State v. Hunter

• Citation: 626 S.W.3d 867
• Decision Date: 04 May 2021
• Docket Number: No. ED 108952,ED 108952
• Court: Court of Appeal of Missouri (US)
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Alvin L. HUNTER, Defendant/Appellant.

626 S.W.3d 867

STATE of Missouri, Plaintiff/Respondent,

v.Alvin L. HUNTER, Defendant/Appellant.

No. ED 108952

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: May 4, 2021

Application for Transfer Denied August 31, 2021

Daniel N. McPherson, P.O. Box 899, Jefferson City, MO 65102, For Plaintiff/Respondent.

Taylor Goodale, 104 S. McKinley Avenue, Suite B, Union, MO 63084, For Defendant/Appellant.

SHERRI B. SULLIVAN, J.

Introduction

Alvin L. Hunter (Appellant) appeals from the trial court's judgment following a bench trial finding him guilty of seven counts of forcible rape under section 566.030¹ , and six counts of forcible sodomy under section 566.060.² Appellant raises five points on appeal, challenging the court's interpretation of the statutes, the sufficiency of the State's evidence, and the admissibility of the State's evidence. We affirm.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the evidence at trial showed the following³ :

Victim, Appellant's niece by adoption, had a drinking problem during her twenties. Victim frequently visited Appellant and King's house on Highway K in St. Clair, Missouri. She had known Appellant and King, sometimes referred to as "Kerry," for many years prior to the time period in question and believed their house to be a safe place to visit and drink. Significantly, while Victim considered Appellant and King to be her friends, Victim never agreed to engage in sexual behavior with either man and had no recollection of actually doing so.

At some point in 2008, Victim woke up at the codefendants’ house and discovered her pants had been pulled down and Appellant was at her feet unbuttoning his pants. Victim immediately jumped up to leave, stating, "Oh, H-E-L-L no." Victim never returned to the house.

Eight years later, Jennifer Rahn (Rahn) moved in with King. In August 2016, Rahn discovered a videotape labeled "Solo" on King's dresser. Having never heard of the movie, Rahn put the videotape into the VCR player. The video showed King attempting to sexually penetrate an unconscious female. Rahn did not recognize the female and did not know whether the female was unconscious or dead, but Rahn recognized the location as Appellant and King's living room. Before shutting off the video, Rahn heard King ask another man who was off-camera if he was ready for his turn.

Rahn wrapped the videotape in several shopping bags and trash bags and buried it in the woods behind the house. Three days later, Rahn contacted the Franklin County Sheriff's Department and dug up the video to turn it over to them. Captain Charles Subke (Captain Subke) of the Franklin County Sheriff's Department received the video and watched it in its entirety.

The video showed two men repeatedly having sexual intercourse with a woman who appeared to be passed out. At various points in the video, the men also touched their penises to the woman's mouth, placed their mouths on her vagina, and put their fingers in her vagina. During the video, one of the men stated, "Yeah, this is good ol’ Alvin and Kerry f---ing the hell out of [Victim]." Later on, one of the men referred to Victim as a "28-year-old-pussy." During one portion of the video, Captain Subke also heard a "60 Minutes" episode playing which helped him estimate the date of the video.

Captain Subke discovered the identity of Victim by searching service call records from Appellant and King's house and finding a record containing Victim's name. Captain Subke then located Victim and showed her still shots from the video. Victim confirmed she was the woman shown in the pictures. Captain Subke also showed Victim still shots of the men in the video and Victim readily identified Appellant and King. Victim stated she had no recollection of any of the events depicted in the video and never consented to sexual behavior with either man.

On September 29, 2016, Appellant was indicted. Subsequently, the State filed a Substitute Information In Lieu of Indictment. After several amendments and motions to dismiss, the case proceeded based upon the State's Fourth Amended Information In Lieu of Indictment, charging Appellant with seven counts of forcible rape and six counts of forcible sodomy.

Appellant and King waived jury trial and were tried in conjunction by the court. At trial, the State presented testimony from Victim, Detective Corporal Kenneth Nix, Rahn, and Captain Subke. The State also played the video as evidence. Victim testified she never consented to any sexual behavior with Appellant and King. Detective Corporal Nix, of the Clayton Police Department, testified to converting the original VHS tape to DVD. He also stated he did not observe anything that would lead him to believe the original video had been tampered with. Rahn testified she found the videotape in Appellant and King's house and stored it temporarily by burying it before delivering the videotape to Captain Subke. Captain Subke testified as to how he identified Victim, Appellant, and King. Appellant and King presented testimony from Charles Ryan King (codefendant King's son), Captain Subke, Appellant, and King.

Appellant was found guilty on all counts. The court sentenced Appellant to concurrent sentences of 18 years for each count. This appeal follows.

Points Relied On

Appellant raises five points on appeal. In his first point, Appellant claims the court erred by interpreting the forcible rape and sodomy statutes to include incapacity due to voluntary intoxication. In his second point, Appellant argues there was insufficient evidence presented to establish he used physical force that overcame reasonable resistance. In his third point, Appellant claims there was insufficient evidence presented to establish a timeframe for the charged actions. In his fourth point, Appellant argues the court erred in denying his Motion to Dismiss because the State's Fourth Amended Information failed to establish all of the elements required under the forcible rape and forcible sodomy statutes. In his final point, Appellant claims the trial court erred in admitting the videotape into evidence.

Point I

Appellant's first point claims the trial court erred by misinterpreting sections 566.030 and 566.060. Specifically, Appellant contends that at the time of the crime, an individual who was incapacitated due to voluntary intoxication could not be forcibly raped or forcibly sodomized because there could not be forcible compulsion.

Standard of Review

Statutory interpretation is a question of law that we review de novo. State v. Smith, 595 S.W.3d 143, 145 (Mo. banc 2020). "The primary rule of statutory interpretation is to ascertain the intent of the General Assembly from the language used and to give effect to that intent. To determine legislative intent, words are to be given their plain and ordinary meaning." State v. Whipple, 501 S.W.3d 507, 513-14 (Mo. App. E.D. 2016) (internal quotation marks and citations omitted). However, we will look past the plain and ordinary meaning of a statute when the language is ambiguous or would lead to an illogical result. Townsend v. Jefferson Cty. Sheriff's Dep't, 602 S.W.3d 262, 265 (Mo. App. E.D. 2020). We must interpret statutes to avoid unreasonable, oppressive, or absurd results. Id. Additionally, "[w]e must interpret a statute in context, not reading any portion of the statute in isolation." Id.

Discussion

When the charged crimes occurred, the statute defining forcible rape stated:⁴

1. A person commits the crime of forcible rape if such person has sexual intercourse with another person by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse.

§ 566.030.1.

Similarly, the statute defining forcible sodomy stated:

A person commits the crime of forcible sodomy if such person has deviate sexual intercourse with another person by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse.

§ 566.060.1.

Relying upon the language in the forcible rape and forcible sodomy statutes, Appellant argues forcible compulsion cannot occur when a victim is voluntarily intoxicated. Accordingly, Appellant believes an individual cannot be found guilty of either crime when a victim is voluntarily intoxicated.

Both the forcible rape and forcible sodomy statutes state "[f]orcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse." See sections 566.030.1 and 566.060.1. Although the statutes do not explicitly refer to voluntary intoxication or ingestion of any substances rendering the victim impaired, the legislature uses the word "includes," which indicates the legislature's intent to allow what may be considered forcible compulsion to be expanded beyond merely involuntary intoxication or impairment. "Includes" is not a limiting term. Instead, the term indicates an intent to expand. Its use indicates that which follows does not cover the entirety of possibilities. In such a context, as is the case here, "includes" is not exclusive and other forms of impairment beyond involuntary intoxication could also be considered in the context of determining whether there was forcible compulsion.⁵ Therefore, by choosing the word "includes," the legislature emphasized its desire to broaden rather than restrict actions that constitute forcible compulsion.

Moreover, because we do not consider sections of a statute in isolation, we find section 556.061(13) to be instructive. Notably, section 556.061(13) defines...