State v. Hankins
| Decision Date | 04 February 1981 |
| Docket Number | No. 11691,11691 |
| Citation | 612 S.W.2d 438 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Ronnie HANKINS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
J. Miles Sweeney, Johnson & Sweeney, Springfield, for defendant-appellant.
Defendant Ronnie Lee Hankins was jury-tried, convicted, and sentenced to 15 years' imprisonment for the crime of rape for violation of § 566.030.1(2), RSMo 1978, which provides that a person commits the crime of rape if he has sexual intercourse with another party to whom he is not married who is less than 14 years old. This appeal followed. We affirm.
The victim of the rape was a 10-year-old female child. She was living in a home occupied by defendant, his two sons (apparently by a previous marriage), the little girl's mother, and five brothers and sisters of the victim. Defendant and the mother of the child in question were not married, but evidently had been living together in a common law relationship.
On Sunday, February 11, 1979, the child's mother took some of the children to a local discount store. Defendant, the female child, and her two brothers remained at home. Defendant and the two boys were out in the yard "ricking wood", and the little girl was in the house. Defendant came into the house and asked the child if she "wanted to do it." She said that she did not want to, but he said, "come on." Defendant took the child to a bedroom area and proceeded to have sexual intercourse with her. Her description of the sex act was explicit, and left no doubt that she knew the meaning of the term "sexual intercourse." The child also testified that defendant had had sexual intercourse with her on a number of prior occasions. Defendant told the child not to tell anyone about the sexual acts.
The child did not follow his advice. She related the incident to her mother, and to the nurse at her school the next day. The nurse immediately took the child to Dr. John Williams who specialized in obstetrics and gynecology. Dr. Williams made an internal and external examination of the child's genital area. At trial, Dr. Williams testified that the child had recent bruises in the region between her vagina and her left leg, that her vaginal perineum was relaxed to a greater than normal degree for a 10-year-old girl; that he could easily insert one finger into the little girl's vagina, and that her hymenal ring was not intact, but was destroyed, with no evidence being present of recent tearing or bleeding in the hymenal ring area. The doctor testified that, in his opinion, the examination was consistent with the child having had prior sexual intercourse.
On redirect examination, Dr. Williams was asked whether the child had made any statements to him during the examination. Over objection by defendant's attorney, the doctor stated that he asked the child if she understood what intercourse was and if she understood that it meant inserting the penis into the vagina. She told him that she understood, and she said that this had happened and "it hurt when he done it." She also said that it was common for a white material to "come out of her" after the sex act. The doctor testified that what the child told him was consistent with his findings made as a result of the physical examination. Defendant's attorney requested a mistrial by reason of such testimony, contending that it was hearsay, and was a relation of facts that had nothing to do with the doctor's diagnosis. The request for a mistrial was denied.
On appeal, defendant's first point relied on is that the trial court erred in permitting Dr. Williams to testify as to what the child had told him at the time of his examination of her for the reason that such statements were hearsay, and were not necessary for his use in diagnosing her condition. Defendant claims that the doctor's testimony as to what the child told him was prejudicial as it was "confirmation" of the child's testimony given by her on the stand, and made her testimony more believable by having it repeated by the doctor. Defendant has not cited us any case in point to substantiate his claim that the admission of the doctor's testimony regarding what the child told him into evidence was prejudicial error. A defendant in a criminal prosecution claiming error in the reception of evidence has a burden of showing both error and prejudice. State v. Williams, 606 S.W.2d 254, 255(4) (Mo.App.1980).
Dr. Williams was an examining physician. The purpose of his examination was to formulate an opinion as to whether the crime of rape had been perpetrated against the child in question, not who the assailant was. The statements made to him by the child were facts, not complaints, that had already been received in evidence through the child's direct testimony on the witness stand, and such facts were competent evidence. This being so, the doctor's recitation of such statements were an exception to the hearsay rule and were not objectionable. Baumhoer v. McLaughlin, 205 S.W.2d 274, 280 (Mo.App.1947); Gaines v. Schneider, 323 S.W.2d 401, 405 (Mo.App.1959).
Even if it were to be assumed that the statements in question were hearsay, they were non-prejudicial. Hearsay evidence is objectionable in law because the person who makes the statement is not under oath and is not subject to cross-examination. That is not the case here. The child, who was the complaining witness, was present in court, had been sworn as a witness, had testified fully with respect to the details of the crime, was available for cross-examination, and had been thoroughly cross-examined. Under those circumstances, no prejudice could have occurred through the admission of the testimony in question. Point one is denied.
Defendant's remaining point relied on contends that the trial court erred in submitting the verdict instruction (Instruction No. 5) to the jury for the reason that the instruction did not specify the time and place of the alleged offense. Defendant argues that since the complaining witness testified that there were numerous acts of sexual intercourse between herself...
To continue reading
Request your trial
-
State v. Douglas
...He first argues there was no evidence to support a finding an act was committed upon C.W. on September 30, 1984. He cites State v. Hankins, 612 S.W.2d 438 (Mo.App.1981). That case does not aid him. It approves a submission of "on or about" where there was no evidence of alibi and the eviden......
-
State v. Gustin
...State v. Reyes, 740 S.W.2d 257, 263 (Mo.App.1987); State v. Lantigua, 652 S.W.2d 177, 178 (Mo.App.1983); State v. Hankins, 612 S.W.2d 438, 439 (Mo.App.1981). On admissibility issues, an appellate court will not reverse for mere error, but only if the error was so prejudicial that it deprive......
-
State v. Ball
...be prejudiced by the admission of Meatte's out-of-court statement. State v. Robinson, 484 S.W.2d 186, 189 (Mo. 1972); State v. Hankins, 612 S.W.2d 438, 440 (Mo.App. 1981). Defendant also argues the admission in evidence of a composite drawing of the robbery suspect was error because it was ......
-
Lawrence v. State
...506 (Mo. App. 2016) (emphasis added). In support, we cited State v. Bright , 782 S.W.2d 91, 92 (Mo. App. 1989) and State v. Hankins , 612 S.W.2d 438, 439-40 (Mo. App. 1981), two cases reviewing a trial court for abuse of discretion. McClure at 508.Abuse of discretion (for preserved error) i......