State v. Edwards

785 S.W.2d 703, 1990 Mo. App. LEXIS 221, 1990 WL 9609
CourtMissouri Court of Appeals
DecidedFebruary 6, 1990
DocketNo. 53471, 55978
StatusPublished
Cited by6 cases

This text of 785 S.W.2d 703 (State v. Edwards) 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. Edwards, 785 S.W.2d 703, 1990 Mo. App. LEXIS 221, 1990 WL 9609 (Mo. Ct. App. 1990).

Opinion

STEPHAN, Judge.

David Owen Edwards was found guilty by a jury of forcible rape, § 566.030 RSMo 1986, and sentenced to thirty years’ imprisonment. His Rule 29.15 motion was denied after an evidentiary hearing. He challenges both judgments in this consolidated appeal.

In February 1986, M.D. (“victim”) met appellant. They immediately developed a casual sexual relationship. They stopped having sexual intercourse sometime in June or July after appellant had mentioned his interest in victim’s sister. At about this time, victim became involved with another man. Several months later on Sunday, September 15, around ten o’clock in the evening, victim telephoned her friend Tina, the girlfriend of appellant’s brother. Appellant answered instead. During their conversation he mentioned he had recently purchased a new citizens’ band radio and asked if she wanted to try it out. She agreed, and appellant picked her up in his truck. As they drove west on Interstate 44, they talked on the C.B. radio to truck drivers. Appellant turned off the highway and parked in a secluded area.

Appellant asked victim if she wanted to listen to the radio or to continue talking on the C.B. Victim replied, “it didn’t make me any difference.” She testified they began kissing. Appellant tried to put his hands up her blouse. She resisted his advances and tried to get out of the truck. He grabbed her, hitting her head on the steering wheel. He locked the truck’s doors and threatened to kill her if she tried to escape again. They then engaged in both oral and regular intercourse. Appellant drove victim back to her house.

The next morning she went to her gynecologist with whom she had previously scheduled an appointment. She told him she had been raped. He directed her immediately to the emergency room at Lutheran Medical Hospital. At the emergency room, Dr. Pedro Cayab conducted an examination of victim. He found no outward signs of physical injury or vaginal trauma, but did find spermatozoa. He noted during his examination that victim was upset, crying and somewhat withdrawn. He considered her to be suffering from mental trauma. Two police officers who interviewed victim at the hospital also observed her emotional state. While appellant did not testify himself, his defense at trial did not dispute that sexual intercourse had occurred, but, rather, that the intercourse was consensual, not forcible.

The jury found appellant guilty of rape. Although the trial court had previously found appellant to be a persistent sexual offender, the state waived its right to have him sentenced as a persistent sex offender in exchange for his waiver of his appeal. The trial court sentenced appellant to thirty years’ imprisonment.

Appellant has raised three points. He challenges the sufficiency of the evidence, the state’s use of an expert medical witness’s opinion and the exclusion of evidence that victim’s vaginal infection was sexually transmittable. The state ignores the merits of appellant’s claims in his direct appeal and responds that these points should not be considered because the record establishes that appellant voluntarily waived his right to a direct appeal of his conviction in return for the prosecutor’s [705]*705withdrawal of proof that appellant was a persistent sex offender.

At the close of the state’s case and out of the hearing of the jury, the prosecutor offered into evidence a prior rape conviction to establish that appellant was a persistent sexual offender under § 558.018 RSMo 1986. Under this statute, the judge would have been required to sentence appellant to thirty years without probation or parole.

At appellant’s sentencing, the state agreed to withdraw its proof of appellant’s persistent sex offender status if appellant would waive his appeal. Absent such proof, although appellant would still receive a sentence of thirty years’ imprisonment, he would be eligible for parole or probation. When questioned directly by the court whether he understood the import of the state’s recommendation, appellant indicated his assent. The court then asked appellant if that was what he wanted to do. Appellant responded affirmatively. The court reiterated its question:

THE COURT: You understand what that means? That you are waiving any right to appeal. In other words, you are giving up your right to appeal the decision in this case?
THE DEFENDANT: Yes, sir.
THE COURT: You understand that?
THE DEFENDANT: Yes, sir.

A discussion ensued over appellant’s satisfaction with his trial attorney’s performance and the availability of a post-conviction proceeding against defense counsel. Appellant again acknowledged that he wanted to waive his direct appeal. The trial court accepted the waiver of his right to appeal and sentenced appellant to thirty years’ imprisonment. The judge concluded the sentencing by questioning appellant once again whether it was clear to him that the state was waiving its proof of his persistent sexual offender status in exchange for his waiver of his right to appeal. Both appellant and his trial counsel responded affirmatively.

Despite this acknowledgment by both appellant and his trial counsel of his waiver of his appeal, defense counsel filed a late notice of appeal to initiate this appeal. A defendant waives his right to appeal where the intention to voluntarily waive appears in the record. Edwards v. State, 569 S.W.2d 779, 780[1, 2] (Mo.App.1978). We believe the record as previously discussed conclusively establishes appellant’s voluntary waiver of his appeal. Appellant’s voluntary waiver precludes any review on the merits of his appeal from his conviction for forcible rape. His direct appeal is dismissed.

A cursory review ex gratia of appellant’s claims in his direct appeal satisfies us that no basis for reversal of appellant’s conviction exists. His first point argued that, as in State v. Phillips, 585 S.W.2d 517, 520 (Mo.App.1979), victim’s testimony was uncorroborated, contradicted other evidence presented by the state’s witnesses, and was contrary to common experience. In Phillips, the court found the prosecu-trix’s testimony on the issue of sexual penetration to be “vague and conclusionary.” Id. Here, appellant did not dispute that intercourse had occurred, but only that such intercourse was consensual, not forcible. Dr. Pedro Cayab’s testimony that he found no bruises or vaginal trauma upon examining victim some twelve hours after the rape does not contradict her claim that appellant grabbed her, threw her against the door of the pick-up truck jamming her head between the door and the steering wheel and,' after locking the truck’s doors, threatened to kill her if she tried to escape. Dr. Cayab acknowledged on redirect examination that, depending on the degree of force used, bruises might not show up for forty-eight hours after their infliction.

Appellant’s second point is that the testimony of Dr. Cayab concerning victim’s apparent mental trauma transgressed State v. Taylor, 663 S.W.2d 235 (Mo. banc 1984), that evidence of rape trauma syndrome is not admissible. In Taylor,

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Cite This Page — Counsel Stack

Bluebook (online)
785 S.W.2d 703, 1990 Mo. App. LEXIS 221, 1990 WL 9609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-edwards-moctapp-1990.