State v. Gallipo, 16712

• Decision Date: 14 February 1990
• Docket Number: No. 16712,16712
• Citation: 460 N.W.2d 739
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Gregory Scott GALLIPO, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 739

460 N.W.2d 739

STATE of South Dakota, Plaintiff and Appellee, v. Gregory Scott GALLIPO, Defendant and Appellant.

No. 16712.

Supreme Court of South Dakota.

Considered on Briefs Feb. 14, 1990.

Decided Sept. 5, 1990.

Craig M. Eichstadt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger Tellinghuisen, Atty. Gen., Pierre, on brief.

Shelley R. Wieck of Siegel, Barnett & Schutz, Aberdeen, for defendant and appellant.

HENDERSON, Justice.

Gregory Scott Gallipo (Gallipo) appeals his convictions for two counts of first degree rape. We affirm.

FACTS

Victim, age 26, lived in Aberdeen, South Dakota. On the evening of October 25, 1988, victim and her friend Sharlene went out for dinner at a restaurant in Aberdeen. After they had eaten, the two went on to a local bar called the Silver Dollar. Seated in the Silver Dollar when victim and Sharlene entered were Gallipo, age 22, and his friend Grant. Victim and Sharlene were not acquainted with the two men and seated themselves at a table across the bar from them.

After victim and Sharlene had been in the Silver Dollar for a time, Gallipo and Grant sent the two women drinks and an invitation written on a napkin to, "come over and say hi." Victim and Sharlene joined Gallipo and Grant and introductions were exchanged. The foursome visited for awhile and consumed several drinks. Subsequently, they left the Silver Dollar and proceeded on to another bar called the Spur. After entering the Spur, Sharlene saw another friend and visited with her while victim, Gallipo and Grant played pool. Sharlene and Grant left the Spur separately around 11:00 p.m., leaving victim and Gallipo together in the bar.

At approximately midnight, victim, who lost her ride when Sharlene left, accepted Gallipo's invitation for a lift home. While en route, Gallipo made repeated inquiries as to whether or not victim had a boyfriend waiting at home, to which victim would respond in the negative. After arriving at victim's apartment house, Gallipo walked victim to her door. When victim opened the door, Gallipo, without invitation, followed her inside. Victim turned on the lights and the television set and sat down on the floor where Gallipo joined her.

Victim was watching t.v. and not paying attention to Gallipo when she turned around and discovered that he had removed all of his clothing and was standing naked in the room. Victim did not believe she was immediately threatened but wondered how she could extricate herself from the situation. She told Gallipo, "this isn't going to go anywhere," and urged him to put on his clothes and leave. Instead, Gallipo sat on the floor next to her and asked her to take off her own clothes. Victim declined but Gallipo, undaunted, attempted to kiss her. Victim pushed at Gallipo and again asked him to leave but he merely got up and walked into the bathroom. Victim continued pleading with Gallipo, trying to reason with him and convince him to go home. Gallipo refused stating, "no, I don't think that's what we're going to do."

Gallipo's manner changed when he emerged from the bathroom. He became aggressive, telling victim he was not leaving. He grabbed her right arm and pulled her into the bedroom, demanding that she take off her clothes. Gallipo still had hold of victim's arm and by this point had become very aggressive. Because of his aggressive manner, victim feared that she would be seriously hurt and submitted to his demand that she remove her clothing.

Gallipo pushed victim down on the bed and held her down, trying to kiss her. When victim resisted by pushing him back, Gallipo became more angry stating, "I know you want this. You're always--you're just like she is, telling me no and you really mean yes." Gallipo continued kissing victim, calling her by his wife's name. Victim continued to struggle with Gallipo, pushing him back but he became even more angry, striking her in the face with his hand and telling her, "quit fighting me. You really want this. Quit fighting me."

During her struggle, victim remembered that the door to her apartment was next to the bathroom. In hope of escape, victim asked Gallipo if she could go to the bathroom. Gallipo argued with her, telling her he was going with her. Finally, he grabbed victim by her hair and pulled her into the bathroom, telling her, "you better go, bitch, or you better get down on your knees." Victim took this as a demand for oral sex. Gallipo then asked victim for some lotion. Victim replied that she did not have any but Gallipo found a bottle in the medicine cabinet.

After finding the lotion, Gallipo pulled victim back into the bedroom and pushed her down on the bed. He made victim apply the lotion to his penis. Continuing to restrain victim, Gallipo forced her into various acts of oral sex and sexual intercourse. Gallipo maintained his threatening manner throughout these acts. He became upset because victim was crying, telling her to stop and asking, "why are you crying? You're supposed to like this." When Gallipo finished, he became apologetic and remorseful and quickly dressed and left the apartment.

Victim, in shock at this point, quickly locked the apartment door after Gallipo's departure. She attempted to phone a friend in Gettysburg, South Dakota, her hometown, but was so hysterical and incoherent that when her friend told her to call the police she hung up. Victim phoned a second friend in Gettysburg who managed to calm her down and convinced her to call the police. The Aberdeen Police Department received victim's call at approximately 2:00 a.m. and an officer was dispatched to her apartment.

Victim would not open the door when the officer arrived because she was afraid Gallipo was returning. However, she was still on the phone to the police department. Using her phone and the officer's portable radio, a signal was worked out so that when the officer knocked victim would believe it was the police. Victim was hysterical when she let the officer in and was unable to answer his questions. The officer managed to calm her down and she relayed her story. Thereafter, the officer took victim to the hospital for examination and treatment, picking Sharlene up on the way to help comfort victim.

An indictment was filed charging Gallipo with two counts of first degree rape under SDCL 22-22-1(1). ^* A jury trial was conducted on April 20, 21, 22, 1989. At the close of state's case and after presentation of all the evidence, Gallipo made motions for a judgment of acquittal based upon insufficiency of the evidence. The trial court denied the motions and the jury returned a verdict finding Gallipo guilty of both counts of first degree rape. He was sentenced to a general sentence of six years in the penitentiary on both counts. This appeal followed.

ISSUE ONE

DID THE TRIAL COURT ERR IN DENYING GALLIPO'S MOTIONS FOR A

JUDGEMENT OF ACQUITTAL? WE HOLD THAT IT DID NOT.

Gallipo argues that the evidence is insufficient to sustain his first degree rape convictions and, therefore, the trial court erred in denying his motions for a judgment of acquittal. We disagree.

As we set forth in State v. Blalack, 434 N.W.2d 55, 59-60 (S.D.1988), another rape case:

Our standard of review on a denial of a motion for judgment of acquittal is whether the state set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged. State v. Farmer, 407 N.W.2d 821, 825 (S.D.1987). In reviewing the sufficiency of the evidence, we consider the evidence in a light most favorable to the verdict. State v. Ashker, 412 N.W.2d 97, 105 (S.D.1987). A guilty verdict will not be set aside if the state's evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt. Id.; State v. Andrews, 393 N.W.2d 76, 80 (S.D.1986).

Applying these standards to the facts of the instant case, we hold that Gallipo's motions for a judgment of acquittal were appropriately denied.

Gallipo acknowledged having sexual intercourse with victim. His sole defense was that victim consented to the act. Thus, the only element of rape at issue was whether Gallipo accomplished sexual penetration through the use of force, coercion or threats (SDCL 22-22-1(1)) or whether victim consented to sexual intercourse. As noted, the evidence in this regard must be reviewed in a light most favorable to the verdict. Blalack, supra.

Contrary to Gallipo's assertions, there is substantial evidence in victim's testimony to establish that she actively resisted Gallipo's advances and, thus, did not consent to sexual penetration. From the time victim discovered that Gallipo had removed his clothing, she repeatedly begged him to leave. All of her efforts in this regard were rejected by Gallipo. Victim only entered the bedroom with Gallipo after he forcefully grabbed her by the arm and pulled her in. Further use of force was exercised when Gallipo pushed victim down on the bed and attempted to kiss her. Victim physically attempted to resist Gallipo by repeatedly trying to shove and push him away. However, this only made him more angry and caused him to strike victim in the face. Gallipo himself acknowledged victim's struggles when he told her to quit "fighting" him. This statement reflects a physical resistance by victim.

Victim further resisted by planning a route of escape from the bathroom to the front door but this avenue was closed when Gallipo viciously drug her to the bathroom by her hair and then pulled her back into the bedroom. Once back in the bedroom, victim continued to resist but Gallipo restrained her by straddling her and ultimately forcing her into the acts of sexual intercourse. In reviewing this testimony, it is difficult to see how victim could have provided any greater resistance to Gallipo without suffering serious bodily harm at his hands.

Victim's resistance is corroborated by the testimony of the physician who treated her immediately after the rape. He testified that during...