State v. Lint, 45464
| Decision Date | 30 August 1983 |
| Docket Number | No. 45464,45464 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Steven LINT, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Ellen F. Watkins, Clayton, for defendant-appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, Rick Barry, Clayton, for plaintiff-respondent.
Defendant-appellant Steven Ray Lint was charged with rape under § 566.030 RSMo 1978, 1 sodomy under § 566.060, kidnapping under § 565.110, assault in the first degree under § 565.050, and exhibiting a deadly weapon under § 571.115. A jury trial resulted in appellant's conviction on all charges and the jury assessed his punishment at twenty-five years for assault, twenty years for rape, ten years for sodomy, and ten years for kidnapping all to run concurrently. Defendant also received a two year sentence for displaying a deadly weapon, said sentence to run consecutively.
We have rearranged and combined the nine points raised on appeal. Restated they are as follows:
1) The court erred in overruling defendant's motion to dismiss the charge of flourishing a deadly weapon because that offense was a lesser included offense of both assault and kidnapping thus constituting double jeopardy on two of the counts.
2) The court erred in overruling defendant's motion to dismiss the charge of kidnapping in that defendant was charged with performing the kidnapping for the purpose of facilitating the commission of the rape, sodomy and assault making the kidnapping incidental to the commission of the other crimes and placing defendant in double jeopardy.
3) The court erred in sustaining the state's objection to the testimony of an expert witness concerning the effect of marijuana on memory, sexual drive and inhibitions because such evidence tends to impeach the credibility of the witness and is relevant to the issue of the victim's consent.
4) The court erred in sustaining the State's objection to defendant's cross-examination regarding the kind and amount of marijuana the victims had smoked and in refusing to allow expert testimony as to the effect of marijuana on the mind because such evidence may tend to impeach the witness's credibility.
5) The court erred in making an unsolicited comment during defendant's cross-examination of a State's witness because said remarks constituted a prejudicial comment on the evidence.
6) The court erred in refusing to give instruction MAI-CR2d 19.04.1 on second degree assault as required since the evidence supported the defense of justification.
7) The court erred in refusing defendant's proffered instructions D, A & B because instruction D was required as there was evidence of consent and that A & B were required if D was required.
The victims in this case, Kimberly Bratcher and Steven Bailey were smoking marijuana for about 10-15 minutes in a secluded location when they were approached by the defendant. Bratcher testified the defendant was carrying a rifle which was pointed towards the ground. Defendant left and later returned, pointed his rifle through Bailey's car window, told them he was a detective and ordered them out of the car. He took them to his home and ordered Bratcher to remove her clothes or he would shoot Bailey. When Bailey attempted to intervene defendant proceeded to beat Bailey over the head with the wooden part of the rifle. Defendant then dragged Bailey to another room, tied him up with an extension cord and kicked him. Defendant again threatened to kill Bailey. Defendant then ordered Bratcher to remove her clothes before he taped her wrists and eyes. He later removed the tape, ordered her to sodomize him and then raped her. He also threatened to kill both her and Bailey because he knew they would go to the police. Bailey and Bratcher suggested they take a stereo from defendant's house so as to decrease the likelihood of their going to the police. After they were released the victims went to the Warson Woods police station and reported the incident.
We first note defendant repeatedly relies on § 556.040 RSMo 1978 which in part provides that a person may not be convicted of more than one offense if the offense is defined as a continuing course of conduct. However, defendant did not raise this statute as a ground for dismissal and has thereby failed to preserve this portion of his argument for review. State v. Walsh, 624 S.W.2d 526, 529 (Mo.App.1981); State v. Davis, 482 S.W.2d 486, 489 (Mo.1972).
Defendant first contends he was subjected to double jeopardy when he was charged with exhibiting a deadly weapon, kidnapping and assault. We disagree.
It is proper to isolate and submit to the jury, distinct and independent statutory offenses. State v. Brewer, 630 S.W.2d 591, 596 (Mo.App.1982).
Section 571.115 subjects one to criminal liability for exhibiting a dangerous and deadly weapon in a rude, angry or threatening manner. The charge of kidnapping only requires the removing of another without his consent for a substantial period for the purpose of inflicting personal injury on or terrorizing the victim or another. Finally a person commits the crime of assault if he knowingly causes serious physical injury to another person. First, the evidence reveals the defendant used the rifle to force the two victims into the house by pointing it at them. Once inside he used the rifle to beat Bailey over the head when Bailey attempted to intercede on Bratcher's behalf. As to the kidnapping, defendant's argument that the exhibition of the rifle coerced the removal of the victims is not persuasive. Coercion or the method of accomplishing the victim's removal is not an element of kidnapping. Clearly, the elements of each offense are different and there is no one element which is common to both. State v. Brewer, 630 S.W.2d at 596.
Furthermore, defendant's reliance on State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970) is misplaced. The defendant in Richardson was convicted of attempted robbery and subsequently in a separate trial convicted of assault. Such is not the case here where defendant was tried and convicted in one trial and the crimes were not split and prosecuted in parts. There was no violation of defendant's statutory or constitutional rights. Defendant was properly charged and convicted of separate counts of assault, flourishing a deadly weapon and kidnapping and his first two points are without merit.
In his next point defendant claims he was placed in double jeopardy when also charged with rape, sodomy and assault in that the crime of kidnapping was merely incidental to the other crimes. He also contends that the length of confinement, the distance of the asportation and the amount of the additional danger to which the victim was exposed should be considered in determining whether the kidnapping was in fact incidental to the other crimes charged. State v. Johnson, 549 S.W.2d 627 (Mo.App.1977); People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 (Sup.Ct. en banc 1969); People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (N.Y.Ct.App.1965).
Multiple charges are permissible if the defendant has in law and in fact committed separate crimes. State v. Gorman, 584 S.W.2d 420, 425 (Mo.App.1979). There is no question that the defendant moved the victim Bratcher as a means to facilitate the sexual acts upon her. Since this act however, was also calculated to detain her, and the isolation was complete before the sexual acts were committed, the fact she was transported only a very short distance and was held for a brief period of time does not render the kidnapping incidental. We find that once the sex offenses were completed, the defendant continued to threaten and detain the victims clearly increasing the risk of harm already present. State v. Johnson, 549 S.W.2d at 631. Point denied.
Defendant next contends the court erred in sustaining the State's objection to expert testimony concerning the effect of marijuana on the memory and sexual behavior of the victim because such evidence both tends to impeach a witness's credibility and is relevant to the issue of the victim's consent.
The admission or exclusion of expert testimony is a matter within the sound discretion of the trial court. State v. Guyton, 635 S.W.2d 353 (Mo.App.1982); State v. Taylor, 589 S.W.2d 302, 304 (Mo. banc 1979).
It is clear from the record that the trial court was correct in refusing to allow this expert testimony. The proposed expert had not examined the victims nor was there evidence that the marijuana had any material effect on the victims. We do not believe an...
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