State v. Spencer

• Decision Date: 29 May 2001
• Citation: 50 S.W.3d 869
• Parties: (Mo.App. S.D. 2001) State of Missouri, Respondent, v. Frederick Spencer, Appellant ED77098 0
• Court: Missouri Court of Appeals

50 S.W.3d 869 (Mo.App. S.D. 2001)

State of Missouri, Respondent, v. Frederick Spencer, Appellant

ED77098

Missouri Court of Appeals Eastern District

05/29/2001

Appeal From: Circuit Court of City of St. Louis, Hon. John J. Riley

Counsel for Appellant: Raymund J. Capelovitch

Counsel for Respondent: Linda Lemke

Opinion Summary: Frederick Spencer ("defendant") was charged by indictment with one count of forcible sodomy under section 566.060 RSMo 1994 and two counts of forcible sodomy under section 566.060 RSMo (Supp. 1993), one count of forcible rape under section 566.030 RSMo 1994 and two counts of forcible rape under section 566.030, one count of sexual abuse in the first degree under section 566.100, and one count of attempted forcible rape under 566.030. The jury found defendant guilty of three counts of forcible sodomy and three counts of forcible rape. Defendant was acquitted of sexual abuse in the first degree and of attempted rape. The court sentenced defendant to a total of fifteen years of imprisonment. Defendant appeals from the judgment on his convictions.

Division Two Holds: We find sufficient evidence, under the totality of the circumstances, that defendant's actions, against both victims, constituted "forcible compulsion" to sustain convictions for forcible rape and forcible sodomy. We also find that the trial court did not abuse its discretion in (1) overruling a request for a mistrial for the prosecutor's brief and inadvertent reference to defendant's right to remain silent during voir dire when coupled with a curative instruction; (2) allowing the state to ask defense character witnesses if they knew of defendant's prior arrest; (3) allowing the state to ask defense character witnesses if they knew of defendant's prior conviction when defendant contends the conviction was not his and the state failed to disclose defendant's conviction prior to trial; and (4) denying defendant's motion to sever the charges at trial pertaining to the three complaining witnesses.

Crandall Jr. and J. Dowd, JJ., concur.

Clifford H. Ahrens, Presiding Judge

Frederick Spencer ("defendant") was charged by indictment with one count of forcible sodomy under section 566.060 RSMo 1994 and two counts of forcible sodomy under section 566.060 RSMo (Supp. 1993)¹, one count of forcible rape under section 566.030 RSMo 1994 and two counts of forcible rape under section 566.030, one count of sexual abuse in the first degree under section 566.100, and one count of attempted forcible rape under 566.030. The jury found defendant guilty of three counts of forcible sodomy and three counts of forcible rape. Defendant was acquitted of sexual abuse in the first degree and of attempted rape. The court sentenced defendant to a total of fifteen years of imprisonment.² Defendant appeals from the judgment on his convictions.

Defendant challenges the sufficiency of the evidence. Viewed in a light most favorable to the verdict, the evidence adduced at trial established the following facts. M.M. suffers from the disease of schizophrenia. She has auditory hallucinations and first sought treatment when she was eighteen and has been hospitalized for it throughout her life. John Carthen was M.M.'s caseworker. M.M. claimed Carthen sexually abused her. M.M. told several people but was not believed. Carthen directed M.M. to see defendant for psychological treatment. During the weekly sessions from early 1994 through the end of 1994, defendant would sodomize and rape M.M.

M.M. testified that defendant "would unbutton his pants and put my face against him" and "[h]e would put my head to his penis, told me to start." M.M. would react by "gagging and pulling back." At that point, defendant would become very angry and "push" M.M.'s face back against his penis and she would continue to gag. Defendant then yelled at her and told her to turn around and take off her pants. Defendant then raped M.M. M.M. told defendant she did not want to engage in any sexual activities but defendant ignored her.

M.M. testified that she continued seeing defendant throughout 1994 because she was forced to by Carthen. M.M. stated that if she did not see defendant for treatment, she would be kicked out of the hospital where she was residing and be referred to a shelter. Also, M.M. testified that as a condition of her probation she had to see defendant for treatment. In addition, defendant told M.M. that if she spoke to anyone about what was happening at the weekly sessions, no one would believe her because she already accused Carthen of sexually abusing her.

In 1995, A.G., who was sixteen years old, was referred to defendant because she was having behavioral problems at school, which included fighting and a history of running away. Defendant was helping A.G. apply to Job Corps. On September 18, 1995, A.G. went to defendant's office to get the required final signatures for her Job Corps paperwork. Defendant was with another client and he sent A.G. across the street to grab something to eat. When A.G. returned, defendant was alone.

A.G. sat on the couch and defendant pulled up a chair and sat down in front of her. He touched her stomach and "proceeded to fondle" A.G.'s breasts under her t-shirt. A.G. told defendant she was not comfortable with that. Defendant grabbed A.G.'s arm, "pulled" her up from the couch, "bent" her over a chair and unzipped her pants. A.G. again told him to stop. A.G., however, did not fight him because defendant was much bigger than she was and she again told him to stop. Defendant then raped A.G. Defendant told A.G. that he "was helping me get into Job Corps and he could mess everything up."

Afterwards, defendant dropped A.G. off near her house. The police were called and the officers that interviewed A.G. took her to the hospital for a rape exam. Semen was found in her vagina but there were insufficient quantities to perform a DNA test.

Defendant was also charged with sexual abuse in the first degree and attempted forcible rape of W.C. W.C. alleged these activities took place in defendant's office. Defendant was acquitted of these two charges. In his first two points on appeal, defendant challenges the sufficiency of the evidence on his use of force necessary to sustain convictions of forcible sodomy and forcible rape against M.M. and A.G. In reviewing a case to determine whether the evidence was sufficient to support a conviction, we consider true all evidence favorable to the state as well as all reasonable inferences that may be drawn therefrom. State v. Thiele, 935 S.W.2d 726, 728 (Mo. App. 1996). Review is limited to a determination of whether there is sufficient evidence from which a reasonable finder of fact could find the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

As to both M.M. and A.G., defendant was charged with forcible sodomy and forcible rape. An element of each of these crimes is the use of "forcible compulsion." Sections 566.030 and 566.060. Forcible compulsion is either physical force that overcomes reasonable resistance or a threat expressed or implied that places a person in reasonable fear of death, serious physical injury, or kidnapping of himself or another person. Section 556.051(12).

Defendant asserts that he did not exercise force against M.M. or A.G. that would satisfy the definition of forcible compulsion. We disagree. Physical force is force that is applied to the body. State v. Kilmartin, 904 S.W.2d 370, 374 (Mo. App. 1995) (quoting BLACK'S LAW DICTIONARY 1147 (6th ed. 1990)). M.M. testified that defendant would "put [M.M's] head to his penis" and "told [her] to start." M.M. stated that she would react by "gagging and pulling back." Defendant then would "push" M.M.'s face against him. Defendant exerted actual physical force as to M.M. See Kilmartin, 904 S.W.2d at 374.

Defendant also exerted actual physical force as to A.G. She testified that defendant touched her stomach and "proceeded to fondle" her breasts under her shirt. A.G. further testified that defendant grabbed her and "pulled" her up by her arms and then he "bent" her over the chair and unzipped her pants. Defendant exerted physical force by grabbing A.G.'s arm and pulling her up and bending her over a chair. See id.

Given defendant applied physical force to M.M. and A.G., it is the "totality of the circumstances [that] determines whether this was physical force which would overcome reasonable resistance." Id. Reasonable resistance is that which is suitable under the circumstances. Id. Circumstances would include the "ages of the victim and the accused; the atmosphere and setting of the incident; the extent to which the accused was in a position of authority, domination and control over the victim; and whether the victim was under duress." Id.

Under the circumstances of this case, defendant's physical force was sufficient to overcome M.M.'s reasonable resistance. Defendant was M.M.'s psychologist. M.M. was referred to defendant because she suffers from schizophrenia and was seeking treatment. Defendant, by being M.M.'s therapist, was in a position of authority over M.M. Furthermore, each sexual attack took place when they were alone in defendant's office, which again placed defendant in a position of domination and control. M.M. stated that she felt she was forced to see defendant because it was a condition of her probation. In addition, M.M. testified she would have been kicked out of the hospital if she stopped going to defendant. Defendant told M.M. that no one would believe her because of her prior sexual assault accusations against her caseworker. In light of the Kilmartin factors, we find that defendant's physical force overcame M.M.'s reasonable resistance.

We also find under the totality of the circumstances, sufficient evidence that defendant used physical force to overcome A.G.'s reasonable resistance. A.G. was only sixteen years old at the time of the attack. She was a student with...