State v. Turner

• Decision Date: 29 September 2020
• Docket Number: No. SD 36374,SD 36374
• Citation: State v. Turner, 609 S.W.3d 92 (Mo. App. 2020)
• Parties: STATE of Missouri, Respondent, v. Doyle William TURNER, Appellant.
• Court: Missouri Court of Appeals

609 S.W.3d 92

STATE of Missouri, Respondent,

v.Doyle William TURNER, Appellant.

No. SD 36374

Missouri Court of Appeals, Southern District, Division One.

Filed: September 29, 2020

Appellant's Attorney: Katharine P. Curry, of Columbia, MO.

Respondent's Attorneys: Eric S. Schmitt, Attorney General, and Karen L. Kramer, Assistant Attorney General, of Jefferson City, Missouri.

WILLIAM W. FRANCIS, JR., J.

Doyle William Turner ("Turner") appeals his convictions, following a jury trial, of two counts of first-degree burglary, one count of trespass, one count of domestic assault, one count of tampering with a motor vehicle, three counts of armed criminal action, one count of kidnapping, one count of rape, one count of sodomy, one count of unlawful possession of a firearm, and one count of unlawful possession of a weapon. Turner challenges his convictions in three points: (1) that the trial court plainly erred in failing to strike Venireperson No. 27; (2) that the trial court plainly erred in accepting the jury's guilty verdict for Count XIII (sodomy) when he was actually charged with armed criminal action; and (3) that the trial court plainly erred for entering a judgment of conviction and sentence for burglary in the first degree on Count IV when he was found guilty of the lesser-included offense of trespassing. Finding merit to Turner's third point, we remand for entry of judgment in accord with the trial court's oral pronouncement of sentence in Turner's presence. The trial court's judgment is affirmed in all other respects.

Facts and Procedural History

We recite the evidence and the reasonable available inferences therefrom in the light most favorable to the verdicts. State v. Lammers , 479 S.W.3d 624, 630 (Mo. banc 2016). We recite other information as necessary for context.

Turner and Victim were in a relationship, but had separated. On October 1, 2015, Victim's mother ("Mother") drove Victim home to change clothes before Victim went to her second job. Mother stayed in the living room. Victim went in the bedroom, where Turner grabbed her from behind. Victim screamed, and Turner covered her mouth with his hand, put a knife to her throat, cut her on the hand, and threatened her. Mother heard the scream, and came to check on Victim. Turner told Victim to open the door and tell Mother that she had just cut herself "but [she] will be at work late." Victim opened the door and said the words Turner directed her to repeat; Victim then whispered to Mother to call the police.

Police arrived in response to Mother's call, and found Turner still in Victim's residence. Turner told Victim if he went to jail "they will kill me[.]" Victim did not understand who Turner meant by "they," and thought "oh, my God. Are they going to show up at my door if you get arrested?" Victim therefore did not press charges, and police allowed Turner to leave. Later that day, Victim changed her mind and decided to press charges, but police were unable to immediately locate Turner.

Thereafter, Turner threatened to kill Victim's mother and sisters if she did not let him move into her house. Fearing Turner's threat, Victim agreed, and Turner moved into Victim's home. In mid-October 2015, Victim obtained an ex parte order of protection against Turner while he was in Arkansas. Victim then terminated all communication with Turner.

On October 25, 2015, at approximately 1:50 a.m., Turner gained access to Mother's home by throwing two rocks through Mother's bedroom window (one of the rocks struck Mother in the leg). Mother called 911, while Turner crawled toward her in a threatening matter. Then Turner yelled at Mother that he "wasn't going to hurt them," took Mother's car, and left. Mother's car was found abandoned a few weeks later—Turner had evidently attempted to "strip[ ] everything ... out" of the car, "tried to snatch the license plates[,]" and tried to repaint it.

On November 15, 2015, Turner broke into Victim's house through her bedroom window while she was sleeping. Victim attempted to escape, but Turner grabbed her and put a gun to her head. Victim sustained a cut to her arm from the broken glass. Turner smashed Victim's phone and forced her to go with him.

Victim was forced to run across a field, climb a fence, and swim across a river. Turner then forced Victim to perform oral sex on him. Afterwards, they continued to walk for a long time, "over barbed wire fences and up more hills[,]" until they arrived at a shed, where Turner raped Victim. Turner pointed the gun at Victim's head and pulled the trigger; however, the safety was on and the gun failed to discharge. Turner then left the shed, locking Victim inside.

Police were able to locate Victim and Turner through an informant. Turner was apprehended at the scene. When interviewed, Turner admitted, in part, that in October, he broke into Victim's home and held a knife to her throat; broke into Mother's home; in November broke into Victim's home by breaking out a bedroom window with a shotgun; forced Victim to go with him to a shed on a piece of property some distance away; secured the shed door with bungee cords; and pointed a loaded gun to Victim's head.

On November 16, 2015, a rape kit was performed on Victim, and Turner's DNA was a match. Turner was charged, by third amended information, as a prior and persistent offender, with the:

• class B felony of burglary in the first degree (Count I), pursuant to section 569.160,^[1] for entering Victim's home unlawfully for the purpose of committing the crime of assault on October 1, 2015;

• class C felony of domestic assault in the second degree (Count II), pursuant to section 565.073, for attempting to cause physical injury to Victim by grabbing and holding a knife to her throat on October 1, 2015 at Victim's home;

• armed criminal action (Count III), pursuant to section 571.015, for the October 1, 2015 incident at Victim's home by using a dangerous instrument;

• class B felony of burglary in the first degree (Count IV), pursuant to section 569.160, for the October 25, 2015 incident at Mother's home;

• class C Felony of tampering in the first degree (Count V), pursuant to section 569.080, for the October 25, 2015 incident at Mother's home where Turner took Mother's car without consent;

• class B felony of burglary in the first degree (Count VI), pursuant to section 569.160, for the November 15, 2015 kidnapping of Victim;

• armed criminal action (Count VII), pursuant to section 571.015, for the November 15, 2015 kidnapping at Victim's home by use, assistance and aid of a deadly weapon;

• class B felony of kidnapping (Count VIII), pursuant to section 565.110, for the November 15, 2015 incident at Victim's home when Turner removed Victim without her consent and for purpose of terrorizing her;

• armed criminal action (Count IX), pursuant to section 571.015, for the November 15, 2015 kidnapping of Victim by assistance and aid of a deadly weapon;

• rape in the first degree (Count X), pursuant to section 566.030, for the November 15, 2015 incident involving Victim;

• armed criminal action (Count XI), pursuant to section 571.015, for the November 15, 2015 rape of Victim with use, assistance and aid of a deadly weapon;

• sodomy in the first degree (Count XII), pursuant to section 566.060, for the November 15, 2015 deviate sexual intercourse with Victim by forcible compulsion;

• armed criminal action (Count XIII), pursuant to section 571.015, for the November 15, 2015 sodimization of Victim with use, assistance and aid of a deadly weapon;

• class C felony of unlawful possession of a firearm (Count XIV), pursuant to section 571.070, for the November 15, 2015 incident involving Victim, by knowingly possessing a shotgun; and

• class C felony of unlawful possession of a weapon (Count XV), pursuant to section 571.020, for the November 15, 2015 incident involving Victim by possessing a 7.5 inch short-barreled shotgun.

A two-day jury trial commenced on May 16, 2019. Turner did not testify.² During voir dire, the trial court stated to the venire panel that "[t]he Defendant is presumed to be innocent unless and until during your deliberations upon your verdict you find him guilty. This presumption of innocence places upon the State the burden of proving beyond a reasonable doubt that the Defendant is guilty." The trial court, after further discussing this issue, asked the venire panel, "Is there anyone here today who, if selected as a juror, could not for any reason follow that instruction? If so, would you please raise your hand? I see no hands."

During the defense portion of voir dire, the following exchange took place:

[DEFENSE COUNSEL:] So the State mentioned the burden of proof in this case and it's reasonable doubt. Something that ties along with that is that the Defendant and me [sic] we don't have to put on any evidence. We can sit there and twiddle our thumbs if we want—I'm not saying that's what we are going to do.

But, does that make sense that the burden is completely on the State in this case to prove to you beyond a reasonable doubt guilt?

Does that make sense?

Does anyone disagree with that? That we should have to put on evidence in this case? That would be that the Defendant has to put on evidence and prove the case, not the State? I see no hands.

THE COURT: No. 27.

[DEFENSE COUNSEL:] Yes. No. 27.

[VENIREPERSON] NO. 27: I kind of think that if they put something out there that you should have a chance to refute it back. So if you just sit there and twiddle your thumbs we are only going to get one side of it.

[DEFENSE COUNSEL:] I'm not saying certainly that we are going to sit there and do that. But, just to point that there is a burden and that's on the State in this case.

Does that make sense?

[VENIREPERSON] NO. 27: Got you, yes.

[DEFENSE COUNSEL:] So everyone agrees with that and understands that?

Would anyone here have to hear evidence from us in any way, you know—present some sort of physical evidence or provide some sort of testimony?

Anyone on the right side?

Anyone on the left side?

I

...