State v. W_F. W

721 S.W.2d 145, 1986 Mo. App. LEXIS 4911
CourtMissouri Court of Appeals
DecidedNovember 5, 1986
DocketNo. 14405
StatusPublished
Cited by14 cases

This text of 721 S.W.2d 145 (State v. W_F. W) 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. W_F. W, 721 S.W.2d 145, 1986 Mo. App. LEXIS 4911 (Mo. Ct. App. 1986).

Opinion

CROW, Chief Judge.

W_F. W_(“defendant”), tried as a persistent offender, § 558.016.3, RSMo Cum.Supp.1984, was found guilty by a jury of two counts of the class B felony of rape, § 566.030.3, RSMo Cum.Supp.1984,1 and sentenced by the trial court to 30 years’ imprisonment on each count, the sentences to run concurrently.

Defendant appeals, maintaining that the evidence was insufficient to support the verdicts, and that the trial court erred in certain evidentiary rulings. Defendant also raises two instructional issues.

We deal first with defendant’s point IV, which challenges the sufficiency of the evidence. In deciding that issue, we consider the evidence and all inferences reasonably to be drawn therefrom in the light most favorable to the verdicts, and disregard all contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. McDonald, 661 S.W.2d 497, 500[1] (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that defendant was guilty. State v. Bonuchi, 636 S.W.2d 338, 340 (Mo. banc 1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979).

The alleged victim was defendant’s daughter, B_ R_ W_ (“B_”), who was 12 years of age at the time of the incidents in question. B_ is the next oldest of defendant’s four children. The oldest, a boy, F_, was 14 during the period in question. Defendant’s two youngest children are both girls.

B_ testified that one day between June 5, 1984, and July 5, 1984, while her mother, her brother, and her youngest sister were gone to a store, defendant told B_’s other sister to “[g]o up to the other house and get a broom to sweep the floor.” As we understand the evidence, the family was in the process of moving from one house to another, “probably a hundred yards” away.

Then, said B_:

“While she was gone my dad told me to pull down my pants and I said, ‘No.’ And he said — He asked me again and I said, ‘No.’ So he pulled down my pants for me and insert his penis into my vagina, and then about that time [147]*147my other sister come back with the broom. And he told me to get up, go around the house, and clean myself up.
Q. Did you do that?
A. Yes.
Q. Okay. What part of you did you clean up?
A. My vagina.
Q. And why did you clean it? What happened when he was done?
A. White stuff come out.”

Asked whether anything like that occurred thereafter, B_answered, “Yes.” She fixed the date of the second incident as August 23, 1984, defendant’s birthday.2 B_recalled that she and defendant were outdoors near their home looking for “props.”3 B_testified that defendant sat down to rest, and she sat beside him. Then, this:

“[H]e asked me to pull down my pants, and I said, no, because it was getting dark. And so he said if I didn’t pull them down, he’d pull them down for me and I still said no. So he pulled my pants down, inserted his penis into my vagina, and then I started crying and told him I wanted to leave. And he said, ‘In a few minutes.’ Well, about five minutes went by and I asked him again, I said, ‘I want to leave.’ He goes, ‘Well, okay.’ And then we went up to the truck, and he told me to clean myself up and he give me a rag, and I clean myself up, and then we went home.”

Evidently, B_told no one about either incident until September 10,1984, when she told her mother. B_’s mother immediately took B_to the office of the Division of Family Services in Ironton, where B_was interviewed by Sheriff Kenneth Wayne Ruble of Iron County.4 B_re-lated the two incidents to Sheriff Ruble, who thereupon requested the prosecuting attorney to apply for a warrant. One was issued, and defendant was arrested.

One D_W_, the wife of a brother of defendant, testified that some time after defendant’s arrest, B_’s mother brought B_to D_W_’s home. There, according to D_ W_, a conversation took place between B_, her mothér and D_W_At trial, D_W_was asked whether, during that conversation, B_had stated that she had engaged in intercourse with anyone. D_W_an-swered, “Yes, she did.” Then, this:

“Q. Who did [B_] say she had had intercourse with?
A. Her brother.”
B_, during cross-examination, was asked about the conversation with D_
W_:
“Q. And you told your aunt that you made the story up; didn’t you?
A. Yes.
Q. And you said nothing had ever happened, right?
A. Yes.
[[Image here]]
Q. ... you did tell your aunt though that your father didn’t have sex or intercourse with you; didn’t you?
A. Yes.”

We cannot determine from the record whether the conversation between B_ and D_W_occurred before or after defendant’s preliminary hearing. We do, however, take note that in B_’s trial testimony, she confirmed that she had testified at the preliminary hearing, and that her testimony at that proceeding was the same as her testimony at trial.

On January 16,1985, some time after the preliminary hearing, Russell Qualls, an investigator for the public defender, interviewed B_at B_’s home, in her mother’s presence. Qualls asked B_whether defendant had had “sex” with her. B_ answered, “No.” Qualls also asked B_ why she had told her mother that defend[148]*148ant had raped her. B_replied: “Oh, I don’t know. I guess since they were fighting so much I didn’t really want him around because he would always fight with my mom and everything, and he would get mad and go out and stay a night or two.”

At trial, B_testified that her statements to Qualls were not the truth. Asked by the prosecutor why she made those statements, B_ explained, “Because I felt sorry for my dad and I didn’t want him to go to the pen.”

In maintaining that the evidence was insufficient to support the verdicts, defendant’s point IV states:

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State v. W.---FW
721 S.W.2d 145 (Missouri Court of Appeals, 1986)

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Bluebook (online)
721 S.W.2d 145, 1986 Mo. App. LEXIS 4911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-w_f-w-moctapp-1986.