McDonald v. State

734 S.W.2d 596, 1987 Mo. App. LEXIS 4477
CourtMissouri Court of Appeals
DecidedJuly 28, 1987
DocketNo. 14610
StatusPublished
Cited by7 cases

This text of 734 S.W.2d 596 (McDonald v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDonald v. State, 734 S.W.2d 596, 1987 Mo. App. LEXIS 4477 (Mo. Ct. App. 1987).

Opinion

ROBERT G. DOWD, Jr., Special Judge.

Movant, Paul Doice McDonald, appeals from the denial of his Rule 27.261 motion to vacate his conviction for sodomy.

McDonald was charged by information with burglary in the second degree, § 569.-170, assault in the first degree, § 565.050, and sodomy (class A felony), § 566.060.2 On September 19, 1984, McDonald entered a plea of guilty to the assault and sodomy charges and the state dismissed the burglary charge. No formal plea bargain was negotiated, although McDonald’s counsel testified at the 27.26 hearing that there was an understanding that the burglary charge would be dismissed. McDonald was sentenced to 10 years for each offense. The sentences were to be served concurrently.

While incarcerated, McDonald learned that his sentences were required by statute, § 558.026,3 to run consecutively. He then contacted his attorney who admitted at the hearing that he was unaware of the statute. The attorney then contacted the sentencing judge and McDonald was placed on probation for the assault charge.

McDonald then filed a Rule 27.26 motion in the circuit court to vacate the sodomy conviction. The court held an evidentiary hearing and subsequently denied the motion.

The victim testified at the hearing to the following. On the evening of March 9, 1984, the victim was attacked on her front porch by McDonald. The victim had seen McDonald earlier that day and told him to “leave and don’t come back.” When she returned to her home that evening, McDonald’s truck was parked in the driveway. She did not see McDonald, and proceeded to enter the house. As she opened the door, McDonald came onto the porch from the side of the house and began to beat her. She testified that “he hit me and called me names, pushed me down, kicked me, and pushed me off the porch, and kicked and hit me more.” The victim does not remember how she got into the house, after being thrown from the porch, but testified that McDonald then kicked and hit her repeatedly in the house and he shoved her from room to room. He also told the victim to orally sodomize him and, when she refused, he pushed her head and forced her to comply. The victim then persuaded McDonald to let her get up from the floor [598]*598and as she stood, she was able to catch McDonald off guard and shove him backwards onto the bed. She then ran from the house and hid in the woods until he left.

The victim suffered broken bones to the jaw, eyes, and nose. She testified that she received these injuries while being beaten on the front porch.

McDonald makes the following contentions on appeal: (1) the trial court erred in finding that he was not subjected to double jeopardy; (2) the trial court erred in finding the plea was entered voluntarily, intelligently, and knowingly and that McDonald was not denied effective assistance of counsel because he was not told that he was being placed in double jeopardy; (3) the trial court erred in finding the plea was made voluntarily, intelligently, and knowingly and that McDonald was not denied due process of law because he was not informed that § 558.026,4 required that the sentences be consecutive; and, (4) the trial court erred in finding that there was a factual basis for the guilty plea.

Appellate review of a Rule 27.26 motion is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 27.26(j); Knee v. State, 699 S.W.2d 104, 105 (Mo.App.1985). “Those findings are clearly erroneous if the appellate court is left with a definite and firm impression that a mistake has been made.” Smallwood v. State, 698 S.W.2d 46, 46-47 (Mo.App.1985).

McDonald contends in his first point that his convictions for sodomy and assault constitute double jeopardy.

In determining whether the double jeopardy clause is applicable, Missouri follows the separate or several offense rule rather than the same transaction rule. State v. Treadway, 558 S.W.2d 646, 651 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978). This means that “a defendant can be convicted of several offenses arising from the same set of facts without violation of double jeopardy.” State v. Childs, 684 S.W.2d 508, 511 (Mo.App.1984). “The fact that the two crimes occurred at substantially the same time or that substantially the same evidence must be shown to prove both crimes does not require the state to present only one charge.” State v. Wilson, 719 S.W.2d 28, 34 (Mo.App.1986). The determining factor is whether distinct proof exists as to each offense. “[T]he test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (cited in State v. Charles, 612 S.W.2d 778, 781 (Mo. banc 1981), cert. denied, 454 U.S. 972, 102 S.Ct. 522, 70 L.Ed.2d 392 (1981)).

Where a defendant was charged with sodomy, rape, and assault, “[t]he fact that the three offenses did occur in a continuous course of conduct does not bring into play the prohibition of double jeopardy.” State v. Olson, 636 S.W.2d 318, 320 (Mo. banc 1982). However, the state may not use a single act of force to convict a defendant of both sodomy and assault. “[A] single act of force against one person allows only one criminal prosecution against the actor, however the essential elements of the offenses may be described.” State v. Johnson, 549 S.W.2d 627, 631 (Mo.App.1977). Cf. State v. Gibson, 633 S.W.2d 101, 106 (Mo.App.1982) (single act of force cannot support both rape and assault convictions); and State v. Johnson, 672 S.W.2d 158, 160 (Mo.App.1984) (single act of force cannot support both robbery and assault convictions).

A conviction for sodomy requires proof of deviate sexual intercourse, an act unnecessary to an assault charge. A conviction for assault, as charged here, requires proof of an attempt to cause serious physical injury, an act unnecessary to a sodomy charge. The contention, therefore, lies in whether separate acts of force supported each conviction. Appellant contends that the hitting and kicking were of a continuous nature, thus constituting only one assault. We disagree.

[599]*599The evidence established that appellant used separate acts of force to sodomize and assault the victim. The appellant pushed the victim’s head, forcing her to perform oral sodomy, thereby constituting the requisite forcible compulsion.

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734 S.W.2d 596, 1987 Mo. App. LEXIS 4477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-state-moctapp-1987.