STATE v. DEE
Missouri Court of Appeals, Eastern Division
752 S.W.2d 942 (1988)

KELLY, Judge.

Ronald Dee appeals from the judgment entered after a jury's finding him guilty on two counts of sodomy and three counts of forcible rape. The trial court sentenced him to a term of imprisonment of fifteen years on count one for forcible rape . . . [and eight years on counts three and four for rape].

Appellant's first point challenges the sufficiency of the evidence to sustain his convictions. . . . Our review is limited to determining whether there was sufficient evidence from which reasonable persons could have found appellant guilty. State v. Jones, 738 S.W.2d 513 (Mo.App.1987). Further, uncorroborated testimony of a rape victim will ordinarily sustain a rape conviction. State v. Fogle, 743 S.W.2d 468, 469- 70[4] (Mo.App.1987).

Viewed in the light most favorable to the verdict, the evidence established the following account.

During dissolution proceedings between V.B. and B.B. initiated in 1983, evidence surfaced of his sexual abuse of two-year old C.B., one of V.B.'s children. V.B. called the abuse hotline on September 15, 1984, to report the child abuse. Division of Family Services ("DFS") placed the child under its protective custody and entrusted V.B. with continued physical custody of her daughter. In November 1984, DFS assigned appellant to be V.B.'s caseworker. Appellant's duties included regular visits to her home to monitor the situation.

At about ten or eleven o'clock on the morning of October 29, 1985, after V.B. had returned from taking her children to daycare, appellant arrived at her house. He had scheduled the meeting with her to process some paperwork in connection with her children's attendance at the daycare center.

When he arrived, she was in the children's bedroom weatherproofing the windows. He watched her briefly from the bedroom door. As she finished her task and was turning around, he grabbed her arm and turned her around. She asked him to leave her alone. He then backed her against the wall, unbuttoned her clothes and pushed her down to the floor. She testified that he had hold of her left side and that she could not fight him off with her right side because of a mild stroke she had suffered. He told her that the decision whether her children would remain in her custody or be transferred to her ex- husband depended on him and that she should cooperate if she wanted to maintain custody of them. He then took off her clothes and raped her. With his knees across her arms, he forced her to engage in fellatio. After dressing, he reminded her before he left that he would take her children away if she told anyone.

V.B. admitted she offered no physical resistence to appellant's sexual attack. She explained that a mild stroke had left her right side debilitated. She also took medication for seizures. She further testified that he was so much bigger and stronger than she and she feared he would strike her, although he never told her he would strike her.

On December 30, 1985, while her children were in daycare, appellant again raped her in her bedroom during another one of his visits to her home. Again, he did not strike her, but reiterated his threat that the custody of her children was in his hands. Frightened by the memory of the earlier rape, she offered no protest when appellant ordered her to go into the bedroom and disrobe. She did not struggle or cry out when appellant pushed her down on the bed and perpetrated the rape. He again reminded her to keep her mouth shut when he left.

Following the first two rapes, V.B. began making arrangements to move to St. Charles where she would be in a different district with a new caseworker. When she called him in February 1986 to inform him she was moving, he stopped by her home unannounced on February 28, 1986. He had also visited her two or three times a month between December 30 and February 28 for routine home visits, each without any sexual incident.

On his visit of February 28, he asked to see the baby's room, which she had recently redecorated. Once in the room, he ordered her to take off her clothes. After she disrobed, he again raped her. He straddled himself across her chest and forced her to orally sodomize him and then left.

She told no one of the sexual attacks. In early April 1986, she required hospitalization because she was suffering from seizures. She had seizures before the initial October 1985 attack; however, since then, the seizures had increased. The doctor attributed them to stress.

After leaving the hospital in April, she finally told her best friend Cathy Opfer of appellant's sexual attacks. Ms. Opfer had just recently returned to St. Louis from living in California and had moved in temporarily with her family to V.B.'s home. Ms. Opfer advised her to report the episodes immediately.

The following morning, V.B. telephoned the police. She spoke with Detective Reinhardt and told him that appellant intended to come by her home that day around three o'clock. Before appellant arrived, the detective and two other officers went to her home. Detective Reinhardt fitted V.B. with a body microphone. Then he hid in the closet of the children's bedroom; the other two officers waited outside in a car.

When appellant arrived, he sat first on the couch and then on a chair, closer to V.B. She told him she was leaving and that, before she left, she wanted to know why he had raped her and she wanted an apology. He replied that she knew the answer and the answer was in her mind. After she asked him numerous times to apologize, she then demanded a direct answer to the question why he had raped her in October 1985. He replied that if he had done it, forced her onto the floor and removed her pants and underwear, she had enjoyed it and he did not consider that rape.

. . . During [a] taped interview, appellant admitted having sexual relations with V.B. . . . At trial, appellant denied that he had ever sexually molested V.B. Based on the foregoing evidence, the jury found appellant guilty as charged.

Appellant was convicted of three counts of forcible rape under s 566.030 RSMo 1986 and two counts of sodomy in violation of s 566.060 RSMo 1986. "A person commits the crime of forcible rape if he has sexual intercourse with another to whom he is not married without that person's consent by the use of forcible compulsion. " s 566.030.1 RSMo 1986 (emphasis ours). "A person commits the crime of sodomy if he has deviate sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion. " s 566.060.1 RSMo 1986 (emphasis ours). "Forcible compulsion" means either (a) physical force that overcomes reasonable resistance, or (b) a threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of himself or another person. s 556.061(12) RSMo 1986. The gravamen of appellant's complaint is that no evidence of forcible compulsion exists to support his convictions.

The rule is well established in Missouri that one may be guilty of rape even though the woman offers no physical resistence if she submits through fear of personal violence. State v. Koonce, 731 S.W.2d 431, 439 (Mo.App.1987). . . .

In Koonce, a witness mentioned that the victim, an Army Reserve member, "looked like she could handle anything." We trenchantly observed that, although a woman may be a member of the Army Reserve, she need not use combat methods to resist to the utmost. Id. Resistance never comes into play where a threat (constructive force) is employed. Id.

Here, appellant pinned V.B. down as he raped her the first time. He kept a grip on her with one hand while he undressed her. She tried to pull away and told him to leave her alone. We believe that these actions, in conjunction with his threats implying his ability to take her children away from her, are sufficient evidence of forcible compulsion, both physical force that overcomes reasonable resistance and a threat of "kidnapping" of another person. That he had his knees across her arms when he forced her to sodomize him is sufficient evidence of forcible compulsion in connection with the October sodomy.

The second and third rapes, with the attendant act of sodomy on the third rape, were also accomplished by forcible compulsion. At the second rape, he pushed her down on the bed. With both the second and third rape, he reiterated his threat concerning the custody of her children. He straddled her to hold her down during the sodomy following the third rape. V.B. testified that the memory of the pain of the first incident filled her with fear with the second and third sexual episodes. We are satisfied that appellant's actions implied a threat of serious physical injury to satisfy the element of forcible compulsion for the rape of December and the rape and sodomy in February.

Appellant emphasizes that V.B. did not scream, bite or fend off appellant. It has been said that the law does not require or expect the utmost resistance to sexual assault when it appears that such resistance would be futile or would provoke more serious injury. State v. R.D.G., 733 S.W.2d 824, 827 [3] (Mo.App.1987). In R.D.G., the victim was the seventeen year old stepdaughter of her twenty-five year old assailant. The court held that, where the victim tried to stop defendant but was unsuccessful because defendant was "holding her arms tight", there was a sufficient showing of resistance, in the circumstances, to establish forcible compulsion. Id. [4]. This conclusion was reached despite testimony by victim, when asked if she screamed, that she did not do so because "[i]t wouldn't have done any good." Id. at 826. We believe R.D.G. to be persuasive authority for our conclusion that V.B. could reasonably have expected appellant to use such force as was necessary to accomplish his purpose, although he did not actually strike her. This force, coupled with his express threat that he would change her children's custody, satisfies the requisite element of forcible compulsion on all the charges. Appellant's first point is denied.