State v. Ross, s. WD

• Decision Date: 18 May 1993
• Docket Number: Nos. WD,s. WD
• Citation: 857 S.W.2d 375
• Parties: STATE of Missouri, Respondent, v. Leroy L. ROSS, Appellant. Leroy L. ROSS, Appellant, v. STATE of Missouri, Respondent. 44889, WD 46176.
• Court: Missouri Court of Appeals

Page 375

857 S.W.2d 375

STATE of Missouri, Respondent, v. Leroy L. ROSS, Appellant.

Leroy L. ROSS, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 44889, WD 46176.

Missouri Court of Appeals,

Western District.

May 18, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 29, 1993.

Application to Transfer Denied Aug. 17, 1993.

Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before BERREY, P.J., and SPINDEN and HANNA, JJ.

BERREY, Presiding Judge.

Appellant appeals the jury verdict wherein he was convicted of kidnapping and sentenced to 15 years as a prior offender, said sentence to run consecutively to previously imposed sentences from Cass County. Appellant also appeals the motion court's denial of post-conviction relief, following an evidentiary hearing.

Briefly, the facts viewed in the light most favorable to the verdict are as follows. The victim, K.J., left work at Applebee's Restaurant in Gladstone, Missouri between 10 and 10:30 p.m. She went to Papa Nicks, a restaurant in Antioch where a friend of hers was a waitress. When her friend got off work at about 1:00 a.m., she and K.J. went to Donovan's Restaurant Bar & Grill. From there, they went to Perkins Restaurant on North Oak Street in Kansas City. As they were leaving Perkins, sometime around 3:00 a.m., they noticed four men in a blue car in the parking lot, shouting and hooting at them.

The women got into their respective cars and drove home. K.J. drove her Mazda truck home and parked in her driveway. She had gathered up her personal effects and exited the truck, when she noticed a car had pulled in behind her. Upon further investigation she discovered it to be the blue car she had seen in the Perkins lot. She was then grabbed from behind by a man wearing gloves. He held his hand over her mouth and dragged her to the blue car. He forced her into the back seat of the car between two men. A third man was in the front passenger seat. The man who grabbed K.J. then got into the driver's seat and drove them away from K.J.'s home.

At various times thereafter K.J. was handcuffed and sexually assaulted. The occupants of the car told her they had a gun and she saw it on the front seat between the two men. She also saw a hammer on the floorboard of the rear seat. The occupants of the blue ford were James Lutes, Andy Harper, Kenny Thornburg and appellant, Leroy Ross. K.J. identified Thornburg as the person who grabbed her and forced her into the car.

K.J. was forced to undress completely and her shirt and bra were thrown out of the car. For the next 15 hours she was forced to endure repeated sexual attacks and to commit numerous acts of oral sex on at least three of the men. She was later taken to a barn loft by Thornburg, Lutes and Harper and handcuffed to Harper. When Thornburg and Lutes left the area, Harper fell asleep and K.J. slipped the handcuffs off and escaped. During the course of the incident, her legs were scratched and she suffered numerous insect bites. She walked to a nearby farm house and called the police.

During the police investigation, parties were located near K.J.'s home who had heard screams on the night of her kidnapping.

On appeal, appellant alleges three points of trial court error and two points of motion court error. According to appellant, the trial court erred in (1) failing to sustain appellant's motion to dismiss at the close of the state's case because the state failed to prove K.J.'s kidnapping was for the purpose of terrorizing her; (2) admitting Exhibit 39, a photograph of K.J.'s legs, because it was not an accurate depiction of her injuries; and (3) allowing testimony regarding neighbors who heard a scream because that denied appellant his right of confrontation and cross-examination of witnesses and was inadmissible hearsay. Appellant alleges the motion court erred in denying appellant's Rule 29.15 motion because (1) the record reflects appellant would be charged with perjury if he testified as anticipated; and (2) his trial counsel provided ineffective assistance by failing to object to the closing argument of the state.

In point I, appellant contends that the state's evidence demonstrates that K.J. was kidnapped for the purpose of rape and sodomy rather than terrorizing as required by the statute under which appellant was tried, § 565.110.1(5), RSMo 1986. Appellant argues that rape and sodomy do not equate to "terrorizing." Terrorizing is defined as, "To impress with terror; To coerce by intimidation." Webster's Collegiate Dictionary (Fifth Edition). It is nonsensical to claim that a young lady, abducted from her driveway at 3:30 a.m. by four strange men and forcibly put into their car, was not terrorized. From the evidence presented, the jury could find that she was threatened with her very life, raped and sodomized over the next 15 hours and that this could only add to the terror she experienced.

An appellate court, in reviewing a criminal conviction, must accept as true all direct or circumstantial evidence that tends to prove a defendant's guilt. It must accept the reasonable inferences that support the verdict. State v. Williams, 652 S.W.2d 102, 111 (Mo. banc 1983). The court must likewise disregard all parts of the record contrary to the verdict. State v. Brooks, 618 S.W.2d 22, 23 (Mo. banc 1981).

Appellant's point I is denied.

Appellant next complains that the trial court erred in commenting on state's Exhibit 39, a photograph of the victim's legs. In order to put appellant's point of error in proper perspective, the testimony regarding Exhibit 39 is set forth below:

Q. Can you identify Exhibits 39?

A. Yes, those are my legs and the scratches, bites on them.

Q. Does that photograph fairly and accurately depict how your legs looked after this incident?

A. Yes. My legs had more chigger bites and they were covered with large whelps you can't see very well in the photograph.

Q. But these photographs are of your actual legs?

A. Yes.

Q. Taken real shortly after this incident?

A. Yes.

Q. And though they don't show it as bad as it really was, that's an actual photograph that fairly shows your legs?

A. Right.

The challenged remark by the trial judge regarding the scratches and bites on K.J.'s legs was made in response to an objection by appellant's attorney. The jury had already heard K.J. state that the photographs did not show how severely her legs were scratched and bitten. The trial judge indicated that the jury should keep this testimony in mind when viewing Exhibit 39. This comment did not settle this victim's credibility. In fact, the severity of the bites was not in dispute and the trial judge's comment demonstrated no bias against appellant.

To ensure a fair trial, the trial judge must maintain absolute impartiality. State v. Mitchell, 693 S.W.2d 155, 160 (Mo.App.1985). The trial judge must refrain from utterances which suggest or express an opinion as to an issue or which might prejudice the jury against the defendant. State v. Engleman, 634 S.W.2d 466, 473-474 (Mo.1982). "Factors used to determine the propriety of a comment include whether it was volunteered by the trial judge, was not made in response to an objection as part of the court's ruling, was made in the presence of the jury, could have been construed by the jury to the prejudice of the defendant, or indicated to the jury that it was not to reach its own determination of the facts." Mitchell, 693 S.W.2d at 160; State v. Lomack, 570 S.W.2d 711, 713 (Mo.App.1978).

In the instant case, the court's statement was made as part of its ruling on an objection. The statement was short and neutral. It would have been better practice for the prosecuting attorney to correct any misconception by further questioning. The comment by the trial court does not rise to the level of prejudicing appellant. It is not manifestly unjust. The remark was correctly related to what had been answered and, under the circumstances, no prejudice resulted. State v. Phelps, 478 S.W.2d 304, 310 (Mo.1972).

Appellant's point II is denied.

In point III, appellant alleges that the trial court erred by permitting testimony from the investigating officer that three of K.J.'s neighbors heard screams on the night she was kidnapped. According to appellant, such testimony denied him the right of confrontation and cross-examination of witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Sections 10 and 18(a) of the Missouri Constitution and further that such evidence was inadmissible hearsay.

Officer Morris testified that during the course of his investigation three neighbors told him that they heard screams on the night K.J. was abducted. The state offered Morris's testimony to explain his conduct in the investigation, not to prove the truth of the facts asserted. "It is well established that testimony offered to explain conduct, rather than to prove the truth of the facts testified to is not inadmissible hearsay." State v. Pettit, 719 S.W.2d 474, 476 (Mo.App.1986). "When testimony is admissible under any recognized exception to the hearsay rule, then 'neither the objection that it is hearsay nor the objection that the accused is denied the right to confrontation and cross-examination is valid.' " State v. White, 809 S.W.2d 731, 734 (Mo.App.1991) (quoting State v. Pieron, 755 S.W.2d 303, 307 (Mo.App.1988)).

In State v. Tate, 817 S.W.2d 578, 580 (Mo.App.1991), the court held it was not inadmissible hearsay for a paramedic to describe a spontaneous reaction of a victim. In Tate, the victim, who was "... not fully conscious and in great physical distress" uttered, "Don't kill me." The court ruled the evidence was properly admitted. Id. The state did not rely on the testimony of Officer Morris to prove the identification of appellant. There was ample evidence...