State v. Burgess

780 S.W.2d 688, 1989 Mo. App. LEXIS 1695, 1989 WL 144462
CourtMissouri Court of Appeals
DecidedNovember 30, 1989
DocketNo. 15911
StatusPublished
Cited by1 cases

This text of 780 S.W.2d 688 (State v. Burgess) 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. Burgess, 780 S.W.2d 688, 1989 Mo. App. LEXIS 1695, 1989 WL 144462 (Mo. Ct. App. 1989).

Opinion

HOGAN, Judge.

By two-count information filed in the Circuit Court of Greene County, defendant Kenneth K. Burgess was charged with forcible rape in violation of § 566.030.1, RSMo.1986,1 and forcible sodomy in violation of § 566.060.1. A jury found the defendant guilty on both counts. His punishment was assessed at 8 years for the commission of forcible rape and 15 years for the commission of forcible sodomy. It was ordered that the sentences be served consecutively. The defendant appeals, contending that the trial court erroneously received evidence of another crime with which he had not been charged.

On April 12, 1987, defendant’s victim, to whom we shall refer as G., worked as a cocktail waitress at a bowling alley in the south part of Springfield, Missouri. About 6 p.m. G. finished work, went home, and about 8 p.m. she returned to her place of employment to “practice [bowling] and have a drink.” G. practiced for a while, conversed with other employees and had “[a]bout three” mixed drinks. While she was in the bar, G. overheard the defendant conversing with the bartender about cashing a check. The bartender refused to cash a check for the defendant because it was the bowling alley’s policy to refuse out-of-town checks. G. suggested there were a couple of stores which might cash a check; she volunteered to ride with the defendant to a store which would. G.’s brother had come to the bowling alley to take her home, but she told her brother that she and the defendant were going to visit for a while and the defendant would give her a ride home. G. and the defendant left the bowling alley about 10 p.m.

The two left the bowling alley in an automobile the defendant was driving. The defendant did not drive to the store which G. had suggested might cash a check; instead, he indicated he would go to his sister’s house and obtain cash from her. The defendant drove to the south part of Springfield and turned onto a country road in a sparsely populated area. He drove past a trailer which he said belonged to his sister, but further stated that his sister had company, and he did not wish to disturb her.

The defendant continued driving away from Springfield, and eventually stopped, expressing the need to relieve himself. G. suggested that the defendant go to a service station so she might also relieve herself. The defendant answered, “ ‘Oh, you can go outside.’ ” The defendant parked his car and turned off the lights. G. re[689]*689mained in the car. She lit a cigarette because she was frightened, and “[i]f he bothered [her], [she] was going to burn [the defendant] with it.” When the defendant returned to the automobile, he asked G. if she had thought about having sex with him. G. answered that she had not and the defendant suggested she get out of the car. When she attempted to leave the vehicle, however, defendant “grabbed [her] coat” and pulled her back in the car. G. tried to “stick [the cigarette] in [the defendant’s] face.... ” The defendant said, “ ‘Go ahead, baby. I’ve been burned before.’ ” At this point, G. became frightened; she decided not to argue or fight with the defendant because she was afraid he would hurt her.

The defendant told G. to get in the back seat of the automobile. She obeyed. Defendant then engaged in sexual intercourse with G. Defendant then sodomized G. by inserting his penis into G.’s anus. Thereafter, the defendant forced his victim to engage in sexual intercourse, but “made [her] get on top.” He then told G. “[j]ust get your stuff and go.” G. got out of the automobile and into a ditch so she could see the defendant’s license plate. The defendant drove away.

The State had the testimony of Jeffrey S. Wheeler, a physician who examined G. after she had been raped. Dr. Wheeler testified that G. was apprehensive but when he examined her pelvis, “everything appeared normal except for some blood that was coming from the anus.” The doctor believed that the anal bleeding was the result of “[s]ome sort of forceful entry.” No semen or motile sperm were found in G.’s vagina, but the absence of motile sperm did not indicate G. had not had intercourse. The doctor was permitted to testify that nothing in his examination was inconsistent with sexual assault.

Over the defendant’s objection, which we shall discuss in more detail, the State introduced the testimony of Teresa Hahnfield Blinzler concerning an incident which occurred in June of 1981. Mrs. Blinzler testified that in June 1981, she met the defendant at Sadie’s Bar in Pierce City, Missouri. She had gone to the bar to meet her friend, Tammy. The defendant was sitting at the bar. After Mrs. Blinzler and her friend had been in the bar for some time, the defendant offered to pay $15 to be taken to Stotts City. Mrs. Blinzler had never seen the defendant before. She and her friend did agree to drive the defendant to Stotts City. The defendant told Mrs. Blinzler that he wanted to be taken to a residence which he indicated was his sister’s house. When the three persons, Tammy, Mrs. Blinzler and the defendant, arrived at the residence, Mrs. Blinzler went in the house to get the money defendant had promised to pay. Once in the house, the defendant locked the doors and “just went kind of crazy.” Defendant tore Mrs. Blinzler’s clothes off and had sexual intercourse with her. Mrs. Blinzler filed a complaint with the prosecutor and the defendant was arrested but Mrs. Blinzler “dropped the charges” because she didn’t want to go “all through the court.”

The defendant testified in his own behalf. He clearly remembered April 12, 1987 — the day the crimes charged were committed— because his wife had given birth to a child and had had a particularly difficult delivery. He admitted that he met G. at the bowling alley where she worked. G. appeared to the defendant to be intoxicated. G. wanted to go “riding around.” The defendant admitted he was drinking, but testified that at G.’s request, he drove to the north part of the City of Springfield, where the two had sexual intercourse. The defendant testified it was G.’s idea to engage in coition. He denied engaging in any sodomitic act with G.

The defendant also admitted that he met Mrs. Blinzler in June 1981 at the Pierce City tavern. He denied that he offered Mrs. Blinzler and her companion money to take him home; the defendant’s testimony was that Mrs. Blinzler had voluntarily consented to sexual intercourse at the house in Stotts City. This episode, as we have noted, occurred in June 1981, almost 6 years before the crimes charged were committed. Other pertinent facts will be noted in the course of the opinion.

[690]*690As noted, the sole point briefed and argued on appeal is that the trial court erroneously admitted evidence that the defendant committed a crime, specifically another rape, with which he was not charged. The State maintains that the point is not properly preserved for review. Slightly paraphrased, the State’s contention is that the defendant made one objection in his motion in limine, another objection before Mrs. Blinzler began to testify and yet another objection in his motion for new trial. The State’s point is arguable if one looks only to the written motions filed. The record shows, however, that the State’s point of view and that of the defendant concerning the admissibility of Mrs. Blinz-ler’s testimony was put before the court during argument on the motion in limine. The trial court stated in the record that it believed evidence of other crimes would be admissible to show motive, intent or the absence of mistake. This is the ground of admission for which the State had argued.

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Bluebook (online)
780 S.W.2d 688, 1989 Mo. App. LEXIS 1695, 1989 WL 144462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burgess-moctapp-1989.