State v. Gray

• Citation: 423 S.W.2d 776
• Decision Date: 12 February 1968
• Docket Number: No. 52984,No. 2,52984,2
• Parties: STATE of Missouri, Respondent, v. Robert D. GRAY, Appellant
• Court: United States State Supreme Court of Missouri

Page 776

423 S.W.2d 776

STATE of Missouri, Respondent, v. Robert D. GRAY, Appellant.

No. 52984.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Lawrence F. Gepford, Asst. Atty. Gen., Kansas City, for respondent.

Lewis F. Randolph, Jr., St. Joseph, for appellant.

PRITCHARD, Commissioner.

Appellant was convicted of the crime of forcible rape by the verdict of the jury under § 559.260.* Having been found to be a second offender under § 556.280 he was sentenced by the court to five years' imprisonment in the Department of Corrections. On this appeal, among other points, he challenges the submissibility to the jury of the state's case against him.

The victim and prosecuting witness was Sharon Yvonne Huffman, age 27, who lived with her parents and three sisters. On January 7, 1966, she worked as a receptionist and switchboard operator for the Y.M.C.A. in St. Joseph, Missouri. On Tuesday, January 21, 1966, she met appellant when he came to the 'Y' for a room, which was provided him. From that time until Sharon went out with him appellant came to the desk about every night, and on one occasion he brought her a bottle of Pepsi Cola. He then asked her for a date on Wednesday night, June 29, 1966, and the initial arrangement was that he was to pick her up at 8 p.m. after she attended church. Sharon on that evening drove her car to the church, but did not attend. She talked with a girl friend and then met appellant at the church, leaving her car for her mother to pick up. Defendant had a 1964 Buick car, two-door hardtop.

Sharon was dressed in hose, pants and girdle, half slip, bra, a two-piece cotton suit, and flats. Appellant had on slacks and a sport shirt. The evening was warm and the windows on appellant's car were down at all times. The couple did not attend a movie as planned because appellant had only $1.96, and Sharon told him when he asked that she had no money. Instead, they went to Bodde's Bar and Lounge, that being Sharon's idea because she had been there before for dancing. They arrived at Bodde's about 8:30 p.m., where they danced about every time the music came from the juke box. During the time they were at Bodde's, Sharon had tow Tom Collins drinks and appellant had a beer.

When they left Bodde's about 10:30 p.m., appellant drove down the highway to Shockey Dodge car lot where he worked part time selling cars. That place was closed for business, but was lighted with a string of bulbs across the front and with a flood light on the office building. There was only one entrance driveway onto and from the car lot, and appellant pulled up thereon to the office building and backed his car in beside a truck on the second row of cars. He had told Sharon he wanted to show her some of the cars he sold. Immediately to the east of the lot was a vacant house; there were no lights on in the house on the west side of the lot, and to the south was open or vacant land. There were no lights over the row of cars in which appellant was parked.

Appellant offered to help Sharon unfasten her seat belt, but she did it herself. They did not get out to look at cars. Appellant then reached over and kissed Sharon who told him that she preferred that he did not kiss her on a first date because she did not believe in being that friendly at that time. Appellant paid no attention to her and kissed her again; she did not kiss him back. He then pulled her down on the front seat with her head on the driver's side underneath the steering wheel. He yanked off her girdle with hose still attached, and her pants--her undergarments. He pulled up her skirt. She attempted more than once to get up from the front seat and he would push her down by her shoulders into the seat. Appellant said to Sharon: 'Stop fighting so hard, damn it, or I will have to hurt you'; and 'You better be good to me, baby. Be good to me, baby. Be good to me, baby.' While she was lying in the front seat Sharon reached her hand back and tried to open the door on the driver's side. When she put her hand on the door appellant hit her hand off it and said, 'Get your hand off the door, damn it.'

Prior to these events appellant had been a gentleman. Sharon asked him, begged him, not to do it, 'Please don't do it,' and he would not listen to her. She was pleading with him in a voice which could be heard by anyone in the lot. Prior to that evening Sharon had never had sexual intercourse with a man, and she told appellant that, and that he was then hurting her, and to stop. After the act had been completed, Sharon told appellant she had to go to the rest room and asked him to take her somewhere. He told her to go behind the car. She wanted to put on her clothes and appellant would not then let her out of the car. When she started to get out he told her not to open the door on that side as the dome light would come on. He told her he would open the door on the passenger's side and hold the (dome light) button down. She then went behind the car and put her garments back on. Afterward, she got back into the car and asked appellant to take her home. He said it was early and that she didn't need to go home yet, and suggested that they sit there and talk some more about going out the next week. They remained there for about one-half hour talking about the future date, then appellant took her home. Sharon did not keep the future date with appellant, and did not intend to--she told him she would go out with him just to make sure she got home all right.

Accompanied by her girl friend and her father, Sharon reported the incident to the police the evening following (Thursday). She then saw her physician, Dr. Benson, the next day, Friday, and he examined her and she went back to him three times.

On cross-examination Sharon testified that at the time of the occurrence the car windows were down. She did not scream real loud for help, and she did not kick, hit or scratch appellant, or tear any of his clothes. Other than knocking her hand off the door, appellant did not strike her, scratch her, choke her, or theaten her or any member of her family with a weapon. When she was taken home, appellant kissed her in the car, then walked her part way up the steps of her home. It was necessary that she pass through her parent's bedroom, they being awake, to reach her bedroom, and she did not tell them (then) that she had been raped. (Sharon's testimony here varies as to when she told her mother of the incident--that night, as she testified on redirect examination, or at noon the next day after she had talked with her girl friend, June.) Sharon went in her room and got ready for bed. The next day she went directly to the Y.M.C.A., and worked from ten until six o'clock.

On redirect examination Sharon testified that the reason she did not fight appellant was that she was afraid he would do something to her because he told her if she didn't stop fighting him he would have to hurt her.

Dr. Benson testified he saw Sharon on July 1, 1966, and his pelvic examination showed the hymen was apparently torn in a couple of places; the perineum had several little tear marks in it, and the vagina was red as though it had been irritated. Apparently this was the first occasion that Sharon had of intercourse. He found no sperm and there was negligible bacteria. Sharon was upset at the time he first examined her. Appellant, by counsel, admitted at trial that he did have sexual intercourse with Sharon on June 29.

Upon his contention that the trial court erred in overruling his Motion for Judgment of Acquittal at the close of the evidence, appellant says, 'A. The State failed to prove Prosecutrix made the utmost resistance of which she was capable and manifested the utmost reluctance to the sexual intercourse.' Under the facts and circumstances here, that Sharon was taken to an apparently deserted car lot, that appellant yanked off her undergarments, that he threatened to hurt her if she did not stop fighting, that he pushed her down repeatedly in the seat of the car, and that he struck her hand when she tried to open the car door, there was a sufficiency of evidence for the jury to find that appellant's acts constituted forcible rape, and that Sharon, being afraid that appellant would hurt her, did everything within her power to prevent appellant from accomplishing his purpose. There was evidence of threats of personal violence here which distinguishes appellant's cited case of State v. Amsden, Mo., 299 S.W.2d 498, 503, where that hypothesis in a given instruction was not only not supported by the evidence but directly contrary thereto. In State v. Beck, Mo., 368 S.W.2d 490, 493(3), it was said, 'This court stated long ago that 'the 'utmost resistance' doctrine does not apply where the woman is put in fear of personal violence, and her will thus overcome * * *. 'A consent induced by fear of personal violence is not consent; and though a man lay no hands on a woman, yet if, by an array of physical force, he so overpowers her mind that she does not resist, he is guilty of rape by having unlawful intercourse.' (Citing authority and cases). '' Whether Sharon voluntarily submitted to appellant or whether she made the utmost resistance and manifested the utmost reluctance to have sexual intercourse were jury issues under the aforesaid facts and circumstances. The further contention that 'B. The State failed to prove threats of force and violence from which the Prosecutrix could have apprehended fear of death or great bodily injury' is answered by the Beck case, supra, and the evidence of threats, pleading and fear testified to by Sharon justifies the submission of the issue of forcible rape to the jury, i.e., an array of physical force so that he overpowered her mind.

The information here follows the language of said § 559.260 in that it alleges appellant did unlawfully, feloniously and forcibly ravish and carnally know Sharon against her will. That...