State v. Bohannon

526 S.W.2d 861, 1975 Mo. App. LEXIS 2061
CourtMissouri Court of Appeals
DecidedJuly 10, 1975
DocketNo. 9559
StatusPublished
Cited by8 cases

This text of 526 S.W.2d 861 (State v. Bohannon) 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
State v. Bohannon, 526 S.W.2d 861, 1975 Mo. App. LEXIS 2061 (Mo. Ct. App. 1975).

Opinions

HOGAN, Judge.

A jury found defendant James Bohannon guilty of forcible rape as defined and denounced by § 559.260, RSMo 1969, V.A.M.S.1 The Second Offender Act, § 556.280, was found to be applicable and defendant’s punishment was assessed at imprisonment for a term of five years.

The prosecuting witness was an 18-year-old married woman who had moved to Waynesville, Missouri, on September 7, 1972. Her husband was in military service and was stationed at Fort Leonard Wood.

The prosecutrix testified that on September 14, 1972, at approximately 2:00 p. m. she was walking toward the bus station when a car pulled alongside her and stopped. A “guy” (defendant) got out of the car, “grabbed” the prosecutrix, and put her in the car between himself and the driver, identified as one Roy Rogers. The prosecutrix did not resist because she was frightened and “froze” when the defendant seized her and put her in the car.

After she got in the automobile, the pros-ecutrix repeatedly asked the two men where they were taking her, what they intended to do, and asked to be taken to Fort Leonard Wood. She received no response. The driver proceeded through the town of Waynesville, passed what is referred to as the “Crocker Bridge” and finally turned off onto a gravel road. They then traveled “[ajbout a five minute drive” along the gravel road and stopped. Defendant got out of the car, opened a fence gate and Rogers “backed the car in”. Defendant then closed the gate. The car was stopped in open country; prosecutrix testified that she saw no houses, “no people or no cars.”

Rogers then started “making advances”, as the prosecutrix put it, and she “just panicked.” Rogers slapped the prosecutrix and ordered her to remove her clothing. The prosecutrix refused to disrobe, and Rogers told her “if [she] wasn’t going to take it off, he was going to take it off for [her].” Prosecutrix finally removed her clothes, Rogers ordered her to lie down, and proceeded to have sexual intercourse with her, without her permission, she testified, and against her will.

After Rogers had finished he got out of the car, and while the prosecutrix was attempting to dress, defendant got in the car and told the prosecutrix to “take [her] clothes off.” The prosecutrix again disrobed, defendant pushed her down in the back seat and had sexual intercourse with her. Prosecutrix testified that the defendant did so against her will, and that she submitted because she was frightened. After defendant had had sexual intercourse with the prosecutrix, he got out of the car, conversed with Rogers, and Rogers again got in the back seat with the prosecutrix. Rogers again had sexual intercourse with the prosecutrix against her will. Meanwhile, the defendant started the car and drove back toward Waynesville.

Rogers and the defendant stopped under a bridge and the prosecutrix dressed. There were two men fishing there, but the prosecutrix remained in the car and made no outcry. Rogers and the defendant finally took the prosecutrix to a gas station at St. Robert, Missouri. There the prosecutrix contacted a friend who notified the military police at Fort Leonard Wood.

The prosecutrix was taken to the post hospital where she was examined by a gynecologist. Prosecutrix told this physician that she had been raped, and consequently he made what he called “a complete examination of her from head to foot.” His examination disclosed menstrual flow, [863]*863which had started the day before, and a specimen of the vaginal fluid disclosed the presence of spermatozoa. There were no lesions of the external genitalia, none in the interior of the vagina, nor any bruises, scratches or cuts of any sort on prosecu-trix’s arms, face or any part of her body. The only signs of physical injury detected by the examining physican were tenderness of the abdomen and breasts, which the physician testified might have been incidental to the onset of menstruation.

James Cole, the chief of police at Waynesville, participated in the investigation of the crime charged. He testified that prosecutrix did not say to him that she was forced to have sexual intercourse, but said she was slapped. His observation of the clothing prosecutrix was wearing disclosed that it was not soiled or stained, and he observed no bruises or scratches on pros-ecutrix’s person. Chief Cole did say that the prosecutrix was very emotional, nearly incoherent, when he questioned her. Other facts will be noticed in the course of the opinion.

In this court the defendant challenges the sufficiency of the evidence to support the judgment of conviction on the ground that the prosecutrix should have been corroborated. There are a good many cases which hold that when the evidence of the prosecutrix is of a contradictory nature, or when applied to the admitted facts of the case her testimony is not convincing but leaves the mind of the court clouded with doubt, she must be corroborated, or the judgment cannot be sustained, State v. Akers, 328 S.W.2d 31, 33[2] (Mo.1959); State v. Nash, 272 S.W.2d 179, 183[1] (Mo.1954); State v. Tevis, 234 Mo. 276, 284, 136 S.W. 339, 341[6] (1911), but these rulings are, in our opinion, only specific applications of the more general principle that it is an appellate judicial function to determine whether evidence is substantial as a matter of law and warrants inferences sufficient for submission of the case to the jury. State v. Nash, supra, 272 S.W.2d at 183[2-4]; State v. Henke, 313 Mo. 615, 638-634, 285 S.W. 392, 397[5] (1926). When the record is considered as a whole, certain inconsistencies or improbabilities appear which arguably mitigate against the conclusion that the prosecutrix was forcibly raped. She did not resist or attempt to escape when she was “grabbed” initially; she did not cry out or attempt to escape when the automobile was stopped under the Crocker Bridge; the examining physician found no visible signs of physical abuse or violence upon the prosecu-trix’s body; her clothing was neither torn nor soiled. Moreover, the prosecutrix testified that Rogers and the defendant stopped at the gas station in St. Robert long enough to be seen and to have their vehicle license number copied.

The other side of the coin is that the prosecutrix was, to a degree, corroborated. Her testimony that she had been raped three times was clear and unequivocal. Her assertion that she had submitted because she was frightened was corroborated by the Waynesville Chief of Police, who found that the prosecutrix “wasn’t coherent” when he attempted to question her. Given the prosecutrix’s immaturity (she was 18 years of age) and the fact that she v/as only 5 feet tall and weighed only 95 pounds, we cannot say that her testimony, taken with that of the examining physician and the Waynesville Chief of Police, was insufficient to permit reasonable minds to find defendant guilty beyond a reasonable doubt The evidence of defendant’s guilt was substantial, and the effect of such inconsistencies or improbabilities as appeared in the evidence was a question for the jury. State v. Cox, 478 S.W.2d 339, 341(3, 4] (Mo.1972); State v. Nash, supra, 272 S.W.2d at 183[3]; State v. Hadley, 249 S.W.2d 857, 861[4] (Mo.1952).

The defendant’s principal assignment of error is directed to the instructions given and refused.

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Related

State v. Hoban
738 S.W.2d 536 (Missouri Court of Appeals, 1987)
State v. Beatty
617 S.W.2d 87 (Missouri Court of Appeals, 1981)
State v. Rogers
583 S.W.2d 293 (Missouri Court of Appeals, 1979)
State v. Blevins
581 S.W.2d 449 (Missouri Court of Appeals, 1979)
State v. Barteau
571 S.W.2d 483 (Missouri Court of Appeals, 1978)
State v. Ewing
571 S.W.2d 485 (Missouri Court of Appeals, 1978)
State v. Hurvey
544 S.W.2d 593 (Missouri Court of Appeals, 1976)

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Bluebook (online)
526 S.W.2d 861, 1975 Mo. App. LEXIS 2061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bohannon-moctapp-1975.