State v. Koonce

Decision Date05 May 1987
Docket NumberNo. 51236,51236
Citation731 S.W.2d 431
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Tony KOONCE, Defendant-Appellant.
CourtMissouri Court of Appeals

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

William L. Webster, Atty. Gen., Byrona J. Kincanon, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SIMEONE, Senior Judge.

I

Appellant, Tony Koonce was charged, tried by a jury, convicted and sentenced for two counts of forcible rape, forcible sodomy, and attempted forcible sodomy pursuant to §§ 566.030, 566.060, R.S.Mo.1986. He was sentenced by the court, as a persistent sexual offender to thirty years on each of the four counts to run consecutively without probation or parole. §§ 558.011, 558.018.2. He appeals. We affirm.

II

On appellate review, we review the facts in the light most favorable to the state. In determining whether the state made a submissible case to withstand a motion for judgment of acquittal, the appellate court accepts as true all the evidence favorable to the state, including all favorable inferences therefrom. All evidence and inferences to the contrary are to be disregarded. State v. Manning, 612 S.W.2d 823, 825 (Mo.App.1981). Furthermore, the determination of the credibility of the witnesses is within the peculiar province of the jury. State v. Williams, 652 S.W.2d 102, 111 (Mo. banc 1983).

Viewing the evidence in the light most favorable to the state the jury could reasonably find the following.

The victim, Robin Triplett, a 19-year old woman met the appellant, Tony Koonce, on February 6, 1985 at Forest Park Community College during a typing class.

The events which give rise to this criminal case occurred on Friday, February 8, 1985. But the story begins two days earlier. Tandelaya Malcom Wiley, a relative of Robin's, was then a student at Forest Park Community College.

The prosecutrix, Robin Triplett was the principal witness for the state. She testified that on February 6, she went to the Forest Park Community College at about 6:00 p.m. to get her cousin from class, "because she had to take me home." Robin wanted to enroll in school. Appellant was in the typing classroom and Tandelaya introduced them. While in the classroom, appellant came over to her, engaged in some conversation, and asked her name and requested her telephone number. She told him that "we couldn't get anything going [but] we could be friends." After the parties went their separate ways, that evening appellant called her about 10:00 p.m. He told her about some books she could use and they spoke for about thirty minutes. He asked her to go out with him. She refused.

The next afternoon appellant called again. He desired her to come to his home and tried to get her "to go out with him." He called later that evening three separate times. She told him she was "taking up nursing classes" and "was in the Army Reserves." In the last conversation she indicated that she was going to take a bus to the college the next morning. The next morning, Friday, appellant called and asked if he could take her to school. It was "drizzling" so she said "yes." He came to the house and picked her up. Appellant, however, drove to his residence, rather than the college. Robin realized he was going the wrong way and asked about it. Appellant replied he wanted her to meet his mother. They went to appellant's residence where he lived with his mother. They went in the apartment and he introduced her to his mother. He invited her upstairs to his bedroom. She sat on a stool and he showed her some books. She told him she had to get to school. He tried "to hug me" but she pushed his arms away. They left. He took her to the college to enroll. When they left the college, "Tony drove her." She first went to cash her government check. Appellant took her to "like a pawn shop" where he knew a man who would cash the check because Robin did not have an ID card. Then she went to get some shoe polish to polish her boots, and after she bought the polish, the two drove but in the car--she noticed that he was not taking her home. Again they went to appellant's house. When they arrived, appellant's mother was there. He went up the steps and told Robin to come too. But for the time being she stayed in the living room. Koonce again asked her to come upstairs. The mother said, "It's okay, baby. You can go up." She then went upstairs to appellant's room. She sat on a stool next to the bed. She was looking through some books. Appellant was rearranging his clothes. After he took a phone call and turned on music "real loud", "he came over and started trying to touch me and feel me and stuff." Robin told him "to stop." Then appellant "picked me up off the stool like and pushed me over to the bed and asked me if I thought I was tough or something." Then "he smashed my face down to the bed and started trying to pull my pants off and he couldn't get them off because I had on some boots and when he stood up to pull his pants down, I tried to run and he caught me and said if I did it again, that he was going to try and put me to sleep." When he pulled his pants down he was wearing a condom. Again, she tried to run and she was screaming. "When he was holding me down ... he told me if I did it again, he was going to [not try] put me to sleep." He raped her. She "was crying"; he put "his hand over [her] mouth." After the rape, "he made me turn over and he tried to put his penis in my behind." After the rape, "he made me turn over" and attempted sodomy per anum. He called her a "slut and a tramp." After these occurrences he made her "wash up," in the bathroom. Appellant said, "he's been through all this before and he knows what he's doing. I'm not going to have any evidence on him." After Robin "washed up," he took her back to the room and said, "he was going to call some of his friends over to finish the job." He made three calls. When she returned from the bathroom, he took a picture of Robin. Then he forced her to commit fellatio. After that, "he raped me again." Robin testified that she did not consent. She "washed up" again and they went downstairs and left the residence. Appellant took her home. It was then about 1:30 p.m.

When she arrived at her home, Robin called Tandelaya, according to Tandelaya about 1:30 p.m. Taydelaya testified Robin was hysterical, upset and crying and told her "Tony raped me." Robin called her mother at work and told her what happened. Her father came, then the police--Officer Robert Nowicki and Officer Sandra Stevens--and later her mother. Tandelaya also came to Robin's house. While they were all there, appellant called on the phone, Robin's father answered and "cursed and threatened" appellant. Robin "talked" to Detective Sandra Stevens. Later Robin and Stevens went to appellant's residence and identified appellant. He was arrested.

Appellant complains about certain remarks made by the trial court during the trial. He contends that the trial judge prejudicially injected himself into the trial, thus depriving him of a fair trial. These episodes occurred during the lengthy cross-examination of Robin.

The prosecutrix was cross-examined persistently and extensively. Counsel attempted to impeach Robin with her deposition. He inquired about the events during the first time she went to appellant's room with him. He inquired whether she had said that appellant did not try to "hug her." He inquired whether Robin knew a certain man and if he were a homosexual. An objection was sustained. Counsel persisted to inquire about whether there was any "hugging" or "anything like that" on the occasion when Robin was in appellant's room.

Then the following occurred.

THE COURT: What was the testimony as you recall upon direct examination?

[Defense Counsel]: Can we approach the bench?

THE COURT: No, sir.

[Defense Counsel]: Then I will proceed with questioning, your Honor.

THE COURT: You will proceed with questioning?

[Defense Counsel]: Yes, your Honor.

THE COURT: No, sir, you will answer my question if you are able to do so. Do you recall what the witness said on direct examination on this point?

[Defense Counsel]: Yes, your Honor, I do.

THE COURT: And what was it?

[Defense Counsel]: I'm not a witness for the State I don't intend to answer that question.

THE COURT: Is that so?

[Defense Counsel]: Yes, your Honor.

THE COURT: Go to your next question.

[Defense Counsel]: Your Honor, I wish to approach the bench.

THE COURT: Proceed with your interrogation.

[Defense Counsel]: Your Honor, I'll make my motion concerning your asking these questions on the record and we will discuss it in chambers.

THE COURT: We will discuss it where I select, not where you select. You handle that counsel table and I'll try to work this end of the room.

Defense counsel continued cross-examination. He questioned her about her attempt to enroll at the college; about sitting on the stool in appellant's room; about sitting on her coat and purse when they were on the stool and about "any relationship between Tandelaya Malcom and ..." Objection was sustained. He inquired whether appellant ever said he "thought [Tandelaya] was a lesbian." Robin answered, "yes." The prosecutor sought to approach the bench. There was a discussion at the bench. The court asked the prosecutor whether he had the "slightest idea what the defense attorney is driving at?" The prosecutor replied that "at some point [there are] some allegations that Tandelaya is a lesbian. How that relates in this case I don't know." The court then asked defense counsel "what is the basis of this interrogation?" Counsel replied "bias or prejudice against this defendant." The court said "You'll have to do better than that." A recess was called. Counsel continued his lengthy cross-examination--again asking about the shoe polish, about a boyfriend, about the...

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