State v. Lorenze

• Decision Date: 28 December 1979
• Docket Number: No. 11225,11225
• Citation: 592 S.W.2d 523
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Oscar Eugene LORENZE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 523

592 S.W.2d 523

STATE of Missouri, Plaintiff-Respondent, v. Oscar Eugene LORENZE, Defendant-Appellant.

No. 11225.

Missouri Court of Appeals, Southern District, Division One.

Dec. 28, 1979.

David R. Fielder, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GREENE, Judge.

Defendant, Oscar Eugene Lorenze, was jury convicted in 1978 of the crime of forcible rape, in violation of § 559.260, ¹ RSMo Supp. 1975, which was the applicable statute in force at that time. He was thereafter sentenced as a result of the conviction to 50 years imprisonment, under the provisions of the second offender act. This appeal followed.

Defendant raises five points of error on appeal, none of which allege insufficiency of the evidence. Therefore, a detailed recitation of the facts is unnecessary. It suffices to say that the victim, a university coed, was doing her laundry at a laundromat about 10 p. m. on June 16, 1978. No one else was in the building. Her assailant, identified by the victim as the defendant, entered the laundromat through a rear door, hit her in the stomach, choked her, and dragged her outside to an alley where she was raped through force, and fear of force. Her testimony concerning the rape received corroboration from other witnesses, including customers who entered the laundromat shortly after the rape, and medical personnel. Defendant's defense was alibi, which the jury evidently did not believe.

Defendant first contends that the trial court erred in overruling his motion to quash the felony information, for the reason that § 559.260 is unconstitutional, in that it distinguishes victims of rape by sex (female), thus depriving defendant of due process of law and equal protection of the law under the Missouri and United States Constitutions.

Defendant cites Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978), as support for his argument. Meloon does not apply here. It was a statutory rape case, and the court's analysis there was predicated on the consensual nature of the crime committed. In such cases, there is a reasonable claim made for unconstitutional discrimination. However, statutes charging forcible rape, as is the case here, are distinguishable. Forcible rape is an offense that can only be committed against a female, and, insofar as personal participation is concerned, can only be committed by a male. Therefore, if the protection of the female from the act of forcible rape is a proper subject of State concern, which it is, the classification of victims along sex lines in legislation condemning such an act becomes inherently necessary. In re Interest of J. D. G., 498 S.W.2d 786, 793 (Mo.1973). Many of Missouri's sister states have reached decisions upholding the constitutionality of their forcible rape statutes against equal protection attacks. See People v. Gould, 188 Colo. 113, 532 P.2d 953 (1975); People v. Medrano, 24 Ill.App.3d 429, 321 N.E.2d 97 (1974); State v. Price, 215 Kan. 718, 529 P.2d 85 (1974); Finley v. State, 527 S.W.2d 553 (Tex.Cr.App.1975).

A clear cut rationale for upholding constitutionality of such statutes was expressed by the Maryland Court of Special Appeals in Brooks v. State, 24 Md.App. 334, 330 A.2d 670, 673 (1975), where the court stated: "The equality of the sexes expresses a societal goal, not a physical metamorphosis. It would be anomalous indeed if our aspirations toward the ideal of equality under the law caused us to overlook our disparate human vulnerabilities." To hold otherwise would be contrary to common experience and biological fact. As perceived by Mr. Bumble, in Oliver Twist, the law at times may appear to be an ass, but this court should resist the temptation to contribute to such a belief by a strained construction of the word "equality" which would be contrary to the facts of life. The statutory classification of § 559.260 is reasonable, and the statute does not violate the Equal Protection Clause of the Missouri Constitution or the Fourteenth Amendment of the Constitution of the United States. In re Interest of J. D. G., supra at 793. The trial court did not err in overruling defendant's motion to quash the information. The point is denied.

Defendant's second point alleges that the trial court erred in allowing State's witness Rick Ebeirus to testify, when his name had not been disclosed to defendant, prior to trial, in violation of Rule 25.32. It is true that the rule provides for such disclosure. However, the State did not learn of the existence of witness Ebeirus until the trial had commenced. As soon as the prosecuting attorney received such information, he immediately notified defendant's attorney of the name of the witness, as is required by Rule 25.37. Defendant's attorney then objected to the use of the witness on the grounds that he had not had sufficient time to interview the witness and check his story. The trial judge told defense counsel he would give the attorney time to voir dire or depose the witness, and to conduct an investigation concerning his version of the facts, prior to the witness being allowed to take the stand. Defendant's counsel, after talking to Ebeirus, stated to the court: "Well, your honor, I feel that I need no further investigation because this witness is not certain either, he cannot identify this boy as being there in the evening." Defense counsel did not request a continuance for further investigation, and made no further objection to Ebeirus' taking the stand.

Defendant has not demonstrated any prejudice due to the late endorsement of the witness. Rule 24.17 authorizes the endorsement of witnesses at any time, upon order of the court. If the trial court does allow a late endorsement, it must give defense counsel ample opportunity to interview the proposed witness, and check out his story. The trial court made such an offer here. The trial court is vested with broad discretion in permitting the late endorsement of a witness, and, absent abuse of that discretion, his decision should stand. State v. Barker, 572 S.W.2d 185, 187 (Mo.App.1978). There was no abuse of discretion on the part of the trial court in allowing the witness to testify. Defendant's second point is denied.

Defendant's third point charges that the trial court erred in overruling his motions to suppress prosecutrix' in-court identification of defendant because that identification was tainted by an impermissibly suggestive photographic lineup. The photographic lineup, according to defendant, was impermissibly suggestive because prosecutrix assumed that one of the people in the photographs had been arrested for the crime. Such thoughts upon the part of the witness, in the absence of other suggestive features, will not render an identification constitutionally infirm. State v. Bivens, 558 S.W.2d 296, 299-300 (Mo.App.1976).

Defendant filed an Amended Motion to Suppress Identification in which he sought to suppress prosecutrix' in-court identification because: 1) the photographs displayed to the victim did not depict subjects with similar characteristics, 2) the photographs were displayed in an impermissibly suggestive manner, and 3) prosecutrix' view of her assailant during the crime was insufficient to allow her to make a reliable identification. The trial court, after hearing, overruled the motion. Prior to the beginning of trial, defendant again objected to any evidence concerning the pre-trial identification process for the reasons stated in his amended motion to suppress. After the trial court again overruled the motion, defendant requested, and the court agreed, that his objection be shown as a continuing objection throughout the course of the hearing. This continuing objection was sufficient to preserve those points for review, as required by State v. Timmons, 584 S.W.2d 129, 132 (Mo.App.1979) and State v. Young, 534 S.W.2d 585, 589 (Mo.App.1976).

However, where the objection raised on appeal is different from those stated in defendant's motion to suppress, and preserved through his continuing objection and motion for new trial, the objection, raised for the first time on appeal, is not preserved for review by the continuing objection. State v. Gant, 490 S.W.2d 46, 49 (Mo.1973). Defendant's point of error here was not asserted in his motion to suppress, was not raised prior to trial or preserved by his continuing objection, was not made at the time prosecutrix testified, and was not contained in his motion for new trial. Point three was not, therefore, preserved for review.

In addition, defendant has the burden of demonstrating any error in the trial court's findings by filing a transcript which incorporates the proceedings which show that the trial court e...