State v. Dowdy

60 S.W.3d 639, 2001 Mo. App. LEXIS 1501, 2001 WL 1001079
CourtMissouri Court of Appeals
DecidedSeptember 4, 2001
DocketNo. WD 59014
StatusPublished
Cited by3 cases

This text of 60 S.W.3d 639 (State v. Dowdy) 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. Dowdy, 60 S.W.3d 639, 2001 Mo. App. LEXIS 1501, 2001 WL 1001079 (Mo. Ct. App. 2001).

Opinion

HARDWICK, Judge.

Appellant James P. Dowdy was charged with and found guilty of forcible rape, two counts of forcible sodomy, two counts of armed criminal action, and felonious restraint. He appeals only the conviction on Count V, forcible sodomy, claiming the evidence was insufficient to support the jury’s verdict. We affirm.

Factual and Procedural Background

In February 1998, Appellant was released from prison and went to live for several months with his aunt, L.W., in Kansas City. On September 4, 1998, after they argued earlier in the evening, Dowdy went to L.W.’s bedroom and asked her, “Where is my dope?” L.W. said she didn’t know. Dowdy told her there would be trouble if the drugs were not found.

[641]*641Dowdy returned moments later to L.W.’s room, snapped a white rope-like object in his hand and said, “I’m going to kill you.” He wrapped the object around L.W.’s neck, causing her to fall against the bed. Dowdy placed his knees between her legs, pinned her down, and hit her twice in the face. Balling up a washcloth, he shoved it into L.W.’s mouth and secured it by wrapping a towel around her head. With the strap from L.W.’s purse, Dowdy tied her hands behind her back and her ankles together. He then turned her over onto her back, straddled her and said, “Auntie, I’m going to have to kill you.” He held a pillow over her face.

Dowdy removed the pillow and attempted oral sex with L.W. She resisted opening her mouth, but Dowdy was able to move the washcloth aside and tried to force his penis in on the other side of L.W.’s mouth. Dowdy told her if she moved or made a sound, he would kill her. He took a knife, held it to her neck asking, ‘Who’s the boss hog now?” He then moved the knife to her leg and stabbed her in her thigh, asking “Does this feel like I’m kidding? Does this feel like I’m joking?”

Dowdy then undressed himself, cut L.W.’s clothes off her body and put his mouth on her breast. He dragged her to the foot of the bed where he attempted to put his penis into her vagina. He was unable to do so, so he turned her over and cut loose the ties around her hands and ankles. He penetrated her anally until he ejaculated.

Dowdy eventually released L.W., and she immediately sought help. When officers arrived at L.W.’s apartment, Dowdy was seated on the couch. He had a knife in his hand and threatened suicide. One officer recalled Dowdy stating “that he had done five years in the penitentiary for rape and said he was probably going to go back.” Dowdy also told the officer “he had tied up his aunt in the bedroom and raped her.”

An ambulance transported L.W. to Truman Medical Center, where she was examined by a sexual assault nurse. L.W. told the nurse she had been “penetrated orally with a penis.”

Dowdy was charged with six counts: 1) forcible rape, 2) a corresponding count of armed criminal action, 3) forcible sodomy, for anally sodomizing L.W., 4) a corresponding count of armed criminal action, 5) forcible sodomy, for “putting his penis in [L.W .’s] mouth”, and 6) felonious restraint.

At trial, both at the close of the State’s evidence and all the evidence, Dowdy moved for and was denied motions for judgment of acquittal. The jury found him guilty on all counts. He was sentenced as a prior and persistent offender to consecutive terms of the maximum sentences allowed by law on each count: life imprisonment on the first five counts and seven years on the last count. Dowdy appeals his Count V conviction on forcible sodomy.

Standard of Review

The issue on appeal is whether the trial court erred in denying Dowdy’s Motion for Judgment of Acquittal because the State’s evidence failed to establish the legal elements of forcible sodomy and was, therefore, insufficient to allow a finding of guilt beyond a reasonable doubt. In reviewing the sufficiency of the evidence, we must view all the evidence and reasonable inferences to be drawn therefrom in the light most favorable to the verdict and ignore all evidence and inferences to the contrary. State v. Trimmer, 849 S.W.2d 725, 727 (Mo.App. E.D.1993). This Court must determine whether the state introduced evidence sufficient to allow a reasonable trier of fact to find each element of [642]*642the charged offense beyond a reasonable doubt. State v. Clay, 975 S.W.2d 121, 139 (Mo.banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999).

Analysis

In Count V of the Information in Lieu of Indictment, the State charged the Appellant with the felony of forcible sodomy in violation of Section 566.060 RSMo.1 This charge was based on the factual allegation that Dowdy put his penis in L.W.’s mouth without her consent and, in the course of such offense, displayed a dangerous instrument in a threatening manner. The State sought to prove these allegations at trial by presenting the testimony of L.W., the nurse who examined L.W. in the hospital sexual assault unit, and the officer who heard Dowdy’s confession of rape upon his arrest. The jury convicted Dowdy on Count V based on this evidence.

On appeal, Dowdy challenges the sufficiency of the State’s evidence to prove forcible sodomy for two reasons. First he claims the State failed to prove he placed his penis in the victim’s mouth. Second, he claims the State failed to prove he displayed a dangerous instrument in a threatening manner during the course of the oral sodomy. If the State was required to prove these elements for forcible sodomy and failed to adduce sufficient evidence on each element, we must reverse the verdict and acquittal is mandated on that charge. State v. Wood, 596 S.W.2d 394, 398 (Mo.banc), cert. denied 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980).

Our review of Appellant’s claim is guided by Section 566.060.1 which codifies the crime of forcible sodomy as follows:

A person commits the crime of forcible sodomy if such person has deviate sexual intercourse with another person by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim’s knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse.

The term “deviate sexual intercourse” is further defined in Section 566.010(1) as:

[A]ny act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person; ...

Applying these statutory elements, the trial court instructed the jury on the Count V forcible sodomy charge as follows:2

First, that on or about September 4, 1998, in the County of Jackson, State of Missouri, the defendant placed his penis in [L.W.’s] mouth, and
Second, that such conduct constituted deviate sexual intercourse, and
Third, that defendant did so by use of forcible compulsion, and

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Related

State v. Carlock
242 S.W.3d 461 (Missouri Court of Appeals, 2007)
State v. Williams
126 S.W.3d 377 (Supreme Court of Missouri, 2004)
State v. Hayes
88 S.W.3d 47 (Missouri Court of Appeals, 2002)

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Bluebook (online)
60 S.W.3d 639, 2001 Mo. App. LEXIS 1501, 2001 WL 1001079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dowdy-moctapp-2001.