State v. Nash, WD

• Decision Date: 21 July 1981
• Docket Number: No. WD,WD
• Citation: 621 S.W.2d 319
• Parties: STATE of Missouri, Respondent, v. Donald NASH, Appellant. 31607.
• Court: Missouri Court of Appeals

Page 319

621 S.W.2d 319

STATE of Missouri, Respondent, v. Donald NASH, Appellant.

No. WD 31607.

Missouri Court of Appeals, Western District.

July 21, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 25, 1981.

Application to Transfer Denied Oct. 13, 1981.

James F. Speck, Bellman, Speck & Handley, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Catheryn B. Starke, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.

TURNAGE, Judge.

Donald Nash was convicted by a jury of burglary in the first degree, § 569.160, RSMo 1978, and rape, § 566.030, RSMo 1978. Punishment was assessed at 15 years on each count and the court ordered the sentences to run concurrently. On this appeal Nash raises points concerning the sufficiency of the evidence; a comment concerning a mugshot; an improper question posed by the prosecutor and the sufficiency of the indictment. Affirmed.

The victim of the rape, K.T., and Nash lived in the same apartment complex, though in different buildings. The apartment of each was on the top or third floor of their respective buildings and from Nash's apartment it was possible to view the dining room of K.T.'s apartment. The building in which Nash lived was about 15 feet from the building in which K.T. lived. Each apartment had a balcony which opened from the apartment through glass sliding doors. The balcony was surrounded by metal bannisters. The distance from the top of the bannister of one balcony to the floor of the balcony above was about 5 to 6 feet. K.T. testified that she had seen people climb from one balcony to another.

On ground level below the balcony opening from K.T.'s apartment was a swimming pool and the jury could have found that by standing on the wall surrounding the swimming pool one could reach the balcony of the first floor apartment, and from there could ascend to the next balcony and then to the balcony adjoining K.T.'s apartment.

K.T. returned to her apartment from work about 12:30 or 1:00 A.M. on February 8, 1979. She showered and then lay on the bed to watch television but fell asleep. About three or three and one-half hours later she heard or sensed someone in the room and saw a black male in his 20's, about 5'8 or 5'9 in height, with a medium build, standing in the bedroom door. The man jumped on her and threatened to kill her and pressed a metal object to her stomach which he said was a gun. He covered her eyes with her arms and later covered them with a towel. The man then raped K.T. and thereafter rummaged through her purse and dresser drawers. It later developed that her clock radio, bank and $10 were missing. When the man left he threw all of the bed covers over K.T.'s face and told her to remain there. After a while K.T. discovered the man was gone and called the police.

When the first police officer arrived he found the back door open. K.T. was quite distraught, so the officer took her to St. Luke's Hospital. Other police officers arrived and examined the apartment for clues.

K.T. stated she could not identify the man except by the general physical description because she never had an opportunity to see his face.

When a police officer returned K.T. to her apartment from the hospital, K.T. noticed that some leaves from a flower near the sliding doors from the balcony were on the floor. The doors were covered by a closed drape. When the drape was opened, it was discovered one of the sliding doors was open slightly. Evidence technicians from the police department were called back to the scene and succeeded in lifting a latent fingerprint from the edge of the sliding door. The print was made with the palm outside the door with the fingers pointed into the apartment. A fingerprint technician testified the print was dark and clear and fresh. Given the weather condition at the time, the expert said the prints would deteriorate rapidly and in a matter of days. The print was lifted about three to four hours after K.T. had called the police. The fingerprints on the sliding door were identified as those of Nash.

Nash left for California on the evening of the 8th to look for work, according to the testimony of his girlfriend, with whom he lived at the apartment house, and returned to Kansas City in June, 1979. When arrested after his return Nash at first gave a false name then said "I am Nash. I am tired of this, let's go to jail."

Nash first challenges the sufficiency of the evidence to support his conviction. In reviewing the evidence to determine its sufficiency, "this court accepts as true all evidence, circumstantial or direct in nature, favorable to the verdict, together with all favorable inferences that can reasonably be drawn therefrom, and rejects all evidence and inferences to the contrary." State v. Mussman, 526 S.W.2d 62, 63(1) (Mo.App.1975).

Nash principally argues the fact there was no evidence that the person committing the crime entered through the sliding glass door and further there was no evidence that the fingerprint of Nash was placed on the door at the time the crime was committed.

K.T. testified Nash had never been in her apartment for any purpose nor did he ever have permission to be there. There were three entrances to the apartment: the front door, which K.T. locked when she came home; the back door and the sliding glass doors. After the crime the back door was open and the sliding glass doors were partially open.

K.T. testified that she kept a broom handle in the track of the sliding doors to prevent them from being opened, but the handle was out of the track when the door was discovered open and K.T. did not think she had put the handle in the track the last time she had closed the door.

There can be no doubt that the fingerprints of Nash on the glass door were in a place generally inaccessible to Nash. The evidence was that the fingerprints were fresh and would deteriorate rapidly. Further, Nash's girlfriend with whom he lived testified that he was in bed with her all during the time the crime would have been committed and so was not at K.T.'s apartment. With the fresh fingerprints of Nash on the door indicating the door had been opened by a hand placed on the outside and given the fact the door was in a place generally inaccessible to Nash, the jury could reasonably infer that Nash's fingerprints could not have gotten on the sliding door without the intervention of criminally culpable conduct on his part. Mussman, supra, at p. 64.

The jury could have inferred that the fresh fingerprints of Nash on the door indicated Nash entered the apartment through the glass doors and since the rear door could be readily opened from the inside, the jury could infer that Nash made his exit through the rear door rather than climbing down from the balcony. The fingerprint evidence, together with the general physical description given by K.T., which matched the physical description of Nash, was sufficient to meet the requirements of the circumstantial evidence rule and to support a finding of guilt. In addition, the jury could infer guilty knowledge on the part of Nash from the fact that he gave a false name when arrested. State v. Jones, 575 S.W.2d 899, 900-1(1) (Mo.App.1978).

The evidence in this case fully meets the requirement of State v. Clemmons, 579 S.W.2d 682 (Mo.App.1979) that the fingerprints could have been impressed only at the time the crime was committed. The evidence that...