State v. Frey

897 S.W.2d 25, 1995 Mo. App. LEXIS 304, 1995 WL 66750
CourtMissouri Court of Appeals
DecidedFebruary 21, 1995
DocketNos. WD 44964, WD 48337
StatusPublished
Cited by7 cases

This text of 897 S.W.2d 25 (State v. Frey) 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. Frey, 897 S.W.2d 25, 1995 Mo. App. LEXIS 304, 1995 WL 66750 (Mo. Ct. App. 1995).

Opinions

HANNA, Judge.

The defendant, Clifton Frey, was convicted of the class B felony of rape, § 566.030, RSMo 1986, following a trial by jury. The jury assessed punishment at eight years imprisonment and the court entered judgment accordingly. The defendant filed his Rule 29.15 motion claiming ineffective assistance of counsel.

On appeal the defendant raises four points, the first three related to his criminal trial and the fourth related to his Rule 29.15 motion’s claim of ineffective assistance of counsel. One point in the criminal case challenges the sufficiency of the evidence to support the verdict, and the other two points relate to the admissibility of evidence — one involving prior uncharged crimes and the other concerning hearsay testimony.

The evidence showed that just before 6:00 a.m. on June 5, 1989, while Ms. Lillie Kay Salts was sleeping, the defendant entered her room at the Woodlawn Estates Nursing Home. The defendant, who was employed as a staff member at the nursing home, closed the door, removed Ms. Salts’ nightgown, pulled down her underwear and raped her on the bed. She “told him to quit it” and struggled with him “[pjretty hard,” but the defendant continued stating, “this feel[s] good. This feel[s] good. If you don’t let me, I’ll kill you.” Ms. Salts testified that she screamed and hollered but no one came to her aid.

Ralph Price, another resident of the nursing home, testified that he heard Ms. Salts screaming and noticed that the door to her room was cracked open slightly. He walked into the room and observed the defendant lying on top of Ms. Salts on her bed, “sticking his thing in her.” However, he did not attempt to help or summon help.

After the defendant left, Ms. Salts testified that she went into the hallway and screamed for help but no one came to her assistance. When she told the operators of the nursing home, Melvin and Darlene Matlock, what had happened, they refused to believe her.

Ms. Sharon Jones shared a bedroom with Ms. Salts at Woodlawn Estates in the winter of 1988. She testified that the defendant, on two other occasions, had entered the room at bedtime and felt their stomachs and chests under their bedclothes, supposedly to check them for fever.

Ms. Jones further testified that, in December 1990, approximately 3½ months before the trial, the defendant had accosted her in an alley near her apartment in Rolla, Missouri. She testified that he grabbed her, scratched her face with something and told her, “He did not want [her] to testify against him.” Elwood Rapier, a Rolla police officer, said that Ms. Jones was seated in a folding chair with her hands covering her face when he arrived at the scene. She appeared to be upset and when she removed her hands from her face, he noticed several minor lacerations and scratches on her face.

The first claim of error goes to the trial court’s ruling on the defendant’s motion for judgment of acquittal challenging the sufficiency of the evidence to support the conviction of forcible rape. The defendant argues that the evidence presented was contradictory and insufficient to sustain a finding of guilt beyond a reasonable doubt that he raped Ms. Salts. In determining the sufficiency of the evidence, we accept as true all evidence favorable to the state, including all favorable inferences drawn from the evidence, and we disregard all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, - U.S. -, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). An appellate court does not weigh the evidence, State v. Lindsey, 868 S.W.2d 114, 116 (Mo.App.1993), nor do we determine the reliability or credibility of witnesses. State v. Middleton, 854 S.W.2d 504, 506 (Mo.App.1993). The question presented is whether there was substantial evidence from which a trier of fact can reasonably find the issue in harmony with the verdict. State v. Martin, 852 S.W.2d 844, 849 (Mo.App.1992).

The defendant argues that the victim’s testimony was inconsistent, specifically as to the precise time the rape occurred, what she was wearing, whether she was asleep when the defendant first entered her room and what action she took immediately after the rape. Ms. Salts first testified that she was asleep when she first noticed the [28]*28defendant and later testified that the defendant laid her down on the bed and would not let her get up. She first testified that she was wearing slacks at the time of the crime and later testified she was wearing a gown and that the defendant pulled it off. She testified that the incident occurred right before 6:00 a.m. and then testified that it occurred at 4:00 a.m. With respect to her actions following the incident, she first testified that she got out of the bed after the defendant left the room, got dressed and went down the ramp that was by her room. Her later testimony was that when she was able to get out of her room, she stood by the door and hollered, “Help. Help. Melvin, come and get him out of this room.” Finally, she testified that she first reported the rape to the Matlocks “the next morning” and later stated that she told them Tuesday evening “after I came in from workshop.” The defendant argues that these inconsistencies left the victim’s testimony so unconvincing and clouded with doubt that it needed corroboration in order to sustain the conviction. See State v. Kuzma, 751 S.W.2d 54, 58 (Mo.App. 1987). If the inconsistencies in the victim’s testimony leave her testimony unconvincing and clouded with doubt, corroboration is required. State v. Smith, 679 S.W.2d 899, 902-OS (Mo.App.1984). The defendant acknowledges that the state did present Mr. Ralph Price’s testimony, which was corroborating testimony.

The defendant, citing Kuzma, 751 S.W.2d at 58, claims that the “corroboration rule must be invoked.” He further argues that Mr. Price’s testimony was not corroborative in that it was substantially different from that of the victim. We will not detail Mr. Price’s testimony as we hold that corroboration, i.e., Mr. Price’s testimony, was not necessary to sustain the verdict. The corroboration rule does not apply when the inconsistencies or contradictions in the victim’s trial testimony involved “proof not essential to the case.” State v. Gardner, 849 S.W.2d 602, 604 (Mo.App.1993). The inconsistencies which appeared in this victim’s testimony are no more than those matters that a jury is called upon to decide when determining the sufficiency of the evidence and the credibility of the witness. As a matter of law they do not rise to the level of the inconsistencies that destroy the witness’s testimony. It frequently occurs that a witness’s testimony, during the course of a witness’s recitation of the facts, falls into inconsistencies or contradictions concerning minor points of a nonessential nature. See State v. Nelson, 818 S.W.2d 285, 289-90 (Mo.App.1991). This does not destroy the case. It is left for the trier of fact to believe all, some, or none of the witness’s testimony in arriving at a verdict. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). It is the trier of fact’s responsibility to resolve those contradictions or conflicts in the victim’s testimony. Id.

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Bluebook (online)
897 S.W.2d 25, 1995 Mo. App. LEXIS 304, 1995 WL 66750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frey-moctapp-1995.