State v. Lowe-Bey, LOWE-BE

• Decision Date: 19 March 1991
• Docket Number: A,LOWE-BE,No. 55971,55971
• Citation: 807 S.W.2d 132
• Parties: STATE of Missouri, Respondent, v. Fredricoppellant.
• Court: Missouri Court of Appeals

Page 132

807 S.W.2d 132

STATE of Missouri, Respondent, v. Fredrico LOWE-BEY, Appellant.

No. 55971.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 19, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied April 22, 1991.

Henry D. Robertson, Doris G. Black, St. Louis, for appellant.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Judge.

Defendant appeals from his conviction on three felony counts: forcible rape, a violation of § 566.030 RSMo. (1986); ¹ forcible sodomy, a violation of § 566.060; and tampering with a witness, a violation of § 575.270.

FACTS

On May 21, 1988 about 5:00 a.m., the victim, after an argument with her boyfriend, left his parked car and walked toward her home alone, a distance of about five blocks. She refused a ride with three males who pulled their car alongside of her. After continuing down the street, the car made a U-turn and returned. The front seat passenger jumped out of the car, grabbed the victim by the hair, pulled her into an alley, pushed her to the ground, and tore her dress. She was kicked in the side and hit across her head. The car pulled into the alley and the other two occupants got out. Someone removed her underclothes. While two of the men held her down, the man who had had her by the hair knelt over her and sodomized and raped her without ejaculating. She was able to "get a good look at him," and she heard him speak when he said, "Bitch, don't bite me."

After the attack, the victim emerged from the alley crying and calling for help. Two men living in the neighborhood assisted her. Officers Haman and Long responded to the 911 call received at 5:16 a.m. The officers found the victim's underclothes, shoes, and wallet in the alley. Shortly thereafter she was examined by a doctor at Regional Hospital where vaginal and oral smears were obtained and tested.

Late in the evening of May 21, 1988, the victim identified defendant as the person who raped and sodomized her. Defendant is a person known to the victim and her boyfriend "from the neighborhood." She identified defendant from a photo spread on May 22, 1988 and, later that day after defendant had been arrested, in a line-up.

In the late morning of June 1, 1988, the victim received a phone call at home. A man's voice threatened that she would be killed by his brother unless she dropped the charges against him. She recognized defendant's voice from the rape. Officer Stephens, who responded to a 911 call as a result of the threat, telephoned the city jail and was informed by Capt. Harris that defendant had used the jail telephone between 11:30 and 11:40 a.m.

On June 21, 1988, a grand jury indicted defendant on the three counts. The State submitted a Substitute Information in lieu of Indictment on July 25, 1988. Trial began on November 2, 1988 with defendant's motions to suppress the victim's identification evidence and to sever the tampering charge, both of which were denied. The State filed an amended Substitute Information in lieu of Indictment on November 3. After the close of evidence on November 10, 1988, the jury delivered its guilty verdict on all three counts.

On December 22, 1988, the trial court entered judgment and sentenced defendant as a prior, persistent, Class X offender to thirty-five years for Count I, thirty-five years for Count II, and fifteen years for Count III, all to run consecutively. Defendant filed a timely notice of appeal.

On appeal defendant alleges fourteen errors by the trial court. ² Seven of the claimed errors were not preserved for review as required by Rule 30.20. We will reverse on grounds of a point not preserved only if we find that plain error affecting defendant's substantial rights will result in manifest injustice or a miscarriage of justice. Rule 29.12(b); State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989). "The failure to make timely and proper objection, the failure to note the matter in the motion for new trial, and holding appellant to the original objection is essential to orderly review. Otherwise ... there will be open and notorious sandbagging of the trial courts and a virtual broadside of so-called points and subpoints, all without regard to the rules." State v. McMillin, 783 S.W.2d 82, 106 (Mo. banc) (concurring opinion), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). Defendant asks us to review points II, III, IV, V, VI, VII, and IX as plain error.

I.

Defendant's first point on appeal challenges the sufficiency of the evidence. We accept as true all evidence and inferences that tend to support the verdict and disregard those to the contrary. State v. Wahby, 775 S.W.2d 147, 154 (Mo. banc 1989). Viewed in the light of this rule, defendant's argument, which attacks the weight of the evidence rather than its sufficiency, is without merit. The statement of facts set forth above clearly shows the evidence was sufficient to support defendant's conviction on all three counts.

II.

In his second point, defendant asks us to find the trial court committed plain error in failing to give an alibi instruction. Defendant did not request such an instruction at trial nor did he assert the failure to instruct on alibi in his motion for new trial. "A trial court is under no duty to instruct on alibi unless requested to do so by defendant." State v. Maxson, 755 S.W.2d 277, 280 (Mo.App.1988), quoting State v. Paige, 446 S.W.2d 798, 807 (Mo.1969). Point denied.

III.

Defendant asserts the trial court committed plain error when it failed to instruct the jury on the "complete definition" of "forcible compulsion" in MAI-CR3d 320.02.1B. The alleged defect is that the instruction fails to include all the various forms of forcible compulsion suggested by the approved instruction.

Instructions 5 and 7 defined forcible compulsion, in conformity with one of the statutory definitions required by the Notes on Use for MAI-CR3d 320.02.1B, as "physical force that overcomes reasonable resistance." They omitted other possible definitions which the statute lists in the disjunctive: "a threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping to himself or another." § 556.061(12) Because a "reasonable fear of death," "serious physical injury," or "kidnapping" were not facts before the jury, failure to include this language from the statute in the instructions neither prejudiced defendant nor constituted plain error. State v. Fletcher, 709 S.W.2d 924, 926-927 (Mo.App.1986). Indeed, the possible confusion that defendant warns against would be much greater had the omitted language been included. Notes on Use 3 to MAI-CR3d 333.00.

IV.

Next defendant charges plain error in the admission of rebuttal testimony. Shervon Johnson, defendant's girlfriend, testified he was with her at the time of the offense. On cross-examination the State attempted to attack her credibility, suggesting she had testified on defendant's behalf because she was afraid of him. Although denying this, she admitted having been "slapped" by defendant. Further, she admitted calling the police and charging defendant with assault on one occasion after he hit her. This occurred in 1988, shortly after defendant was acquitted of an unrelated offense. She denied that the cause of this assault was her reporting to a sheriff that defendant was going to "skip on his bond" during that trial. In rebuttal, a deputy sheriff testified that Ms. Johnson had told him defendant was "going to run" which caused defendant to be confined until his acquittal. No objection was made to this rebuttal testimony.

The truthfulness of a witness and the reason motivating a witness' testimony are generally considered pertinent subjects for rebuttal evidence. State v. Leisure, 749 S.W.2d 366, 380 (Mo. banc 1988). In any event, the incident falls far short of demonstrating the manifest injustice or miscarriage of justice which would warrant relief as plain error. Rule 30.20; Hornbuckle, 769 S.W.2d at 93. Point denied.

V.

Defendant's fifth point charges trial court error in the giving of instruction seven, the State's verdict director on the sodomy count. No objection to this instruction was made at the instruction conference or in defendant's motion for new trial. The instruction has not been set forth in the argument portion of defendant's brief. Rule 30.06(e). The point has not been preserved for appellate review. State v. Perkins, 650 S.W.2d 339, 340 (Mo.App.1983).

Moreover, instruction seven does not deviate from the approved form of MAI-CR3d 320.08.1 in effect at the time of trial. Defendant's complaint is directed at the failure of instruction seven to define the phrase "deviate sexual intercourse." That phrase was not used, and obviously required no definition, in MAI-CR3d 320.08.1 prior to July 1, 1989, the effective date of the new sodomy instruction. The new instruction requires the jury to find the conduct of the defendant constituted deviate sexual intercourse and includes the statutory definition of that phrase. This required finding and definition were added in order to ensure that no person would be convicted of sodomy by reason of a touching which was accidental or innocent, a possibility simply not present under the evidence in this case. We find neither trial court error nor prejudice to defendant.

Defendant next contends the trial court erred in failing, sua sponte, to give MAI-CR3d 310.08 concerning the significance of defendant's presence at or near the telephone when the victim received the threatening phone call. Neither the defendant nor the State requested such an instruction. Defendant has not furnished us with any authority even suggesting the instruction should be given absent such request. Moreover, it has been held that the refusal to give a requested MAI-CR3d 310.08 instruction is...