State v. Hannett, WD

• Decision Date: 17 June 1986
• Docket Number: No. WD,WD
• Citation: 713 S.W.2d 267
• Parties: STATE of Missouri, Respondent, v. George HANNETT, Appellant. 37111.
• Court: Missouri Court of Appeals

Page 267

713 S.W.2d 267

STATE of Missouri, Respondent, v. George HANNETT, Appellant.

No. WD 37111.

Missouri Court of Appeals Western District.

June 17, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 24, 1986.

Dennis Gooden Public Defender's Office, Columbia, for appellant.

Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, C.J., and NUGENT and GAITAN, JJ.

Defendant-appellant, George Hannett is appealing from convictions of forcible rape, § 566.030 RSMo Cum.Supp.1984, forcible sodomy, § 566.060 RSMo Cum.Supp.1984, and kidnapping, § 565.110 RSMo 1978. He appeals his conviction alleging insufficient evidence to support the charges and failure of the trial court to timely submit the instruction defining "deviate sexual intercourse." MAI-CR2d 33.01. The decision of the trial court is affirmed.

Appellant has challenged the sufficiency of the evidence, therefore the following discussion of the facts is necessary. The evidence showed that the victim, Shirley Estell, obtained a divorce from the appellant on January 25, 1984. She testified that the basis for the divorce was the violence and financial irresponsibility of appellant. Ms. Estell, a registered nurse, retained custody of their only child, Indra. She testified that appellant harassed her from October, 1983 till March, 1984 about getting back together. Appellant often used their daughter as a means to get the victim's attention and participation in certain activities.

During the trial Ms. Estell testified to several incidents of harassment and physical violence inflicted upon her by the appellant which occurred prior in time to the charges which led to his conviction here. Those acts included attempted suicide, stabbings, forced sexual intercourse as well as forced anal intercourse. In addition, the appellant had pushed the victim down stairs in a fit of anger. These acts, and others, caused the victim to get a protective order.

According to the testimony of the victim, on March 27, 1984 at approximately 8:45 a.m., she was delivering Indra to the Montessori school when the appellant suddenly came up from behind, told her in a mean voice to get in the car and took her car keys. Ms. Estell pleaded with appellant to let Indra go into the school so he walked her to the building keeping the victim's car keys with him. Appellant returned to the car and exhibited what appeared to the victim to be a pistol. Appellant drove to the Hillside Motel and got a room. In a menacing voice, the appellant told the victim to undress. When she tried to stall, appellant became hostile. The victim complied "because I felt I was in physical danger." Appellant performed oral sex on the victim, but when she did not respond, appellant forced his penis into her mouth. Appellant made the victim gag and choke on his penis while threatening to kill her because she had previously called the police on him. Appellant then engaged in sexual intercourse with the victim while continuing to threaten her with physical harm. Appellant and the victim then drove back to pick up Indra at school and proceeded to his cousin's house where a group of his relatives were present. The victim did not ask for their help because she felt they would not help her. She was also afraid appellant would attack her if she said anything because he had done so in front of people in the past. The group played cards, drank liquor and smoked marijuana, although the victim herself did not smoke or drink. Appellant then drove the victim and their daughter to a barbecue place to eat, again keeping the keys while ordering. The victim did not run because she was afraid and, at that point, did not know if she could successfully charge the appellant with anything. In addition, she was concerned about her daughter's safety. They drove to appellant's place where he lived with his mother. Appellant forced her to consume an alcoholic drink. The victim did not try to run or call because she stated that appellant usually unplugged the phones, locked the doors from the inside, and kept the car keys with him.

At this point, appellant forced the victim to submit to sexual intercourse again. She still felt she was in danger and testified that to her knowledge he still had this gun on him. Appellant also made threats implying that he was going to kill her and dump her body somewhere. When appellant asked her if they were going to get a place together and the victim said no, appellant tied her wrists to a bed frame and tied her feet to a set of bar-bells, thus positioning her spread-eagle on the bed. Appellant then smothered her with plastic so she could not breathe, using a lot of force and pressing hard on her face. Ms. Estell was able to free her right wrist to tear the plastic off her face to prevent her suffocation. Appellant then attempted to have sexual intercourse but had trouble achieving an erection. He continued the threats about dumping her body and then forced the victim to engage in sexual intercourse. She stated she submitted out of fear for her life. Appellant finally untied her, but she did not run because she felt she did not really have an opportunity to escape. In order to appease appellant, the victim agreed to appellant's request to get back together.

The next morning appellant drove the victim and their daughter to her mother's home to get cleaned up under the belief that they were going to get a marriage license. Ms. Estell seized this opportunity to call the police and was later taken to a hospital. The victim testified that she did not consent to any of the sex acts that were perpetrated upon her.

Appellant was arrested shortly after a crime scene investigation and search of his apartment. Pictures were taken of the ropes and belt which were used to tie the victim to the bed. Detective Rogge of the Kansas City, Missouri Police Department interviewed the appellant who admitted having sexual intercourse with the victim and tying her to "scare her into understanding his point of view." Appellant admitted to a police officer that he was a violent person and that he was undergoing psychiatric treatment.

Appellant testified that the sex acts were all consensual. He admitted he tied his ex-wife up to scare her and that he was angry because she did not promise to get back together with him. The appellant states the acts of sexual intercourse, deviate sexual intercourse and kidnapping were all consented to by the victim. Appellant moved at the close of all of the evidence for a judgment of acquittal or alternatively for a new trial. These motions were denied and the case was submitted to the jury.

Approximately two hours after jury deliberations had commenced, the court submitted instruction 11A to the jury both orally and in writing. Instruction 11A defined "deviate sexual intercourse". This was in response to the following jury question: "Is forced oral sex sodomy?" The appellant objected because he claimed the definition highlighted that testimony and because it had not been included in the original instructions. The jury came back with verdicts of guilty on all counts within one hour of the court's tendering of 11A.

The issues raised by appellant on appeal are as follows. First, whether or not the trial court erred in denying appellant's motion for a judgment of acquittal at the close of all the evidence on the charges of forcible rape, forcible sodomy and kidnapping. Second, whether or not reversible error was committed by the trial court's failure to timely give a required definition instruction regarding "deviate sexual intercourse." MAI-CR2d 33.01.

When the appellate court reviews a case to determine whether there was sufficient evidence to support appellant's motion for a judgment of acquittal at the close of all of the evidence, it must consider as true all evidence favorable to the state as well as all reasonable inferences that may be drawn therefrom. State v. Chamberlin, 648 S.W.2d 238, 240 (Mo.App.1983). A review of the elements which make up the crimes of forcible rape, § 566.030(1)(4), forcible sodomy, § 566.060(1)(4), as well as the definition of deviate sexual intercourse, § 566.060 RSMo and MAI-CR2d 33.01 indicate that the statutory requirements have been met. ¹

There is testimony supporting the fact that appellant had both sexual intercourse and deviate sexual intercourse with the victim who was not his wife. Further, there is testimony that the acts were without the victim's consent and a direct result of forcible compulsion. The victim testified that the appellant showed her a gun which put her in fear for her life. Virtually every element of forcible rape and forcible sodomy have been established either by the admissions of appellant or testimony of the victim; except the element of consent. Appellant asserts the victim consented to the acts of sexual intercourse and deviate sexual intercourse which she denies.

Intercourse which is not resisted because of fear is not consensual. Lack of consent may be established by a showing of actual force or a showing that the victim submitted because of fear induced by violence or threats of violence. See State v. Berry, 593 S.W.2d 254 (Mo.App.1980); State v. Davis, 557 S.W.2d 41, 43 (Mo.App.1977).

The victim testified that her state of mind upon seeing the pistol was fearful. She obviously took into account the previous experiences when the appellant had harassed her and inflicted physical and mental harm upon her.

The issue of consent was discussed by this court in State v. Salkil, 659 S.W.2d 330, 333 (Mo.App.1983). In Salkil, the victim was held captive in a speeding truck where she was talked to throughout the ordeal in a threatening manner. The defendant argued that since he flourished neither a weapon nor shook a fist, there was no proof of lack of consent. The victim testified she submitted to his demands because of fear of physical injury. The court held that such compliance...