State v. Salkil, WD

• Decision Date: 04 October 1983
• Docket Number: No. WD,WD
• Citation: 659 S.W.2d 330
• Parties: STATE of Missouri, Respondent, v. Steven Ray SALKIL, Appellant. 33882.
• Court: Missouri Court of Appeals

Page 330

659 S.W.2d 330

STATE of Missouri, Respondent, v. Steven Ray SALKIL, Appellant.

No. WD 33882.

Missouri Court of Appeals Western District.

Oct. 4, 1983.

David F. Williams, Springfield, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P.J., and SHANGLER and MANFORD, JJ.

SHANGLER, Judge.

The defendant Salkil was convicted of the felonious restraint [§ 565.120] and rape [§ 566.030] of AS, a young woman of seventeen years and was sentenced to consecutive terms of two and five years imprisonment. AS left home with her girl friend, Lori, after an argument with her husband. They traveled from Sedalia to Springfield, spent the night, and then decided to return home to Sedalia after AS reconciled with her husband by telephone. They decided to hitchhike the journey and commenced the highway vigil at about 11:00 p.m. in the rain. After some twenty minutes, the defendant Salkil came by in a Toyota pickup truck and gave them a ride. They informed him they were bound for Sedalia. The three were so placed that Salkil was behind the wheel, AS was straddled in the middle and Lori occupied the other seat.

They proceeded toward Sedalia. Salkil asked if they wanted a beer, and AS accepted one. It became evident by the erratic movement of the vehicle onto the other side of the highway that Salkil was already influenced by drink. Lori asked Salkil to teach her to drive the vehicle, so he brought the truck to a stop, he moved over, and Lori took the wheel. Salkil then began to make advances to AS. He fondled her leg and after she spurned that, he attempted to run his hand under her blouse. She said "no," and to his question: "Why not?" to discourage further advances, she dissimulated that she was without sexual experience. He ordered Lori to stop the truck, and, angrily, took over the operation once again and refused to speak to them.

As they neared Sedalia, AS asked Salkil to allow them a bathroom facility, but he refused. As they drove through Sedalia, AS directed Salkil to where she lived, asked him to let them out, but he refused. He drove through the city and would not listen to their repeated entreaties to stop and be let out. He told them to "shut up." He sped up the truck in response to the threat by AS to jump out. They begged him to let them out, but his response was: "I brought you all the way up here and I'm going to get something for it."

The girls were upset; Lori was hysterical. He told her to shut up and ordered both to remove their clothing. They hesitated and refused, and he repeated the direction, and sped up. They complied except for the undergarments. He ordered them to: "Take all of it off." Salkil drove onto a gravel road where there was a house nearby with lights on. By the time the vehicle stopped, however, the lights at the house were out. Salkil then ordered Lori to get down on the floor and AS was directed to lie across the seat. AS told Salkil she needed to void and he allowed her to leave, but to come right back. She went around the pickup, squatted, and she assessed the chance to escape to the house, but she was frightened of the consequences if caught. Salkil came out of the truck and ordered her back in; she refused and he got her by the arm and compelled her. He ordered her to lie across the seat, and she complied. His genital organ penetrated hers. AS testified that the act was painful and that it was accomplished without her consent. Salkil then ordered the women to change places. Two more times AS asked to leave the truck on the pretense of the need of a bathroom. The first time, she assessed once again the chance to run to the house before he could capture her, but returned to the truck. The next time, five minutes later, she decided she "couldn't take it any more," and ran off to the house. She pounded on the front door and shouted to be let in. It was then 4 a.m. The residents testified they heard a woman scream for help, opened the door and found AS there, nude. They clothed her and notified the Sheriff. AS was taken to a hospital for examination. The witnesses testified that when they saw AS at the door she was shaking, in a depressed mood, and had been crying.

The physician who examined AS testified she had visible injuries to her neck and marks on her back. He found no external trauma to the cervix and concluded there could have been entry and intercourse without ejaculation. Forensic serologist Grant testified he could not tell whether or not intercourse had occurred.

Lori gave no evidence.

The defendant Salkil testified that he had consumed two beers that evening, and was simply "riding around" after a stint of trick or treat with his four children that Halloween night. He picked up the two girls about midnight; they told him they were bound for Sedalia and he told them he would take them. He testified that the girls offered to pay him for the trip, and when he declined, they offered their sexual favors and disrobed. He refused that as well. He turned onto the country road outside Sedalia to allow AS to relieve herself, and when she did not return after a while, he started back to Springfield as requested by Lori. He explained that AS told him she was in the throes of a domestic problem, and her offer of sexual favor was the means to retaliate against her husband.

The defendant contends, first, that there was no evidence of rape or of the forcible compulsion component. He argues that the testimony of the prosecutrix AS was so contradictory and incredible as to require corroboration. He argues that her evidence is so fraught with discrepancy as to vitiate its value as substantial proof. We do not agree that the narrative of a rape of first the prosecutrix, and then her 5' 9"' companion Lori, within the cramped confines of a Toyota pickup with bucket seats, was contrary to physical possibility. The physical injury to the person of AS, rather, confirms her testimony of a rape in cramped space. The defendant sees other "implausible facts": (1) that throughout the entire trip to Sedalia, the vehicle neither stopped, slowed, etc. to allow AS to escape if that was her design; (2) that her trial testimony--that Lori took over as driver a distance from Sedalia--conflicted with her preliminary hearing testimony that the event took place near Sedalia [with the effect, presumably, to show that AS could have escaped earlier had she made the attempt; (3) that her testimony that the lights were on at the house [to which she escaped] at 3:00 a.m. contradicted the residents who testified they went to bed at 9:00 that night; (4) that the physician could find no trauma to the vagina nor any secretions to corroborate rape or sexual intercourse; (5) that the forensic serologist found no evidence of rape or even consensual intercourse.

There was nothing inherently implausible about the practice of restraint by AS to make escape until the time when success was more nearly assured than merely an attempt from a vehicle in movement. Nor does the misrecollection that Lori took over as driver near Sedalia rather than near Warsaw bear upon any material facet of the proof. As for the house lights, the residents testified that they could have been on during that early morning,...