State v. Long
| Decision Date | 29 July 2003 |
| Docket Number | No. WD61050.,WD61050. |
| Parties | State of Missouri, Respondent v. Jeffrey D. Long, Appellant. |
| Court | Missouri Court of Appeals |
Appeal From Circuit Court of Clay County, Hon. Michael J. Maloney
Craig Allan Johnston, Counsel for Appellant.
John M. Morris, Counsel for Respondent.
AFFIRMED.
Jeffrey D. Long was convicted, after trial by jury, of the offenses of Forcible Rape, section 566.030, and RSMo, and Forcible Sodomy, section 566.060, RSMo. He raises seven points on appeal, ranging from an attack upon the sufficiency of the evidence to support his conviction of forcible rape to a number of evidentiary issues. We find that the State presented sufficient evidence to support the jury's conviction with regard to the rape conviction and also affirm Long's conviction with regard to the forcible sodomy count.
The charged offenses arise out the sexual assault upon Debbie Flower by appellant Long and Chris Manning. Ms. Flower resided in a mobile home park in the North Kansas City area. Her only form of transportation was bicycle, though she often received transportation from neighbors. On April 20, 2001, Flower was invited by Manning to a party. She rode with Long and Manning, first to a liquor store where Long purchased a bottle of vodka for Flower, then to Long's apartment. After arriving at Long's apartment, all three began drinking the vodka that had been purchased. At trial, Flower testified that she was also taking prescription psychoactive drugs at the time, so only had "a little bit" of the vodka.
Some time later, Long started playing a pornographic videotape on the television. At that point, Flower attempted to leave the apartment, but Long grabbed Flower by her shirt and hair, pulling her down to the floor. After removing all Flower's clothes save her shirt, Long proceeded to anally penetrate Flower. Flower struggled but was unable to resist. Subsequently, Long attempted to have oral sex with Flower, but she tried to bite Long's penis. At that point, he struck Flower, knocking her unconscious. She regained consciousness sometime later, after which Manning and Long continued to sodomize her.
After Long and Manning finished their assault, they picked Flower up and tossed her out of the apartment, together with her underwear and shorts, into the building's hallway. She remained in the hallway until the following morning, out of fear and pain. In the morning, she walked to a nearby grocery store, where a security guard called a taxi for her. She went home and bathed, in an attempt to relieve pain she was suffering as a result of the assault.
A few days later she reported the incident to the police. A subsequent medical examination revealed bruising consistent with Flower's statements that she had resisted the attack. The exam disclosed signs of trauma to Flower's rectum supporting her claims that she had been sodomized. It also revealed abrasions and tears in Flower's vagina consistent with some sort of forced penetration. Flower, however, did not recall having been vaginally penetrated at any point in the assault.
Long was charged with the offenses of Forcible Rape, section 566.030, RSMo, and Forcible Sodomy, section 566.060, RSMo. At the conclusion of trial, he was found guilty of both offenses and was sentenced as a prior and persistent offender. Long now appeals those convictions.
In the first of seven points on appeal, Long contends the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence and in sentencing him upon his conviction for forcible rape because the State did not prove beyond a reasonable doubt that either the appellant or his codefendant had sexual intercourse with Ms. Flower. Specifically, he contends that there was insufficient evidence that there was any alleged penetration of Ms. Flower's sex organ by either Long's or his co-defendant's male sex organs. The State responds that the trial court did not err in overruling Long's motion for judgment of acquittal on insufficiency grounds because there was sufficient evidence of vaginal penetration in that medical testimony established that the victim's vagina was forcibly penetrated, and the victim's testimony established that her assailants did not penetrate her with anything other than their penises.
In reviewing a challenge to the sufficiency of the evidence, this court considers whether, in light of the evidence, a reasonable juror could find appellant guilty of the charged offense beyond a reasonable doubt. State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002); State v. Dawson, 985 S.W.2d 941, 951 (Mo. App. 1999). In applying this standard, this court must look to the elements of the crime and consider each in turn, taking the evidence in the light most favorable to the State and granting the State all reasonable inferences from the evidence. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). We do not weigh the evidence and we disregard contrary inferences that can be drawn from the evidence. Crawford, 68 S.W.2d at 408. The sole exception is where a contrary inference is such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard that inference. Grim, 854 S.W.2d at 411. This court may not supply missing evidence, or give the State the benefit of unreasonable, speculative or forced inferences. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001).
The statutory definition of Forcible Rape is found in Section 566.030, RSMo, which states, in relevant part: A person commits the crime of forcible rape if such person has sexual intercourse with another person by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse.
section 566.030.1, RSMo.
The term "sexual intercourse" is defined in Section 566.010(4), as "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." Thus, in order to convict Long of forcible rape, the State was required to prove that Flower had been penetrated by a male sex organ through forcible compulsion. The State charged Long with forcible rape and the verdict directing instruction regarding that offense charged Long with acting in concert with Christian Manning. Long argues the State failed to prove that Flower was penetrated by either Long's or Mannings' male sex organ.
Neither the appellant nor the State have provided us with much legal authority on this point other than boilerplate citations concerning proof of penetration by circumstantial evidence. The State argues that State v. Dunn, 7 S.W.3d 427 (Mo. App. 1999), is a similar case sustaining the sufficiency of the evidence as not equivocal as to penetration. In Dunn there was medical evidence of serious injuries to the vaginal area. The victim testified clearly to one act of sexual intercourse by the defendant and the sufficiency of the evidence question arose as to a second act of forcible rape. As to that second act, the victim testified in answer to a question of whether the penis penetrated her vagina said "I think so." Id. at 430.
We agree with the State that medical evidence of penetration coupled with other testimony is sufficient. We do not agree that medical evidence in Dunn played a large role in the sufficiency of evidence on the second rape since there was no way to establish that the injuries were incurred in the second as opposed to the first rape. Nor do we think that the testimony of the victim in Dunn is comparable to the testimony of the victim here. Dunn's victim testified that she believed she had been penetrated; however, the victim here didn't think that she had been penetrated (but didn't really know) but thought she might have been but was unable to feel any vaginal penetration because of the pain from the sodomy. Proof that something might have happened or could have occurred is not, without something more, sufficient to sustain the State's burden of proof beyond a reasonable doubt of each element of the crime.
The victim's testimony need not describe the acts in detail, so testimony that the defendant had sexual intercourse with her is sufficient to allow a reasonable inference of penetration of the vagina by the male sex organ. State v. Elmore, 723 S.W.2d 418, 420 (Mo. App. 1986). But we have no such testimony by the victim here. Nevertheless, we believe that the State can make a submissible case on the issue of penetration in the absence of any affirmative evidence of penetration by the victim herself. In State v. Stackhouse, 146 S.W. 1151 (Mo. 1912), the court rejected a contention that medical testimony in the absence of testimony by the victim of penetration was insufficient. As said by the court in State v. Sikes, 24 S.W.2d 989, 990 (Mo. 1930), the "condition and appearance of the genital organ of prosecutrix, immediately after assault is alleged to have occurred, was a circumstance properly to be considered by the jury in connection with all the other facts in evidence in determining whether or not penetration actually occurred."
The question, as we see it, is whether the medical evidence presented in this case permits a reasonable inference of penetration by the male sex organ. In Sikes, the physician testified that, in his opinion, the irritation and redness of the victim's vagina was the result of sexual intercourse. Id. at 989. In State v. Ivey, 303 S.W.2d 585 (Mo. 1957), the victim was mentally retarded and found to be incompetent as a witness. An examining physician found a fresh laceration of the hymen which the doctor said was most likely caused by penetration by a male sex organ (although acknowledging other possible...
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