State v. Hudson, s. 20024

• Decision Date: 27 May 1998
• Docket Number: Nos. 20024,21851,s. 20024
• Citation: 970 S.W.2d 855
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Albert HUDSON, Defendant-Appellant, and Albert HUDSON, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 855

970 S.W.2d 855

STATE of Missouri, Plaintiff-Respondent, v. Albert HUDSON, Defendant-Appellant, and Albert HUDSON, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 20024, 21851.

Missouri Court of Appeals,

Southern District,

Division Two.

May 27, 1998.

Rosalynn Koch, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Catherine Chatman, Asst. Atty. Gen., for respondent.

PARRISH, Presiding Judge.

Albert Hudson (defendant) was convicted, following a jury trial, of burglary in the first degree, § 569.160, RSMo 1986, and attempt to commit forcible rape, § 566.030. ¹ Defendant was charged and sentenced as a prior offender. See § 558.016.1 and .2.

Defendant thereafter filed a pro se motion for post-conviction relief as permitted by Rule 29.15. Counsel was appointed and an amended motion filed. The motion was denied after an evidentiary hearing.

Defendant appeals the judgment of conviction in his criminal case, No. 20024, and the judgment denying his Rule 29.15 motion, No. 21851. The appeals were consolidated in accordance with Rule 29.15(l ) as that rule existed at the time defendant's pro se motion was filed. See Rule 29.15(m).

Defendant presents four points on appeal. Points I, II and III are directed to his appeal of the judgment of conviction in his criminal case. Point IV is directed to the appeal of the judgment denying his Rule 29.15 motion.

No. 20024

On February 9, 1994, at about 10:00 p.m. Linda Mays was in her apartment at Sikeston, Missouri. She was taking a bath when she heard a noise that sounded like her front door was being kicked. She got out of the bathtub and opened her bathroom door to look out. She saw a black man wearing a dark sweatshirt with a hood. The hood was pulled close about his face with a drawstring. He was about a foot from the bathroom door. She was unclothed. He grabbed her. She explained:

Well, I'm not sure what happened between the time that I made eye contact with him to the next thing I remember being back in the tub, and being in the tub, and sitting in the wrong direction, with my back to the faucet, and him coming towards me and then grabbing me.

She described what happened next:

He put both hands around my neck and started choking me, and pushing me down into the water. I thought he was going to drown me in that tub basically, and then he took his left hand and stuck his finger inside me, and then I threw up my hands and pretty much said, "Okay, I give up."

The intruder took Ms. Mays, fighting, into the bedroom. He was behind her with his arms around her. She estimated they struggled for ten or fifteen minutes. She described her struggle:

Well, I was on my back. He was on top of me, straddled. I was trying to reach a bat that was on the floor behind me. We were on a mattress, not a bed. My son and I didn't have a whole lot of things. That was where he slept, on a mattress, so I was close enough to the ground that my son kept a bat in there, and I did finally get my hands around the bat, and when he saw me, he lunged at me and pushed it out of my hands, and I tried to reach the stereo knob so I could turn it up real loud and maybe someone would hear. I don't know what he was doing, but he got aggravated at me and hit me in my jaw and ear.

Ms. Mays bit defendant's finger during the struggle and "kept telling him that [her] son would be home any minute and that he would kill him." Defendant finally ran from the apartment. Ms. Mays grabbed a bedspread to cover herself and ran after him. She was screaming. She ran into the street and fell. Neighbors came out of their houses. The police arrived a short time later. Ms. Mays went to the police station. She described her attacker as about five feet ten inches tall and heavy with a "kind of round head."

Police found boot prints in the snow surrounding the building where Ms. Mays' apartment is located. They found a blue Notre Dame sock cap in the apartment that did not belong to Ms. Mays or her son.

Bob Davis is an employee of the City of Sikeston Fire Division. His residence is on Center Street, one block away from the street where Ms. Mays' apartment was located. On the evening of her attack Mr. Davis had guests. He came out of his residence onto his front porch as his guests were leaving. He saw someone coming toward his residence on Center Street wearing dark clothing. The person was coming west on Center Street. He took off running. Mr. Davis did not pay much attention to the person on the street. He explained, "I didn't think anything of it because it was cold out there."

Mr. Davis went back inside his residence where he heard a radio dispatch on a scanner located in his house. The dispatch reported that a woman had been sexually assaulted in the 200 block of a street next to the one where he lived. Mr. Davis reported what he had seen to the police.

Officer Hank Trout of the Sikeston Department of Public Safety was sent to Mr. Davis' residence. Mr. Davis took Officer Trout to the location where Mr. Davis had observed someone running. They found tracks that led to the front door of a house some distance from where they started.

Officer Trout testified that there was fresh snow; that the tracks were in the snow. The tracks looked to Officer Trout as if they had been made by a man's work boot. He estimated the size of the boot as 10 to 11. The print had a diamond shape on it. He explained it was eleven o'clock at night; that most of the places where they observed the tracks "were yards where nobody else had walked." A plaster cast and photographs were made of the boot print. There were no other tracks in the area.

The location to which the tracks led was a house at 603 Montgomery Street. Officer Copeland accompanied Officer Trout to the location. Two other officers, Lt. Armour and Officer Wyatt, joined them.

Lt. Armour knocked on the door to the residence. A black male, Percy Baker, answered the door. A woman, Josephine Hudson, was asleep on a couch. She woke up. Ms. Hudson told the officers the house was her residence.

The officers were given permission to search the premises. Officer Trout went with Ms. Hudson to a bedroom. The light in the room was on and the door was open. Officer Trout saw someone lying on a bed. As Ms. Hudson started to close the door, he asked who was in the room. She replied, "Albert." Officer Trout opened the door and called for Lt. Armour and the others.

The person in the bedroom was defendant. Officer Trout saw a pair of boots on the floor at the foot of the bed. One boot was on its side. The sole appeared to have the same design as the tracks in the snow the officers had followed. Officer Trout seized the boots.

There was a sweatshirt on the floor next to a closet. It was hooded with pull strings and had pockets. It was a dark color. Officer Wyatt picked it up. Ms. Hudson told the officers, "The search is over, terminated." She told them she wanted them out of the house. Lt. Armour instructed Officer Wyatt to put the sweatshirt down. He told the officers to leave the house.

Officer Trout returned to Ms. Mays' residence. Tracks were found that appeared to match those Officer Trout had followed from the area near Mr. Davis' residence.

A search warrant was obtained for the house at 603 Montgomery Street. The officers returned there with it. At first, no one answered the door. Lt. Armour was prepared to force the door open. He kicked it. A voice inside told him to wait. The door opened.

Following a search, items were seized, including a sweatshirt that appeared to be the same one the officers had seen when they were at the house earlier. Defendant was arrested.

At trial a firearms and tool marks examiner and forensic scientist from Southeast Missouri Regional Crime Laboratory testified that the plaster cast taken of boot prints in the snow outside Ms. Mays' residence matched the tread of the boots the police seized in the room where defendant was first found at 603 Montgomery Street. He also testified that the sock cap found in Ms. Mays' residence contained a hair that microscopic examination revealed was consistent with hair samples given by defendant.

Defendant's first point on appeal asserts the trial court erred in denying defendant's motion for judgment of acquittal and in entering judgment of conviction in accordance with the jury verdict. Defendant argues that the state's evidence was not sufficient to establish defendant's guilt. He contends the evidence did not identify him as the person who entered Ms. Mays' apartment.

In considering claims of insufficiency of the evidence in criminal cases, appellate review is limited to determining if the evidence was sufficient for a reasonable juror to have found the person charged with the crime guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). This court accepts as true all evidence favorable to the state, including favorable inferences drawn from the evidence and disregards evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).

Defendant's argument is based on the evidence that there were two black males, he and Percy Baker, at the house where they found the boots that matched the footprints they had followed; that the evidence permitted "equally valid inferences" to be drawn, viz., that the culprit was defendant or that it was Percy Baker. He contends, as a matter of law, that these circumstances preclude his being convicted.

Defendant's argument is two-fold. It is based on a principle denoted as the "equally valid inference rule" and on the claim that, regardless of the applicability of the equally valid inference rule, the evidence adduced did not prove defendant's guilt beyond a reasonable doubt; that it was met with equally strong exculpatory evidence.

The equally valid inference rule provided:

Where the evidence presents two...