State v. Ore, 39391
| Citation | 567 S.W.2d 691 |
| Decision Date | 06 June 1978 |
| Docket Number | No. 39391,39391 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Leroy Yates ORE, Defendant-Appellant. . Louis District,Division One |
| Court | Missouri Court of Appeals |
Charles H. Staples, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Appellant Leroy Ore appeals from a judgment of conviction entered in the circuit court of the City of St. Louis finding him guilty of attempted rape in a court-tried case, and a sentence of forty (40) years imprisonment. A substituted information filed in lieu of the indictment charged appellant with attempted robbery (Count I), attempted rape (Count II) and one prior felony conviction. The trial court found appellant not guilty of attempted robbery.
For reversal of his conviction and sentence, appellant argues that the trial court erred: (1) in finding the testimony of the victim to be sufficiently credible to convict appellant of attempted rape; (2) in abusing its discretion by refusing to grant a new trial on the basis of newly discovered evidence; (3) by failing to commit appellant upon conviction to the custody of the Director of Mental Health; and (4) in imposing an excessive and arbitrary sentence that was grossly disproportionate to the severity of the crime and the evidence adduced in support of the conviction. For reasons hereinafter discussed, we reject each contention, and affirm the judgment.
Appellant's first argument appears to assail the credibility of the testimony given in evidence by the prosecuting witness. Rule 26.01(b), V.A.M.R., provides, inter alia, that the finding of the court shall have the force and effect of a jury verdict. Consequently, our appellate courts review the evidence as though a verdict of guilty has been returned by a jury. Hence, if there is substantial evidence to support the findings of the trial court, its judgment should be affirmed. State v. Sanderson, 528 S.W.2d 527, 529 (Mo.App.1975); State v. Daniels, 487 S.W.2d 465, 469(4) (Mo.1972). Moreover, in criminal cases, on appellate review, we do not weigh the evidence. State v. Amerson, 518 S.W.2d 29, 31 (Mo.1975).
Applying the above appellate review standards to the case at hand, we note first that there is no issue as to appellant's identity nor as to appellant's presence in O'Fallon Park on the morning in question, because appellant admits seeing the prosecuting witness in the park and being propositioned by her. He further testified that after he resisted the victim's advances she grabbed two or three dollars out of his shirt pocket and fled. True, there were some discrepancies in the victim's testimony and that of some of the state's witnesses, but these variations went to the weight of the evidence. Thus, as the trier of the facts, the trial court had substantial evidence before it to make the finding that it did. That is, on the morning in question appellant accosted the victim, ordered her from her car at pistol point, ordered her to unrobe, opened his trousers and attempted to have intercourse with her but failed because appellant could not maintain an erection. We find this point against appellant.
Appellant's second contention centers around an affidavit of a bar keeper that contradicted the prosecuting witnesses' testimony that Rucker's Lounge had a dress code. We view this affidavit of the bar keeper as newly discovered evidence. In State v. Lindley, 545 S.W.2d 669, 672 (Mo.App.1976), our c...
To continue reading
Request your trial
-
State v. Giffin, 62775
...to support the findings of the trial court, its judgment is to be affirmed. State v. Ruff, 618 S.W.2d 722 (Mo.App.1981); State v. Ore, 567 S.W.2d 691 (Mo.App.1978). In determining the sufficiency of the evidence in a criminal case after a verdict of guilty, the Court accepts as true all evi......
-
State v. Ruff, 42347
...the force and effect of a jury verdict. Hence, we will affirm that finding if it is supported by substantial evidence. State v. Ore, 567 S.W.2d 691, 693 (Mo.App.1978). We accept the state's evidence, together with all reasonable inferences therefrom, as true and ignore evidence and inferenc......
-
State v. Austin
...within the discretion allowed by the trial court in such matters." Benson v. State, 604 S.W.2d 652, 653 (Mo.App.1980); State v. Ore, 567 S.W.2d 691, 694 (Mo.App.1978). The record reveals no abuse of discretion, extreme or otherwise, by the trial Judgment affirmed. REINHARD and SNYDER, JJ., ......
-
State v. Runyon
... ... State v. Ore, 567 S.W.2d 691, 693(1-3) (Mo.App.1978). Rule 27.01(b). The reviewing court determines if there was substantial evidence to support the trial ... ...