State v. Spencer, WD
| Decision Date | 29 May 1984 |
| Docket Number | No. WD,WD |
| Citation | 671 S.W.2d 433 |
| Parties | STATE of Missouri, Respondent, v. Jessie SPENCER, Appellant. 35061. |
| Court | Missouri Court of Appeals |
Dan R. Adams, Asst. Public Defender, St. Joseph, for appellant.
Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, P.J., and SHANGLER and NUGENT, JJ.
In this appeal from a judgment of conviction and sentence for the offense of kidnapping for the purpose of facilitating commission of the felony of sodomy, § 565.110.1(4), RSMo 1978, Spencer contends the evidence was insufficient for submission of the case. He bases the argument on the claim that no evidence proved him guilty of sodomy or an attempt to commit sodomy nor was he shown to have taken any substantial step, apart from the abduction, to accomplish the crime of sodomy. The point raises the broad question of what the state is required to prove when the element which distinguishes the crime as kidnapping rather than false imprisonment, § 565.130, RSMo 1978, or felonious restraint, § 565.120, RSMo 1978, is a purpose to commit another felony.
Apart from a contradiction as to what statements Spencer made to the victim about his intention, the evidence in this case was not disputed. Spencer accosted the female victim at approximately 11:00 p.m. in the parking lot of the hospital where she was employed as a nurse. He forced her at gun point to drive him away from the hospital and during a brief ride, Spencer fondled the woman about the ears, nose, mouth and neck. According to Spencer, he intended to use the victim as a hostage to obtain drugs from the hospital. The state's evidence, accepted as true for the purpose of this opinion, State v. Davis, 653 S.W.2d 167 (Mo. banc 1983), was that Spencer inquired of the victim as to her sexual arousal and suggested it was his desire to engage in an act of oral sex. There was no evidence, however, that Spencer removed any article of clothing from himself or from the victim or attempted to do so and there was no evidence of any contact with any sex organ or incompleted act suggesting an effort to accomplish the objective of sodomy. The state rested its case solely on Spencer's statements to the victim of his unnatural desire to engage in a deviate act.
Spencer argues that his purpose to commit sodomy upon the victim is not proved unless the evidence shows some substantial step taken by him, apart from the abduction, toward commission of the charged felony. Here, he says, there was no proof of any substantial step toward commission of sodomy, only at best an expression of intent, and that such proof would not even support a conviction for attempted sodomy. In effect, he argues that the kidnapping statute requires that the accused be shown to have committed or attempted to commit the felony facilitated by the abduction or, failing that, conviction may be had only for lesser offenses of misdemeanor or felonious restraint, § 565.130 and § 565.120, RSMo 1978.
The case presents an issue not heretofore addressed in reported decisions under the present Missouri Criminal Code. 1 As the discussion which follows will demonstrate, however, the proposition is not unique to the offense of kidnapping. Application of certain general principles of criminal law will suffice to decide the question.
The kidnapping statute, § 565.110, RSMo 1978, sets out five alternative possibilities distinguished by the purpose or objective underlying the abduction. It is necessary here only to consider that one of the five which provides as follows:
"A person commits the crime of kidnapping if he unlawfully removes another without his consent from the place where he is found or unlawfully confines another without his consent for a substantial period, for the purpose of ... facilitating the commission of any felony." Section 565.110.1(4), RSMo 1978.
The proof in this case, summarized earlier in this opinion would obviously not suffice to convict Spencer of sodomy. The proof of consummated sodomy, however, is not essential to prove kidnapping. "Although a taking for a certain purpose may be an element of the crime of abduction or kidnapping, this does not mean that, to render the action criminal, the purpose must have been accomplished." 1 Am.Jur.2d Abduction and Kidnapping, § 23, (1962) at page 176. The crimes of kidnapping and the felony facilitated by the abduction involve different elements. State v. Johnson, 637 S.W.2d 157 (Mo.App.1982). Indeed, the tenor of Spencer's brief assumes that evidence of an attempted rather than a consummated felony would suffice to prove the purpose of the abduction. He asserts, however, that the evidence in this case would not serve to convict him of attempted sodomy, that at least an attempt is necessary to prove the purpose for the abduction and, failing that, his conviction here may not stand on the bare evidence of his expression of desire.
The crime of kidnapping with the purpose to commit another felony has been described as an aggravated offense, not entirely by reason of the abduction, but because of the physical danger of harm to the victim. In this context, the successful perpetration of the second felony is irrelevant. In the notes to the Model Penal Code, after which the current Missouri statutes were patterned, it is stated:
...
To continue reading
Request your trial
-
Williams v. Armontrout
...have tried Williams and Morgan for kidnapping, even though the requisite intent for capital murder had fallen aside. State v. Spencer, 671 S.W.2d 433, 435 (Mo.Ct.App.1984). As Williams pointed out in a pro se letter to this The State also argues that there was no evidence to support a convi......
-
State v. Keeler
...805 S.W.2d at 299, here there is no evidence from which a jury reasonably could infer the defendant's purpose. Compare State v. Spencer, 671 S.W.2d 433 (Mo.App.1984) (defendant's statement to victim that he desired to engage in sodomy with her held sufficient to show purpose to commit a fel......