State v. Workes, 48546

• Decision Date: 26 March 1985
• Docket Number: No. 48546,48546
• Citation: 689 S.W.2d 782
• Parties: STATE of Missouri Plaintiff-Respondent, v. Louis Anthony WORKES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 782

689 S.W.2d 782

STATE of Missouri Plaintiff-Respondent, v. Louis Anthony WORKES, Defendant-Appellant.

No. 48546.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 26, 1985.

Motion For Rehearing and/or Transfer to

Supreme Court Denied April 26, 1985.

Application to Transfer Denied

May 29, 1985.

Henry B. Robertson, St. Louis, for defendant-appellant.

John D. Ashcroft, Jefferson City, for plaintiff-respondent.

SMITH, Presiding Judge.

Defendant appeals from his conviction by a jury for forcible rape, forcible sodomy, kidnapping, and robbery in the second degree. He was sentenced to a total of 80 consecutive years by the trial court. We affirm.

On appeal defendant challenges his convictions of robbery and rape on the basis that no submissible case was made. He also postulates error in the admission of evidence concerning the victim's physical response upon viewing lineups. Some statement of the facts is required.

The victim had gone to her place of employment at a Hardee's Restaurant in Maplewood. She arrived there at 4:20 a.m. and was sitting on the curb waiting the arrival of the manager to open the building. Defendant and his co-defendant, Meyer, approached her in a truck. After some perfunctory conversation defendant got out of the truck and grabbed the victim around the neck. She was forced into the truck between the two men. Defendant drove the truck to a park in the City of St. Louis. While en route the victim was forced to perform fellatio on each man. Upon arrival in the park the victim was removed from the truck by Meyer and taken to a tree. There the victim was again forced to perform fellatio but after a short time Meyer abandoned that activity and had sexual intercourse with the victim. Upon completion of Meyer's activities defendant arrived from the truck and forced the victim to complete his "blow job." After this had been accomplished the victim and defendant returned to the truck. The victim was returned to her place of employment with a warning not to report the incident. She subsequently discovered that $10 had been removed from her purse. The purse had been constantly in her possession except for the time she was out of the truck. Meyer and defendant were not present together with the victim in the park while she was out of the truck.

Defendant admitted his presence at the scene but denied having any sexual relationship with the victim and testified she willingly entered the truck and went into the park with Meyer. The co-defendant, Meyer, testified that the victim, previously unknown to him, willingly entered the truck, willingly went with him into the park, initiated an act of fellatio and willingly had intercourse with him. Witnesses testified that the victim was agitated and crying at the restaurant, at the hospital and after release from the hospital.

Defendant first contends that the evidence failed to establish that the taking of money from victim's purse was as a result of violence or threat of violence and that at most stealing was proven. It is a reasonable inference from the evidence that the money was taken while the victim was out of the truck with one of the co-defendants. Sec. 569.030 RSMo 1978, provides that a person commits robbery in the second degree when he "forcibly steals property." "Forcibly steals" is defined in Sec. 569.010 RSMo 1978, as "when, in the course of stealing, ... he uses or threatens the immediate use of physical force upon another person for the purpose of: (a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking;" (Emphasis supplied). It is not necessary that property be taken from the immediate physical presence of the victim in order to constitute robbery. State v. Atkins, 549 S.W.2d 927 (Mo.App.1977) [1-7]. Nor is it necessary that the force or threat of force immediately accompany the taking. State v. Harris, 622 S.W.2d 742 (Mo.App.1981) [3, 4]. It is not essential that the victim be aware of the robbery if force is utilized to render her unaware of the taking. State v. Williams, 548 S.W.2d 227 (Mo.App.1977) [1-3].

Here the victim was placed into the truck through force and threat of violence. She was removed from the truck and taken into the park in the same way. That force served to prevent her resistance to the taking of the money. That force or threat of force continued while she was in the park. Defendant was aware of this. Without the force neither co-defendant would have had the opportunity to steal the money. Under the circumstances here the stealing of the money constituted robbery as it occurred while the victim was under the threat of force, and that force made her unaware of the theft.

We similarly reject defendant's contention that the evidence was insufficient because it did not establish an intention to rob at the time force was first exercised--when the victim was abducted. The force continued from the beginning to the end of the episode and the formation of the intent to steal occurred during the continuation of that force and in reliance on that...