State v. Frey

• Decision Date: 21 February 1995
• Docket Number: Nos. WD,s. WD
• Citation: 897 S.W.2d 25
• Parties: STATE of Missouri, Respondent, v. Clifton FREY, Appellant. Clifton FREY, Appellant, v. STATE of Missouri, Respondent. 44964, WD 48337.
• Court: Missouri Court of Appeals

Page 25

897 S.W.2d 25

STATE of Missouri, Respondent, v. Clifton FREY, Appellant.

Clifton FREY, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 44964, WD 48337.

Missouri Court of Appeals,

Western District.

Feb. 21, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 28, 1995.

Application to Transfer Denied

May 30, 1995.

Rosalynn Koch, Office of the State Public Defender, Columbia, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before ULRICH, P.J., and LOWENSTEIN and HANNA, JJ.

HANNA, Judge.

The defendant, Clifton Frey, was convicted of the class B felony of rape, § 566.030, RSMo 1986, following a trial by jury. The jury assessed punishment at eight years imprisonment and the court entered judgment accordingly. The defendant filed his Rule 29.15 motion claiming ineffective assistance of counsel.

On appeal the defendant raises four points, the first three related to his criminal trial and the fourth related to his Rule 29.15 motion's claim of ineffective assistance of counsel. One point in the criminal case challenges the sufficiency of the evidence to support the verdict, and the other two points relate to the admissibility of evidence--one involving prior uncharged crimes and the other concerning hearsay testimony.

The evidence showed that just before 6:00 a.m. on June 5, 1989, while Ms. Lillie Kay Salts was sleeping, the defendant entered her room at the Woodlawn Estates Nursing Home. The defendant, who was employed as a staff member at the nursing home, closed the door, removed Ms. Salts' nightgown, pulled down her underwear and raped her on the bed. She "told him to quit it" and struggled with him "[p]retty hard," but the defendant continued stating, "this feel[s] good. This feel[s] good. If you don't let me, I'll kill you." Ms. Salts testified that she screamed and hollered but no one came to her aid.

Ralph Price, another resident of the nursing home, testified that he heard Ms. Salts screaming and noticed that the door to her room was cracked open slightly. He walked into the room and observed the defendant lying on top of Ms. Salts on her bed, "sticking his thing in her." However, he did not attempt to help or summon help.

After the defendant left, Ms. Salts testified that she went into the hallway and screamed for help but no one came to her assistance. When she told the operators of the nursing home, Melvin and Darlene Matlock, what had happened, they refused to believe her.

Ms. Sharon Jones shared a bedroom with Ms. Salts at Woodlawn Estates in the winter of 1988. She testified that the defendant, on two other occasions, had entered the room at bedtime and felt their stomachs and chests under their bedclothes, supposedly to check them for fever.

Ms. Jones further testified that, in December 1990, approximately 3 1/2 months before the trial, the defendant had accosted her in an alley near her apartment in Rolla, Missouri. She testified that he grabbed her, scratched her face with something and told her, "He did not want [her] to testify against him." Elwood Rapier, a Rolla police officer, said that Ms. Jones was seated in a folding chair with her hands covering her face when he arrived at the scene. She appeared to be upset and when she removed her hands from her face, he noticed several minor lacerations and scratches on her face.

The first claim of error goes to the trial court's ruling on the defendant's motion for judgment of acquittal challenging the sufficiency of the evidence to support the conviction of forcible rape. The defendant argues that the evidence presented was contradictory and insufficient to sustain a finding of guilt beyond a reasonable doubt that he raped Ms. Salts. In determining the sufficiency of the evidence, we accept as true all evidence favorable to the state, including all favorable inferences drawn from the evidence, and we disregard all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). An appellate court does not weigh the evidence, State v. Lindsey, 868 S.W.2d 114, 116 (Mo.App.1993), nor do we determine the reliability or credibility of witnesses. State v. Middleton, 854 S.W.2d 504, 506 (Mo.App.1993). The question presented is whether there was substantial evidence from which a trier of fact can reasonably find the issue in harmony with the verdict. State v. Martin, 852 S.W.2d 844, 849 (Mo.App.1992).

The defendant argues that the victim's testimony was inconsistent, specifically as to the precise time the rape occurred, what she was wearing, whether she was asleep when the defendant first entered her room and what action she took immediately after the rape. Ms. Salts first testified that she was asleep when she first noticed the defendant and later testified that the defendant laid her down on the bed and would not let her get up. She first testified that she was wearing slacks at the time of the crime and later testified she was wearing a gown and that the defendant pulled it off. She testified that the incident occurred right before 6:00 a.m. and then testified that it occurred at 4:00 a.m. With respect to her actions following the incident, she first testified that she got out of the bed after the defendant left the room, got dressed and went down the ramp that was by her room. Her later testimony was that when she was able to get out of her room, she stood by the door and hollered, "Help. Help. Melvin, come and get him out of this room." Finally, she testified that she first reported the rape to the Matlocks "the next morning" and later stated that she told them Tuesday evening "after I came in from workshop." The defendant argues that these inconsistencies left the victim's testimony so unconvincing and clouded with doubt that it needed corroboration in order to sustain the conviction. See State v. Kuzma, 751 S.W.2d 54, 58 (Mo.App.1987). If the inconsistencies in the victim's testimony leave her testimony unconvincing and clouded with doubt, corroboration is required. State v. Smith, 679 S.W.2d 899, 902-03 (Mo.App.1984). The defendant acknowledges that the state did present Mr. Ralph Price's testimony, which was corroborating testimony.

The defendant, citing Kuzma, 751 S.W.2d at 58, claims that the "corroboration rule must be invoked." He further argues that Mr. Price's testimony was not corroborative in that it was substantially different from that of the victim. We will not detail Mr. Price's testimony as we hold that corroboration, i.e., Mr. Price's testimony, was not necessary to sustain the verdict. The corroboration rule does not apply when the inconsistencies or contradictions in the victim's trial testimony involved "proof not essential to the case." State v. Gardner, 849 S.W.2d 602, 604 (Mo.App.1993). The inconsistencies which appeared in this victim's testimony are no more than those matters that a jury is called upon to decide when determining the sufficiency of the evidence and the credibility of the witness. As a matter of law they do not rise to the level of the inconsistencies that destroy the witness's testimony. It frequently occurs that a witness's testimony, during the course of a witness's recitation of the facts, falls into inconsistencies or contradictions concerning minor points of a non-essential nature. See State v. Nelson, 818 S.W.2d 285, 289-90 (Mo.App.1991). This does not destroy the case. It is left for the trier of fact to believe all, some, or none of the witness's testimony in arriving at a verdict. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). It is the trier of fact's responsibility to resolve those contradictions or conflicts in the victim's testimony. Id. The testimony of a single witness is ordinarily sufficient to constitute substantial evidence and to make a submissible case. State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990).

In this case, Ms. Salts testified positively that in the early morning hours of June 5, 1989, the defendant entered her room and forcibly raped her on the bed in which she had been sleeping. The inconsistencies regarding the precise time, the clothing she was wearing and other minor details do not involve contradictions or inconsistencies that "go directly to an essential element of the state's case." Gardner, 849 S.W.2d at 604. Point denied.

The defendant raises the next point under the plain error doctrine pursuant to Rule 30.20. He complains that the court should have, sua sponte, excluded the testimony of Ms. Jones, the victim's roommate. Ms. Jones testified that the defendant touched her under her bedclothing before the incident in question and, 3 1/2 months before trial, assaulted her and threatened her to prevent her from testifying against him. Although the defendant's counsel has raised this point under the plain error doctrine, the point was in fact properly preserved and should be reviewed as trial error and not under the plain error doctrine.

Before trial, the defendant, through his public defender counsel, filed a motion to test the competency of witness Jones and also filed and argued a "Motion in Limine to Exclude Evidence of Offenses and Acts Not Charged." The latter motion, which was overruled by the court, raised the acts alleged to have been committed by the defendant upon Ms. Jones. The record reflects that the matter was in fact preserved, sua sponte, by the court.

When Ms. Jones was called as a witness the following colloquy took place between the court, Mr. Beger, the assistant prosecuting attorney, and Ms. Unterreiner, the assistant public defender.

Mr. Beger: Call Sharon Jones, your Honor.

* * * * * *

Court: Is this a witness who's going to testify on the earlier event?

(Mr. Beger nodded.)

Court: Can we just have an understanding that she's objecting to this so she won't have to come up here and do this?

Mr. Beger: Yes.

Ms. Unterreiner: Continuing objection as well.

Court: Just...