State v. Wickizer
| Citation | 583 S.W.2d 519 |
| Decision Date | 29 June 1979 |
| Docket Number | No. 60587,60587 |
| Parties | STATE of Missouri, Respondent, v. Larry G. WICKIZER, Appellant. |
| Court | United States State Supreme Court of Missouri |
Lee M. Nation, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found the defendant, Larry G. Wickizer, guilty of the crime of rape in violation of § 559.260, RSMo Supp.1975, and of the crime of sodomy in violation of § 563.230, RSMo 1969. He was sentenced to concurrent terms of 35 years for rape and 10 years for sodomy. We affirm.
The events in question took place in Jackson County, Missouri, on May 6, 1977. Jana Lombardo and Dale Corum, a friend, drove to Shelter House No. 11 at Lake Jacomo. Shortly after arriving, they were approached by appellant and another and asked to join a party. They agreed and went to the Shelter House where they joined six or seven other persons. Some marijuana was smoked. Appellant encouraged Jana to take a ride on his motorcycle and after several requests she reluctantly did. Following their absence for forty-five minutes, Corum went to the Sheriff's Patrol Headquarters at Lake Jacomo. Neither appellant nor Jana had been seen or heard of by the sheriff's office, so he returned to the Shelter House. Neither Jana nor appellant was there. Later, he again returned to the sheriff's office. Not seeing the motorcycle, he again returned to the Shelter House. He then went for a walk and as he approached his car he heard a voice say "he's leaving." Three or four people came up to him and Jackie Wickizer, appellant's brother, grabbed him by the neck and dragged him down. Wickizer checked his wallet, asked him who he was, and then let him up. Corum then saw Susan Gordon, appellant's girl friend, inspecting the interior of the car. Following the assault, Corum returned to the sheriff's office to get help. Approximately one and one-half hours later, Jana was brought to the sheriff's office in another car by two couples. She complained of being raped and was crying. Her hair was messed and her clothes were dirty.
Jana's version of the events prior to the time she and appellant left on the motorcycle parallels the above story. According to Jana, after the appellant had driven around for awhile, appellant said he was lost. At approximately midnight, he pulled off into a field, approximately 200 yards from a public road, where appellant ordered her to get off the motorcycle. At that time, appellant said: "You know I brought you here for a reason." Appellant shoved her and threatened various acts of violence, saying he would cut her into little pieces. He ordered her to undress. Appellant then raped her. They redressed, and appellant threatened to kill her. He ordered her to commit an act of oral sodomy upon him and again raped her. He eventually drove her back to the Shelter House. A car came by and Jana ran from the appellant and asked for a ride. She was then taken to the sheriff's office.
The jury trial began November 28, 1977. Appellant took the stand and testified in his own behalf. According to appellant, after Jana and he departed from Shelter House No. 11, they rode about for a short time. Later, they pulled off into a field. He and Jana began talking, in part, about their respective dates. At this time, appellant removed his clothes, feeling a little bit high. Jana then took off her clothes, except for her bra, and the two ran around the field feeling silly. They then sat down and "one thing led to another." He stated that the intercourse was voluntary with no struggling taking place. He denied any act of oral sodomy and stated that during their second intercourse she showed no signs of being hurt. He denied assaulting her or threatening her.
In this appeal, appellant alleges three errors. First, appellant argues the trial court erred in sentencing appellant pursuant to the Habitual Criminal Act, § 556.280, RSMo 1969, because the information filed was fatally defective in that it failed to allege appellant had been previously convicted of a crime that was "punishable by imprisonment in the penitentiary." Second, appellant charges Missouri's sodomy statute, § 563.230, is unconstitutional because it invades appellant's right to sexual privacy. Third, appellant alleges the court erred in admitting the testimony of Corum concerning the attack, allegedly made by appellant's brother on him, because such testimony was irrelevant, inflammatory and highly prejudicial.
The first point of controversy raises the issue of whether the allegations contained within the information were sufficient to invoke the provisions of the Habitual Criminal Act.
On November 28, 1977, an amended information in lieu of indictment was filed which charged, in part:
* * * that LARRY G. WICKIZER * * * on the 29th day of November, 1967, at the County of Jackson, State of Missouri, did plead guilty to the charge of stealing a motor vehicle; that thereafter on the 29th day of November, 1967, said defendant was sentenced to five (5) years in the Missouri Department of Corrections; that thereafter on the 4th day of September, 1968, said defendant was confined in the Missouri Department of Corrections, Jefferson City, Missouri, that thereafter on the 15th day of September, 1971, said defendant was released from said Penitentiary on commutation of sentence; * * *
Under this portion of the indictment, the court held the appellant to be a proper person to be tried under the Habitual Criminal Act, § 556.280.
As stated by appellant, in order for an information to invoke the Habitual Criminal Act it must allege: (1) that he had been previously convicted of an offense punishable by imprisonment in the penitentiary; (2) that sentence was imposed; and, (3) that he was subsequently placed on probation, parole, fined or imprisoned. State v. Blackwell, 459 S.W.2d 268, 272 (Mo.banc 1970). In the present case, appellant charges the information failed to establish Essentially, appellant contends that the Habitual Criminal Act is highly penal and must be strictly construed. State v. Myers, 470 S.W.2d 803 (Mo.App.1971); State v. Hacker, 291 S.W.2d 155 (Mo.1956). Consequently, it is not sufficient merely to allege appellant pled guilty to the charge, but rather, the information must also allege that appellant was convicted of a crime "punishable by imprisonment in the penitentiary" or that he was convicted of a felony.
the first element of the Habitual Criminal Act.
In response, respondent argues that although the act is highly penal and must be strictly construed, it is not necessary that the specific language of the statute be followed. The act only requires that an information or indictment plead sufficient facts to inform defendant that he has been previously convicted of a felony. An information alleging that the appellant has been previously convicted of stealing a motor vehicle is sufficient to inform appellant of a prior conviction of a felony.
In reviewing appellant's and respondent's arguments, it appears that respondent's position is the correct view. As noted by respondent, the court in State v. Ellifrits, 459 S.W.2d 293, 296 (Mo.banc 1970), has previously been faced with an analogous situation. In Ellifrits, the defendant alleged that the information was insufficient in that it did not comply with the statutory requirement of an allegation that defendant "was placed on probation, paroled, fined, or imprisoned," in that it did not Specifically allege he was imprisoned. In response, the court stated, at 296, that:
It is true, under the provisions of § 556.280, that the information should allege sufficient facts to inform the defendant that he is charged with having been previously (1) convicted of a felony, (2) sentenced, and (3) subsequently placed on probation, paroled, fined, or imprisoned. We do not think, however, that it was imperative that the word "imprisoned" be used. Any allegation from which it necessarily would be inferred that he had been imprisoned should be sufficient.
(Emphasis added.)
Respondent offers two bases upon which the court may find that the allegation in the information of the instant case necessarily implies appellant was convicted of a felony. First, stealing a motor vehicle, by statutory definition under § 560.165, RSMo 1959, is deemed a felony regardless of the value of the property. Inasmuch as the offense has been statutorily declared to be a felony, the allegation of stealing a motor vehicle necessarily implies a felony. Second, in addition to alleging that appellant stole a motor vehicle, the information also alleges he was sentenced to a term of five years and imprisoned in the Missouri Division of Corrections. In view of the fact that a felony, under § 556.020, RSMo 1969, is defined as "any offense for which the offender . . . shall be liable by law to be punished with . . . imprisonment" in a correctional institution of the State Department of Corrections, this allegation also necessarily implies the conviction of a felony.
In addition, we note that the court is empowered to take judicial notice of the statutory definition of a felony, and thus by analogy, the court may take judicial notice of the provisions of § 560.161.2. See State v. Abernathy, 515 S.W.2d 812, 816 (Mo.App.1974).
The allegation requirements are designed for the purpose of informing a defendant of any prior conviction under which he may be charged pursuant to the Habitual Criminal Act. The additional language offered by appellant will do little to further that goal since the present information specifically alleges the prior conviction.
The second controversy raises the question of whether the sodomy statute (§ 563.230, RSMo 1969)...
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