State v. Olson

• Decision Date: 02 August 1982
• Docket Number: No. 62634,62634
• Citation: State v. Olson, 636 S.W.2d 318 (Mo. 1982)
• Parties: STATE of Missouri, Respondent, v. Leonard Bracy OLSON, Appellant.
• Court: Missouri Supreme Court

Page 318

636 S.W.2d 318

STATE of Missouri, Respondent, v. Leonard Bracy OLSON, Appellant.

No. 62634.

Supreme Court of Missouri, En Banc.

Aug. 2, 1982.

Antoinette G. Kirsch, Clayton, for appellant.

John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, for respondent.

BARDGETT, Judge.

Appellant Olson was convicted by a jury of count I rape (§ 566.030, RSMo 1978), count II sodomy (§ 566.060, RSMo 1978), and count III assault in the first degree by use of a dangerous instrument (§ 565.050, RSMo 1978) with life sentences imposed for each offense. The court entered judgment in accordance with the verdicts and designated the three sentences to be served consecutively. This appeal followed and, due to the sentences of imprisonment for life, jurisdiction is in this Court. Mo.Const. art. V, § 3.

The sufficiency of the evidence is not contested and a review of the record shows there was sufficient evidence from which a jury could find beyond a reasonable doubt that appellant was guilty of all three crimes.

On October 1, 1979, the victim, a woman, had car trouble and appellant offered her a ride to work. She accepted. Appellant pulled off onto another road, pointed a gun at her, ordered her to put on handcuffs, demanded $50 from her, and said he would hold her for ransom. He then drove to a cabin where he chained her to a roof beam, gagged her, and left to call her boss to get $50. Appellant returned and forced her to commit oral sodomy upon him and then raped her. Later he forced her to commit another act of oral sodomy upon him and raped her again. He then stabbed her in the back, the breast, neck and the stomach, and shot her in the arm. He left her in a field, and later she made her way to a road where she was found by a person and thereafter received medical attention.

Appellant's first point is that the court erred in overruling his motion to strike count II (sodomy) and count III (assault) "of the amended information for the reasons that the conduct described was a continuous course of conduct such as is contemplated by section 556.041(4) RSMo.1978, so that appellant may be convicted of one offense only, and the state should have been required to elect between the possible offenses, and thus appellant's conviction on the other two counts was a violation of the fifth amendment of the United States Constitution and of Article I, Section 19 of the Missouri Constitution 1945, as amended 1970, which prohibit a person from being tried twice for the same offense."

Section 556.041 provides in relevant part:

When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if ...

(4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

None of the offenses with which appellant was charged and convicted include any others with which he was charged and convicted. They all occurred during a continuous course of conduct or as a single transaction and were properly joined in a single information charging separate counts. The fact that the three offenses did occur in a continuous course of conduct does not bring into play the prohibition of double jeopardy. State v. Moton, 476 S.W.2d 785 (Mo.1972). The fact that the three crimes were committed on the same victim does not prevent conviction of each one. These are three separate crimes for which a person can be separately convicted and punished. State v. Stewart, 615 S.W.2d 600 (Mo.App.1981). The point is overruled.

Appellant's second point is that "the trial court erred, to the prejudice of appellant, in failing to instruct the jury in this case on the lesser included offenses of assault in the second degree (Section 565.060 RSMo.1978) and assault in the third degree (Section 565.070 RsMo.1978) for the reason that there was evidence in the case from which the jury could have found appellant guilty of the lesser offenses and appellant was entitled to an instruction on any theory the evidence tended to establish."

Appellant testified in his own defense. He stated that on October 1, 1979, a girl came up to his truck and told him her car was stalled and she had to get to work. He told her to signal the police patrol on the parking lot. He denied that she was in his vehicle and denied all further involvement. Appellant did not request any additional instructions be given to the jury.

Section 556.046, RSMo 1978 "Conviction of included offenses" provides:

1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It is specifically denominated by statute as a lesser degree of the offense charged; or

(3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.

2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

In State v. Hill, 614 S.W.2d 744 (Mo.App.1981), the court analyzed § 556.046 and rejected a contention that the trial court should have instructed on assault offenses where, among other homicide offenses manslaughter was submitted. The court, after pointing out that the requirements of instructing down in homicide cases is governed by MAI-CR2d 15.00, stated:

The duty involved is now defined by statute. Section 556.046.2 provides: "The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." The key phrase of that section is "a basis for a verdict". It could be argued that the jury's disbelief of the evidence necessary to establish an element of the greater offense is such a basis. However, such a construction would require an instruction on a lesser included offense in the vast majority of cases. It is appropriate to construe a statute with reference to the comment accompanying that statute when enacted. State v. Stiers, 610 S.W.2d 83 (Mo.App.1980); State v. Gullett, 606 S.W.2d 796 (Mo.App.1980). The applicable comment indicates that it is an adoption of the existing general rule and cites State v. Craig, 433 S.W.2d 811 (Mo.1968). Craig declares: "In order to require the giving of an instruction on the included or lesser offense there must be evidentiary support in the case for its submission." Craig, 433 S.W.2d at 815. Also see State v. Achter, 448 S.W.2d 898 (Mo.1970). Even if the jury were to "disbelieve some of the evidence of the State, or decline to draw some or all of the permissible inferences, (this) does not entitle the defendant to an instruction otherwise unsupported by the evidence, on the issue of accidental homicide pursuant to § 559.050, ...." Achter, 448 S.W.2d at 900. It has consistently been held that an instruction on a lesser included offense is required only where there is evidence with probative value which could form the basis of an acquittal of the greater offense and a conviction of the lesser included offense. State v. Howell, 524 S.W.2d 11 (Mo. banc 1975); State v. Haynes, 329 S.W.2d 640 (Mo.1959); State v. Coffmann, 360 Mo. 782, 230 S.W.2d 761 (1950). The statute must be so construed. State v. Mays, 598 S.W.2d 613 (Mo.App.1980); State v. Owens, 598 S.W.2d 174 (Mo.App.1980); State v. Decker, 591 S.W.2d 7 (Mo.App.1979).

Id. at 749-50 (emphasis added).

The only evidence as to the offense came in the state's case from the victim. There was no testimony in the state's or the appellant's case which mitigated the offense or provided a different version of it. The defense was simply that appellant did not do it at all.

Appellant states the difference between first-degree and second-degree assault is the presence or absence of "malice", citing pre-1979 cases. That is no longer totally correct. See §§ 565.050- .070, RSMo 1978, and MAI-CR2d 19.02-.06.2. Nevertheless, the point is made that the court was required by prior case law and now § 556.046 to instruct on lesser degrees of the offense charged and lesser-included offenses of the offense charged. If the statute-556.046-requires that second-degree and third-degree assault be submitted in this case, then it...