State v. Pippenger, 13664

• Decision Date: 10 March 1986
• Docket Number: No. 13664,13664
• Citation: 708 S.W.2d 256
• Parties: STATE of Missouri, Respondent, v. Mark Everett PIPPENGER, Appellant.
• Court: Missouri Court of Appeals

Page 256

708 S.W.2d 256

STATE of Missouri, Respondent, v. Mark Everett PIPPENGER, Appellant.

No. 13664.

Missouri Court of Appeals,

Southern District,

Division Two.

March 10, 1986.

Motion for Rehearing or Transfer Denied

April 4, 1986.

Application to Transfer Denied

May 13, 1986.

Ronald A. Conway, Asst. Public Defender, Springfield, for appellant.

William L. Webster, Atty. Gen., Christine M. Szaj, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

A jury found Mark Everett Pippenger ("defendant") guilty of forcible rape, § 566.030.1, RSMo Cum.Supp.1980, and assessed punishment at 20 years' imprisonment. Judgment was correspondingly entered and defendant appeals, relying on five assignments of error. Four are presented in a brief filed by appointed counsel; the other is asserted in a pro se brief.

Inasmuch as one of the assignments of error briefed by counsel (point 3) is that the evidence was insufficient to support the verdict, a synopsis of the evidence is necessary. In determining whether the evidence was sufficient to support the verdict, we view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences to be drawn from the evidence, and we ignore contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. McDonald, 661 S.W.2d 497, 500 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985).

So viewed, the evidence establishes that on Tuesday, March 29, 1983, M______ S______ ("complainant"), an unmarried female, was residing alone in an apartment in Springfield. She locked her outside door and went to bed about 10:00 p.m., clad in "sweat pants and a pull over sweat shirt and socks."

About 2:00 a.m., complainant awoke and saw a man standing over her bed. Light from floodlights outside was shining in through a sliding glass door beside the bed, enabling complainant to observe that the intruder was about six feet tall, stockily built, with full hair, a full face, and deep set eyes.

Complainant, fearful for her life, asked the intruder who he was. He replied, "Just be quiet."

The intruder then got on top of complainant, turned her over on her stomach, and taped her eyes and mouth closed with duct tape. He then taped her arms behind her back.

Complainant was trying to talk, so the intruder untaped her mouth and complainant asked whether the intruder wanted money. He replied, "No, I'm here for you." He then replaced the tape over complainant's mouth and said, "I'm not going to hurt you, well, maybe your pride."

The intruder then removed all of complainant's clothing and, with complainant face down on the bed, tied each of complainant's arms separately to a bedpost with rope, and tied each of her legs separately to the bottom of the bed.

Complainant, who was scared and shaking, heard the intruder remove his clothes, and she felt his fingers placing lubricant in her vagina. The intruder then had sexual intercourse with complainant.

The intruder thereafter obtained a washcloth from the bathroom and washed complainant and the sheets. He then dressed, untied complainant, removed the tape from her eyes and mouth, and placed a pillow over her head, warning her to close her eyes and make no sound.

The intruder thereupon unplugged complainant's telephone and departed.

Complainant remained motionless until she was sure the intruder was gone. Then, she plugged her phone back in and telephoned her mother about what had occurred, asking her mother to call the police. Complainant then telephoned a female friend, who rushed to complainant's apartment. Police officers arrived soon afterward.

Complainant was taken to a hospital for examination, and later to police headquarters where a composite drawing was made of the intruder.

On April 14, 1983, 15 days after complainant was raped, Detective Don Pippin of the Springfield Police Department arrested defendant. Interrogation of defendant by Pippin produced a lengthy written statement, signed by defendant, and ultimately received in evidence over defendant's objection at trial. The admission of this statement in evidence is the subject of defendant's point number 1, and the circumstances of defendant's interrogation by Pippin will be detailed when we address that point.

In his statement to Pippin, defendant, age 32, revealed that in December, 1982, and January, 1983, he had lived in an apartment at the same apartment complex as complainant's apartment. While residing there, defendant had made a key which he believed would unlock all apartments in the complex. He used that key to enter complainant's apartment shortly before 2:00 a.m., March 30, 1983. Defendant knew complainant lived in that apartment, having seen her on prior occasions. He did not, however, know her name.

In his statement, defendant admitted in detail the acts described by complainant, disclosing that he had brought rope, tape, and Vaseline with him when he entered complainant's apartment. Without reciting the particulars of defendant's statement, it is sufficient to say that it closely parallels complainant's version of the incident, and establishes with absolute certainty that defendant was the intruder.

After learning about the key with which defendant had gained entry to complainant's apartment, Detective Pippin asked defendant if he still had it. Defendant informed Pippin that the key was in a room where defendant had been staying in Nixa. Defendant signed a "search waiver" and prepared a note to the owner of the Nixa residence authorizing Pippin to obtain the key.

Pippin thereafter went to the residence, obtained the key, and went to complainant's apartment. There, Pippin inserted the key in the lock and observed that it unlocked complainant's door.

The preliminary hearing was held May 20, 1983, not quite two months after complainant was raped. During that interval, complainant had been shown no photographs of suspects and had viewed no lineups. At the preliminary hearing, defendant was seated at the back of the courtroom with three other males whose physical characteristics were similar to defendant's. Complainant identified defendant on that occasion as the man who had raped her.

At trial, January 19, 1984, complainant again positively identified defendant as the culprit.

In contending that the evidence was insufficient to support the verdict, defendant does not dispute that complainant was raped. Instead, he impugns complainant's identification of him as the assailant. Specifically, defendant points out that (a) complainant conceded at trial that the composite drawing did not look exactly like her attacker, (b) complainant testified that her attacker had no mustache, while two acquaintances of defendant testified he had a mustache in March, 1983, and (c) complainant testified that her attacker had smooth hands, but defendant was a construction worker and an acquaintance testified that defendant's hands were scarred and that he once had a gash on an index finger. Additionally, defendant reminds us that no hairs consistent with his were found on complainant's clothing or bed linens.

Defendant's arguments supply no basis for disturbing the verdict. As to the composite drawing, complainant testified she was not satisfied with it at the time it was prepared, and that she told the officer who prepared it that it did not look like the man who raped her. As to defendant's alleged mustache and rough hands, it is sufficient to note that the jury was not required to believe the witnesses who furnished that testimony, as the credibility of the witnesses and the weight of their testimony were for the jury to determine, the jury being free to believe all, some, or none of the testimony of any witness when considered with the facts, circumstances and other testimony in the case. State v. Jackson, 608 S.W.2d 420, 421 (Mo.1980); State v. McMikle, 673 S.W.2d 791, 795-96 (Mo.App.1984). As to the absence of hairs consistent with defendant's on complainant's clothing and bed linens, a criminalist with the Springfield Police Department crime laboratory testified that he had received only two head hairs and two pubic hairs from defendant, and that it is preferable to have a minimum of 15 or 20 for comparison purposes "[b]ecause hair will vary on an individual."

Defendant cites State v. Phillips, 585 S.W.2d 517, 520 (Mo.App.1979), for the proposition that when the testimony of the prosecutrix in a rape case is contradictory and in conflict with physical facts, surrounding circumstances, and common experience so as to be so unconvincing and improbable that it is extremely doubtful, corroboration of such testimony is required to sustain a verdict of guilty. That proposition, while correct as an abstract statement of law, has no application here. As already noted, defendant does not question the fact that complainant was raped. What he is saying, as we understand it, is that complainant's identification of him as the perpetrator was, for the reasons he enumerated, "contradictory and in conflict with physical facts." Having found no merit in any of the particulars relied on by defendant, we reject his assertion that complainant's testimony was contradictory and at odds with the physical facts. Consequently, we find Phillips inapposite.

The testimony of a single witness, if believed by the jury beyond a reasonable doubt, is sufficient to establish the identity of the culprit in a criminal prosecution, State v. Tucker, 451 S.W.2d 91, 95 (Mo.1970), and to support a conviction, State v. Dowe, 432 S.W.2d 272, 274-75 (Mo.1968). Moreover, complainant's identification of defendant as her assailant was corroborated by defendant's statement to Pippin which positively established that defendant was the rapist, and by defendant's possession of the key capable of unlocking complainant's apartment door. In view of the...