State v. Harris, 61674

• Citation: 620 S.W.2d 349
• Decision Date: 14 July 1981
• Docket Number: No. 61674,61674
• Parties: STATE of Missouri, Respondent, v. Leroy HARRIS, Jr., Appellant.
• Court: United States State Supreme Court of Missouri

Page 349

620 S.W.2d 349

STATE of Missouri, Respondent, v. Leroy HARRIS, Jr., Appellant.

No. 61674.

Supreme Court of Missouri, En Banc.

July 14, 1981.

Rehearing Denied Sept. 8, 1981.

Gary Robbins, Public Defender, Melvin G. Franke, Sp. Asst. Public Defender, Jackson, for appellant.

John Ashcroft, Atty. Gen., Jan Bond, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Convicted of class B rape, § 556.030, RSMo 1978, defendant's punishment was assessed by the jury at seven years.

His contentions of error include (1) an attack on the validity of § 491.015, RSMo 1978, ¹ popularly known as the rape shield statute, contending it is violative of various provisions of the United States and Missouri Constitutions and that the trial court improperly excluded certain evidence under the "invalid" statute. It is this challenge to the statute's constitutionality that brings the appeal to our Court under Art. V, § 3, Mo.Const. Defendant further complains the trial court erroneously (2) permitted the cause to go to the jury, as there was no corroboration of the victim's allegedly inconsistent testimony; (3) failed to instruct the jury on the offense of sexual abuse in the third degree, § 566.120, RSMo 1978; (4) admitted hearsay evidence; (5) limited cross-examination of the victim; and (6) refused to conduct a hearing as to the voluntariness of the victim's testimony.

The following evidence, supportive of the verdict, justified submission of the cause to the jury. On the cold blustery evening of March 2, 1979, the victim was home in Cape Girardeau with her three small daughters, ages two, three and six. Her home, closed because of the weather, was located on a dead end street, bordered by an open field on one side and an empty house on the other. The nearest occupied residence was that of a neighbor across the street.

Between 10:30 and 11:30 that evening, the victim heard a knock on her front door, and peering out through the curtains, saw a man she believed was her friend, Ben Stafford. Only after opening the door did she recognize it was defendant who had knocked. Stating he wanted to talk to her, defendant, without invitation, entered the victim's home, and once inside demanded they engage in sexual intercourse. She refused and spurned his persistent verbal advances. When he tried to place his hands on her, she removed them, and told him "in a nice way" to stop, then went to the kitchen and telephoned a friend, Lourine Amos. Lourine, learning that Harris was present, warned, "He'll rape you." To this, the victim replied, "No, he won't rape me," but Lourine again cautioned, "Yeah, he will." Hoping defendant would leave, the victim talked at length with Lourine, but he remained on the couch feigning sleep. Finally when Lourine hung up, the victim returned to the living room, turned off the television and told defendant to leave, stating "Leroy, I'm getting ready to put the kids to bed, so you go to go ..." However, defendant stayed while the victim put her daughters to bed. Afterward, she again ordered defendant out, this time opening the front door and turning on the porch light, but defendant turned off the light and pressed her to re-enter the house. Becoming frightened, she again attempted to oust defendant, but this time he grabbed her wrist and dragged her through the house into a back room. During this struggle the victim feared her daughters might be harmed if they awakened, so she tried to avoid making noise. Further, she was fearful that if she fought defendant might kill her and the little girls. As she was dragged through the kitchen, the victim grabbed the phone and attempted to dial the operator, but defendant yanked her away and in so doing, tore the phone loose. Once in the back room, defendant shoved the victim down, ordered her to be quiet, pulled off her panties and sexually assaulted her. The victim testified she did not consent to sexual relations with defendant.

Afterward, defendant told her "he wanted to do it again because (she) had messed it up." When she declined, he asked if he could return the next day, and to induce him to go, she responded, "Yeah; just leave." She also requested that he repair the phone line, which he did. After he left, the victim first called her friend, Lourine Amos, and immediately thereafter telephoned the police.

I.

At the pretrial hearing on defendant's motion to dismiss the information or in the alternative, to introduce evidence of relevant sexual conduct, defendant made the following "Offers of Proof": ²

OFFER OF PROOF NO. 2 : Defense counsel stated that the victim's former boyfriend, Ben Stafford, would testify that, while dating, he once grabbed her, and she responded, "Oh, please don't rape me."

OFFER OF PROOF NO. 3 : Defense counsel stated that during his cross-examination of the victim, he would elicit testimony that she was raped at age 10.

The Court indicated such evidence was inadmissible and objections to the offered proof would be sustained. This ruling, defendant contends, constitutes reversible error.

Offer of Proof No. 2 concerning the proposed testimony of witness Stafford was facially irrelevant and without more, clearly inadmissible. No time frame was suggested when the incident alleged might have occurred. It cannot be determined if this was many years earlier or perhaps at a time after the crime in question was committed. Nothing was advanced to connect the outcry, "Oh, please don't rape me", when grabbed by her boyfriend, to the issues at bar, nor to negate the proof of the crime charged. In sum, nothing appears demonstrating the pertinence of the proffered testimony, which flies in the face of the settled rule that when the relevance of proffered testimony is patently suspect, a further offer of proof with explication of the nexus is required. See, State v. Rogers, 578 S.W.2d 362, 367 (Mo.App.1979); State v. Davis, 515 S.W.2d 773, 775-776 (Mo.App.1974) . In our review we must assume the party making an offer of proof stated it as fully and favorably as possible. State v. Umfrees, 433 S.W.2d 284, 286 (Mo.banc 1968). The trial court cannot be faulted for ruling that the irrelevant evidence be excluded, hence, defendant's contention of error as to Offer of Proof No. 2 is denied. ³

It is argued that the alleged fact of the victim's rape at age 10, Offer of Proof No. 3, is relevant to the defense claim of her vindictiveness and resultant motive to fabricate a rape charge against defendant. While we are unable to learn from the transcript or briefs the victim's present age, we do know she is a woman with children, ages six, three and two. However, the circuit court judge, from his trial observations, could sufficiently estimate the temporal proximity (or lack thereof) to justify the ruling. It is fatal to defendant's contention that no other attempt was made to show the relevance of this alleged incident apparently occurring many years prior to the crime at bar. The trial court properly ruled that the proposed evidence fell beyond "the permissible range of interrogation" and though the court considered the offered evidence barred by the statute, it cannot be said the ruling was erroneous. The rationale supporting the trial court's ruling on Offer of Proof No. 2, previously discussed, is also pertinent and supports the action rejecting Offer of Proof No. 3.

Defendant further contends that a part of this Offer of Proof included statements that the victim "has ill feelings towards men in general" and this feeling manifested itself if she felt they had "wronged her in some manner." As to this aspect, the court indicated that although the mention of the alleged rape at age 10 would be excluded, the statute (the ostensible basis for that ruling) did not preclude proof concerning attitudes, stating "I don't think attitudes, as I understand it, equates with sexual conduct other than in the figment of one's imagination." Thus, the only portion of Offer of Proof No. 3 which was excluded and could serve as a basis for claim of error was the testimony concerning the victim's rape at age 10. Defendant's contention of error as to Offer of Proof No. 3 is denied.

II.

Defendant next asserts the trial court erred in failing to sustain his motion for judgment of acquittal because the victim's testimony was uncorroborated. Implicit in his argument is the state's alleged failure to make a submissible case. Defendant points to inconsistencies within the victim's testimony, the victim's extrajudicial admissions to defense counsel and his investigator, and the victim's out of court statements to others, all allegedly inconsistent with verdict and demonstrating no rape occurred.

The uncorroborated testimony of the rape victim was sufficient to sustain a conviction, and any uncertainties therein were matters for the jury's resolution. State v. Garrett, 494 S.W.2d 336, 337-38 (Mo.1973), State v. Davis, 497 S.W.2d 204, 207 (Mo.App.1973). Corroboration is not mandated unless the victim's testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is thereby rendered doubtful. State v. Wood, 355 Mo. 1008, 1012, 199 S.W.2d 396, 398 (1947); State v. Russell, 581 S.W.2d 61, 66 (Mo.App.1979).

In the instant case, the asserted inconsistencies as to whether a rape occurred were in most part explained, and not fatal to the verdict when taken in context. On redirect examination, the victim disavowed certain of her extrajudicial statements, explaining that her religious teachings had persuasively influenced her to "suffer the wrong" and "let God handle it." According to church doctrines, she should refrain from prosecuting the rape, sharing in its blame. In addition, defense counsel's investigator had told the victim her reputation in the community was suffering, and he would inform her mother, an Arkansas resident, about the incident. These indoctrinations and threats arguably...