State v. Hughes

• Decision Date: 13 March 1990
• Docket Number: No. 56286,56286
• Citation: 787 S.W.2d 802
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jimmie HUGHES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 802

787 S.W.2d 802

STATE of Missouri, Plaintiff-Respondent, v. Jimmie HUGHES, Defendant-Appellant.

No. 56286.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 13, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied April 11, 1990.

Application to Transfer Denied May 15, 1990.

Henry Thomas, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SMITH, Judge.

Defendant appeals from his convictions by a jury of three forcible rapes, two first degree robberies, sodomy and armed criminal action. He received sentences imposing a total of one hundred forty years. We affirm.

The convictions resulted from two separate incidents occurring approximately a year apart. On February 6, 1987, M.J. and her friend T.S., both high school students, were walking home on Grand Avenue from Vashon High School after being unable to attend a basketball game. M.J. was fifteen years old. As they were walking defendant approached them from the opposite direction. He pushed the girls into an alley. M.J. felt something in her back that felt like a gun. She never saw a gun. Both girls were blindfolded and pushed into a nearby black car. Defendant took ten dollars from M.J. While in the automobile M.J. moved the blindfold sufficiently to observe her assailant. The girls were taken to a house at an unknown location where M.J. was ordered to disrobe and was raped. Defendant then used a telephone to call another man who arrived shortly thereafter. Upon his arrival defendant took T.S. to another room and the late arrival then raped M.J. Defendant returned several minutes later with T.S. The second man then took T.S. to another room and defendant again raped M.J. Before this second rape by defendant, he had some difficulty obtaining an erection, became angry and complained "I'm too old to be doing this." Defendant was 39. Both girls were then released, ran to a nearby house and called the police. T.S. did not testify at the trial.

On March 24, 1988, B.H., a fifteen year old high school student, was walking home from Vashon High School after attending a talent show. Defendant approached her and pushed her into a wall. A struggle ensued and defendant struck B.H. on the head with a gun. B.H. was then blindfolded and forced into a black car which pulled up alongside. Defendant then directed the driver to a location nearby where B.H. was taken into an abandoned residence. She was instructed to bend over and defendant removed her pants and inserted his penis into her rectum. He then instructed her to lie down and he penetrated her vaginally. The second man then sodomized and raped B.H. During the second man's activities B.H. was able to observe defendant removing things from her jacket and pants pockets including ten dollars which defendant took. After the second man had completed his assault the two men left. B.H. remained on the premises for awhile and then left, went to a nearby house and called the police.

Physical examinations and laboratory reports of M.J. and B.H. established recent sexual intercourse. A laceration on B.H.'s head from the gun blow required staples to close. She also had rectal tears consistent with a sexual penetration. B.H. was able to locate the abandoned residence where she had been taken and personal belongings of hers were found there. In addition a vehicle registration form for defendant's automobile was found at that abandoned residence. At trial and at a lineup after defendant's arrest, both B.H. and M.J. identified defendant as the man who approached them on the street. M.J. also identified defendant prior to the lineup in a photo array.

Defendant was charged with eight offenses. The jury acquitted him on an armed criminal action charge pertaining to M.J. On appeal defendant asserts eight grounds of error.

Initially he contends the trial court erred in refusing to sever the charges pertaining to M.J. from those pertaining to B.H. This contention requires a two part analysis. First is whether the offenses were properly joined in the indictment. If joinder was proper then it is necessary to determine whether the trial court abused its discretion in refusing to sever. State v. Morant, 758 S.W.2d 110 (Mo.App.1988) [1, 2]. "Joinder is either proper or improper under the law while severance is discretionary." State v. White, 755 S.W.2d 363 (Mo.App.1988) .

Joinder is governed by Sec. 545.140(2) RSMo 1986 and Rule 23.05. Both provide for joinder of two or more offenses where the offenses "are of the same or similar character" or are based on two or more acts that are part of the same transaction. For joinder to be proper, the manner in which the crimes were committed should be sufficiently similar that it is likely that the same person committed all the charged offenses. Similar tactics are sufficient to constitute acts of the same or similar character. State v. White, supra [8-10]. However, identical tactics are not required. Tactics which resemble or correspond in nature are sufficient. State v. Moore, 745 S.W.2d 224 (Mo.App.1987) .

The two transactions involved here are strikingly similar. The attacker waited for his victim on Grand Avenue in the early evening in an area within walking distance of Vashon High School. Both attacks took place on a night of activity at the high school. Both victims were high school students, aged 15. In both attacks a gun was used, the victims were inadequately blindfolded and placed in a black car. The victims were taken to a nearby residential location and raped by two men. The attacker in both cases demanded money from the victims at the time they were first accosted. The victims were released by their attackers. The tactics, location, and choice of victim make it likely that the perpetrator was the same person. While the crimes were not identical they were sufficiently similar to allow joinder.

The key question in determining whether severance should be granted is one of prejudice....