State v. Ogle

• Court: Missouri Court of Appeals
• Writing for the Court: PREWITT
• Citation: State v. Ogle, 668 S.W.2d 138 (Mo. App. 1984)
• Decision Date: 05 March 1984
• Docket Number: No. 12836,12836
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Cecil George OGLE, Defendant-Appellant.

Page 138

668 S.W.2d 138

STATE of Missouri, Plaintiff-Respondent, v. Cecil George OGLE, Defendant-Appellant.

No. 12836.

Missouri Court of Appeals,

Southern District,

Division Two.

March 5, 1984.

Motion for Rehearing Overruled and to

Transfer to Supreme Court Denied

March 27, 1984.

Application to Transfer Denied

May 15, 1984.

John D. Ashcroft, Atty. Gen., John Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Debra S. Hans, Asst. Public Defender, Springfield, for defendant-appellant.

PREWITT, Judge.

Defendant appealed from a conviction of rape by forcible compulsion. Among his contentions on appeal were points contending that the mother of the complaining witness should not have been allowed to testify regarding her daughter's psychological and mental condition following the date she claimed to have been raped and that two physicians should not have been allowed to testify regarding psychological aftereffects of forcible rape victims. This court filed an opinion affirming the conviction. Thereafter, application for transfer was made to the supreme court. While the application was pending the supreme court decided State v. Taylor, 663 S.W.2d 235 (Mo. banc 1984), dealing with evidence related to the testimony questioned here. Thereafter, defendant's application was sustained and the cause then retransferred to this district "to permit it to consider the effect on its decision of the decision in State v. Taylor." Our previous opinion stated:

"Following jury trial, defendant was convicted of rape by forcible compulsion. § 566.030.1(1), RSMo 1978. He was thereafter found to be a persistent offender and sentenced to 20 years' imprisonment.

In defendant's first point he contends that the evidence was insufficient to establish the crime charged. In our review of such a contention we accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. State v. Manning, 612 S.W.2d 823, 825 (Mo.App.1981). The testimony of a witness complaining of a rape is sufficient to sustain a conviction without other corroboration unless that testimony is so contradictory, or in conflict with physical facts, surrounding circumstances, and common experience, as to be unconvincing. State v. Johnson, 595 S.W.2d 774, 776 (Mo.App.1980); State v. Phillips, 585 S.W.2d 517, 520 (Mo.App.1979).

The complaining witness testified that defendant forced his way into her house, struck her several times and intercourse occurred due to that force and threats of further force. Defendant testified that she voluntarily let him in the house, led him into the bedroom, removed her clothes, and lay on the bed. He said that he had just gotten the straps undone on his overalls and was still standing up when there was a noise in front of the house that sounded like 'footsteps'; she 'freaked out', said, 'Oh, shit', jumped out the window and hollered, 'rape, rape, George Ogle did it.' The evidence of the other facts material to this contention was substantially the same as that of a prior trial for this charge which was reversed for instructional error. See State v. Ogle, 627 S.W.2d 73 (Mo.App.1981). Those facts are set out there and we see no point in reciting them again. There was evidence to support the charge. The testimony of the complaining witness was sufficient and although not necessary here, it was corroborated. This point is denied.

Points two and five are closely related and we discuss them together. In his second point defendant contends that the trial court erred in allowing the mother of the complaining witness to testify regarding her daughter's psychological and mental condition after the date of the alleged rape. The rape allegedly occurred at approximately 11:00 p.m. on January 15th. The complaining witness was examined at a hospital early on the morning of January 16th. Her mother went to the hospital early that morning and took her daughter home with her. The mother testified to her daughter's condition that morning. She also said that her daughter had nightmares for a year after the incident; still has trouble sleeping at night; and was afraid to be alone at night.

In point five defendant contends that the trial court erred in allowing two physicians to testify generally regarding psychological aftereffects of forcible rape victims. Defendant contends that the testimony of the physicians was immaterial with regard to the offense charged and was calculated to appeal to the emotion and sympathy of the jury.

One of the physicians testified that a rape victim often has psychological damage that 'may last for some time'. He stated that this is 'quite frequent'. Defendant's counsel objected to this testimony. The other physician testified later, without objection, that a rape victim can have psychological problems for a long time thereafter. Both physicians were called as witnesses for the defendant and this testimony was brought out by the state on cross-examination. Neither physician knew whether the complaining witness had suffered any 'emotional trauma' or 'emotional problems' from the incident charged.

The complaining witness's condition shortly after the offense charged was relevant on the issue of force and clearly admissible. See State v. Berry, 609 S.W.2d 948, 954 (Mo. banc 1980); 75 C.J.S. Rape § 57b, p. 530. There was no error in allowing the mother to describe her daughter's condition the next day. However, whether the physician's testimony and the evidence regarding her condition to the date of trial, three and a half years after the alleged rape, should have been allowed are more difficult questions.

Neither party has cited any cases to us involving expert testimony of a forcible rape victim's mental condition due to the rape or involving other evidence of a victim's condition a considerable time after the alleged rape. Our research has disclosed two Missouri cases which discuss evidence of the victim's physical condition after such time. State v. Houx, 109 Mo. 654, 19 S.W. 35, 37 (1892), stated that evidence of a victim's physical condition three months after the offense was 'too remote to throw any light on the real issues in the case.' However, under the facts of that case admission of the evidence was deemed harmless error. In State v. Mitchell, 339 Mo. 228, 96 S.W.2d 341, 343-344 (1936), the court held that evidence of a complaining witness's physical condition 60 days after the alleged rape was relevant as tending to show that force was used.

State v. Johnson, 637 S.W.2d 157, 161 (Mo.App.1982), held that testimony, that one of the victims of a 'gang' rape had dropped out of beauty college after the incident and another had moved to another state, was 'at least minimally relevant to refute the defendant's prior recorded statement that the sexual activities were consensual.' The court stated that it was inferable from the testimony that 'these major voluntary changes in the victim's lives were made because of the sexual activities testified to and that such changes would not have been made if the activities had been consented to.'

People v. Egan, 331 Ill. 489, 163 N.E. 357, 358 (1928), held inadmissible evidence that the health of the complaining witness had been greatly impaired from after the alleged rape until the time of trial. The time of trial was not stated in the opinion. The court determined that '[w]hile in cases of this character it is competent to show the physical condition of the prosecutrix soon after the commission of the crime as tending to prove its commission, evidence as to her condition, either mental or physical, a long time thereafter, has no tendency to prove the only question at issue, which is the guilt of the defendant.' The only question in Egan was whether a forcible rape had been committed. Egan cites as authority for its holding on this issue Bynum v. State, 76 Fla. 618, 80 So. 572 (1919) [partially overruled on other grounds in Hunter v. State, 85 Fla. 91, 95 So. 115 (1932) ], State v. Houx, supra, and Bailey v. State, 30 S.W. 669 (Tex.Cr.App.1895).

Bynum held that testimony that the prosecutrix gave birth to a dead baby and 'never recovered from that birth,' that it 'left her in a bad condition; she lay for five weeks, that she could not walk, and for three days she was senseless', was not material and was prejudicial. The prosecution there was for 'statutory rape' and force apparently was not involved.

Bailey was a prosecution for seduction. It held that evidence that the woman whom the defendant was charged with seducing had committed suicide two days after the alleged seduction was inadmissible. There apparently was no evidence as to the reason she committed suicide.

When Egan was decided the psychological effects of forcible rape were probably not as well documented as now and then even premarital consensual intercourse might cause emotional problems, such as that which may have occurred to the victims in Bynum and Bailey. That psychological problems often result from forcible rape is now well documented. See In the Matter of Pittsburg Action Against Rape, 494 Pa. 15, 428 A.2d 126, 138-139 (Larsen, J., dissenting) (1981).

State v. LeBrun, 37 Or.App. 411, 587 P.2d 1044, 1047 (1978), allowed a 'Rape Victim Advocate' to testify that the victim's emotional state comported with the emotional state of most of the other sexual abuse victims that she had worked with. When she had seen the victim is not apparent from the opinion and the only objection to the testimony was that the witness was not qualified to express it.

State v. Saldana, 324 N.W.2d 227 (Minn.1982), held that evidence of typical post-rape symptoms and behavior of rape victims and an expert's opinion that the complaining witness was a victim of rape and had not fantasized the rape was held to be reversible error. Relying on Saldana, State v. McGee, 324 N.W.2d 232 (Minn.1982), with a...