tell Appellant that he could get a "ticket" for them.

After Detective Hawkins informed Appellant of the investigation, he asked Appellant if he would follow them to the police station. The officers asked Appellant to give a statement as to his whereabouts on October 31, 2000. Appellant was not under arrest and was not advised of his Miranda³ rights at that time. Appellant drove his own vehicle to the police station.

At the police station, Detective Hawkins asked Appellant to provide a DNA sample. He told Appellant that a DNA sample could possibly eliminate him as a suspect in the investigation, or it might make him a suspect if there was a DNA match. Appellant was informed that he could refuse to give a DNA sample. Detective Hawkins claims he did not tell Appellant that he would be arrested if he refused to give the DNA sample. However, at some point during the interview, Detective Hawkins told Appellant that he could be arrested and jailed on the improper van license and...