State v. Cusumano

399 S.W.3d 909, 2013 WL 2402605, 2013 Mo. App. LEXIS 660
CourtMissouri Court of Appeals
DecidedJune 4, 2013
DocketNo. ED 98027
StatusPublished
Cited by8 cases

This text of 399 S.W.3d 909 (State v. Cusumano) 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. Cusumano, 399 S.W.3d 909, 2013 WL 2402605, 2013 Mo. App. LEXIS 660 (Mo. Ct. App. 2013).

Opinion

PATRICIA L. COHEN, Judge.

Introduction

Rick Cusumano (Defendant) appeals the judgment of the Circuit Court of St. Louis County convicting him of forcible rape. Defendant contends the trial court plainly erred in: (1) allowing the State to prosecute Defendant for forcible rape in violation of his right to be free of double jeopardy; and (2) overruling Defendant’s objections to the admission of victim impact testimony during the guilt phase of trial. We affirm.

[911]*911 Factual and Procedural Background

At approximately 10:00 p.m. on August 5, 1988, C.Z. (Victim) went for a walk in her neighborhood. As she was returning home, she passed a man who was standing at a mailbox at the end of a driveway. The man grabbed Victim from behind, covered her mouth with a gloved hand, and said, “I’ve got a gun, if you don’t cooperate I’ll blow your head off.” When Victim struggled, the man hit Victim on her- head with a gun.

The man dragged Victim to a backyard where a second man was waiting. Both men wore bandanas over their faces.1 The first man handed the gun to the second man, removed Victim’s jogging shorts and underwear, and forced his penis into her vagina while the second man held the gun. Next, the first man forced Victim to put her mouth on his penis and perform oral sex. The first man then held the gun while the second man forced his penis into Victim’s vagina.

The men ordered Victim not to watch them leave and threatened to kill her if she reported their crimes. After the men left, Victim put on her underwear and shorts, ran home, and told her husband about the assault. Husband drove Victim to the police department where Victim reported the crime. From the police department, Victim went to the hospital where a doctor administered a rape kit.

Forensic testing matched Defendant’s DNA to DNA collected on August 5 and 6, 1988 from a beer can found at the scene of the assault and from Victim’s underwear and body. On February 10, 2010, the State charged Defendant with two class A felony counts of aggravated forcible rape (Counts I and II) under Section 566.030 and one class A felony count of aggravated forcible sodomy (Count III) under Section 566.060. Mo.Rev.Stat. §§ 566.080.2, 566.060.2 (1988).2 At the time of the charged crimes, Sections 566.030.2 and 566.060.2 provided that if, in the course of committing forcible rape or forcible sodomy, unclassified felonies, the defendant “display[ed] a deadly weapon ... in a threatening manner” or “subject[ed] the victim to deviate sexual intercourse or sexual intercourse with more than one person,” the defendant committed the greater offense of aggravated forcible rape or aggravated forcible sodomy, which were class A felonies punishable by ten years to life imprisonment.3 Mo.Rev.Stat. [912]*912§§ 566.030.2, 566.060.2; see State v. Gray, 895 S.W.2d 241, 243 (Mo.App. S.D.1995).

The trial court held a two-day jury trial in September 2010. At the instructions conference, both sides submitted jury instructions for Count I (forcible rape) and Count III (forcible sodomy). As to Count I, the State submitted Instruction 6, based on MAI-CR3d 320.01.1A Forcible Rape: Aggravated (effective Jan. 1, 1987), which provided:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about August 5,1988, in the County of St. Louis, State of Missouri, the defendant had sexual intercourse with [Victim] and
Second, that the defendant did so by the use of forcible compulsion, and
Third, that the defendant did so knowingly,
Fourth, that, in the course of this conduct, the defendant or another person displayed a deadly weapon in a threatening manner,
Fifth, that with the purpose of promoting or furthering the commission of forcible rape, the defendant acted together with another person in committing the offense,
then you will find the defendant guilty under Count I of forcible rape.

Defendant submitted Instruction 7 for the lesser included offense of forcible rape,4 which did not require the jury to find that Defendant or another person displayed a deadly weapon in a threatening manner or that Defendant acted together with another person in committing the offense. Instruction 7 stated:

As to Count I, if you do not find the defendant guilty of forcible rape as submitted in Instruction No. 6, you must consider whether he is guilty of forcible rape under this instruction.
As to Count I, if you find and believe from the evidence beyond a reasonable doubt[:]
First, that on or about August 5,1988, in the County of St. Louis, State of Missouri, the defendant had sexual intercourse with [Victim], and
Second, that defendant did so by the use of forcible compulsion, and
Third, that defendant did so knowingly,
then you will find the defendant guilty under Count I of forcible rape.

As to Count III, the State submitted Instruction 9 for aggravated forcible sodomy. Instruction 9 directed the jury:

As to Count III, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about August 5,1988, in the County of St. Louis, State of Missouri, the defendant or another person made [Victim] put her mouth on the penis of the defendant or another person, and
Second, that such conduct constituted deviate sexual intercourse, and
Third, that defendant or another person did so by the use of forcible compulsion, and
[913]*913Fourth, that defendant or another person did so knowingly,
Fifth, that in the course of this conduct, the defendant or another person displayed a deadly weapon in a threatening manner,
Sixth, that with the purpose of promoting or furthering the commission of that forcible sodomy, the defendant acted together with another person in committing the offense,
then you will find the defendant guilty under Count III of forcible sodomy.

Defendant submitted Instruction 10, an instruction for the lesser included offense of forcible sodomy, which stated:

As to Count III, if you do not find the defendant guilty of forcible sodomy as submitted in Instruction No. 9, you must consider whether he is guilty of forcible sodomy under this instruction.
As to Count III, if you find and believe from the evidence beyond a reasonable doubt[:]
First, that on or about August 5,1988, in the County of St. Louis, State of Missouri, the defendant made [Victim] put her mouth on the penis of the defendant, and
Second, that such conduct constituted deviate sexual intercourse, and
Third, that defendant did so by the use of forcible compulsion, and

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Bluebook (online)
399 S.W.3d 909, 2013 WL 2402605, 2013 Mo. App. LEXIS 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cusumano-moctapp-2013.