State v. Hamrick

714 S.W.2d 566, 1986 Mo. App. LEXIS 4116
CourtMissouri Court of Appeals
DecidedMay 13, 1986
DocketNo. WD 36937
StatusPublished
Cited by6 cases

This text of 714 S.W.2d 566 (State v. Hamrick) 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. Hamrick, 714 S.W.2d 566, 1986 Mo. App. LEXIS 4116 (Mo. Ct. App. 1986).

Opinion

DIXON, Judge.

Defendant appeals a jury conviction of rape, § 566.030, RSMo Supp.1984, for which he was sentenced to 12 years imprisonment. On appeal he alleges the evidence was insufficient to support the verdict and [567]*567that he was denied effective assistance of counsel. He further alleges the trial court erred in allowing hearsay testimony into evidence.

The complainant in this case is defendant’s step-daughter. Complainant was 13 years old at the time the last incident of intercourse occurred, which was the act with which defendant was charged. Complainant and her mother had lived with defendant since the summer of 1980. In August 1984 complainant reported to neighbors that she had been subjected to sexual abuse by defendant. Complainant had not earlier complained to her mother of the abuse because she was afraid. On July 12,1984, complainant was hospitalized with inflammatory bowel syndrome. Her mother told her she was having problems because she was keeping things inside — “a big secret inside.” Complainant became afraid “something might be wrong” and decided to confide in neighbors. The neighbors took her to the Division of Family Services and she was subsequently taken to a hospital for medical examination. She was placed in foster care for a short time and then moved out-of-state to reside with her natural father.

At trial the 13 year old complainant testified that defendant had begun sexually touching her breasts and genitals and engaging her in oral sexual activity when she was about eight. He began having intercourse with her when she was approximately 10 years old.

Complainant testified that she believed the last incident of intercourse occurred on a Friday night around July 6, 1984. Defendant and complainant’s mother operated a restaurant a few feet from their house, and both were still in the restaurant when complainant decided to go to bed. It was apparently not uncommon for defendant and the mother to leave the restaurant separately. Because the weather was very warm, complainant moved a mattress down to her mother’s room where there was a fan. She was lying on the mattress with a sheet over her when she heard footsteps. She rolled onto her stomach or side and pretended to be asleep. Defendant entered the bedroom. He rolled complainant onto her back, pulled down the sheets and complainant’s underpants and “had intercourse” with her. When defendant heard the sound of complainant’s mother entering the house, he quickly pulled up complainant’s underpants and the sheet and got into his own bed.

Complainant testified that she knows what sexual intercourse is. She admitted that she never opened her eyes on the last night the intercourse occurred but she believed the man was defendant because that’s who it was “all the other times that [she] did have [her] eyes open.”

Defendant claims that the evidence presented was insufficient to support the verdict. He claims that complainant’s testimony is contradictory and inconsistent and without corroboration; therefore, he argues, the verdict cannot stand.

When the appellate court reviews a case to determine whether there was sufficient evidence to support the jury’s verdict, it must consider as true all evidence favorable to the state as well as all reasonable inferences that may be drawn therefrom. State v. Chamberlain, 648 S.W.2d 238, 240 (Mo.App.1983). Moreover, the uncorroborated testimony of a prosecutrix will sustain a conviction of rape unless her testimony is so unconvincing and contradictory as to “cloud the mind of the court with doubts.” Id. Corroboration is not required where the inconsistency or contradiction does not bear on proof essential to the case. State v. Salkil, 659 S.W.2d 330, 333 (Mo.App.1983); See State v. Baugh, 323 S.W.2d 685, 688 (Mo. banc 1959). Uncertainties in the testimony bearing on related matters are for the jury’s resolution and go to credibility. State v. Harris, 620 S.W.2d 349, 354 (Mo. banc 1981).

The evidence was sufficient to support the verdict in this case and no corroboration of complainant’s testimony was [568]*568needed. The uncertainties pointed out by defendant do not so undermine the evidence that it is rendered insufficient. Complainant was interviewed several times by different persons for different reasons about the intercourse. She gave more than one date when the intercourse might have occurred, but she repeatedly said she wasn’t sure of the date and the dates she suggested were within a few days of each other. At any rate, time is not of the essence in a statutory rape case. State v. Kammerich, 550 S.W.2d 931, 932 (Mo.App.1977).

At the preliminary hearing, complainant had said the intercourse occurred between 10 and 10:30 p.m. while at trial she stated it happened between 10:30 and midnight. She could not remember the color of her nightgown and underpants, whether the lights were on or off, whether defendant undressed before he had intercourse with her, how far down he pulled her underpants or how long the intercourse lasted. She admitted she could not remember whether she was on her side or her stomach before defendant rolled her over. She had said defendant had intercourse with her about twice a month but when asked about the last incident of intercourse preceding the incident charged, she estimated it had happened a couple of months prior to the July episode.

Such uncertainties do not trigger the corroboration requirement. Complainant was 13 years old at the time of her testimony. She was subjected to numerous interviews. Considering her age and the number of times she was required to tell her story it is not surprising that some inconsistency developed. State v. Presley, 694 S.W.2d 867, 870 (Mo.App.1985). Furthermore, complainant was being asked to describe an event that had happened weeks before and that was one out of a number of incidents. She had been ill and hospitalized between the time of the intercourse and the time of her testimony. Under such circumstances even an adult would likely forget the details defendant claims must necessarily be remembered to make complainant’s allegations believable. Complainant stated unequivocally that intercourse occurred and she demonstrated that she knew what intercourse was. There was no contradiction on any proof “essential to the case.’’ Both defendant and complainant testified. The jury found complainant more believable. Defendant’s point is denied.

In his next point defendant alleges he was denied effective assistance of counsel at trial. According to defendant trial counsel was deficient because he failed to introduce evidence, including medical records and testimonies of medical personnel, which might have shown complainant’s claims could not be true. His assertion is that the hymen of complainant was intact. Trial counsel also had taken the deposition of complainant’s sister, who had lived with complainant, their mother and defendant for a period before moving to California, but the deposition had not yet arrived when the evidence was closed and trial counsel did not seek a continuance.

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Cite This Page — Counsel Stack

Bluebook (online)
714 S.W.2d 566, 1986 Mo. App. LEXIS 4116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hamrick-moctapp-1986.