State v. Schaefer, s. 60023

• Decision Date: 22 June 1993
• Docket Number: Nos. 60023,62116,s. 60023
• Citation: 855 S.W.2d 504
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ralph SCHAEFER, Defendant-Appellant. Ralph SCHAEFER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 504

855 S.W.2d 504

STATE of Missouri, Plaintiff-Respondent, v. Ralph SCHAEFER, Defendant-Appellant.

Ralph SCHAEFER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 60023, 62116.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 22, 1993.

Brad B. Baker, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.

STEPHAN, Judge.

Ralph John Schaefer ("Schaefer") appeals from the judgment of the trial court after a jury found him guilty of forcible rape, in violation of Section 566.030 RSMo.1986, and felonious restraint, in violation of Section 565.120 RSMo.1986. The court sentenced Schaefer as a prior and persistent offender to life imprisonment for the rape, and a consecutive fifteen year term of imprisonment for felonious restraint. Schaefer also appeals the judgment of the trial court denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. The two appeals have been consolidated pursuant to Rule 29.15(1). We affirm both judgments.

Schaefer does not dispute the sufficiency of the evidence to support his conviction. Therefore, only a brief recitation of the facts is necessary. The evidence, viewed in the light most favorable to the verdict, is as follows. At approximately 6:15 a.m. on the morning of May 23, 1989, in rural Jefferson County, Schaefer accosted fifteen year old victim as she walked down her driveway to wait for the school bus. Schaefer forced victim into his car, drove a short distance to a wooded area, and raped her repeatedly. Afterwards, Schaefer drove victim back to her driveway, pushed her out of his car, and left.

Victim sat dazed in her driveway for a period of time before calling a friend who, in turn, telephoned victim's mother. Mother returned home and called the police. Victim described her assailant to the police, and indicated that she bit his left shoulder during the struggle.

An emergency room doctor examined victim later that afternoon. The doctor observed that victim appeared shaken, her eyes swollen from crying, and that she had scratch marks around her neck, sternum, and arms. A vaginal examination revealed the presence of semen and a small tear in victim's vagina.

A few days after the rape, victim assisted the police in preparing a composite drawing of her assailant. Victim then picked Schaefer out of a photo line-up as the person who raped her. Based on this photo identification, the police arrested Schaefer.

At trial, the State offered testimony of victim, the emergency room doctor, and several other witnesses. In addition, a forensic dentist testified that the bite marks on Schaefer's shoulder matched victim's dental impression, and concluded that victim caused the marks. Schaefer did not testify at trial, but did present four witnesses to support his defense of alibi and misidentification. Despite his alibi defense, a jury found Schaefer guilty as charged.

On his direct appeal, Schaefer raises the following three issues: (1) the admission of the emergency room doctor's expert opinion testimony, (2) closing argument by the State, and (3) improper jury instructions. We affirm all points.

In Schaefer's first point, he alleges the trial court erred in allowing the emergency room doctor's testimony that, in her opinion, victim was raped. He claims the doctor's testimony invaded the province of the jury because whether victim was raped was the ultimate issue for the jury to determine. However, in the present case, the ultimate issue for the jury to decide was the identity of victim's assailant, not whether she was raped. In fact, Schaefer's counsel stipulated at trial that victim was raped, but denied the allegations that Schaefer was the culprit.

It is primarily within the discretion of the trial court to determine whether a witness is qualified as an expert, State v. Mallett, 732 S.W.2d 527, 537 (Mo. banc 1987), and to admit expert testimony. State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984). In Missouri, an expert may testify to an opinion on an ultimate issue in a criminal case. Taylor, 663 S.W.2d at 239. Every opinion of an expert witness is to an "ultimate" fact in the sense that it is a conclusion based upon facts supported in evidence. Id.

At trial, the emergency room doctor testified that she examined victim on the day of the rape. The doctor administered a general body exam and an internal exam of victim's vagina. The general body examination revealed that victim was visibly shaken, her eyes swollen from crying, and she had scratches on her neck, sternum and arms. An internal examination of victim's vagina disclosed the presence of semen, as well as a tear which indicated force and penetration. Based upon the examinations, the doctor concluded that victim had been raped.

It is generally accepted that a physician may give an opinion that a rape victim's wounds were caused by forceful sexual intercourse. Taylor, 663 S.W.2d at 239. In the present case, the doctor limited her opinion to observations she made concerning victim's physical condition after conducting a thorough medical examination of her. From this examination, and drawing on her background, experience, and training, the doctor gave her opinion as a medical expert that victim had been raped. At no time during her testimony did the doctor state or imply that her findings led her to believe that Schaefer was the person who committed the rape. Therefore, the doctor's opinion testimony did not invade the province of the jury which made the ultimate determination that it was Schaefer who had raped victim. Point denied.

In Schaefer's second point, he contends that the trial court abused its discretion in declining to declare a mistrial after his objection to the prosecutor's rebuttal closing argument was overruled. Schaefer alleges that statements made by the prosecutor improperly commented on his future dangerousness, thereby prejudicing him by inflaming the passions of the jury. Specifically, Schaefer objects to:

PROSECUTOR: Now what can you do to safeguard her rights? And the rights of other fifteen year old children who are raped and abused by the likes of him.

DEFENSE COUNSEL: Your Honor, I am going to object to this argument, the question is whether he did this one particular case, which he did not, not the safety of the community.

THE COURT: Be sustained.

PROSECUTOR: I am sorry, Your Honor, I didn't understand the objection. I can't make a general appeal to law enforcement.

THE COURT: Go ahead.

PROSECUTOR: You want to send a message to people like him, telling him not to rape children.

DEFENSE COUNSEL: Your Honor, I am going to object again, ... and I move for a mistrial.

THE COURT: Be overruled.

(Emphasis added)

A prosecuting attorney during closing argument is generally permitted considerable latitude in arguing the necessity of law enforcement and the responsibility thereby imposed on juries. State v. Pruitt, 479 S.W.2d 785, 790 (Mo. banc 1972). However, it is not proper for a prosecutor to speculate as to the future possible acts or conduct of the defendant. State v. Heinrich, 492 S.W.2d 109, 114 (Mo.App.1973). In other words, a defendant has the right to be tried only for what he has or has not done, and not for what he might do in the future. State v. Raspberry, 452 S.W.2d 169, 172 (Mo.1970). These rules were designed to preclude argument that "goes beyond bounds so as to excite and inflame passion or prejudice" toward the defendant. State v. Kalter, 828 S.W.2d 690, 692 (Mo.App.1992).

Nevertheless, it is permissible for a prosecutor to argue the necessity for law enforcement, the duty of the jury to convict the defendant and prevent crime, and the results to society of a failure to uphold the law. State v. Willis, 764 S.W.2d 678, 680 (Mo.App.1988). In the present case the prosecutor's rhetorical question was not improper because it constituted a plea to the jury to uphold the law and convict those responsible for raping children in their community. In addition, the prosecutor's argument did not comment on future dangerousness of Schaefer by reference to protecting the rights of other children who are raped by the "likes of him." The prosecutor referred to rapists plurally, which did not unfairly personalize Schaefer in the eyes of the jury. Arguments which include references to "the likes of him" have frequently withstood challenge in our courts. State v. Wade, 535 S.W.2d 492, 498 (Mo.App.1976).

Schaefer also argues that during his closing argument the prosecutor injected fear or personal hostility in the minds of the jurors' toward him, which limited their impartiality, and deprived him of his right to a fair trial and due process of law. In support of this proposition, Schaefer relies on State v. Groves, 295 S.W.2d 169 (Mo.1956).

In Groves, the prosecutor argued in an...