State v. Nevels
| Decision Date | 04 March 1986 |
| Docket Number | No. WD,WD |
| Citation | 712 S.W.2d 688 |
| Parties | STATE of Missouri, Respondent, v. Alfreddie NEVELS, Appellant. 36708. |
| Court | Missouri Court of Appeals |
Kathleen Murphy Markle, Columbia, for appellant.
William L. Webster, Atty. Gen., Duane E. Butler, Asst. Atty. Gen., Jefferson City, for respondent.
Before BERREY, P.J., and TURNAGE and MANFORD, JJ.
Alfreddie Nevels was found guilty by a jury of rape and the court imposed sentence of 45 years without eligibility for probation or parole.
Nevels contends that § 558.018, RSMo Cum. Sup. 1984, did not authorize the court to sentence Nevels to 45 years in prison without probation or parole, and that if the statute is read to authorize such a sentence, the statute is unconstitutional. Nevels further contends that the court erred in admitting a photograph of a T-shirt because the T-shirt was seized in violation of Nevels' constitutional rights. Affirmed.
Nevels does not challenge the sufficiency of the evidence and in fact at trial conceded the victim had been raped. Nevels presented an alibi defense and asserted he was not involved in the crime. The evidence was sufficient to allow the jury to find that on June 16, 1984, a University of Missouri student was raped in a classroom in the medical center building by Nevels. The evidence showed the victim was attacked while she was waiting for an elevator in the medical building. The evidence further showed the student is white and Nevels is black, and that the student positively identified Nevels.
After the rape occurred, Nevels took the victim by the arm and left the medical building with her and started across a parking lot. As they crossed the parking lot Nevels and the victim passed a woman who had known Nevels for 20 years. This woman testified that Nevels spoke to her using her nickname. Shortly after Nevels saw the woman, the victim spotted a man nearby in the parking lot. She broke free from Nevels, ran to the man and begged for help. The man, who was a physician, escorted the victim to her dorm and called the campus police. The physician testified that the appearance of Nevels in court was not compatible with his recollection of the appearance of the man who had been with the victim in the parking lot.
The victim testified that at the time of the attack Nevels wore a red T-shirt with the white letters "LYNN" across the front. Two officers of the campus police department went to the address given by Nevels as his residence. They met Alfred Bentley at that address and Bentley told them the lease on the apartment was in his name but he was allowing Nevels to stay there. The officers asked permission to search the room occupied by Nevels, and Bentley agreed and took the officers to his apartment and showed them the room occupied by Nevels. At Nevels' room the officers again asked permission to search and Bentley granted it. As the officers searched each of the two dressers in the room they specifically asked for permission and Bentley again gave consent. In one of the dressers the officers found a red T-shirt with the name "LYNN" in white letters on the front and the name "CHAZ" in white letters across the back.
Nevels presented an alibi defense based on the testimony of his girl friend who was a patient in the University of Missouri Hospital. His girl friend testified that Nevels was in her room before and until after the time of the rape. Another woman who was a patient in the same room with Nevels' girl friend stated Nevels had been in the room but her recollection of the time was not nearly as definite as the girl friend's recollection.
Nevels first contends that § 558.018.3 is ambiguous and that the court only has authority to sentence a persistent sexual offender to a term of 30 years imprisonment without probation or parole. The first two subsections of that section define and provide for the sentencing of a persistent sexual offender. Subsection 3 provides: "[t]he term of imprisonment for one found to be a 'persistent sexual offender' shall be not less than thirty years, which term shall be served without probation or parole."
Nevels contends this subsection is ambiguous because it is not clear whether the words "which term" refer to the 30 years mentioned, or whether "which term" refers to a sentence in excess of 30 years. Nevels contends that because the section is ambiguous, the statute must be construed against the state so that the only sentence which is to be served without parole or probation is the 30 year term. The legislative intent behind a statute is to be determined from the language used and the words are to be taken in their plain and ordinary meaning. State v. Adkins, 678 S.W.2d 855, 859 (Mo.App.1984). The legislature is presumed to have intended what a statute says and if the language is clear and unambiguous there is no room for construction. Missouri Division of Employment Security v. Labor and Industrial Relations Commission of Missouri, 637 S.W.2d 315, 318[3-5] (Mo.App.1982).
A reading of subsection 3 does not reveal any ambiguity. That section begins by stating the term of imprisonment shall be not less than 30 years. Thus, the term of imprisonment is to be the term actually imposed and such term shall be not less than 30 years but by express provision may be more than 30 years. The term of imprisonment is clearly expressed to be the length of sentence the court imposes and the sentence must be not less than 30 years but may be more. The words "which term" refer clearly to the term which was imposed and therefore the words "to be served without probation or parole" refer to the actual sentence imposed and not the 30 years. Nevels construction of the statute effectively blots out the words "no less than" and makes the statute read the "term of imprisonment for one found to be a persistent sexual offender shall be 30 years which term shall be served without probation or parole." Obviously the subsection does not read that way. This court finds no ambiguity and finds that subsection 3 in plain language requires the term of imprisonment for one found to be a persistent sexual offender shall be the sentence imposed, but not less than 30 years, to be served without probation or parole. As this court finds no ambiguity, there is no need to resort to the rules of statutory construction which apply to ambiguous statutes.
Nevels contends that if § 588.018.3 is construed to require that the entire term in excess of 30 years is to be served without probation or parole then such section is unconstitutional because it unlawfully...
To continue reading
Request your trial
-
State v. Gilmore
...X offender. The legislature is presumed to have intended what the statute says by clear and unambiguous language. State v. Nevels, 712 S.W.2d 688, 689-90 (Mo.App.1986). "The canon of strict construction of criminal statutes is well recognized. However, that canon is not to be applied inflex......
-
State v. Oliver
...to have intended what the statute says and if language is clear and unambiguous there is no room for construction. State v. Nevels, 712 S.W.2d 688, 690 (Mo.App.1986). Had the legislature wished to so limit the application of the statute, it would have done so by the language of the statute.......
-
State v. Smith
...rests instead on mutual use of the property by persons generally having joint access or control for most purposes." State v. Nevels, 712 S.W.2d 688, 691 (Mo.App. W.D.1986) (citing United States v. Matlock, 415 U.S. 164, 171, n. 7, 94 S.Ct. 988, 993, n. 7, 39 L.Ed.2d 242 (1974)). Frost was S......
-
State v. Kelly, 14792
...statute, Section 558.018(3) must be strictly construed against the state." The same argument was made and rejected in State v. Nevels, 712 S.W.2d 688, 689-690 (Mo.App.1986). For the reasons stated there, defendant's fourth ground has no Defendant's fifth ground in support of his second poin......