State v. Poe, 13998

• Decision Date: 11 March 1986
• Docket Number: No. 13998,13998
• Citation: State v. Poe, 708 S.W.2d 723 (Mo. App. 1986)
• Parties: STATE of Missouri, Respondent, v. Billy Wayne POE, Appellant.
• Court: Missouri Court of Appeals

Page 723

708 S.W.2d 723

STATE of Missouri, Respondent, v. Billy Wayne POE, Appellant.

No. 13998.

Missouri Court of Appeals,

Southern District,

Division Two.

March 11, 1986.

Motion for Rehearing or Transfer to

Supreme Court Denied April 2, 1986.

Application to Transfer Denied

May 13, 1986.

Mark V. Clark, Columbia, David Robards, Joplin, for appellant.

William L. Webster, Atty. Gen., Victorine R. Mahon, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

AFFIRMED

Billy Wayne Poe ("appellant"), tried as a prior offender, § 558.016.2, RSMo Cum.Supp.1983, and as a persistent offender, § 558.016.3, RSMo Cum.Supp.1983, was found guilty by a jury of forcible rape, § 566.030.1, RSMo Cum.Supp.1983, and sentenced by the trial court to 20 years' imprisonment.

Appellant maintains the trial court erred in (a) disallowing evidence of the victim's "prior sexual conduct," (b) denying appellant's motion to compel the victim to answer certain questions propounded to her on deposition, (c) failing to furnish appellant a transcript of the testimony of the victim's employer at a previous trial, and (d) accepting the verdict of guilty after the jury had earlier returned "inconsistent verdicts of guilty and not guilty."

Inasmuch as appellant does not challenge the sufficiency of the evidence to support the verdict, we summarize only such testimony as is necessary to rule the assignments of error.

The victim, age 21 at time of trial, ¹ testified that on Thursday, January 12, 1984, she was separated from her husband, and was residing with the younger of her two children, a boy 11 months of age, in an apartment in Joplin. The victim was employed as a "car hop" at a drive-in during the day, and as a waitress at a restaurant at night.

On the afternoon of January 12, appellant appeared at the drive-in and requested the victim, who was on duty, to ask another female employee where the latter's brother could be found. The employee came outside and engaged in conversation with appellant. The victim overheard appellant mention a job on a boat paying $95 per day, so the victim asked appellant if there was any other opening. Appellant responded that a cook was needed.

The victim discussed the job briefly with appellant and looked at some papers and pictures he displayed. She then arranged to meet him at Denny's restaurant after work to discuss matters further.

Later that afternoon they met as planned, and discussed "how things would go on the boat." According to the victim, she was somewhat skeptical, as jobs paying $95 per day are "something you just wouldn't hear every day."

During their conversation, appellant handed the victim a check for $400 on appellant's personal account. According to the victim, appellant explained that the check was an advance on her pay so she could pay off her bills and get additional clothing. The victim testified that she had plans for the evening, as did appellant, so they decided to meet at her apartment later that night for further discussion.

The victim recounted that she spent the evening "out riding around with some friends," and that she returned to her apartment "probably around 11:00 or so."

Appellant thereafter appeared at the victim's apartment, and they talked " '[t]il about 1:00 or 2:00 in the morning." During the conversation, appellant drank a beer or two, and the victim had "half a glass of wine."

Suddenly, according to the victim, appellant "had a knife at my throat." He asked the victim whether anyone besides her and her baby were in the apartment. The victim said no, but appellant made her go through the apartment and show him. While in a bedroom, appellant directed the victim to pick up a blanket. They returned to the living room, and appellant told the victim to put the blanket on the floor.

Then, according to the victim, appellant said, "You're a very pretty lady," and, "Well, I'd really like to f___ you." Appellant thereupon ordered the victim to remove her clothing, which she did, and appellant removed his. Appellant then had sexual intercourse with the victim.

At some point, appellant ceased intercourse and ordered the victim to turn over on her stomach, as he wanted to commit anal sodomy on her. The victim testified: "I was crying, I kept begging with him, you know, not to do it. So finally, I guess, after I pleaded with him long enough, he decided not to." Appellant did, however, resume sexual intercourse with the victim.

Afterward, appellant permitted the victim to put her clothing on, and he said he was sorry for what he had done. The victim told appellant he should take his check back because she was not going to work for him. According to the victim, appellant told her to keep the check and get her baby something.

At this point, appellant was still displaying his knife, and he said he did not know what he should do or whether he should kill the victim so she could not tell the police. The victim testified she assured appellant she would not call the police.

Appellant ultimately departed about 7:00 a.m.

The victim went to work at the drive-in at midmorning. Her employer noticed that she was upset, so he asked what the problem was. The victim initially refused to tell him, but when he inquired again after lunch, the victim "broke down" and revealed what had occurred. When the victim mentioned the check, her employer pointed out that this provided a means of identifying appellant. The employer reported the matter to the police, and the victim thereafter went to the police station.

The victim never attempted to cash the check.

Appellant, age 39 at time of trial, testified he worked as a pilot and as an engineer on towboats on "various rivers." He had been in Joplin only a few days before going to the drive-in on January 12. Appellant's version of the events at the drive-in paralleled the victim's.

Appellant testified that when he and the victim met later that afternoon at Denny's, the victim explained that she was separated from her husband and was having financial difficulties. According to appellant, he assured the victim that he would do the best he could "to get her a job on the boat."

Appellant testified that because of the victim's financial condition, he "agreed to give her the check for a date that night." Appellant quoted the victim as saying that she already had a date with a man who "had helped her financially through some hard times," and that she could not break that date. Because of that, it was agreed that the victim would meet appellant at the victim's apartment between 11:30 and 12:00.

Appellant went to the apartment as planned, and discussed the cook's job with the victim in greater detail. According to appellant, the victim agreed to take the job if appellant could arrange it.

Appellant admitted having sexual intercourse with the victim, but denied using force. According to appellant, the victim consented because of the $400 check plus his promise to get her the job. Appellant denied brandishing a knife, explaining that he did not have one.

Appellant testified that the check was "no good." He also admitted that he never had any intention of getting the victim a job.

Appellant's first assignment of error is that the trial court wrongly denied his motion to admit evidence of the victim's prior sexual conduct. Appellant insists that he had the right under § 491.015.1(3), RSMo 1978, ² to present such proof, as it constituted evidence of the "immediate surrounding circumstances of the alleged crime." Emphasizing that consent was the pivotal issue, appellant argues that he should have had an opportunity, in the presence of the jury, to question the victim about whether she had previously engaged in sexual conduct with other men in exchange for money. Appellant theorizes that if he had been allowed that opportunity, he could have established that the victim "had a prior record of having sex with men for money." This, according to appellant, would have demonstrated that the victim accepted the $400 check from appellant in exchange for sex, thus proving that she consented to the sexual act with him.

Appellant's contentions require study of certain procedural occurrences in the trial court.

Trial was originally scheduled for June 4, 1984, but was rescheduled for June 18 due to a delay in appellant's receiving discovery. Later, because of a number of motions which had to be heard before trial, the June 18 setting was cancelled, and trial was rescheduled for July 19.

On July 17, two days before trial was set to commence, defense counsel ³ took the victim's deposition. Defense counsel asked the victim whether she was familiar with a man named Jason Wheeler or a man named Leland Beezley. The victim answered, "No."

Defense counsel also asked the victim whether she had ever engaged in any kind of sexual acts for money or compensation of any kind within 30 days of the alleged rape. The victim answered, "No."

Defense counsel then asked the victim whether she had ever engaged in any sexual acts for money or any type of compensation within 60 days prior to the alleged rape. The victim answered, "No, sir."

Defense counsel thereupon asked the same question "with regard to ninety days prior." The victim responded, "I prefer not to answer."

On the same date the deposition was taken, appellant filed a written motion for continuance, alleging that he needed time to locate and subpoena Jason Wheeler and Leland Beezley, who were "employees of barges which travel up and down the river." Although the record is sketchy, it is inferable that appellant represented to the trial court that he expected Wheeler and Beezley to testify, respectively, that each had, on some unspecified occasion, engaged in sexual intercourse with the victim and had paid her for the privilege.

On July 19, 1984, the cause came on for trial as scheduled. The motion for continuance was denied and the cause was tried, resulting in a verdict of guilty. Neither Wheeler nor...