State v. Gorman

940 S.W.2d 543, 1997 Mo. App. LEXIS 411, 1997 WL 109583
CourtMissouri Court of Appeals
DecidedMarch 11, 1997
DocketNos. 20070, 20996
StatusPublished
Cited by5 cases

This text of 940 S.W.2d 543 (State v. Gorman) 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. Gorman, 940 S.W.2d 543, 1997 Mo. App. LEXIS 411, 1997 WL 109583 (Mo. Ct. App. 1997).

Opinion

BARNEY, Presiding Judge.

Rock D. Gorman (Defendant) appeals from a jury verdict finding him guilty on eleven felony counts. He was convicted on December 15, 1994, of assault of a law enforcement officer in the second degree, § 565.082, RSMo Cum.Supp.1993; two counts of kid-naping, § 565.110, RSMo 1986; robbery in the first degree, § 569.020, RSMo 1986; two counts of endangering the welfare of a child in the first degree, § 568.045, RSMo Cum. Supp.1993; rape, § 566.030, RSMo Cum. Supp.1993;1 sodomy, § 566.060, RSMo Cum. [545]*545Supp.1993; and three counts of armed criminal action, § 571.015, RSMo 1986. He was sentenced to consecutive terms of imprisonment in the Department of Corrections totaling 610 years.

Movant also appeals the denial of his Rule 29.15 motion after an evidentiary hearing. We have consolidated the appeals.

On May 7, 1994, Defendant went to the house of his former girlfriend (Sandy)2 carrying a sawed-off shotgun. When he arrived, he found Sandy’s son-in-law (Brad) watching Sandy’s five children while she was at a meeting. Defendant went through every room of the house looking for Sandy before returning to demand the keys to Brad’s truck.

Defendant then told two of Sandy’s daughters, T.G., age 13, and C.G., age 18 months, that they were going with him. Brad and T.G. protested but Defendant pointed the shotgun at the girls and insisted they go with him. Before leaving the house, Defendant took all of the headsets to the phones. As he left he- told Brad that if he called the police, Sandy would never see the two children again.

Defendant drove to where his car was parked and the three of them got into the car. Defendant drove for approximately thirty minutes then stopped the car in the woods near a creek. Defendant ordered T.G. to get into the back seat and take her clothes off. He told T.G. that it was her mom’s fault that he was doing this and that he would hurt C.G. if she did not do what he said. Defendant then took his clothes off and inserted his penis twice into T.G.’s vagina. Defendant put his finger in her vagina and made T.G. put her mouth on his penis three or four times. When Defendant was finished, T.G. put her clothes back on and crawled back into the front seat.

Defendant continued to drive until he stopped at a house to ask for directions. The house where he stopped was that of Mark Aleshire, an off-duty investigator for the Lawrence County Sheriffs office. When Defendant left, Aleshire called the dispatcher to inquire as to whether the vehicle Defendant was driving was the vehicle that was being sought and had been the subject of an earlier broadcast from the Sheriffs office. Upon receiving confirmation that it was, Aleshire followed Defendant in his patrol car. When he caught up with Defendant, a high speed chase ensued which eventually involved more than ten law enforcement vehicles joining in the chase.

As Corporal Gary Lutes attempted to pass Defendant, he struck Corporal Lutes’ car, forcing him into the ditch. Corporal Lutes regained control of his vehicle and was successful in passing Defendant. Once in front of him, Corporal Lutes attempted to slow down to 80 miles per hour, in an attempt to keep Defendant from passing him. Defendant then accelerated and rammed the back of Corporal Lutes’ patrol car, causing the car to slide across the highway, off the shoulder, spin around 180 degrees, go into a ditch and hit a rock bluff. Corporal Lutes suffered cuts along his right eye requiring six stitches, a black eye and he had sore muscles for about one week.

Throughout the chase, Defendant was making erratic passes, running cars off of the road, failing to stop at red lights, exceeding the speed limit by driving as fast as 100 miles per hour and passing through police roadblocks. He held the shotgun to T.G.’s head throughout the chase. One officer testified that when he got close to Defendant’s car, Defendant would point the shotgun at him.

At one point, Defendant blew a tire on his car but he still refused to stop. He eventually exited Interstate 44 at the city of Springfield, Missouri. Officers chased him through the city until smoke began to pour from under the hood and around the vehicle. When the car stopped, T.G. and C.G. exited the car and ran to the police.

No. 20070 — Direct Appeal

Defendant raises two points in his direct appeal. First, he asserts that the trial court plainly erred in submitting Instruction No. 7, the lesser included offense of assault of a law [546]*546enforcement officer in the second degree, to the jury. Defendant asserts that the instruction his trial counsel tendered to the court allowed the jury to convict Defendant of assault of a law enforcement officer in the second degree if they found Defendant had “knowingly caused physical injury” to the victim by “recklessly failing to prevent a collision with a patrol car.” He argues that this allowed the jury to find Defendant guilty based upon a lower mental state (“recklessly” failing to prevent), rather than that required by statute (“knowingly” causing physical injury), all contrary to the requirements of MAI-CR 3d 319.34. Second, Defendant cites error in the trial court’s admission of a photographic slide of the victim’s pubic area and its subsequent viewing by the jury. Defendant claims that the prejudice of using this photograph outweighed its probative value.

In review of his first point, the portion of Instruction No. 7 about which Defendant complains reads as follows:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about May 7, 1994, in the County of Lawrence, State of Missouri, the defendant knowingly caused physical injury to Corporal Gary Lutes by means of a dangerous instrument by recklessly failing to prevent a collision with a patrol car occupied by Gary Lutes.... (Emphasis added.)

However, Defendant was the party submitting the instruction. Having proffered the instruction himself, Defendant is not in a position to complain. State v. Leisure, 796 S.W.2d 875, 877 (Mo. banc 1990). As a general rule a defendant cannot complain of an instruction given at his request. State v. Chambers, 891 S.W.2d 93, 105 (Mo. banc 1994); State v. Mogan, 891 S.W.2d 867, 871 (Mo.App.1995). “Generally, a defendant may not obtain a new trial on the basis that the court submits an instruction offered by defendant.” State v. Giles, 926 S.W.2d 227, 228 (Mo.App.1996).3

Defendant cites State v. Albanese, 920 S.W.2d 917 (Mo.App.1996) for the proposition that a trial court must submit a proper instruction on its own motion, even if an incorrect instruction is submitted by counsel. However, the Albanese case involved a self-defense instruction which is expressly required to be given when supported by the evidence, even if not requested by the defendant. Id. at 923; see also note two of MAI-CR 3d 306.06. No such express requirement exists in MAI-CR 3d 319.34.

Defendant acknowledges that he offered the instruction.

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Related

State v. Wallis
204 S.W.3d 732 (Missouri Court of Appeals, 2006)
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92 S.W.3d 183 (Missouri Court of Appeals, 2002)
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89 S.W.3d 472 (Supreme Court of Missouri, 2002)
Sitton v. State
17 S.W.3d 917 (Missouri Court of Appeals, 2000)

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Bluebook (online)
940 S.W.2d 543, 1997 Mo. App. LEXIS 411, 1997 WL 109583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gorman-moctapp-1997.