State v. Finch, WD

• Decision Date: 23 February 1988
• Docket Number: No. WD,WD
• Citation: 746 S.W.2d 607
• Parties: STATE of Missouri, Respondent, v. Martin J. FINCH, Appellant. 39466.
• Court: Missouri Court of Appeals

Page 607

746 S.W.2d 607

STATE of Missouri, Respondent, v. Martin J. FINCH, Appellant.

No. WD 39466.

Missouri Court of Appeals,

Western District.

Feb. 23, 1988.

David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

Jared Richard Cone, Asst. Atty. Gen., Jefferson City, for respondent.

Before GAITAN, P.J., and TURNAGE and CLARK, JJ.

CLARK, Judge.

Martin J. Finch was charged with attempted forcible rape and sexual abuse in the first degree of the complainant, Eula Martin. A jury heard the evidence, acquitted Finch of rape, but convicted him of sexual abuse. The trial court found Finch to be a persistent sexual offender and later, a persistent offender and sentenced him to five years' imprisonment without eligibility for probation or parole. We reverse the conviction and grant a new trial.

The facts of the case are relevant to appellant's complaint that the trial judge failed to instruct on a lesser included offense. Eula Martin, a twenty-nine year old woman, was the complaining witness against Finch. Ms. Martin lived in Lawrence, Kansas with her three children and a boyfriend. On the night of August 21, 1986, at about 10:00 p.m., Ms. Martin went alone from her home to visit a bar in Lawrence. Upon arriving there, she was invited to join two men with whom she had not previously been acquainted, Finch and Al White. The three remained in the bar drinking for approximately one hour.

Finch and White were employed as canvassers for a Kansas City company and had been brought to Lawrence to work the area that day. Although they had transportation back to Kansas City, they remained too long in the bar and missed their ride. They prevailed on Ms. Martin to drive them to Kansas City in her car. Before leaving Lawrence, they went to a service station where White purchased gasoline together with whiskey, beer and wine cooler for Ms. Martin. Thus supplied, Ms. Martin left Lawrence with White and Finch as passengers headed for Kansas City.

When the trio reached Kansas City, Kansas, White indicated to Ms. Martin that he would show her a couple of places to go if she had the opportunity to return another time and directed her to drive to a club on the Kansas side. At that bar, Ms. Martin and Finch remained in the car while White briefly went inside. From there, White took over the driving and they went to a second bar. All three entered that location, apparently near the bus depot in Kansas City, Missouri, and drank beer and Finch and Ms. Martin danced. Some two hours later, it was agreed to end the evening, and Ms. Martin resumed driving for the purpose of taking White to his automobile located in the parking lot of his employer in downtown Kansas City.

When the parking lot was reached, White entered his car but Finch remained with Ms. Martin under an agreement that she would drive him home. White had earlier promised to guide Ms. Martin to the turnpike entrance for her return trip to Lawrence and as the two cars left the parking lot, White was following to lead Ms. Martin to the highway once she had delivered Finch to his house. According to White, however, he drove off when he noted that Finch and Ms. Martin were driving in the opposite direction from Finch's home.

The foregoing facts were not a subject of any conflicting testimony, but the next succeeding events are less certain. According to Ms. Martin, after they left the employee parking lot, she drove up and down various streets at Finch's direction and she was uncertain where she was. At a time or times, Finch guided the car by grabbing the steering wheel. Eventually the car reached a central city park where the vehicle stopped. Ms. Martin testified that Finch kissed her and touched her breasts and genitals without her permission and despite her protestations. At this time, Ms. Martin was behind the steering wheel of the car and Finch was seated beside her. The time was approximately 2:00 a.m.

By coincidence, the area where the car was stopped was used by police officers on the late shift for physical training and that night three officers ran by while Finch and Ms. Martin were in the parked vehicle. Ms. Martin shouted out the open car window as the officers passed, they returned and upon Ms. Martin's complaint that Finch had attempted to rape her, Finch was placed under arrest and was eventually charged.

The principal point of error requiring reversal of the judgment is the failure of the trial court to instruct the jury upon the lesser included offense of sexual abuse in the third degree. The distinction between sexual abuse in the first degree, § 566.100, RSMo 1986, ¹ a class D felony, and sexual abuse in the third degree, § 566.120, a class B misdemeanor, is that first degree abuse requires proof of forcible compulsion. Third degree abuse is, like first degree abuse, the accomplishment of a non-consensual sexual contact, but without the application of force on the victim to achieve the contact. Sexual contact is defined in § 566.010.1(3) to be the touching of the genitals or anus of any person or the breast of any female person for the purpose of arousing or gratifying sexual desire. Thus, sexual contact accomplished under circumstances where the victim has not been subdued or restrained by the use of force, but who is, nonetheless, an unwilling recipient of the personal intrusion is third degree sexual abuse. In this discussion, we do not consider sexual abuse of children or incapacitated persons.

In this case the evidence was that Ms. Martin voluntarily joined Finch and White, persons she did not know, in a local bar, drank alcoholic beverages with them and then undertook late at night to drive them from Lawrence, Kansas to Kansas City, Missouri. Although the original purpose of the trip was merely to provide substitute transportation, Ms. Martin acquiesced in visits to other bars where she continued to socialize with the men, drinking and dancing with appellant. Later she agreed to drive appellant home in his company alone and during the events which later occurred, it was she who was in the driver's seat of the vehicle.

The only evidentiary basis in the case to support the charge of first degree sexual abuse required the jury to find that Finch forced Ms. Martin to drive her car to the city park and held her there against her will to consummate the sexual contact. On this issue, the evidence was at least uncertain and far from conclusive. The police officers who happened by the parked car at first noticed nothing unusual. The first two officers saw Finch embracing Ms. Martin, but they heard no outcry and saw no sign of anything they would not expect in such circumstances. It was only when the third officer approached that Ms. Martin acted to attract his attention. Each officer agreed that Finch had one hand on Ms. Martin's breast and the other beneath her skirt. There was also conflicting testimony as to whether Ms. Martin was in control of the vehicle. She testified that she was prevented from leaving the park because Finch had taken the ignition keys. The police officer testified, however, that the keys were in the ignition and he later removed them and handed them over to Ms. Martin.

The trial court must instruct the jury on all lesser included offenses supported by the evidence and it is error not to do so. In order to require the giving of an instruction on the included or lesser offense there must be support in the case for its submission. State v. Story, 646 S.W.2d 68, 73 (Mo. banc 1983).

In the present case, the evidence as a whole and the variances between the facts as related by Ms. Martin and as recounted by the police officers were sufficient to entitle the jury to find that Finch's sexual advances to Ms. Martin were without her consent but were not accomplished by application of force which conviction of first degree sexual assault requires. The court should therefore have given the instruction in the form of MAI-CR 3rd 320.20 and 304.02 as tendered by appellant and it was error not to do so.

Other points on appeal note errors committed by the state and by the trial court. They are discussed for purposes of guidance on retrial.

A substantial degree of confusion accompanied the state's efforts to charge Finch with prior offenses subjecting him to enhanced punishment. In its first amended information, the state charged Finch to be a persistent sexual offender under § 558.018. To sustain this charge, the state alleged and attempted to prove that Finch had been convicted in Texas of rape. Before selection of the jury commenced, the court conducted a hearing on the persistent sexual offender charge. The state offered and the court received over the defendant's objections, an exhibit consisting of four pages. The first page was a certification by the record clerk of the Texas Department of Corrections that the attached pages were the conviction records of Mark James Jones. The second and third pages were from the District Court of Dallas County, Texas, showing the convictions of Mark James Jones for aggravated assault and aggravated rape. The fourth page was the fingerprint record of Martin Finch, alias Martin James Finch, from the Texas Department of Corrections. The certification made no mention of Martin Finch.

This proof was insufficient to support a finding made by the trial court that Martin J. Finch was a persistent offender. The certified conviction record was that of Mark James Jones, not of appellant. The certification itself made no reference at all to Martin James Finch and therefore the fingerprint record was without any official status. In short, there was no documented basis to...