State v. W.---- F. W.----

• Decision Date: 05 November 1986
• Docket Number: No. 14405,14405
• Citation: 721 S.W.2d 145
• Parties: STATE of Missouri, Respondent, v. W____ F. W____, Appellant.
• Court: Missouri Court of Appeals

Page 145

721 S.W.2d 145

STATE of Missouri, Respondent, v. W____ F. W____, Appellant.

No. 14405.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 5, 1986.

Motion for Rehearing and Transfer to

Supreme Court Denied

Nov. 25, 1986.

Application to Transfer Denied Jan. 13, 1987.

Pete E. Carter, Sp. Asst. Public Defender, Salem, for appellant.

William L. Webster, Atty. Gen., Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Chief Judge.

W____ F. W____ ("defendant"), tried as a persistent offender, § 558.016.3, RSMo Cum.Supp.1984, was found guilty by a jury of two counts of the class B felony of rape, § 566.030.3, RSMo Cum.Supp.1984, ¹ and sentenced by the trial court to 30 years' imprisonment on each count, the sentences to run concurrently.

Defendant appeals, maintaining that the evidence was insufficient to support the verdicts, and that the trial court erred in certain evidentiary rulings. Defendant also raises two instructional issues.

We deal first with defendant's point IV, which challenges the sufficiency of the evidence. In deciding that issue, we consider the evidence and all inferences reasonably to be drawn therefrom in the light most favorable to the verdicts, and disregard all contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. McDonald, 661 S.W.2d 497, 500 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that defendant was guilty. State v. Bonuchi, 636 S.W.2d 338, 340 (Mo. banc 1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979).

The alleged victim was defendant's daughter, B____ R____ W____ ("B____"), who was 12 years of age at the time of the incidents in question. B____ is the next oldest of defendant's four children. The oldest, a boy, F____, was 14 during the period in question. Defendant's two youngest children are both girls.

B____ testified that one day between June 5, 1984, and July 5, 1984, while her mother, her brother, and her youngest sister were gone to a store, defendant told B____'s other sister to "[g]o up to the other house and get a broom to sweep the floor." As we understand the evidence, the family was in the process of moving from one house to another, "probably a hundred yards" away.

Then, said B____:

"While she was gone my dad told me to pull down my pants and I said, 'No.' And he said--He asked me again and I said, 'No.' So he pulled down my pants for me and insert his penis into my vagina, and then about that time my other sister come back with the broom. And he told me to get up, go around the house, and clean myself up.

Q. Did you do that?

A. Yes.

Q. Okay. What part of you did you clean up?

A. My vagina.

Q. And why did you clean it? What happened when he was done?

A. White stuff come out."

Asked whether anything like that occurred thereafter, B____ answered, "Yes." She fixed the date of the second incident as August 23, 1984, defendant's birthday. ² B____ recalled that she and defendant were outdoors near their home looking for "props." ³ B____ testified that defendant sat down to rest, and she sat beside him. Then, this:

"[H]e asked me to pull down my pants, and I said, no, because it was getting dark. And so he said if I didn't pull them down, he'd pull them down for me and I still said no. So he pulled my pants down, inserted his penis into my vagina, and then I started crying and told him I wanted to leave. And he said, 'In a few minutes.' Well, about five minutes went by and I asked him again, I said, 'I want to leave.' He goes, 'Well, okay.' And then we went up to the truck, and he told me to clean myself up and he give me a rag, and I clean myself up, and then we went home."

Evidently, B____ told no one about either incident until September 10, 1984, when she told her mother. B____'s mother immediately took B____ to the office of the Division of Family Services in Ironton, where B____ was interviewed by Sheriff Kenneth Wayne Ruble of Iron County. ⁴ B____ related the two incidents to Sheriff Ruble, who thereupon requested the prosecuting attorney to apply for a warrant. One was issued, and defendant was arrested.

One D____ W____, the wife of a brother of defendant, testified that some time after defendant's arrest, B____'s mother brought B____ to D____ W____'s home. There, according to D____ W____, a conversation took place between B____, her mother and D____ W____. At trial, D____ W____ was asked whether, during that conversation, B____ had stated that she had engaged in intercourse with anyone. D____ W____ answered, "Yes, she did." Then, this:

"Q. Who did [B____] say she had had intercourse with?

A. Her brother."

B____, during cross-examination, was asked about the conversation with D____ W____:

"Q. And you told your aunt that you made the story up; didn't you?

A. Yes.

Q. And you said nothing had ever happened, right?

A. Yes.

* * *

Q. ... you did tell your aunt though that your father didn't have sex or intercourse with you; didn't you?

A. Yes."

We cannot determine from the record whether the conversation between B____ and D____ W____ occurred before or after defendant's preliminary hearing. We do, however, take note that in B____'s trial testimony, she confirmed that she had testified at the preliminary hearing, and that her testimony at that proceeding was the same as her testimony at trial.

On January 16, 1985, some time after the preliminary hearing, Russell Qualls, an investigator for the public defender, interviewed B____ at B____'s home, in her mother's presence. Qualls asked B____ whether defendant had had "sex" with her. B____ answered, "No." Qualls also asked B____ why she had told her mother that defendant had raped her. B____ replied: "Oh, I don't know. I guess since they were fighting so much I didn't really want him around because he would always fight with my mom and everything, and he would get mad and go out and stay a night or two."

At trial, B____ testified that her statements to Qualls were not the truth. Asked by the prosecutor why she made those statements, B____ explained, "Because I felt sorry for my dad and I didn't want him to go to the pen."

In maintaining that the evidence was insufficient to support the verdicts, defendant's point IV states:

"The court erred in refusing to grant defendant's motion for judgment of acquittal at the close of the State's evidence and defendant's judgment of acquittal at the close of all the evidence in that a defendant may not be convicted of rape if the alleged victim's testimony is inconsistent, contradictory or unbelievable, and, in the case at hand, the alleged victim's prior inconsistent statements which contradicted her statements at trial were admitted into evidence without being limited by the State, and, therefore, were substantive evidence of the alleged victim's testimony, and her testimony when viewed in toto, was contradictory and inconsistent, and unsubstantiated by other evidence."

Defendant, at the close of the State's evidence, moved for a judgment of acquittal. The trial court denied the motion. Defendant thereupon presented evidence in his own behalf, thereby waiving any error with respect to the denial of the motion. State v. Green, 476 S.W.2d 567, 569 (Mo.1972); State v. Campbell, 655 S.W.2d 96, 97 (Mo.App.1983). Consequently, our consideration of defendant's point IV will be based on all of the evidence.

Defendant begins his argument under point IV by acknowledging the Missouri rule that a conviction for rape may be had upon the uncorroborated evidence of the prosecutrix. State v. Baldwin, 571 S.W.2d 236, 239 (Mo. banc 1978). Defendant reminds us, however, that in those cases where the evidence of the prosecutrix is of a contradictory nature or, when applied to the admitted facts in the case, her testimony is not convincing and leaves the mind of the court clouded with doubts, she must be corroborated or a conviction cannot be sustained. Id. Defendant points out that B____, in her trial testimony, admitted telling D____ W____ that defendant had not had sexual intercourse with her, and also admitted telling investigator Qualls that defendant had not had sexual intercourse with her.

Defendant emphasizes that when B____ gave that testimony, the prosecutor did not request the trial court to instruct the jury that B____'s out-of-court statements to D____ W____ and Qualls were admissible only for the purpose of determining B____'s credibility as a witness, and were not to be considered by the jury as evidence of the matters contained therein.

Our examination of the record confirms the accuracy of defendant's assertion, and further reveals that no such limiting instruction was given by the trial court sua sponte.

Availing himself of those circumstances, defendant proceeds to the apex of his argument, which, in his words, is: "Since the prosecutrix' prior statements that the Defendant did not have sexual intercourse with her were admitted without limitation, they were substantive evidence, and, therefore, her testimony was contradictory and required corroboration." Defendant asserts that B____'s testimony was never corroborated; consequently, his conviction cannot stand.

Obviously, the viability of defendant's theory hinges on the premise that the trial court's failure to give the jury a limiting instruction requires us to treat B____'s out-of-court statements to D____ W____ and Qualls as if those statements had been uttered by B____ under oath during her testimony at trial. That, of course, would be a fantasy, as B____ did not make those statements at trial, she merely admitted at trial that she...