State v. Walker, KCD
| Decision Date | 31 December 1973 |
| Docket Number | No. KCD,KCD |
| Citation | 505 S.W.2d 119 |
| Parties | STATE of Missouri, Respondent, v. Stephen Wayne WALKER, Appellant. 26317. |
| Court | Missouri Court of Appeals |
Robert G. Duncan, Duncan & Russell, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Allan Seidel, Asst. Atty. Gen., Jefferson City, for respondent.
Before DIXON, C.J., PRITCHARD, J., and LAURENCE SMITH, Special Judge.
This is an appeal from a judgment of conviction upon counts charging assault with intent to maim, rape, and sodomy, entered upon a jury verdict by the Circuit Court of Jackson County, Missouri. Sentences were imposed upon defendant by the jury at 4 years for assault with intent to maim, 20 years for rape and 10 years for sodomy, which the judge ordered served concurrently for a total of 20 years.
Defendant and Bobbie Lee Stevens, Donnie Jay Banks and Linda Kay Smothers were all charged in three separate counts with assault with intent to maim, rape, and sodomy. Defendant's attorney, by oral motion, requested a severance which was granted, and defendant was given a separate trial. Defendant's appeal relates only to the assault and sodomy convictions, and the following facts are limited to the circumstances surrounding those convictions. The conviction upon the count charging rape is not appealed or contested.
In brief, the circumstances were that the prosecutrix who shall be referred to as 'Susan,' while at a bar in the Kansas City area, was approached by Bobbie Stevens and asked to go to a party. She refused and proceeded to leave the bar when Linda Smothers shoved her out the door and told her that she was going to this party whether she liked it or not. They then drove to Linda's house, despite Susan's continued insistence that she did not want to go to the party. Upon arrival at the house, Susan again told Linda that she did not want to go inside. Susan also testified that on previous occasions both she and her family had been threatened by Linda. Upon entering the home, Susan noticed several persons, including the defendant, sitting around and drinking. Shortly thereafter, Susan attempted to leave, but was grabbed and prevented from doing so by one of the men present at this party. She was then called into the kitchen where she was struck in the mouth and had her blouse torn off by Linda Smothers. Smothers then tore off the remainder of Susan's clothes and threw her onto a waterbed located in the living room. At this point, defendant, Banks, and Stevens jumped on Susan, and Banks proceeded to rape her while the defendant laughed and called for Banks to hurry up so he could have his turn. Defendant continued to encourage Banks while Smothers poked Susan all about the body with a table fork. Smothers then took a fire extinguisher and sprayed Susan on the legs and stomach, in the presence of defendant and the others, causing a burn and later a scar. Following this incident, Susan was forced to take a bath and was then taken into a bedroom where she was forced to commit an act of sodomy with Banks. Defendant was again present and encouraging Banks to hurry up and finish so that he could be next to participate in this act. Susan was then forced to submit to more indecencies too sordid to mention, and the circumstances that followed these outrageous attacks need not be further detailed. Later, Susan's body was covered with shaving cream and her pubic hairs shaved and burned off with matches by defendant and others. Then, while defendant was present and looking on, the Stevens woman took a pocket knife and stuffed it into the prosecutrix's vagina, causing her to bleed. In the hours that followed, the prosecutrix was again ruthlessly abused and raped by defendant.
Three points are raised on appeal. First, appellant contends that there is insufficient evidence to show that defendant aided and abetted the principals in the assault with the knife and fire extinguisher, or in the act of sodomy. In determining the sufficiency of the evidence to support a conviction, it is this court's duty to view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict and to disregard all contrary evidence and inferences. State v. Mills, 495 S.W.2d 715, 716 (Mo.App.1973); State v. Boone, 490 S.W.2d 318, 320 (Mo.App.1973). Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction. State v. Cobb, 444 S.W.2d 408, 412 (Mo. banc 1969); State v. Mills, supra, 495 S.W.2d at 717. The fact that defendant was present during the assault with the fire extinguisher and pocket knife as well as at the time of the act of sodomy, shouting encouragement and delight at those activities, is sufficient evidence to support a finding by the jury that defendant knowingly acted in concert with others and shared in the principals' criminal intent. Section 556.170 RSMo ...
To continue reading
Request your trial
-
State v. Ogle
...was an assault, its purpose was to accomplish rape. Thus, the third-degree assault instruction was not required. See State v. Walker, 505 S.W.2d 119, 122 (Mo.App.1973). See also State v. Parton, 487 S.W.2d 523, 526 (Mo.1972); State v. Leigh, 466 S.W.2d 685, 686 (Mo.1971); State v. Bird, 358......
-
State v. Ivery, 36,731
... ... Leigh, 466 S.W.2d 685(2) (Mo.1971). 'Before instructions on the lesser or included offenses are compelled, however, there must be evidentiary support for such offenses.' State v. Washington, 357 S.W.2d 92(6--8) (Mo.1962). See also State v. Walker, 505 S.W.2d 119(5--8) (Mo.App.1973). We note the only defense evidence concerned an alibi, and there was no evidence in the State's case that defendant merely tampered with but did not steal the car. Had the evidence warranted a finding that defendant was guilty only of tampering he would be ... ...
-
State v. Howard
... ... State v. Leigh, 466 S.W.2d 685(2) (Mo.1971). 'Before instructions on the included or lesser offenses are compelled, however, there must be evidentiary support for such offenses.' State v. Washington, 357 S.W.2d 92(6-8) (Mo.1962). See also State v. Walker, 505 S.W.2d 119(5-8) (Mo.App.1973)." State v. Sturgell, 530 S.W.2d 737 (Mo.App.1975) ... "It is not mandatory, however, in all cases to instruct on a lesser offense or an offense included within that charge. An instruction on the lesser or included offense is required only if ... ...
-
State v. Morris, 36281
...may not be guilty of the offense charged, but rather of a lesser included offense, the court must so instruct the jury. State v. Walker, 505 S.W.2d 119(6) (Mo.App.1973) . But even when the offense charged necessarily includes a lesser offense, an instruction as to the latter may not be requ......