State v. Foulk

• Decision Date: 13 January 1987
• Docket Number: No. 49624,49624
• Citation: 725 S.W.2d 56
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert W. FOULK, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 56

725 S.W.2d 56

STATE of Missouri, Plaintiff-Respondent, v. Robert W. FOULK, Defendant-Appellant.

No. 49624.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 13, 1987.

Motion for Rehearing and/or Transfer Denied March 4, 1987.

Application to Transfer Denied May 19, 1987.

William L. Webster, Atty. Gen., Paul LaRose, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Daniel J. Pingelton, Columbia, for defendant-appellant.

SIMON, Judge.

Defendant, Robert W. Foulk, was found guilty of rape, § 566.030 RSMo 1978 and sodomy, § 566.060 RSMo 1978, at the conclusion of a jury trial in the Circuit Court of Cape Girardeau County. (All further references will be to RSMo 1978 unless otherwise noted.) Pursuant to the jury's verdict, defendant was sentenced to a term of ten years for each offense to be served consecutively.

Defendant contends the trial court erred in: (1) denying his offer of evidence of prior sexual contacts between himself and the complainant; (2) denying his motion for individual or group voir dire; (3) sustaining the state's objection to his cross-examination of a state witness concerning the complainant's reputation for truth and veracity; (4) denying his motion to endorse two defense witnesses to impeach the complaining witness; (5) sustaining state's objection to questions asked of a defense witness concerning his observations of prior injuries to complainant similar to those attributed to defendant; (6) overruling his objection and motion for a mistrial over questions to a state witness regarding whether the witness had mentioned a "burglary" to defendant during police interrogation; (7) allowing into evidence a letter he wrote from jail which indicated a plan of escape; (8) allowing the state to use letters written by him to the complainant for purposes of impeaching defendant; (9) restricting voir dire by not allowing him to question the panel regarding areas of reasonable doubt, burden of proof or presumption of innocence. We affirm.

As the sufficiency of the evidence is not challenged by defendant, the pertinent facts will be discussed insofar as required to resolve defendant's points.

In point one, defendant does not deny engaging in sexual acts with the complainant, his mother. He alleges the acts were consensual and contends that the trial court erred in sustaining the state's motion in limine which precluded defendant from introducing evidence of a prior act of consensual sexual intercourse between himself and his mother in 1979 and sexual advances by his mother towards him in 1981 and 1982.

Defendant recognizes that such evidence is presumed irrelevant under § 491.015, the "Rape Shield Law" unless it falls within one of the exceptions. State v. Brown, 636 S.W.2d 929, 933 (Mo. banc 1982). Section 491.015 provides in pertinent part:

1. In prosecutions for the crimes of rape, attempt to commit rape, or conspiracy to commit rape, opinion and reputation evidence of the complaining witness' prior sexual conduct is inadmissible; evidence of specific instances of the complaining witness' prior sexual conduct or the absence of such instances or conduct is inadmissible, except where such specific instances are:

(1) Evidence of the sexual conduct of the complaining witness with the defendant to prove consent and the evidence is reasonably contemporaneous with the date of the alleged crime; or

(2) Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease;

(3) Evidence of immediate surrounding circumstances of the alleged crime; or

(4) Evidence relating to the previous chastity of the complaining witness in cases, where, by statute, previously chaste character is required to be proved by the prosecution.

2. Evidence of the sexual conduct of the complaining witness offered under this section is admissible to the extent that the court finds the evidence relevant to a material fact or issue.

In the instant case, defendant relies upon § 491.015.2 in arguing that his proffered testimony should have been admitted into evidence. A careful reading of subsection 2 of § 491.015 would seem to indicate that in order for evidence of prior sexual conduct to be admissible thereunder, the trial court must first find such "evidence relevant to a material fact or issue" under the enumerated exceptions listed in § 491.015.1(1)-(4). See Comment, Interpreting Missouri's Rape Victim Shield Statute, 53 U.M.K.C. L.Rev. 273, 289 (1985). See also Amburg & Richtin, Rape Evidence Reform in Missouri: A Remedy for the Adverse Impact of Evidentiary Rules on Rape Victims, 22 St. Louis U.L.J. 367, 376 (1978). However, our Supreme Court had read subsection 2 of § 491.015 as a "catch-all" provision. Subsection 2 "allow[ed] introduction of any evidence" which the trial court finds relevant to a material fact or issue, independent of its relationship to the specific exceptions listed in § 491.015.1(1)-(4). Brown, 636 S.W.2d at 933. (emphasis ours).

This view has since been repudiated. In State v. Jones, 716 S.W.2d 799 (Mo. banc 1986), our Supreme Court determined that evidence of specific instances of a rape victim's prior sexual conduct is admissible only when it falls within the specific exceptions contained in § 491.015.1(1)-(4) and then only to the extent that the trial court finds it relevant to a material fact or issue under § 491.015.2. Id. at 800.

In accordance with § 491.015.3, defendant made the required offer of proof as to what his testimony would have been. Defendant testified that in March of 1979, he had consensual sexual intercourse with his mother; that in May of 1981, his mother attempted to seduce him but he refused; and that in June of 1982 his mother attempted to seduce him again but he refused. The fact that a rape victim has engaged in consensual sexual relations with the defendant in the past under similar conditions may have some logical relevance to the question of consent. Brown, 636 S.W.2d at 934 (quoting United States v. Kasto, 584 F.2d 268, 271-72 (8th Cir.1978). Clearly, these specific instances of the complainant's alleged prior sexual conduct are relevant in this situation involving a mother and her son.

Relevant as the prior conduct may be, however, it is not admissible unless it falls within an exception contained in § 491.015.1. Here the prior conduct does not. The only exception that is arguably applicable is § 491.015.1(1), which permits evidence of prior sexual conduct between the complaining witness and defendant to be admitted to prove consent, provided the evidence is reasonably contemporaneous with the date of the alleged crime. The trial court specifically found that the alleged prior conduct too remote under § 491.015.1(1) to be admissible. We agree.

The alleged forcible rape and sodomy occurred the evening of June 1, 1984. The alleged prior conduct occurred between five and two years before. In State v. Crisp, 629 S.W.2d 475 (Mo.App.1981), the date of the alleged crime was October 5, 1979. The defendant offered evidence of the complaining witness' prior sexual conduct with defendant that occurred approximately three years prior. The trial court ruled that the proffered evidence was not reasonably contemporaneous and excluded it. The court of appeals affirmed reasoning:

Reasonably means within the bounds of common sense. Contemporaneous means originating, or happening, during the same period of time. It is not common sense to say that events that happened almost three years apart were reasonably contemporaneous. Crisp, 629 S.W.2d at 479.

This rationale was approved in Jones. Jones, 716 S.W.2d at 801. Additionally, we must examine whether, under the circumstances, the accused was deprived of a fair trial by the exclusion of the evidence. Id. In Jones, the defendant offered evidence of having consensual sexual intercourse some three and one-half to four and one-half months before the date of the offense charged. Our Supreme Court affirmed the exclusion of the evidence as not reasonably contemporaneous with the date of the alleged crime. The court noted that had the case merely involved a swearing match between the complainant and the defendant, it would have been inclined to reverse and remand for new trial. However, because the complainant's testimony was corroborated with medical testimony, the court concluded that defendant was not deprived of a fair trial. Id. 801-02.

Although this factual situation is unusual and shocking, we are bound by the Jones holding. The instant case is not a mere swearing match. The complaining witness' testimony was corroborated by medical testimony. On June 2, 1984, at approximately 4:30 A.M. on the morning after the alleged rape and sodomy, complainant was admitted and examined at St. Francis Hospital. Dr. John E. Kasukonis, Jr., the examining physician, testified that during the course of the examination he found widespread bruising about complainant's face, back, arms, and her external genitalia, and that there were internal abrasions of her vagina. Dr. Kasukonis testified that the bruising and abrasions of the genitalia was indicative of violent sexual activity and were consistent with the forcible insertion of the penis into a dry vagina. Dr. Kasukonis testified further that the bruises about complainant's face were symptomatic of being struck by a blunt object such as a fist and that the bruises on her shoulder and arms were indicative of a "forceful grasp" or "pinching type movement." We conclude, as in Jones, that in these circumstances the trial court did not abuse its discretion nor was defendant deprived of a fair trial. Point denied.

In defendant's second point he contends the trial court erred in denying appellant's motion for individual or, in the alternative, small group voir dire. The trial court permitted defendant to examine the panelists row by row and follow up on individual responses. Our standard of review has been...