State v. Johnson

• Decision Date: 04 April 1977
• Docket Number: No. KCD,KCD
• Citation: 549 S.W.2d 627
• Parties: STATE of Missouri, Respondent, v. William Edward JOHNSON, Appellant. 28470.
• Court: Missouri Court of Appeals

Page 627

549 S.W.2d 627

STATE of Missouri, Respondent, v. William Edward JOHNSON, Appellant.

No. KCD 28470.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

Kenneth K. Simon, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

SHANGLER, Presiding Judge.

The defendant was charged by indictment in three counts with the crimes of rape, crime against nature and kidnapping. The motion of defendant for judgment of acquittal at the close of the evidence for the State was sustained as to Count I for rape. The jury found him guilty on Count II of the crime against nature (§ 563.230, RSMo 1969) and on Count III for kidnapping (§ 559.240, RSMo 1969) and he was sentenced to consecutive terms of one hundred and fifty years and ten years for the respective offenses.

The appeal contends that Count III for kidnapping was multiplicitous of the crime against nature charged by Count II in that the evidence of the detention and confinement necessary to convict for kidnapping was merely incidental to the perpetration of the crime against nature and thus was insufficient to prove the separate crime of kidnapping. The appeal also contends error in the failure to grant defendant a full hearing on his motion to suppress identification.

There was evidence that the late afternoon of June 10, 1975, three children Patricia (nine years of age), her brother Robert (eight) and their friend Stephanie (eleven) waited at a bus stop. A man in a green Cadillac, identified as the defendant, accosted them and offered money to help find his little sister. He suggested that they separate for this purpose, which they did. When she was alone, the defendant induced Patricia into his car with the promise of money, but since he had no change it would be necessary to drive to the store for that purpose. He cautioned her not to tell about the money because that would cause him to go to jail. They drove along and passed by her brother Robert near a store, but he did not stop the car as she had expected; instead the defendant drove the car down an alley. There the defendant threatened to kill her because he believed she would tell; she denied that, and commenced to cry.

Her brother Robert and Stephanie had both seen Patricia in the green Cadillac with the defendant as they came by. Then, when the car came to rest in the alley, Willie Pleasure, who worked in a neighborhood store and knew Patricia and her family, drove up beside the Cadillac to inform the defendant his car was wrongly directed on that one-way street and would probably be noticed by the police. He then saw Patricia in the car. They did not speak, but she appeared to be frightened. The defendant resumed the drive and turned down another alley where the car ran out of gas. The defendant continued to threaten her during this time.

It had become dark by then and the defendant ordered her to remove her underpants and to flex. He then proceeded to penetrate her mouth with his genital, repeated that perversion, and then penetrated her anus. He attempted to enter her vagina but did not succeed. The defendant then fell asleep from the effects of a bottle of liquor he had consumed. Patricia then attempted to open the door to escape, but she thought he heard her, so she shut the door again in fear. When it became morning he repeated the anal perversion, and then let her out of the car. It was then about six in the morning.

She returned home frightened and nervous and complained of anal pains to the mother. After examination at the hospital, she was interviewed by the police and led them to the vicinity of the assault and detention, where the green Cadillac was found. That vehicle was found to be registered to the defendant. Certain items of evidence described by Patricia, including a whiskey bottle, were also found in the automobile.

An officer displayed a series of photographs, including one of the defendant, to the three children in turn and out of the presence of the others. It developed on cross-examination that two of the photographs contained notations on the rear one of them, the legend "William R. Johnson, Rape". The defendant then for the first time offered a motion to suppress the identification on the ground that the display of photographs was suggestive, and the court allowed a hearing on the issue. In the course of the evidence the officer who arranged the view of photographs testified that he could not recall whether the notations then present were also present when shown earlier, but observed that the array was placed on a table face-up so that the backs were not visible to the children. The defendant requested opportunity to interrogate the three children on this issue, but the court refused because of concern for the infant witnesses.

At the resumption of the trial Stephanie positively identified the defendant as the man who had talked to them and whom she had seen in the green Cadillac with Patricia. She had previously identified the defendant from the array of photographs. Although she examined front and rear of the pictures, she did not remember whether there was any writing on the back side of the representation of the defendant. The boy Robert also positively identified the defendant at the trial. He had also been shown the photographs and picked the defendant from among them, but did not look at the reverse sides. Patricia firmly identified the defendant as the man who lured her into the car and assaulted her. Willie Pleasure also identified the defendant in-court as the man he had seen with Patricia in the Cadillac. He had earlier picked the defendant from some photographs displayed to him at the police station.

The medical examination of Patricia indicated irritation and fissure of the rectum but no damage to the vagina. Seminal and fecal material were found on a piece of cardboard which defendant had placed between the child and the car seat to prevent soilage of the interior. A latent fingerprint taken from a vodka bottle found in the car was identified as that of the defendant.

The defendant did not testify but offered proof of alibi. At the conclusion of the evidence, judgment of acquittal on Count I for rape was entered and the remaining counts for crime against nature and kidnapping were submitted to the jury.

The first point made contends that the evidence shows nothing more than a detention and confinement of the child Patricia incidental to the crime against nature but no proof of a separate kidnapping offense. The argument goes further: The act of kidnapping was only the means by which the criminal purpose of the sexual assault was accomplished and to punish for the kidnapping which, in the context of the transaction was only an incident of the assault put the defendant twice in jeopardy for the same offense.

There can be no doubt that under our decisions where the same act constitutes separate offenses not included within the other, the constitution does not preclude conviction for each of them. State v. Moore, 326 Mo. 1199, 33 S.W.2d 905, 907(4) (1930). The double jeopardy doctrine is directed to the identity of the offense, and not to the act. It forbids the state from piecemeal prosecution of a single offense. State v. Carter, 535 S.W.2d 537, 538(1) (Mo.App.1976). Offenses are not identical when one necessitates proof of an essential fact or element not required by the other. State v. Chambers, 524 S.W.2d 826, 828(1, 2) (Mo. banc 1975).

The law recognizes a correlative principle, invoked by the defendant, that a person convicted of an offense and then put on trial for an element of that offense has been put twice in jeopardy for the same accusation. State v. Parsons, 513 S.W.2d 430, 438(5-8) (Mo.1974). The defendant attempts to relate this principle to his contention that the detention and confinement of the child was not an act of kidnapping but the means to the assault.

Three cases have applied this principle to nullify convictions. In State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970), the defendant was convicted of attempted robbery when he placed a knife against the store clerk in an unsuccessful attempt to obtain money from him. He was later convicted of assault with intent to maim without malice for the same conduct. The court reversed the subsequent conviction on the rationale (l. c. 539) that the assault was the substantive element of the attempted robbery for which conviction had already resulted and so the defendant could not be prosecuted again for that same assault. The court rejected the prosecution theory that because each assault required proof of a different intent, the first an intent to rob and the second an intent to maim, they constituted separate offenses and prosecutions not precluded by double jeopardy. The court concluded that mere allegation of a different intent by the defendant did not avoid a double prosecution for the same assault.

In State v. Parsons, 513 S.W.2d 430 (Mo.1974), the defendant was convicted of first degree murder by bombing and then of bombing. The conviction for bombing was reversed because (l. c. 438) "the necessary act toward the commission of the bombing was the identical act necessary to constitute the crime of murder . . . If there is but one single act of force proved as an incidental means of committing a murder that act of force may not also be charged as a separate crime." The court reached this conclusion on the reason stated in Richardson, among other authorities.

Another decision, adopted concurrent with Parsons by the Supreme Court, uses the rationale of Richardson that a single act of force cannot be proved both as an incident of one offense and then also as a separate offense without violation of double jeopardy. In State v. Neal, 514 S.W.2d 544 (Mo. banc 1974) the defendant was convicted of first degree robbery...