STATE v. KOONCE
Missouri Court of Appeals, Eastern District
731 S.W.2d 431 (1987)

SIMEONE, Senior Judge.

I

Appellant, Tony Koonce was charged, tried by a jury, convicted and sentenced for two counts of forcible rape, forcible sodomy, and attempted forcible sodomy pursuant to ss 566.030, 566.060, R.S.Mo.1986. He was sentenced by the court, as a persistent sexual offender to thirty years on each [count]. He appeals. We affirm. . . .

II

On appellate review, we review the facts in the light most favorable to the state. In determining whether the state made a submissible case to withstand a motion for judgment of acquittal, the appellate court accepts as true all the evidence favorable to the state, including all favorable inferences therefrom. All evidence and inferences to the contrary are to be disregarded. State v. Manning, 612 S.W.2d 823, 825 (Mo.App.1981). Furthermore, the determination of the credibility of the witnesses is within the peculiar province of the jury. State v. Williams, 652 S.W.2d 102, 111 (Mo. banc 1983).

Viewing the evidence in the light most favorable to the state the jury could reasonably find the following.

The victim, Robin Triplett, a 19-year old woman met the appellant, Tony Koonce, on February 6, 1985 at Forest Park Community College during a typing class.

The events which give rise to this criminal case occurred on Friday, February 8, 1985. But the story begins two days earlier. Tandelaya Malcom Wiley, a relative of Robin's, was then a student at Forest Park Community College.

The prosecutrix, Robin Triplett was the principal witness for the state. She testified that on February 6, she went to the Forest Park Community College at about 6:00 p.m. to get her cousin from class, "because she had to take me home." Robin wanted to enroll in school. Appellant was in the typing classroom and Tandelaya introduced them. While in the classroom, appellant came over to her, engaged in some conversation, and asked her name and requested her telephone number. She told him that "we couldn't get anything going [but] we could be friends." After the parties went their separate ways, that evening appellant called her about 10:00 p.m. He told her about some books she could use and they spoke for about thirty minutes. He asked her to go out with him. She refused.

The next afternoon appellant called again. He desired her to come to his home and tried to get her "to go out with him." He called later that evening three separate times. She told him she was "taking up nursing classes" and "was in the Army Reserves." In the last conversation she indicated that she was going to take a bus to the college the next morning. The next morning, Friday, appellant called and asked if he could take her to school. It was "drizzling" so she said "yes." He came to the house and picked her up. Appellant, however, drove to his residence, rather than the college. Robin realized he was going the wrong way and asked about it. Appellant replied he wanted her to meet his mother. They went to appellant's residence where he lived with his mother. They went in the apartment and he introduced her to his mother. He invited her upstairs to his bedroom. She sat on a stool and he showed her some books. She told him she had to get to school. He tried "to hug me" but she pushed his arms away. They left. He took her to the college to enroll. When they left the college, "Tony drove her." She first went to cash her government check. Appellant took her to "like a pawn shop" where he knew a man who would cash the check because Robin did not have an ID card. Then she went to get some shoe polish to polish her boots, and after she bought the polish, the two drove but in the car--she noticed that he was not taking her home. Again they went to appellant's house. When they arrived, appellant's mother was there. He went up the steps and told Robin to come too. But for the time being she stayed in the living room. Koonce again asked her to come upstairs. The mother said, "It's okay, baby. You can go up." She then went upstairs to appellant's room. She sat on a stool next to the bed. She was looking through some books. Appellant was rearranging his clothes. After he took a phone call and turned on music "real loud", "he came over and started trying to touch me and feel me and stuff." Robin told him "to stop." Then appellant "picked me up off the stool like and pushed me over to the bed and asked me if I thought I was tough or something." Then "he smashed my face down to the bed and started trying to pull my pants off and he couldn't get them off because I had on some boots and when he stood up to pull his pants down, I tried to run and he caught me and said if I did it again, that he was going to try and put me to sleep." When he pulled his pants down he was wearing a condom. Again, she tried to run and she was screaming. "When he was holding me down ... he told me if I did it again, he was going to [not try] put me to sleep." He raped her. She "was crying"; he put "his hand over [her] mouth." After the rape, "he made me turn over and he tried to put his penis in my behind." After the rape, "he made me turn over" and attempted sodomy per anum. He called her a "slut and a tramp." After these occurrences he made her "wash up," in the bathroom. Appellant said, "he's been through all this before and he knows what he's doing. I'm not going to have any evidence on him." After Robin "washed up," he took her back to the room and said, "he was going to call some of his friends over to finish the job." He made three calls. When she returned from the bathroom, he took a picture of Robin. Then he forced her to commit fellatio. After that, "he raped me again." Robin testified that she did not consent. She "washed up" again and they went downstairs and left the residence. Appellant took her home. It was then about 1:30 p.m.

When she arrived at her home, Robin called Tandelaya, according to Tandelaya about 1:30 p.m. Taydelaya testified Robin was hysterical, upset and crying and told her "Tony raped me." Robin called her mother at work and told her what happened. Her father came, then the police--Officer Robert Nowicki and Officer Sandra Stevens--and later her mother. Tandelaya also came to Robin's house. While they were all there, appellant called on the phone, Robin's father answered and "cursed and threatened" appellant. Robin "talked" to Detective Sandra Stevens. Later Robin and Stevens went to appellant's residence and identified appellant. He was arrested.

III

The thrust of appellant's first point is that the trial court erred in refusing to give his offered instructions on the defense of mistake of a reasonable belief that Robin had consented to the sexual acts. He contends that the court's refusal to give MAI-CR 2d 2.37.1.2 and other offered instructions dealing with a defense of mistake as to consent was error because there was evidence that the prosecutrix voluntarily accompanied appellant to his bedroom on two occasions and spent several hours with him without making any resistance or outcry or attempt to escape thus showing that there was evidence that appellant mistakenly believed that she consented to the sex acts. Appellant offered Instruction E, based on MAI-CR 2d 2.37.1.2 which would have informed the jury that if it found that defendant believed Robin consented or whether defendant acted recklessly2 with regard to her consent, and if he believed she consented or had a reasonable doubt as to whether he was reckless as to consent then it must find defendant not guilty.

The court gave the MAI-CR 2d 20.02.1, the rape instruction without the fourth paragraph thereof relating to belief as to consent. The court refused to give the offered instructions as to a mistaken belief of consent because "there was no evidence of consent."

The burden of injecting the issue of mistaken belief of consent of the prosecutrix is upon the appellant. State v. Williams, 696 S.W.2d 809, 812 (Mo.App.1985); State v. Butler, 665 S.W.2d 41, 45 (Mo.App.1984). Before such instructions are required to be given this special negative defense must be "supported by enough evidence arising during the whole case to raise a reasonable doubt of defendant's guilt." State v. Stiers, 610 S.W.2d 83, 84 (Mo.App.1980), quoted in Williams, 696 S.W.2d at 813. The defendant's burden is not met "by statements of the defense which self-serve, but nothing more." Butler, 665 S.W.2d at 45; Williams, 696 S.W.2d at 812.

The broad issue of mistaken belief of consent as to when an instruction of the special negative defense is to be given based upon MAI-CR 2.37.1.2 has been thoroughly and analytically discussed in State v. Williams, 696 S.W.2d 809 (Mo.App.1985). Expounding on State v. Beishir, 646 S.W.2d 74, 79 (Mo. banc 1983), the Western District held in Williams that "[t]he only sensible basis for an instruction upon mistaken belief as to consent and as to its being a viable special negative defense is if the belief is a reasonable belief." Williams, 696 S.W.2d at 813; State v. Lint, 657 S.W.2d 722, 727 (Mo.App.1983).

This view of the question of mistaken belief as to consent of a victim in rape cases has been the subject of numerous decisions in other jurisdictions. Usually the issue arises regarding a mistaken belief as to the age of the victim. See 65 Am.Jur.2d, Rape, s 36 (1972); Annot., 8 A.L.R.3d 1100; see Richardson, Sexual Offenses Under the Proposed Criminal Code, 38 Mo.L.Rev. 371, 388 (1973); Cf. People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092 (1964). When the issue arises as to a mistaken belief of consent, it is axiomatic that such belief must be a reasonable and honest one. United States v. Short, 4 USCMA 437, 16 CMR 11 (1954)-- American soldier "propositioning" a Japanese woman who could not speak English; United States v. Carr, 18 M.J. 297 (CMA 1984); See R.M. Perkins, Criminal Law 940 (2d ed. 1969).

The evidence in the case at bar does not require a mistaken belief of consent instruction. The court did not err in concluding that there was no evidence of consent. The fact that Robin went to defendant's room, that she did so without resistance and spent some time with him does not amount to consent nor a reasonable and honest belief that she consented to the acts committed by appellant. Robin testified that she did not encourage the appellant or consent. She testified she tried to run away and that she was crying and screaming and that appellant put his hand over her mouth and told her that if she struggled again, "he was going to put [her] to sleep." The evidence does not support an inference of a reasonable and honest belief that she consented to the sexual acts.

Under the circumstances there was no error on the part of the trial court in refusing to give offered Instruction E or others relating to a mistaken belief of consent.

This point is denied.