State v. Johnson, 43192

• Decision Date: 01 June 1982
• Docket Number: No. 43192,43192
• Citation: 637 S.W.2d 157
• Parties: STATE of Missouri, Respondent, v. William H. JOHNSON, Jr., Appellant.
• Court: Missouri Court of Appeals

Page 157

637 S.W.2d 157

STATE of Missouri, Respondent, v. William H. JOHNSON, Jr., Appellant.

No. 43192.

Missouri Court of Appeals, Eastern District, Division Four.

June 1, 1982.

Motion for Rehearing and/or Transfer Denied July 16, 1982.

Application to Transfer Denied Sept. 13, 1982.

Shaw, Howlett & Schwartz, James W. Knappenberger, Clayton, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George R. Westfall, Pros. Atty., Clayton, for respondent.

SMITH, Presiding Judge.

Defendant appeals from his conviction by a jury of two counts of rape, two counts of sodomy and two counts of kidnapping. The sentences imposed were fifteen years on each of the sex offense counts to run consecutively and eight years on each kidnapping count to run concurrently with the sex offense sentences. We affirm.

In the early morning hours on a Sunday, two young women ran out of gas on Natural Bridge Road in St. Louis County. Defendant and two other young men came by and seeing the young women's plight physically seized them and threw them into the vehicle in which defendant was riding. The women were driven for approximately ten minutes to a field where they were repeatedly raped and forced to perform acts of fellatio by each of the men for approximately an hour and one half. They were then driven to a shack nearby and again each was raped and sodomized by each of the men. During the ordeal at the shack, defendant left to get food and after approximately 30 minutes returned with a relative who also participated in the continuing sexual abuse of the women. During defendant's absence, one of his compatriots obtained a cane from the occupant of the shack and inserted it into the vagina of one of the victims. The women were threatened by being told the men had a gun and were struck on the head and face during the ordeal. From the time the women were first forced into the car until their release, six hours or more elapsed.

Defendant admitted his presence at the scene; admitted sexual intercourse with one of the victims; denied the intercourse was non-consensual; and stated that the women had agreed to the sexual activity in exchange for two dollars in gas money.

Defendant has raised a multitude of issues on appeal. The first is that the submission and conviction of both rape and kidnapping (1) subjected him to double jeopardy; (2) was contrary to Sec. 556.041, RSMo 1978 (limitation on conviction for multiple offenses); and (3) was contrary to Sec. 565.110 RSMo 1978 (kidnapping). These contentions are premised on the conclusion that both offenses arose out of one continuous course of action. This point has been decided in State v. Smith, 626 S.W.2d 256 (Mo.App.1981) (3) (a companion case to this one), State v. Johnson, 632 S.W.2d 506 (Mo.App.1982) (a companion case to this one), and State v. Stewart, 615 S.W.2d 600 (Mo.App.1981) (2), all of which held contrary to defendant's position. Little else need be said other than noting that approval of defendant's contentions would virtually eliminate kidnapping as a separate criminal offense. As we said in State v. Gorman, 584 S.W.2d 420 (Mo.App.1979) (11):

"It is a rare kidnapping that is an end in itself; almost invariably it is the means by which one attempts to facilitate the commission of another crime. We cannot approve any principle which exempts one from prosecution for all crimes he commits because he sees fit to compound or multiply them. Such a principle would inevitably encourage the compounding and, ultimate viciousness of criminal acts."

Defendant next challenges the verdict-directing instructions on kidnapping. His contention that the kidnapping statute was not designed to apply to facilitating the commission of a future felony, as was the case here and as was submitted by the instruction, is patently frivolous. The same can be said for his argument that the evidence did not support a finding that defendant acted with the purpose of promoting the kidnapping. The evidence is to the contrary. His final attack on these instructions is that the instructions did not properly combine MAI-CR2d 2.12 (Active Participants or Aiders) with the basic kidnapping instruction (MAI-CR2d 19.20.2(1)). This recurring problem, created by certain confusion in MAI-CR2d has been dealt with in State v. Clark, 607 S.W.2d 817 (Mo.App.1980) (5); State v. Simpson, 614 S.W.2d 31 (Mo.App.1981) (3); and State v. Hastings, 628 S.W.2d 678 (Mo.App.1982) (7). For the reasons set forth therein we find defendant's point without merit.

Defendant also contends that four additional instructional errors occurred. The first two involve utilization of the singular rather than the plural when referring to "offense" in the burden of proof instruction (MAI-CR2d 2.20) and "verdict" in the argument of counsel and verdict mechanics instructions (MAI-CR2d 2.68 and MAI-CR2d 2.80). The third involves reversing the prescribed order of the latter two instructions. The fourth challenges the use of the MAI-CR2d 33.01 definition of "consent" as confusing and inaccurate in light of the facts of the case. The giving of MAI-CR2d 2.70 (Verdict Possibilities: One Defendant-Multiple Counts Requiring Separate Verdicts) cures any error which may have been involved in failing to utilize the plurals of "offense" and "verdict." State v. Rapheld, 587 S.W.2d 881 (Mo.App.1979) (28); State v. Ross, 523 S.W.2d 841 (Mo.App.1975) (3, 4). The reversal of the order of the instructions created no likelihood of confusion or of misleading the jury under the circumstances here. State v. Billingsley, 534 S.W.2d 484 (Mo.App.1975) (2, 3, 4); State v. Ward, 588 S.W.2d 728 (Mo.App.1979) (5, 6). The definition of "consent" was that prescribed by MAI-CR2d and was not erroneous.

Defendant next challenges the admission of certain statements, made during the course of the crimes by unidentified participants therein, on the ground that the statements constituted inadmissible hearsay. The statements complained of ¹ were not hearsay. In order for an out-of-court statement to be hearsay, it must be offered "as an assertion to show the truth of matters asserted therein." C. McCormick, Handbook of the Law of Evidence, § 246 (2d ed. 1972). These statements were offered only to establish that they were said, not that they were true. Their admissibility is determined by their relevancy. As something said at the time and place of the crime, they were relevant as part of the res gestae, ² particularly as they related to the forcible nature of the participants' conduct. State v. Talbert, 454 S.W.2d 1 (Mo.1970) (2-4).

In a related contention defendant premises error upon the admission of testimony of the cane incident and of the cane itself. Both matters were relevant to the question of consent and the victims' fear of violence.

"If two or more persons engage in the commission of a crime or crimes, proof of all relevant facts is proper. Where two crimes are committed, under such circumstances as to constitute one continuous transaction in the accomplishment of a common design, and the facts are so interrelated that the crimes are concurrent, evidence of all criminal acts that occur during such time span are admissible, as otherwise, a connected and intelligible statement of the occurrence could not easily be made, or understood." State v. Rezabek, 584 S.W.2d 430 (Mo.App.1979) (2, 3).

This is particularly true in gang rape cases where the conduct of each individual attacker or participant helps to establish the circumstances under which the victim yielded to the depravity visited upon her. State v. Mercer, 611 S.W.2d 392 (Mo.App.1981) (6); State v. Hastings, supra, (1, 2); State v. Davis, 557 S.W.2d 41 (Mo.App.1977) (1-3). That defendant was not present at the scene during the cane incident does not negate the relevancy of the conduct. State v. Pierson, 610 S.W.2d 86 (Mo.App.1980) (8-12); State v. Davis, supra. This is especially so here because defendant thereafter returned and the sexual assaults continued after his return.

Defendant also challenges testimony of the victims that one had dropped out of beauty college after this incident and the other had moved to Minnesota. The testimony was at least minimally relevant to refute the defendant's prior recorded statement that the sexual activities were consensual. It was inferable from the testimony that these major voluntary changes in the victim's lives were made because of the sexual activities testified to and that such changes would not have been made if the activities had been consented to. The trial court has broad discretion on matters of relevancy and materiality. State v. Wickizer, 583 S.W.2d 519 (Mo banc 1979) (9-11). We find no abuse of discretion here. The same finding also applies to the admission into evidence of a non-operational gun found in the glove compartment of the car in which the victims were abducted and the picture of that glove compartment with the gun therein. Neither victim had seen a gun but participants in...