State v. Gannaway, 12725

• Decision Date: 03 March 1983
• Docket Number: No. 12725,12725
• Citation: State v. Gannaway, 649 S.W.2d 235 (Mo. App. 1983)
• Parties: STATE of Missouri, Respondent, v. James Ray GANNAWAY, a/k/a Jimmy R. Gannaway, Appellant.
• Court: Missouri Court of Appeals

Page 235

649 S.W.2d 235

STATE of Missouri, Respondent, v. James Ray GANNAWAY, a/k/a Jimmy R. Gannaway, Appellant.

No. 12725.

Missouri Court of Appeals Southern District.

March 3, 1983.

Motion for Rehearing or to Transfer to

Supreme Court Denied March 25, 1983.

John D. Ashcroft, Atty. Gen., Sandra K. Stratton, Asst. Atty. Gen., Jefferson City, for respondent.

Devon F. Sherwood, Springfield, for appellant.

TITUS, Judge.

A Greene County jury declared defendant guilty of second degree assault [§ 565.060-1(2) ] ¹ and kidnapping [§ 565.110-1(4) ] for which he was respectively sentenced to consecutive prison terms of three and twelve years. Defendant appealed. ²

Defendant's initial point relied on is that the court nisi erred in failing to submit a MAI-CR2d 3.30.1 instruction, "Intoxicated or Drugged Condition--Negation of Purpose or Knowledge", for the offense of second degree assault. ³ The initial trouble with this point relied on is that, contrary to the mandates of Rule 30.06(e), the argument portion of defendant's brief on appeal fails to set forth such an instruction. The point, therefore, is not preserved for our review. State v. Perry, 565 S.W.2d 841, 843 (Mo.App.1978). Moreover, the legal file is barren of such an alleged tendered but refused instruction to demonstrate that a MAI-CR2d 3.30.1 instruction on the second degree assault charge was actually ever sought. Rule 28.02(f). In addition, "MAI-CR instructions in the 3.00 Series may be given by the court without a request therefor and shall be given where applicable if requested in the manner provided in this Rule." Rule 28.02(a). Albeit defendant's counsel asked and the court gave [probably improperly at defendant's request concerning which he may not complain, State v. Lowery, 565 S.W.2d 680, 683-684 (Mo.App.1978) ] MAI-CR2d 3.30.1 instructions as to first degree assault and kidnapping, trial counsel acknowledged there were no other instructions than those then proposed that he desired to be given. Defendant had evidence anent his daytime drinking before the nighttime alleged crimes were committed. But his personal testimony at trial, consisting of detailed accounts of his actions and those of others involved at the pertinent times in question, indicated and attested to a comprehensive awareness of his behavior, deportment and conduct which belies any "degree of complete drunkenness which makes a person incapable of forming intent to perform an act or commit a crime." State v. Guiden, 46 Wis.2d 328, 174 N.W.2d 488, 490 (1970). In other words, defendant "testified too much.... His recall belies his intoxication theory. There was no substantial evidence of the severe intoxication required by § 562.076.1(1).... Defendant did not carry his burden of 'injecting the issue.' " State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981). Defendant's first point relied on is denied.

Defendant's second and third points relied on question the sufficiency of the evidence to support his conviction of second degree assault and kidnapping. To determine the sufficiency of the evidence this court will accept as true all the record evidence tending to support the jury's finding of defendant's guilt, together with all inferences which can be reasonably drawn therefrom, and will disregard contrary evidence and inferences. State v. Aubrey, 610 S.W.2d 78, 80 (Mo.App.1980). Furthermore, this court cannot weigh the evidence or substitute its assessment of the credibility of the witnesses for that of the jury. State v. Harris, 602 S.W.2d 840, 842 (Mo.App.1980). With these legal tenets in mind we will undertake a brief recasting of the evidence.

Near 11 p.m. on the date in question defendant and Choate arrived at Becky's Springfield apartment. She was not present and did not know either defendant or Choate. Johnny Worcester and Earl Smith were on the porch. Following a whispered conversation between defendant and Choate, the latter threatened Worcester and Smith with a pen held to their throats, ordered them to empty their pockets, remove their belts and struck Worcester "to show we are not kidding." While this was happening defendant wrapped his belt around his fist because, as he testified, "I thought that [Choate] was getting ready to get into a fight, so I was going to back him up" because defendant was "a pretty loyal friend" of Choate. The four then went into the apartment's kitchen and Worcester, as directed, began cooking. Defendant obtained a knife and sat at the kitchen table. After the food was consumed, Choate asked defendant "if he could handle the situation." Upon defendant's assurances that he could, Choate gave defendant an opened knife which defendant stuck into the table and warned Smith not to remove it. Choate then left the kitchen. Both Worcester and Smith testified they were intimidated by the knife and feared defendant.

After observing the arrival of an auto at the apartment, Choate returned to the kitchen and made Smith lie face down on the living room floor. He then forced Worcester to the front door. When Becky and her escort, Harvill, entered the apartment, Choate forced the two to kneel with their faces on a couch and to empty their pockets. Choate then made Worcester and Harvill lie on the floor with Smith. During this time defendant was standing in sight tossing a stick, to which was attached a chain, back and forth between his hands. The floored trio were then "stomped in the back" by someone with such fervor that Worcester suffered a broken rib which pierced a lung and collapsed it. Someone of the standing then said, "We've got the girl, let's go."

Charles Nicholson had remained in Choate's automobile while defendant and Choate were in Becky's apartment. He testified that defendant, Choate and Becky, with Becky in the middle and crying, got into the front seat of the car and that defendant, indicating Becky, said he was going to "[t]ake her out and screw her." Becky recounted that she was told to keep her head down. To enforce that direction defendant held a knife to her back. In this position Becky was driven into the country. When the car was stopped, she was ordered to get out and she, defendant and Choate walked to a fence where Choate ordered her to undress. This done, Becky's hands were tied with her shirt and the trio walked towards a tree in a field where Becky was pushed to the ground. Defendant then performed cunnilingus on Becky and Choate in turn raped her. Becky testified that at all times either defendant or Choate was holding a knife on her. When Choate was sated, defendant left and Choate blindfolded Becky with the shirt that had been used to tie her hands. She was again raped by someone she could not see. This accomplished, Becky was told to dress, was returned to the car by defendant and Choate and eventually released in Springfield. She went to a house, aroused the occupants thereof and asked them to call the police. The police took Becky to a hospital where she was examined by a physician.

"One who, before or during the commission of a crime, intentionally and knowingly aids or encourages the commission thereof is guilty of that offense. State v. Lute, 608 S.W.2d 381, 384 (Mo. banc 1980). Aiders and abetters who act with common purpose with active participants in the crime, incur criminal liability by any form of affirmative advancement of the enterprise. The state's proof to effect a proper conviction need not show that defendant personally committed every essential element of the crime. State v. Pierson, 610 S.W.2d 86, 91 (Mo.App.1980). Among other things, indicia of aiding and abetting are presence at the scene of the crime, flight therefrom and association with others involved before, during and after commission of the crime. State v. Kennedy, 596 S.W.2d 766, 769 (Mo.App.1980). Proof of any form of participation by defendant in the crime is enough to support a conviction [State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977) ] and his presence at the scene, his companionship and...