State v. Johnson, KCD 30583.
| Decision Date | 03 March 1980 |
| Docket Number | No. KCD 30583.,KCD 30583. |
| Citation | 595 S.W.2d 774 |
| Parties | STATE of Missouri, Respondent, v. Charles B. JOHNSON, Appellant. |
| Court | Missouri Court of Appeals |
J. D. Williamson, Jr., John K. Weilert, Independence, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Carl Koupal, Sp. Asst. Atty. Gen., Kansas City, for respondent.
Before WASSERSTROM, C. J., Presiding, and DIXON and SOMERVILLE, JJ.
Upon a jury trial in August 1978, defendant was found guilty of sodomy and rape. He appeals on the grounds that: (1) The jury selection was unconstitutionally discriminatory within the ruling of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); (2) the evidence was insufficient to support the conviction; and (3) the prosecutor made an improper argument to the jury.
Defendant's challenge to the sufficiency of the evidence will be considered first, because if that point be valid then the conviction should be reversed outright and defendant discharged. A ruling with respect to this point requires at least some brief reference to the testimony.
The prosecutrix testified that on the evening of April 4, 1978, she encountered defendant and a man referred to in the evidence as "Oink," both of whom she had known for some time, and they requested the prosecutrix to drive them to their home in her car. The prosecutrix agreed to do so, but upon stopping to drop them off discovered that one of her tires was going flat. After letting the two men out, she went into a neighboring house to call her husband, who, however, was unable to come pick her up. The prosecutrix then went to the house of Oink and defendant in order to try to borrow cab fare. The prosecutrix's testimony proceeded that defendant then grabbed her, pulled her into the back of the house, took off her clothes and sodomized and raped her. Then Oink also engaged in that activity, as did also a third occupant of the house named Darryl Smith. According to prosecutrix, she continued to be so victimized all through the night. She further testified that in the morning a fourth man in the house who had not participated in the sexual acts helped her to escape. She then proceeded to the house of her sister who lived in the vicinity and called the police.
Defendant argues that the state's case cannot stand without reliance upon the foregoing testimony by the prosecutrix, and that her testimony cannot be considered an adequate basis because of conflicts between her trial testimony and a prior statement given to the police. These conflicts consist of the following matters: (1) At trial the prosecutrix said that defendant grabbed hold of her on the porch, whereas the prior statement said that this happened inside the house. (2) At trial prosecutrix testified that Smith first appeared shortly after appellant committed the alleged rape, but in her statement she stated that she first saw Smith before the attack, as Smith walked into the house. (3) At trial prosecutrix described Oink bending her fingers and jeering at her while she was engaged in a sex act with Smith, whereas her statement accused Oink of that conduct while she was engaged in a sex act by defendant. (4) At trial prosecutrix described simultaneous acts of rape by Oink and sodomy by Smith, but this description was at variance with what she described in her prior statement. (5) Prosecutrix's trial testimony was that the fourth man in the house assisted her in getting away while Oink had passed out, whereas in her statement she stated that Oink had threatened her in the morning and then had allowed her to leave.
The rule of law that governs this situation is stated in State v. Rogers, 583 S.W.2d 293 (Mo.App.1979), as follows:
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