State v. Miller, WD 30995.

Citation604 S.W.2d 702
Decision Date15 October 1980
Docket NumberNo. WD 30995.,WD 30995.
PartiesSTATE of Missouri, Respondent, v. Charles Bruce MILLER, Appellant.
CourtCourt of Appeal of Missouri (US)

Bunch, O'Sullivan, Sandifer & Hill, William F. O'Sullivan, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 2, 1980.

SOMERVILLE, Judge.

Defendant was charged with rape (Sec. 559.260, RSMo Supp.1975), found guilty by a jury, and sentenced to twenty years confinement in the Missouri Department of Corrections. The offense occurred on July 26, 1978, in Cass County and was tried on March 15, 1979, in Bates County on change of venue.

Defendant's appeal is rife with afterthought-he seeks appellate review of the first two of the following three points under the "plain error" rule: (1) the state's verdict directing instruction failed to require a finding by the jury that defendant had knowledge that the prosecutrix submitted to ravishment because of threats of violence made by one George Mercer, and there was no evidence to support the first leg of the disjunctive submission that defendant "acted either alone or knowingly and with common purpose together with George Mercer"; (2) the trial court abused its discretion in refusing "to allow the case to go into a second day" because doing so prevented defendant from introducing into evidence certain hospital records which would have disclosed that the prosecutrix had not sustained any visible signs or marks of physical trauma; and (3) the trial court abused its discretion in overruling defendant's objection and request for a mistrial directed towards the prosecuting attorney's characterization of defendant as a "vulture" during the state's final argument.

Although defendant has not challenged the sufficiency of the evidence to sustain his conviction, a detailed resume thereof cannot be avoided because of its direct bearing upon the points raised on appeal. All seamy, offensive, gutter language, replete throughout the record, has been deleted insofar as possible.

On the afternoon of July 25, 1978, the prosecutrix was visiting her boyfriend at the latter's home located in a suburban community in the Kansas City, Missouri, metropolitan area. At the time prosecutrix was seventeen years of age and weighed approximately one hundred pounds. The prosecutrix's boyfriend was twenty-two years of age and weighed approximately one hundred and twenty-five pounds. Her boyfriend shared the home with another fellow. Several hours after her arrival her boyfriend left to help a friend with a roofing job, leaving the prosecutrix alone with the fellow who shared the home.

Shortly thereafter defendant and four companions, one of whom was George Mercer, brazenly entered the home unannounced and uninvited. Defendant was twenty-seven years of age and weighed approximately two hundred and ten pounds. George Mercer was in his thirties and weighed approximately one hundred and seventy pounds. Defendant's other three companions ranged from twenty-nine to thirty-eight years in age. The fellow who shared the home with prosecutrix's boyfriend took leave and the prosecutrix was left alone with the five intruders. An attempt by the prosecutrix to leave was thwarted when George Mercer told her that she was not going anywhere and ordered her to sit down. George Mercer then asked the prosecutrix if she wanted to "go partying" and she replied that she did not. George Mercer then grabbed the prosecutrix by the hair and slapped her with his open hand. He then pulled the prosecutrix to her feet, twisted her arm behind her back, and led her out to a car which the five had arrived in. The prosecutrix was ordered to get into the back seat of the car. Before the car left, her boyfriend returned with the fellow he assisted on the roofing job. It was approximately 9:00 P.M. at the time. The prosecutrix managed to get out of the car and, emotionally upset and in a state of tears, ran over to her boyfriend and told him "these guys are going to take me". The prosecutrix, her boyfriend, and the fellow he assisted on the roofing job then entered the house.

Shortly thereafter defendant and his four companions returned to the house, at which time George Mercer boasted about his "toughness" and bragged that everyone in Kansas City, including the police, were afraid of him. The fellow whom prosecutrix's boyfriend assisted on the roofing job was then viciously attacked by George Mercer and hit several times on and about the face and head. Another of defendant's companions then jumped on the fellow, continued the assault, and threatened to stab him with a switchblade knife. He was left bleeding badly and considerable blood was spewed about the house. The victim of this assault was nineteen years old and weighed approximately one hundred and thirty pounds. George Mercer told the prosecutrix and her boyfriend that "this is mild compared to what is going to happen if I catch any heat from anybody or the police". He also told prosecutrix she was going to get hurt if she didn't come with them. George Mercer then asked prosecutrix's boyfriend whether he "would mind" if they took his "old lady out partying". Hearing no objection, George Mercer twisted prosecutrix's arm behind her back and, accompanied by his four companions, took her to their car.

The car, with the prosecutrix and the five intruders in it, then drove to the parking lot of a bar located in the southeast metropolitan area of Kansas City, Missouri. While there one of the five intruders, a person other than defendant or George Mercer, got into a fight and stabbed an unidentified individual.

The car then left the bar and proceeded to the drive-up window of a liquor store where a case of beer and a bottle of wine were purchased. The car then proceeded in a southerly direction and pulled into a beanfield in an isolated area of Cass County sometime after midnight. Defendant, his four companions, and the prosecutrix got out of the car and George Mercer ordered the prosecutrix to take off all of her clothes. She complied because she "was real afraid not to do what they said". While she was disrobing unidentified members of the group "grabbed" at her and remarked about what "a nice body they had". George Mercer then told the prosecutrix to let "his bros referring to his companions do whatever they want."

The oldest member of the group then took the prosecutrix to the rear of the car and had intercourse with her on the trunk lid. The prosecutrix was crying and begging them to not do anything and "not to hurt her". Defendant then took the prosecutrix to the front of the car and had sexual intercourse with her on the hood of the car.

George Mercer then suggested that defendant and the other three members of the group leave and that defendant return in his "panel van". Defendant and the other three members of the group complied. Before defendant returned in his "panel van", George Mercer attempted to have anal intercourse with the prosecutrix.

Defendant returned to the beanfield alone in his "panel van", picked up George Mercer and the prosecutrix, and then drove to defendant's house. While en route to defendant's house, George Mercer had sexual intercourse with the prosecutrix in the "panel van". When they arrived at defendant's house the three went inside and defendant again had sexual intercourse with the prosecutrix. The prosecutrix was crying all the time. George Mercer again attempted to have anal intercourse with the prosecutrix. George Mercer then suggested that they "keep" the prosecutrix but defendant said he "thought she had enough". The prosecutrix was then given her clothes and driven by defendant to her boyfriend's house and released. After the prosecutrix was released she went to St. Luke's Hospital where she was examined at approximately 4:30 A.M. According to the state's evidence, defendant was present at all times throughout the aforementioned course of events, except for those events which occurred when he left to get his "panel van".

Defendant took the stand and testified in his own behalf. According to defendant, he and his companions, joined by the prosecutrix, drank some beer and smoked some marijuana while they were at the prosecutrix's boyfriend's house. He denied that he had sexual intercourse with the prosecutrix at any time. He further testified that he never heard George Mercer threaten the prosecutrix and that she willingly accompanied the group when they left. Moreover, while the prosecutrix was undressing in the beanfield he and one of his companions left the area on foot and were gone for a short period of time. When they returned, according to defendant, the prosecutrix was having sexual intercourse with other members of the group on the hood of the car and, after finishing, she gave defendant the "come on" but he rebuffed her. After defendant, George Mercer and the prosecutrix arrived at defendant's house the only thing the prosecutrix said was "take me home". According to defendant "she was so wasted she couldn't say nothing, just about."

Defendant's first point on appeal encompasses a multi-faceted attack on the state's verdict directing instruction absent any objection thereto by defendant, either during trial or in his motion for new trial. Perforce, the point has not been preserved for appellate review. Rule 28.03; and State v. Murry, 580 S.W.2d 555 (Mo.App. 1979). Aware of this hiatus, defendant attempts to salvage the point for appellate review by imploring this court to consider it as "plain error" under Rule 30.20. Defendant faces a formidable task in this regard as there is no such thing as "plain error" per se. Undaunted by this burden, defenda...

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