State v. Leigh, 38531
| Decision Date | 27 February 1979 |
| Docket Number | No. 38531,38531 |
| Citation | 580 S.W.2d 536 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Lonnie LEIGH, Jr., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Robert C. Babione, Public Defender, Frank R. Fabbri, III, Asst. Public Defender, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Paul Robert Otto, John M. Morris, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Joseph W. Warzycki, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Appellant, Lonnie Leigh, Jr., was convicted in a jury waived trial of the offense of statutory rape, § 559.260 RSMo. 1969, and was sentenced to a term of thirty years in the custody of the Missouri Department of Corrections. He contends, on appeal, that his conviction should be reversed and remanded to the trial court with directions for entry in that court of a judgment that he is not guilty of statutory rape, or that he be afforded a new trial by reason of prejudicial error committed by the trial court depriving him of a fair trial. We have considered these allegations, find no merit to them, and affirm the judgment of conviction in the trial court.
Appellant's first contention is that the trial court erred and abused its discretion in overruling his motion to dismiss and in finding him guilty of the crime charged, i. e. statutory rape, because there was no substantial evidence to support this finding.
As we perceive appellant's argument on this point, the state failed to prove that the "defendant penetrated the prosecutrix (sic) sexual organ with his own sexual organ." In support of this argument he cites the testimony of the prosecutrix on this issue, and concludes that answers to questions propounded to her by defense counsel indicate that she had been coached to use certain words, i. e. "penis" and "vagina," in a manner so as to make a submissible case against him. He also argues that the trial judge interjected himself into the case improperly when he interrogated the prosecutrix during cross-examination and led her to describe the male sexual organ as she observed it immediately prior to the alleged penetration. Other questions put to the prosecutrix by the trial judge are also cited as improper participation in the trial and as evidence of an effort on the part of the trial judge to aid the state in making a submissible case. These are too numerous to quote in this opinion without unduly lengthening it.
In view of the provision in Rule 26.01 that in a jury waived case the findings of the trial court shall have the force and effect of the verdict of a jury, an appellate court reviews the evidence on appeal from conviction in a jury waived case in the same manner as though the verdict had been returned by a jury, and where substantial evidence supports the finding of the trial court its judgment will be affirmed. State v. Sanderson, 528 S.W.2d 527, 529(1) (Mo.App.1975).
During the state's case in chief the prosecutrix testified that sometime between 9:30 and 10:30 a. m. on a day she was out of school and while en route from a store, where she had purchased some soda pop, which was in the neighborhood of her sister's house on Waterman Avenue in the City of St. Louis, she met one Darlene Thomas at a Shell service station on Waterman Avenue across the street from the confectionary. At that time she observed the appellant repairing an auto. Ms. Thomas asked the prosecutrix whether she would like to earn some money by cleaning the restrooms in the service station, but the prosecutrix was not sure she was interested. Ms. Thomas pulled her into a small storage room inside the service station and asked her if "a girl ever got me." The prosecutrix replied in the negative and Ms. Thomas then asked whether the prosecutrix wanted her to show how two girls "do it." Again the prosecutrix said no. Ms. Thomas then unbuttoned the prosecutrix's clothes, removed a pant leg and prosecutrix's panties and pushed her down onto a blanket. Ms. Thomas then removed her own clothing, laid on top of the prosecuting witness and moved and rolled around on her touching the area of their "private parts" together. While this was taking place the prosecuting witness was crying.
The appellant, who had appeared at the door to the storage room as Ms. Thomas was disrobing the prosecuting witness, came into the storage room and said to her, "If you don't give me none I'm going to tell your brother." He then put his fingers to his mouth and "put it down in my vagina." He then "pulled his thing out" his penis "And stuck it in me." She testified that she felt "it" go into her and that it was in her a short time while he was "rolling" on top of her.
On cross-examination the prosecuting witness testified that she saw the appellant unzip his pants, saw him "hold onto something of his down by his waist" which he got out of his pants and looked like a "weiny," a "Polish sausage," that was "round and have something rounder sticking onto it," "something round and holding onto his body, attached to his body." Later she further testified on cross-examination that appellant was on his knees when he moistened his finger with his mouth, leaning over her. She was sure that it was not just his finger that the appellant put into her, and "he put it in my vagina." She knew her "vagina" as her "privates" and when she went to the bathroom and sat on a stool "pee" would come out of it. She felt something warm, like warm water, on her body when appellant got off her, and she felt this warmth inside herself.
We hold that there was substantial evidence to support the finding of the trial court that "R_ J_ was taken into a storage room of Lonnie's Shell station located at 324 DeBalivere on January 15, 1975, where the defendant inserted his sexual organ into her sexual organ, . . . " The essential element of rape insofar as penetration is concerned in Missouri is penetration of a female's sexual organ by that of a male, State v. Martin, 544 S.W.2d 84, 85(1) (Mo.App.1976); however, the penetration need be but slight. State v. Coffman, 360 Mo. 782, 230 S.W.2d 761(3) (1950).
Appellant further argues that the testimony of the prosecutrix was so contradictory that for this conviction to stand up there must be corroborative evidence of rape, and there is none. It is not clear from appellant's brief whether this contention is limited to the issue of penetration, or whether it is also directed to the credibility of the prosecutrix. In the argument portion of the appellant's brief on this point citation to testimony of the prosecutrix with reference to the male sexual organ is cited for the purpose of showing her lack of knowledge of the terms "vagina" and "penis." He refers to portions of the transcript where the prosecutrix testified that the assistant circuit attorney identified the sexual organs of the male and female in these terms. He also refers to portions of the transcript where he contends the trial judge interjected himself and asked leading questions of the prosecutrix in an effort to identify the "thing" she testified the appellant took out of his unzipped pants and inserted into her privates. He also contends that the failure of the state to introduce into evidence any medical record to show penetration had occurred despite the fact the prosecutrix was seen at St. Luke's Hospital the same day the rape allegedly took place, inferentially refutes penetration. Appellant argues also that the evidence proved that the prosecutrix returned to the service station on two subsequent occasions the same afternoon of the alleged rape and that she failed to inform her sister of the occurrence; these facts, he contends, cast doubt on the credibility of the prosecutrix. For these reasons appellant says corroboration is necessary for the conviction to stand.
A prima facie case of rape can be made on the uncorroborated testimony of the victim. State v. Palmer, 306 S.W.2d 441, 443(1) (Mo.1957). Corroboration to show sexual intercourse becomes essential only when the victim's testimony is so contradictory and in conflict with physical facts as to be unconvincing and improbable. State v. Lee, 404 S.W.2d 740, 747(12) (Mo.1966). We hold that although there were some apparent contradictions in the testimony of the prosecutrix in the record of this trial, there was no room for doubt that her testimony established penetration of her privates by the appellant's "thing," and that the trier of fact could find from her testimony that the "thing" she referred to was the appellant's sexual organ.
The prosecutrix in this case was ten years of age at the time of this occurrence, and twelve years of age at the time of her testimony. Her inexperience in sexual matters is not unexpected, and her knowledge of anatomical definitions with respect to the male and female sexual organs no basis for discounting her testimony. There is no magic word necessary to describe penetration; nor is it necessary to identify the sexual organs by the words "penis" or "vagina." Other descriptive words will suffice. "Privates" is a fit description for a little girl's vagina and one frequently used to describe the sexual organ of a female child. In State v. Lee, 404 S.W.2d 740, 743 (Mo.1966) the prosecutrix, a child barely 15 years old at the time of the offense, described the act of intercourse in the following terms: "put his privates in mine." In State v. Palmer, supra, the prosecutrix testified "He 'unzipped' his pants, 'took his privacy out' and got on top of prosecutrix." At one point of her testimony the prosecutrix in this case testified that although the assistant circuit attorney gave her the word "vagina" she knew that as her privates before she was given that word.
In a jury trial in a statutory rape prosecution where the prosecutrix is reluctant to testify or appears to be timid or in...
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