State v. R-- D-- G--

• Decision Date: 16 July 1987
• Docket Number: No. 14740,14740
• Citation: State v. R-- D-- G--, 733 S.W.2d 824 (Mo. App. 1987)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. R__ D__ G__, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 824

733 S.W.2d 824

STATE of Missouri, Plaintiff-Respondent, v. R__ D__ G__, Defendant-Appellant.

No. 14740.

Missouri Court of Appeals,

Southern District,

Division Two.

July 16, 1987.

Janet M. Thompson, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Kurt A. Hentz, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

By nine-count information filed in the Circuit Court of McDonald County and thereafter amended, defendant R__ D__ G__ was charged with four counts of rape in violation of § 566.030, RSMo Supp.1984, four counts of incest in violation of § 568.020, RSMo Supp.1984, and one count of sodomy in violation of § 566.060, RSMo Supp.1984. After a change of judge and a change of venue to Newton County, a jury trial was waived and the cause was tried to the court. Upon trial, the State dismissed the four counts charging incest. The court found defendant guilty of four counts of rape and sentenced him to serve five years for each offense, the sentences to run concurrently. The court also found defendant guilty of one count of sodomy. His punishment upon the charge of sodomy was assessed at imprisonment for a term of five years, the sentence to run consecutively to the concurrent sentences for rape. Defendant now appeals. We affirm.

Rule 27.01(b) provides that in a court-tried criminal case, the findings of the court shall have the force and effect of the verdict of a jury. Therefore, the scope of appellate review is the same as if a jury had returned a verdict of guilty. State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982). Consequently, in determining the sufficiency of the evidence, this court must accept as true all evidence tending to prove the defendant's guilt, together with all favorable inferences reasonably to be drawn therefrom, and disregard all evidence and inferences to the contrary. State v. Giffin, 640 S.W.2d at 130. So taken and considered, the evidence was that the prosecutrix (to whom we shall refer as E__) lived with her mother and the defendant near Anderson, Missouri. E__ was 17 years of age at trial time. The defendant was 25 years of age and was employed as a heavy equipment operator.

During the first few days in April 1985, E__'s mother was hospitalized at Gravette, Arkansas. E__ testified that on the evening of April 2, 1985, the defendant seized her and forced her into his bedroom against her will. The defendant removed E__'s night clothes, "started fondling [her] breasts and kissing [her]" and finally inserted his penis into her vagina. E__ tried to pull away and told the defendant to leave her alone, but the defendant "had a grip" on E__ and refused to release her. When she was asked if she screamed, E__ testified she did not do so because "[i]t wouldn't have done any good."

The next day E__ and other members of her family visited E__'s mother at the hospital. The group returned home after 10 p.m. After E__ had put on her night clothes, she was again forced into the defendant's bedroom. The defendant again removed E__'s clothing, put her on his bed and started kissing her. E__ tried to pull away and told the defendant to stop, but he ignored her protests and again had sexual intercourse with her.

On May 8, 1985, after she had come home from school, E__ drove a pickup truck to a field to practice driving. Defendant went along as a passenger. The defendant told E__ to stop the truck. When she did so, the defendant forced her to lie down on the seat, unhooked her brassiere, fondled her breasts and had sexual intercourse with her. The defendant then pulled the prosecutrix out of the truck, laid her over the seat with her feet on the ground and inserted his penis into E__'s anus. E__ attempted to stop the defendant but was unable to do so.

On the morning of August 10, 1985, E__'s mother went to the bank. While E__ was cleaning up after breakfast, the defendant again seized her by the arm and forced her into his bedroom. He removed E__'s bathrobe, nightgown and underwear, laid her on a bed and had sexual intercourse with her. The prosecutrix again tried to stop the defendant, but was unsuccessful.

After the State had presented its case-in-chief, counts 5, 6, 7 and 8 of the information, charging four acts of incest, were dismissed. Defendant then presented evidence.

The defendant had the evidence of Sharon Wiley, who had been employed by the Division of Family Services in August 1985. Ms. Wiley interviewed E__ on August 14, 1985. E__ stated to Ms. Wiley that she, E__, had been raped by the defendant on April 2, 1985, and on the following evening. E__ also told Ms. Wiley about the rape and sodomy incident. Ms. Wiley testified from notes, and there was some inconsistency between E__'s trial testimony and the particulars of the events related to Ms. Wiley, as Ms. Wiley recalled the interview. For example, E__ had told Ms. Wiley that the sodomy occurred before the rape on May 8.

Both the defendant and his wife (E__'s mother) testified. The defendant adamantly denied he had ever sexually assaulted E__. E__'s mother testified that her daughter never made any complaint of sexual abuse by the defendant. E__'s mother also denied that she had ever communicated with Ms. Wiley or the McDonald County Sheriff's office concerning her daughter's complaints of sexual abuse.

The State called a McDonald County deputy sheriff and Ms. Wiley as witnesses in rebuttal. Deputy Sheriff West testified that on August 14, 1985, E__'s mother had related E__'s complaints about the defendant's sexual abuse to him. Ms. Wiley testified in rebuttal that in August 1985, E__'s mother had told her that E__ had complained because the defendant kissed her and fondled her, and had discussed another attempted sexual assault upon E__ by the defendant. Such is the substance of the evidence received.

As a preliminary matter, we must address the State's assertion (in its jurisdictional statement) that in sentencing the defendant the trial court misinterpreted § 558.026.1, RSMo Supp.1984. The State contends that a proper construction of § 558.026.1 mandatorily required the trial court to impose consecutive sentences for the several rapes. The State's argument is without merit. The several rapes were not committed "during or at the same time" and the trial court was not required to impose consecutive sentences. State v. W.-- F.W.--, 721 S.W.2d 145, 153-54 (Mo.App.1986).

Defendant's first assignment of error is that there was no substantial evidence to support a finding of the "forcible compulsion" required by § 566.030.1 ¹ and § 566.060.1, RSMo Supp.1984. ² "Forcible compulsion" was defined by § 556.061(12), RSMo Supp.1984, as "[p]hysical force that overcomes reasonable resistance." The defendant relies on the decision of this court in State v. Phillips, 585 S.W.2d 517 (Mo.App.1979), but that case is factually quite different from the case at hand and is not controlling here. It may be said that the law does not require or expect the utmost resistance to sexual assault when it appears that such resistance would be futile or would provoke more serious injury. State v. Hannett, 713 S.W.2d 267, 271 (Mo.App.1986); State v. Dighera, 617 S.W.2d 524, 532 (Mo.App.1981). We must bear in mind that the victim was a schoolgirl, 17 years of age; the defendant was a male 25 years old. The defendant's behavior was such, if E__'s testimony is accepted, that E__ could reasonably have expected him to use such force as was necessary, even though the defendant did not strike his stepdaughter nor threaten her overtly.

E__ testified to some resistance on each occasion she was assaulted. Referring to the rape of April 2, E__ testified that she tried to pull away and told the defendant to leave her alone, but the defendant "had a grip on" her and would not release her. The following evening E__ also attempted to pull away and told the defendant to stop. On both occasions, the defendant had grabbed E__ by the arm and had forced her into his bedroom.

When the defendant raped and sodomized E__ on May 8, 1985, she unsuccessfully tried to stop him. She testified that on that occasion, the defendant was "holding her arms tight" most of the time. On August 10, 1985, the defendant again seized E__ by the arm and forced her into his bedroom. She again tried to stop the defendant but was unable to do so. Considered as a whole, E__'s testimony provides evidence that: 1) the defendant used physical force in carrying out his assaults on her; 2) that E__ tried to resist, and 3) that she was unsuccessful. There was a sufficient showing of resistance, in the circumstances, to establish forcible compulsion by the defendant.

Defendant also assigns error to the admission of rebuttal testimony received for the purpose of impeaching J__, who is E__'s mother and the defendant's wife. J__ testified as a witness for the defendant. On cross-examination, J__ testified as follows:

"Q. It's also a fact that [E__] approached you and started telling you about him (defendant) kissing and hugging around on her, and started to tell you something else and you got interrupted, isn't that a fact?

A. No.

Q. It's a fact that you told Sharon Wiley that, isn't it?

A. No, I didn't.

Q. Never made that statement to her?

A. No.

* * *

* * *

Q. You don't recall in making that statement to her?

A. No, I don't." (Our emphasis.)

The State called Sharon Wiley as a rebuttal witness, advising the court that it proposed to show a prior inconsistent statement made by J__ to Sharon Wiley, solely for the purpose of impeachment. Ms. Wiley was asked if J__ had related E__'s complaints "as to kissing and fondling" by the defendant. Ms. Wiley responded that "such a conversation" took place. The defendant now asserts that the trial court admitted hearsay.

It is elementary that prior inconsistent statements of a witness, whether made in or out of court, are admissible for impeachment as affecting the witness' credibility. State v. Atkins, 494...