State v. Pierson, WD
| Citation | 610 S.W.2d 86 |
| Decision Date | 02 December 1980 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Richard L. PIERSON, Appellant. 30922. |
| Court | Court of Appeal of Missouri (US) |
Bunch, O'Sullivan, Sandifar & Hill, Wm. F. O'Sullivan, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Philip M. Koppe, Asst. Attys. Gen., Kansas City, for respondent.
Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.
The defendant Pierson was convicted by a jury for the forcible rape of the female DM and was sentenced to imprisonment for a term of five years. The defendant contends on appeal that the jury was not properly instructed.
The evidence was that the female DM was in the company of five males, the defendant Pierson and one Mercer among them. The defendant Pierson admitted to the act of sexual conjugation with DM but denies he used force or threat for that accomplishment. There was no evidence that any conduct of the defendant Pierson put DM in fear of harm or that she submitted to ravishment on that account. The offense was given to the jury, rather, on the theory that DM yielded because of the threats of companion Mercer with whom defendant Pierson acted for the common purpose of carnality. The defendant contends that the instruction failed to submit that at the time of the copulation Pierson knew that DM succumbed to him only because of the threat to her by Mercer. Thus (concludes the argument), the instruction lacked an essential element of offense and was insufficient to establish the criminal responsibility of defendant Pierson.
The evidence, taken most favorably to the determination of guilt, shows: the female DM went to the residence of her male companion, Boyett, on the afternoon of July 25, 1978. She brought a change of clothes in anticipation of a social event with him. Boyett shared the premises with one Coates. Boyett left for a brief employment with a friend, Christopherson. DM remained with Coates and with one Tack, who came by after the departure of the other two. In that interim, five males the defendant Pierson, Mercer, Hadley, Riley and Miller came into the house. The defendant Pierson was an acquaintance of the resident Coates and (by his testimony) suggested Coates as a source for marihuana, which the men then fancied. On arrival, Mercer ordered Tack (whom he disliked from an earlier encounter) to "hit it," and Tack left promptly. Coates left minutes later and DM was left in the company of the five males. (DM was not acquainted with any of them but had seen the defendant Pierson once before at that house.) DM started out the door also but was told by Mercer: DM sat down but refused the invitation. Mercer grabbed her by the hair, slapped her, and repeated: "You're going with us." Mercer clenched her arm, twisted it behind the back and said: "Let's go." They all went into a white automobile parked outside where DM was placed in the back seat between Mercer and Miller. The defendant Pierson owned the vehicle and assumed the position behind the wheel.
At that time, Boyett and Christopherson returned from work. DM ran to Boyett through a door of the car, still open, and the three returned into the house. DM tearfully told Boyett the men were going to take her out and rape her. The five men followed them into the premises. Mercer again told DM she was going "to party with them." DM again refused. Mercer asked Boyett: "Do you mind if we take her partying with us?" and Boyett answered: "She can go if she wants to." The five left after a few minutes. DM changed her garments in preparation of an evening out with Boyett. As they started to leave, the five men returned in the same vehicle as before. Mercer asked if Boyett was there, but then he recognized Christopherson and, prompted by an old enmity, struck him in the face. Then another of the five, Hadley, took up the attack upon Christopherson, struck him and was about to use a knife, but was restrained by Mercer. The defendant Pierson, and another, on the orders of Mercer, guarded the doors to the house during this episode. Christopherson was rendered bloody. Mercer told Boyett and DM: "Come here, I want you to see this; that's mild to what is going to happen if I catch any heat behind this from the police or anybody." Mercer continued to vaunt his toughness with the remark: "I'm not afraid of anybody; I will whip the police or anybody."
The five men then left with DM. Mercer grabbed her arm and with a twist ordered her to come or he would break her arm. They entered the Pierson car once again and drove to a liquor store where the defendant and Mercer returned with a case of beer and some wine. There the defendant Pierson encountered a man, engaged him in a brawl, and inflicted knife wounds on him. They resumed the car journey, during which Mercer told DM she was going to get "a good lesson tonight" in the performance of the oral sex act. The defendant Pierson drove them to an open field and everyone got out of the car. Mercer ordered DM to remove all her clothing and jewelry. She complied, in tears all the while, and he told her to "let (his) bros do whatever they wanted." The defendant Pierson was the first of them to engage DM. He performed the act of sexual intercourse; his phallus penetrated her generative orifice. DM begged him to stop and repeated: "Please take me home," but to no avail. Miller next performed the same act; then Riley attempted a sexual act. Mercer then ordered the others to leave, and defendant Pierson drove away. DM was left with Mercer in the open field. Mercer attempted anal sodomy upon DM. She resisted, so he engaged in the normal act of conjugation. Miller returned with a van and he drove them to his residence. Mercer again ravished DM, continuously throughout that journey. At the Miller residence, the assault continued first by Miller and then by Mercer. DM was then allowed to dress and, at about 2:00 a. m. on July 26, was returned to the Boyett residence.
The evidence of the defendant was different in respects. That evidence portrayed the assembly at the Boyett home as a convivial event, joined in not only by DM, Coates and Tack, but by the five men in company with three other girls. The occasion was a beer and marihuana party for all, DM included. That view of the evidence had it, that the defendant Pierson did not use marihuana. Also that DM acquiesced to the Mercer invitation "to go partying" so long as they returned her before Boyett came back. That scheme was interrupted by the unexpected return of Boyett. The five men left, but returned to determine whether Boyett had marihuana for sale to them. That evidence admitted a scuffle between some of the five and Christopherson. DM, however, went voluntarily with the defendant, Mercer, and the others to the car; she was not threatened, struck or forced. The encounter at the liquor premises, the defendant Pierson explained, was merely a matter of defense against one he thought was armed; the knife he used was that of Mercer, not his own. Once in the open field, DM disrobed at her own initiative and engaged them in sexual acts voluntarily without threat of harm or force. DM never sobbed or asked the defendant to discontinue the activity.
On review, we assume the evidence most favorably to the determination of guilt and against an extenuation for the defendant.
The cause was submitted under MAI-CR instructions then in effect. The verdict director (Instruction No. 4) was MAI-CR on Forcible Rape as modified by MAI-CR 2.12 on Principals: Active Participants or conspirators.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about July 26, 1978, that defendant inserted his sexual organ into the sexual organ of DM, and
Second, that he did so against her will and after George Mercer caused her to submit by threats which caused her to fear physical violence to herself, and
Third, that the defendant acted either alone or knowingly and with common purpose together with George Mercer in the conduct referred to in the above paragraphs, then you will find the defendant guilty of rape. (emphasis added)
The verdict director was accompanied by MAI-CR 2.10 Parties: General Responsibility for the Conduct of Others submitted as
All persons are guilty who knowingly act together with the common purpose of committing an offense, or who knowingly and intentionally aid or encourage another in committing it, and whatever one does in furtherance of the offense is the act of each of them.
The presence of a person at or near the scene or an offense at the time it was committed is alone not sufficient to make him responsible therefore, although his presence may be considered together with all of the evidence in determining his guilt or innocence.
The defendant Pierson contends that Instruction No. 4 was erroneous in particulars. The two-fold assertion comes for the first time on appeal and so engages us, if at all, only for plain error and then only to prevent a manifest injustice. Rule 30.20; State v. Holt, 592 S.W.2d 759, 776(31) (Mo.banc 1980). The defendant contends, first, that Instruction No. 4 authorized the jury to convict on propositions that DM submitted to Pierson because of threats of harm made by Mercer, but without further requirement that at the time of the sexual act Pierson knew DM yielded for that reason.
Our law allows a determination of guilt for rape where the victim submits through fear of physical violence, even where one other than the defendant causes the fear, if at the time of the sexual act the defendant has knowledge that the victim succumbs through that fear. State v. Gray, 497 S.W.2d 545, 549(4) (Mo.App.1973). That is to say, a rape may be the result of a concert of action aided and abetted between perpetrators. State v. Davis, 557 S.W.2d 41, 43(1-3) (Mo.App....
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