State v. Gray, s. 18861

• Decision Date: 16 May 1996
• Docket Number: 20177,Nos. 18861,s. 18861
• Citation: 923 S.W.2d 929
• Parties: STATE of Missouri, Respondent, v. Gregory J. GRAY, Appellant. Gregory J. GRAY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 929

923 S.W.2d 929

STATE of Missouri, Respondent, v. Gregory J. GRAY, Appellant.

Gregory J. GRAY, Appellant, v. STATE of Missouri, Respondent.

Nos. 18861, 20177.

Missouri Court of Appeals,

Southern District,

Division Two.

May 16, 1996.

Emmett D. Queener, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Kurt V. Schaefer, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

A jury found Appellant, Gregory J. Gray, guilty of an attempt to commit forcible rape, § 566.030, RSMo Cum.Supp.1991. ¹ The trial court, having found Appellant a persistent sexual offender, § 558.018, RSMo Cum.Supp.1991, ² sentenced him to seventy years' imprisonment. Appellant brings appeal 18861 from that judgment.

While that appeal was pending, Appellant filed a motion to vacate the judgment and sentence per Rule 29.15. ³ The motion court denied relief after an evidentiary hearing. Appellant brings appeal 20177 from that order.

We consolidated the appeals, Rule 29.15(l ), but address them separately in this opinion.

Appeal 18861

The first three of Appellant's four points relied on pertain to this appeal. They aver: (1) the evidence was insufficient to support the verdict, (2) the trial court committed plain error in denying Appellant's request for mistrial when the victim testified Appellant looked like he wanted to rape her, and (3) the trial court erroneously overruled an objection by Appellant when the prosecutor, during closing argument, made "an indirect reference" to Appellant's failure to testify.

In adjudicating Appellant's first point, we determine whether there is sufficient evidence from which a reasonable juror might find Appellant guilty beyond a reasonable doubt. State v. Harris, 870 S.W.2d 798, 811 (Mo. banc 1994), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994). In that determination, we accept as true all evidence favorable to the verdict, including all favorable inferences drawn from the evidence. Id. at 811.

On Sunday, July 26, 1992, K_______ was employed as a computer system operator at a medical center in Joplin. Her work station was in a physicians' office building, south of a hospital. An underground tunnel "about 150 feet long" connected the office building to the hospital. The medical center's security office was in the hospital.

Around noon that day, Appellant entered the security office. Tom Kilpatrick, a security officer, was on duty. Appellant asked Kilpatrick whether there were "any A.A. meetings." Kilpatrick directed Appellant to such a meeting at the "Detox" building "across the street ... just east of the hospital."

Describing the security office, Kilpatrick explained that upon entering, a visitor sees "a bunch of [closed circuit television] monitors" behind a counter which separates visitors from security personnel. The monitors are connected to cameras throughout the hospital. Kilpatrick's testimony:

"Q. ... did [Appellant] look at the monitors?

A. Yes, he did look at them.

Q. For any length of time?

A. Yes.

Q. How long?

A. During the time that I was talking with him, he stared at them.

Q. Instead of looking at you?

A. Yes."

K_______ was assigned the "second shift" that day (3:00 p.m. until 11:30 p.m.). She arrived at 3:00 and entered the office building from the parking lot through a locked door to which she carried a key.

The "first shift operator" was in the work area when K_______ arrived. K_______ entered the work area through an interior door which, although usually locked, was left unlocked during shift changes. K_______ left the door unlocked.

The first shift operator departed around 3:35, leaving K_______ alone in the work area. Shortly thereafter, K_______ locked the door securing the work area.

About 3:40, K_______ heard a noise. She looked into the hall to "see if security was making their rounds." She saw nothing, so she started toward the computer room. As she neared it, Appellant appeared from behind a bathroom door and approached her. Appellant was wearing blue jeans and a turquoise T-shirt. K_______ had never before seen him.

When Appellant was "within arm's length," he told K_______, "Come on, let's do something." K_______ replied, "No." Appellant thereupon "became violent," grabbing K_______ around her "shoulder areas." Appellant "looked very angry."

The next segment of K_______'s testimony is the subject of Appellant's second point. To avoid reciting the passage out of context later when we address Appellant's second point, we set it forth now:

"Q. ... You say he looked angry. Tell the jury what you meant. Why, why do you say he looked angry?

....

A. Because he looked, he looked like he wanted to hurt me, to rape me."

At that juncture, Appellant's lawyer objected. The specifics of the objection and the exchange that followed it are recounted infra when we reach Appellant's second point.

K_______ testified she "ended up on the floor." Appellant was above her, his knees on the floor outside hers. K_______ fought, trying to protect herself. She was screaming, "Leave me alone."

Asked what Appellant was doing, K_______ answered: "He is grabbing at me.... My chest area. My upper body area. My face." Then, this:

"Q. Did he grab your breasts?

A. Yes.

Q. More than once?

A. I would say yes.

Q. Do you know how many times?

A. No idea.

....

Q. ... Did he ever strike you in the face or touch you in the face?

A. Yes. He had his hands on my face, on my face.

Q. Okay. What did he do with his hand on your face, or hands on your face?

A. ... He didn't punch me, but he just had his hand on my face like he was trying to cover my mouth.

....

Q. Did the Defendant say anything to you while he was over you when you say he was in the kneeling position?

A. He said, 'Come on, let's do something,' at least one more time."

K_______ continued to resist, attempting to push Appellant away with her hands and kicking with her legs and feet. During the struggle, Appellant tried to remove K_______'s shirt. K_______ "broke a chain" that she assumed was hers. She also grabbed Appellant's shirt and ripped a piece from it.

Appellant ultimately abandoned the attack and fled. K_______ phoned the security office and reported there was a man in the building and she had been attacked.

Terry Hylton, a security officer, was in a "security vehicle" on the "north parking lot" of the medical center. He received a call from the security dispatcher about a man being inside the physicians' office building.

Hylton drove to the northeast door of the office building. Upon exiting his vehicle, Hylton encountered Appellant coming out the door. The door was on the first floor of the building, the same floor as K_______'s work station. Appellant was clad in blue jeans and a torn turquoise T-shirt.

Hylton asked Appellant what he was doing. Appellant replied he "was up on the second floor." Aware there were window cleaners in the building, Hylton asked Appellant whether he was "with the window cleaners." Appellant indicated he was. Hylton asked Appellant to accompany him inside "to verify this."

Faced with that request, Appellant ran south from the office building toward the "Brady building," some two tenths of a mile distant. Hylton pursued on foot, but Appellant "was quite a bit faster." Using a portable radio, Hylton reported his pursuit to the security dispatcher.

Hylton saw Appellant enter the Brady building. Hylton ceased his pursuit and went to K_______'s work station in the office building. K_______ told Hylton what had occurred and handed him the fragment she had ripped from Appellant's shirt. The chain K_______ had torn during the struggle was on the floor near the bathroom. She saw it was not hers, and realized she had pulled it off Appellant.

Security officer Kilpatrick was in the security office when K_______ reported the attack. He ran to the physicians' office building through the tunnel. Upon reaching it, he learned Hylton was pursuing a man clad in jeans and a turquoise shirt. Kilpatrick exited the office building and went south toward the Brady building. He saw a man "running across the lot [who] fit the description."

Kilpatrick heard Hylton say the man entered the Brady building. Kilpatrick entered the Brady building and found Appellant. Kilpatrick told Appellant to "have a seat." Appellant complied. Kilpatrick noticed Appellant was "real nervous, fidgety." Kilpatrick told Appellant the police wanted to talk to him.

The "automatic doors" opened and Appellant "darted out." Kilpatrick pursued Appellant, overtook him, and "attempted to take him to the ground." Appellant freed himself and resumed running. Kilpatrick gave chase.

Appellant ran across a street to a laboratory building off the medical center property. Kilpatrick kept Appellant in sight until he disappeared in "a grassy area, a weedy area" south of the laboratory building. Police officers arrived, and Kilpatrick joined them in searching the area. The search was unsuccessful.

Some 30 to 45 minutes after Appellant disappeared, Kilpatrick and the medical center's security director were on the laboratory building's parking lot. They "started talking about getting a dog to go look for him." A few seconds later, Appellant "popped right up" out of the weeds and surrendered.

A police officer took custody of Appellant, placed him in a patrol car, and drove to the physicians' office building. K_______ came outside and identified Appellant as her assailant.

At trial, K_______ was asked whether she sustained any injuries in the attack. She replied: "Besides soreness all over, I received a pretty good lump on the back of my head."

A registered nurse who was asked by security personnel to examine K_______ arrived at K_______'s work station around 3:55 p.m., shortly after the attack. The nurse observed a "reddened area" on K_______'s left cheek and the bump on K_______'s head. K_______ was sobbing, shaking, and "very distraught."

Appellant's theory that the evidence...