State v. Parker

• Decision Date: 01 September 1987
• Docket Number: No. 52177,52177
• Citation: 738 S.W.2d 566
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Carl PARKER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 566

738 S.W.2d 566

STATE of Missouri, Plaintiff-Respondent, v. Carl PARKER, Defendant-Appellant.

No. 52177.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 1, 1987.

Motion for Rehearing and/or Transfer Denied Sept. 30, 1987.

Application to Transfer Denied Nov. 17, 1987.

William L. Webster, Atty. Gen., Carrie Franke, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Mary Clare McWilliams, St. Louis, for defendant-appellant.

SIMON, Judge.

Defendant, Carl Parker, was found guilty by jury of burglary in the first degree in violation of § 569.160, RSMo (1978) (all further references shall be to RSMo (1978) unless otherwise noted); robbery in the second degree in violation of § 569.030; kidnapping in violation of § 565.110; and two counts of attempted rape in violation of § 564.011. He was sentenced in the Circuit Court of the City of St. Louis to four consecutive prison terms, totaling eighty years.

Defendant raises three points on appeal. Defendant contends that the trial court committed reversible error: (1) in refusing to instruct the jury on the offense of indecent exposure as a lesser included offense to the charges of attempted rape; (2) in refusing to instruct the jury on the offense of attempted sexual abuse in the first degree as a lesser included offense to the charges of attempted rape; and (3) refusing to strike a venireperson for cause.

As defendant does not challenge the sufficiency of the evidence, a brief rendition of the facts will suffice. On September 19, 1985, the first victim (hereinafter referred to as Victim I) arrived home from work at 1:22 p.m. As she was unlocking the back door to her flat, defendant came up behind her. Defendant told Victim I to open the door while reaching into a brief case that he was carrying. As Victim I attempted to open the door, defendant grabbed the keys from her and opened the door himself. Defendant forced Victim I into the flat, pulling her by the arm. Fearing for her safety, Victim I asked defendant what he wanted. Defendant replied that he wanted to use the bathroom. Victim I told defendant what he wanted to know, pointed the way, and then seized her opportunity to try and escape. Victim I grabbed her keys and ran to the front door. Upon reaching the front door, Victim I discovered that defendant was right behind her. Realizing that she did not have time to open the two dead-bolts on the front door from within, Victim I ran back to the unlocked back door. She testified that she pulled the back door open, but defendant forced it closed again. In later testimony, she stated that when she ran to the back door, defendant was blocking it. Either way, Victim I then attempted to force defendant out of the house by pushing him through the back door.

Victim I was unsuccessful in her efforts. Instead of pushing him out the back door, Victim I, because of defendant's struggle, pushed him into her roommate's bedroom. Once inside the room, defendant ripped her clothing and undergarments off and pushed her down. A struggle ensued, during which defendant pulled down his pants and exposed his penis. He climbed on top of Victim I and attempted to insert his penis into her vagina, but he could not because Victim I was fighting and kicking.

                Defendant tired and Victim I was able to get a blanket to wrap herself in.  She grabbed a broom and tried to hit defendant, but he took it from her.  She also grabbed a lamp and tried to hit him, but he took it also.  Defendant proceeded to hit her with the lamp and then punched her twice in the jaw.  He then went for Victim I's purse and started looking through her wallet.  There was nothing in her wallet.  There was, however, forty-six dollars in her bible, which defendant took, but he did not leave.  Defendant tried to attack Victim I again.  He tried to pull the blanket off her and said he "wanted some pussy."   Victim I told defendant to get out and he finally put the money in his brief case, pulled up his pants, and ran out of the door
                

That same day, a second victim (hereinafter referred to as Victim II) observed defendant approach her as she was walking along Kingshighway in the City of St. Louis. He asked her name and where she was going. She told him and he asked if he could accompany her. She told him no, but he forced her off the sidewalk and in between two apartment buildings. Victim II struggled to no avail. Defendant reached inside his brief case and Victim II asked what he was going to do and if he had a gun. Defendant responded that he did not have a gun and that he wanted her breasts first. He ripped her blouse off and Victim II became fearful that he was going to hurt her. She started fighting him, but he managed to pull her jeans open and throw her to the ground. She began to scream while defendant stood over her and pulled his pants down, exposing his penis. Victim II continued to fight, kicking out and striking defendant. Defendant responded that he was "really going to [get her] now." He straddled her, but Victim II continued to fight. She screamed to a woman looking out of her apartment window that she was being raped and that the woman should call the police. The woman left the window, returned with some soda bottles, and began hurling them at defendant. Defendant fled after the second bottle was thrown.

In his first and second points, defendant claims that the trial court erred in failing to instruct on two lesser included offenses of attempted rape. In point one he argues that the offense of indecent exposure is a lesser included offense of attempted rape. Defendant argues that "[t]he evidence adduced at trial clearly established that the defendant committed the lesser offense of indecent exposure." Under § 566.130, "[a] person commits the crime of indecent exposure if he knowingly exposes his genitals under circumstances in which he knows that his conduct is likely to cause affront or alarm." Defendant maintains that because "the evidence adduced at trial" was sufficient to support a finding that his purpose in exposing his penis was to cause alarm, it was error for the court not to instruct on indecent exposure.

In reviewing whether an offense can be said to be a lesser included of another, "[a]ttention is focused upon the statutory elements of each offense, rather than the evidence presented in the individual case." State v. Niswonger, 721 S.W.2d 207, 208 (Mo.App.1986). The fact that the evidence establishes guilt of another crime does not necessarily mean that such other crime is a lesser included offense of the crime charged. An offense does not become a lesser included offense because the elements of the alleged lesser included offense are supported by the evidence at trial. State v. Neighbors, 613 S.W.2d 143, 147 (Mo.App.1980). In State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957), our Supreme Court held:

[It is only when] the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.

See § 556.046.1(1).

Of course, the general rule is that "[a] trial court must instruct on all lesser included offenses supported by the evidence, and it is error for the court to fail to do so." State v. Smith, 592 S.W.2d 165 (Mo.

banc 1979). However, a criminal defendant is not entitled to an instruction on a lesser offense "unless it is impossible to commit the greater without first committing the lesser, for otherwise the lesser is not properly a lesser offense to the greater." State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981). Before we consider the evidence, as defendant claims we must, the offense must meet the "statutory elements" test set forth in Amsden in order to justify a lesser included offense instruction. Neighbors, 613 S.W.2d at 147.

It is apparent then, that the determination of whether a criminal defendant is entitled to a lesser included offense instruction, involves a two step process: First, we determine if the offense is a lesser included offense under the "statutory elements" test. If it is not, then our inquiry is at an end. But, if the offense does meet the statutory elements test, then we must consider whether the submission of the instruction has evidentiary support. Tested by these principles, it is readily apparent that the offense of indecent exposure is not necessarily included in a charge of attempted rape.

From 1825 through 1978, Missouri's statutory prohibition of indecent exposure was in general terms. In one form or another the statutes provided that "every person, married or unmarried, who shall be guilty of open, gross lewdness or lascivious behavior, or of any open and notorious act of public indecency, grossly scandalous, shall, on conviction," be punished. § 563.150, RSMo (1969). See Revised Laws of Missouri, § 77 at 306 (1825). The emphasis of these statutes was on the open and notorious acts of public indecency, and while not specifically mentioning the exposure of genitals, such exposure was proscribed by the statutes. See State v. Negron, 374 S.W.2d 622, 623-24 (Mo.App.1963). The purpose of such laws is to protect the public from shocking and embarrassing displays of sexual activity, see State v. Parker, 233 Mo.App. 1037, 128 S.W.2d 288, 290 (1939), and suppress sexual exposure having a tendency to outrage public decency and corrupt the public morals. State v. Metje, 269 S.W.2d 128, 130 (Mo.App.1954).

In accordance with this purpose and the common law principles governing indecent exposure, see e.g., State v. Appling, 25 Mo. 315, 317 (1857) (quoting 4 W. Blackstone, Commentaries 65, note), it had been held under the former statutes that it was essential that someone see the alleged act of exposure, or that the alleged act of exposure occur in a public place and could have been seen by persons who...