State v. Foerstel

• Decision Date: 05 June 1984
• Docket Number: No. WD,WD
• Citation: State v. Foerstel, 674 S.W.2d 583 (Mo. App. 1984)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Steven T. FOERSTEL, Defendant-Appellant. 32381.
• Court: Missouri Court of Appeals

Page 583

674 S.W.2d 583

STATE of Missouri, Plaintiff-Respondent, v. Steven T. FOERSTEL, Defendant-Appellant.

No. WD 32381.

Missouri Court of Appeals Western District.

June 5, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

July 31, 1984.

Application to Transfer Denied

Sept. 11, 1984.

William M. Barvick, Jefferson City, for defendant-appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

Steven T. Foerstel (appellant) was jury convicted of nine criminal offenses. The first count was for escape (§ 575.210, RSMo 1978) ¹ for which the jury sentenced appellant to 5 years; Count II was kidnapping (§ 565.110, 15 years); Count III was rape (§ 566.030, 15 years); in Count IV he was charged with first degree burglary but found guilty of the lesser included offense of first degree trespass (§ 569.140, 6 months); Count V was for first degree burglary (§ 569.160, 15 years); Counts VI and VII were rape (§ 566.030, 15 years each); Count VIII was kidnapping (§ 565.110, 15 years); and Count IX was stealing a motor vehicle (§ 570.030, 7 years). The jury thus assessed punishment at a total of one hundred and two years on the various counts. The trial court, finding him to be a persistent offender under § 558.016, added ninety years to his sentence for a total of one hundred ninety-two years. ²

Appellant raises some seven points of error on appeal (the sufficiency of the evidence is not in question). His points are denied and the judgment of the trial court is affirmed.

The following facts are undisputed. On July 25, 1979, appellant Foerstel was an inmate at the Church Farm, a state correctional minimum security facility, located outside Jefferson City, Missouri. He had been in custody since May, 1972 serving a twenty-five year sentence for rape and a fifteen year sentence for assault with intent to kill. Appellant's job assignment was described as a security clerk on the 3:30 to midnight shift, it involved performing clerical duties and various other tasks for the corrections officers.

Appellant was called to the gatehouse at the front gate several times during the early evening of July 25, 1979 by Kathy Parrant, the guard on duty, to deliver ice water and to capture a tame bird that was loose in the gatehouse. At approximately 10:50 p.m., appellant returned to the gatehouse and discovering Officer Parrant in the restroom, went in and asked her if she wanted company--when she attempted to stop he dragged her by the hair out of the restroom. She asked him to stop and think what he was doing, but he replied that he had been in prison eight years and had to get out of there. He forced her to open the front gate and accompany him as he drove away from the prison in Officer Parrant's car. After driving around for about twenty minutes, appellant stoped the car in Memorial Park, in Jefferson City. She was pleading and crying for him to leave her alone but he said it had been eight years and "he was not going to pass up the chance now." Then appellant forcibly raped Officer Parrant. Following the rape, appellant left the car by window so as to avoid turning on the dome light.

In the early morning hours of July 26, 1979, Mrs. Cynthia Chapman awoke and discovered appellant attempting to crawl in her bedroom window. She struggled trying to keep him out of her home but when it became obvious that he was going to gain entry she turned and ran from her home to a neighbor's house where she called the police. Mrs. Chapman stated that during the struggle to keep appellant out of her home she spoke with appellant telling him, "you get the hell out of here," and that he replied that he wanted a drink of water. The police arrived soon after Mrs. Chapman's call and searched her house but appellant was no where to be found. The Chapman house is about one-half mile from the Memorial Park Swimming Pool.

At approximately 7:00 a.m. on the same morning (July 26) seventeen year old Pamela Kanagawa was awakened in her bedroom by appellant putting his hand over her mouth, threatening her with a kitchen knife and telling her not to scream. During the course of the morning appellant forcibly raped both Pamela and her mother Linda. He remained in the Kanagawa house (about one-quarter mile from Memorial Park) for a good portion of the day watching television, allegedly to see if there were any reports on his escape and what actions the police were undertaking. During the course of the afternoon the Kanagawa family was either bound or in the living room with appellant watching television under his observation. About 4:00 p.m., while the Kanagawas were tied up, Pamela managed to free herself but was unsuccessful in an escape attempt. Foerstel forced Pamela to lie in bed with him and told her that he intended to take the family car after dark to make good his escape. He then made her move into the living room with him at which time he removed his clothes and forced her to massage him. While this was happening, appellant heard a noise coming from Mrs. Kanagawa's bedroom and left to investigate. When appellant left the living room Pamela escaped and ran down the street stopped a passing motorist who gave her a ride to a neighbor's house where she called the police. When appellant realized that Pamela was gone he forced Mrs. Kanagawa to drive him away from town in the family car. About 5:15 p.m. Foerstel made Mrs. Kanagawa pull off the road into a wooded area, and they waited there until about 9:30 p.m. when it started to get dark. Foerstel then tied Mrs. Kanagawa to a tree with some panty hose and left the scene in her car. A short time later appellant was captured by State Troopers following a highspeed car chase. The entire sequence of events from escape to capture lasted approximately 24 hours.

I.

Appellant in his first point attacks joinder of the offenses under present Rule 23.05 (formerly 24.04(b) ³ and asserts error in the exercise of discretion under Rule 24.07 ⁴ by not severing the offenses for trial. Appellant argues the entire episode should have been severed into three categories or transactions, one comprising Counts I through III which encompassed the escape, kidnap and rape of the guard, a second for the Chapman crime (Count IV), and a third for the rapes, car theft and kidnapping involving the Kanagawas (Counts V through VIII). Appellant states the crimes and victims were different, they were separate in time and location and could conceivably only be joined as part of a "common scheme or plan" under Rule 23.05. The state agrees the nine offenses did not comprise the "same transaction" language of the rule. The primary cases supporting his position of improper joinder and error for not severing are listed as follows:

In State v. Prier, 561 S.W.2d 437 (Mo.App.1978), three sales of different substances over a two month period to the same officer was held to be an improper joinder. The Southern district noted the Federal Rule on joinder (F.R.C.P. 8(a) is much broader than Rule 24.04 (now 23.05). It noted the "common scheme or plan" language was introduced in Missouri in 1971. This language maintained consistency with the evidentiary rules that prohibit separate and distinct crimes being introduced to establish a defendant's guilt for the charge he is being tried for except when evidence of other crimes tends to establish (1) motive; (2) intent ... (4) a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other. State v. Selle, 367 S.W.2d 522, 529 (Mo.1963). The facts in Prier were described as "independent," "unrelated," "impromptu" and "casual," not of a single motive, happening at different times and places, the proof of each not tending to prove any material fact of the other two charges. Id. at 440, 411.

In State v. Jackson, 566 S.W.2d 227, 228-229 (Mo.App.1978), the defendant was charged with murder and at the time of his arrest with possession of heroin. The state failed to connect the two crimes as part of the same transaction and showed no common scheme. Since the state did not introduce evidence to corroborate its theory that the victim had previously fought with the defendant over the sale of drugs, the court held the crimes were independent and should have been tried separately under Rule 24.04 (now 23.05).

This court in State v. Buford, 582 S.W.2d 298, 301-302 (Mo.App.1979), held that an assault and theft from a victim of her car keys followed by an assault a short time later on another nearby victim was improperly joined because proof of the second assault was not necessary to or "inextricably woven" with proof of the first assault, no common scheme was shown and even though the defendant was acquitted of the first assault the court held the joinder of the two constituted prejudicial error.

In State v. Howard, 601 S.W.2d 308, 309-310 (Mo.App.1980), the defendant stole within an hour's time purses from two different people several blocks apart. As in Buford, supra, the defendant was found not guilty of the first charge, but, the court found prejudicial error because neither offense was part of the same transaction or part of a common scheme, the joinder therefore amounting to error.

In State v. Wood, 613 S.W.2d 898, 901-902 (Mo.App.1981), the defendant and another were charged with robbing two motels within one half hour of each other. There was no evidence of a common scheme or plan nor was proof of the second robbery necessary to prove the first robbery, resulting in reversal.

It should be again noted the appellant does not deny commission of the offenses but points to diminished mental capacity or mental disease and defect (as discussed in Part II of this opinion) in conjunction with his being apprehensive over pending parole hearings and his having been recently denied two...