State v. Russell
| Decision Date | 27 April 1979 |
| Docket Number | No. 11010,11010 |
| Citation | 581 S.W.2d 61 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. James Richard RUSSELL, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Daniel T. Moore, Poplar Bluff, for defendant-appellant.
Defendant was charged, by information filed on March 7, 1977, in Butler County, Missouri, with one count of forcible rape and one count of sodomy. Subsequently, the information was amended to charge defendant with those offenses under the Second Offender Act, § 556.280 RSMo 1969, V.A.M.S. The court, after hearing, found the defendant to be a second offender, since he had a prior felony conviction. The case was tried before a jury in Butler County on February 21, 1978, and the jury returned a verdict of guilty on both counts. Defendant timely filed a motion for new trial, which was overruled by the trial court. The trial court then entered its judgment and sentenced defendant to 20 years for rape on Count I, and 15 years for sodomy on Count II, with the sentences to run concurrently.
Defendant then appealed. His sole point, preserved for review, is that the state's evidence was not sufficient to sustain a conviction for the reason that the evidence presented by the prosecuting witness, Sally Ann Harris, was not convincing, was contradictory in nature, was unbelievable, was in conflict with the testimony of other witnesses, and was contrary to common experience, and that, therefore, her testimony, by reason of law, needed to be corroborated. Defendant further contends that since the testimony of prosecutrix was not corroborated, the evidence was insufficient to sustain his conviction on either count.
At the trial, defendant offered evidence in his own behalf, after the court had overruled his motions for judgment of acquittal on both counts, which he had filed at the close of the state's case. He did not file motions for judgment of acquittal at the close of all of the evidence and, therefore, has waived the objection that he raises on appeal as to the insufficiency of the evidence. Myers v. United States, 337 F.2d 22, 23 (8th Cir. 1964); State v. Brown, 554 S.W.2d 574, 580 (Mo.App.1977). However, we exercise our right to review defendant's contentions under the plain error doctrine, rule 27.20(c), V.A.M.R., as it would have been plain error to submit the case to the jury if the evidence was not sufficient to sustain the convictions. State v. White, 439 S.W.2d 752, 753 (Mo.1969). A review of the evidence is therefore necessary.
Sally Ann Harris, the prosecutrix, hereinafter referred to as Sally, testified that she was 18 years old at the time of the alleged crimes. She was a college student at Three Rivers Junior College, and was studying to be a dental assistant. On the evening of January 29, 1977, she and a girlfriend, Paula Allen, went to the Sunset House, a cocktail lounge in Poplar Bluff. They arrived a little after 9 p. m. Defendant was also at the Sunset House. Sally had not known him prior to that time. He asked both girls to dance, and both girls danced with him. Sally drank two or three beers while there, one of which was purchased by defendant. The girls left the Sunset House, and went to the Tijuana Lounge, where they saw the defendant again. Sally had not asked him to meet them at the Tijuana, but Paula may have done so. The Tijuana was closing when the girls walked in, the time being about 1 a. m., on January 30th. Defendant asked the girls if they wanted to go to the Eagles Club, and they said yes. Sally, Paula and defendant then proceeded to the Eagles Club.
The club is a two room structure. One room contains the bar and the other, referred to as the back room, contains a bandstand, tables and a dance floor. The two rooms are connected by a door. The girls and defendant went to a table in the back room. There were 20 to 25 people in the back room at that time who were drinking and listening to the band. Sally drank a bourbon and coke. The band played for a few minutes, and then quit for the evening. Sally, Paula, defendant and another man were sitting at a table. Defendant suggested sexual intercourse to Sally and she said no. Paula, the other man at the table and all of the other people, except for Sally and defendant, left the room. Sally then got up to leave. Defendant was still talking to her about sex. He then grabbed her by the arms, pushed her to the floor, got on top of her and said, "If you move I'll kill you". Her glasses fell off when she hit the floor.
Defendant dragged Sally by the hair and arms to the storeroom, a small room adjacent to the back room which they were in. Defendant had one hand on her throat. She was pushing, kicking and trying to get away. Defendant pushed her to her knees and forced her mouth over his penis. He then made her lie down on the floor and forced her to take her pantyhose and panties off. At this time, he was also choking her. She tried to yell but could not because of the choking. Defendant then raped her by penetrating her private parts with his penis by the use of force. At this time, she was in fear for her life, because of his threats to kill her if she did not submit. During the rape, he continued his threats to kill her, and struck her on the back of the head and in the back. She continued to kick him and to struggle, but to no avail. When defendant was finished, he told her to stay where she was or he would kill her. Defendant then left the room. When Sally was thrown on her back in the storeroom, she felt her back become wet and she smelled beer. She did not know whether or not the defendant ejaculated during the intercourse.
When defendant left the room, Sally put on her underthings, went to the front room and asked the bartender to let her out of the club, since the door was locked. She did not say anything else to the bartender. The next thing she remembered she was at the police station. She was taken to the hospital where she was given a pelvic examination by a doctor, and then taken back to the police station where she gave a tape recorded statement. On cross-examination, she testified that she had not been in Vic's Lounge that evening, that she did not know how long she had been in the Eagles Club that evening before the assault, that she yelled and screamed when defendant was trying to drag her back to the storeroom and that defendant continued to threaten her and choke her during most of the time of the assault. She remembered telling the police that she had been raped when she got to the police station, but did not tell them about the sodomy until a later time. She had not had sexual intercourse with anyone for two days prior to the day in question. She was never beaten on the face but was hit on the head by defendant. Nothing that prosecutrix testified to on cross-examination contradicted, in any way, her direct testimony on any significant issue.
Other relevant evidence received, as part of the state's case in chief, was as follows. George Prince testified that he was a Poplar Bluff police officer, and that he saw Sally Harris at about 3 a. m. on January 30, 1977, sitting on a bench at City Hall. Loyd DeCourley and a female companion were with her. Sally's clothes were "mussed", she was tearful, incoherent and hysterical. She kept saying, "Why me?" It took Officer Prince at least 15 minutes to calm Sally down before she was taken to the hospital. When the officer received her clothes from the hospital emergency room, the clothes were damp and had a strong odor of beer on them.
After they returned from the hospital, Officer Prince interviewed Sally. Because of her emotional state, he could not obtain a written statement. Her eyes were red and bloodshot, she was crying, she was very nervous and hysterical, and, at times, she was incoherent. She was unsteady on her feet. She identified a Jim Russell, which is the name of the defendant, as the person who had raped her. Her hair was mussed up, and he did not believe Sally to be intoxicated.
Thomas Pruett testified that he was a Poplar Bluff police officer. He saw Sally about 3 a. m. on January 30, 1977. She was in the hallway at the police station. She was hysterical, hard to understand, and her clothing was disarrayed. Her skirt was wrinkled and a button was undone on her blouse. She kept repeating, "Why, why" or "Why me?". The back of her clothing was wet and her hair was "mussed up". Sally had three red marks on the right side of her neck. In his opinion, Sally was not intoxicated.
Dr. Briner, the chief chemist at the Regional Crime Laboratory in Cape Girardeau, testified that, by means of laboratory examination, a high concentration of acid phosphatase and coline, two components of male seminal fluid, was found in the crotch area of Sally's panties. The examination was made about 8 a. m. on January 31, 1977. Dr. Briner also testified that the chemical elements found indicated that intercourse had, or may have taken place, but that ejaculation certainly had taken place. He did not find any male sperm in his examination of Sally's clothing, but said that the absence of sperm was not an unusual finding in such cases. The testimony referred to above constituted the relevant evidence in the state's case in chief.
The substance of defendant's evidence was as follows. Dr. Turner, a physician, saw Sally at the hospital at 3:21 a. m. on January 30, 1977. She stated to him that she had been raped. He examined her and found no evidence of bruises on her body or face. She did not tell him that she had been a victim of sodomy. He said it was possible to get red marks on your throat, if someone gripped it, without getting bruises as a result.
Dr. Richard Ramirez, a pathologist at the hospital, made a sperm test from a sample taken from the vagina of Sally, and did not find any sperm. He did not test...
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