STATE v. SHIRLEY
Missouri Court of Appeals, Southern District
731 S.W.2d 49 (1987)

HOGAN, Judge.

A jury has found defendant Joe Mack Shirley guilty of forcible rape in violation of s 566.030, RSMo Supp.1983, and kidnapping, in violation of § 565.110, RSMo 1978. Defendant's punishment has been fixed at five (5) years' imprisonment on each count. The trial court ordered that the terms be served consecutively. Defendant appeals, contending that the evidence is not sufficient to support the judgments of conviction and that certain evidence was erroneously received. We affirm.

In determining the sufficiency of the evidence to support the judgment of conviction, this court must accept as true all evidence favorable to the verdict, together with all reasonable inferences to be drawn therefrom, and reject all evidence and inferences to the contrary. . . .

So taken, the evidence is: On New Year's Eve, the victim, a woman 24 years of age, attended several parties in Springfield. She consumed some alcohol. She left the last celebration she attended about 2 to 3 a.m. As she drove north on National Avenue in south Springfield, she noticed an automobile "kind of pacing me alongside." The victim turned east on Grand Avenue, and the other vehicle started following her closely. Finally the other vehicle struck the victim's car when she stopped at a controlled intersection. Somewhat frightened, the prosecutrix rolled her window down and addressed the defendant, who was driving the other vehicle. The defendant was carrying a club. He opened the door of the victim's car and ordered her to get out. The defendant then took his victim by the arm and forced her into his car. The prosecutrix got in the defendant's car; defendant then "backed up and took off." Defendant drove to a rural area near the intersection of Route D and Farm Road 144 in Greene County. As defendant was driving away from the intersection, the prosecutrix asked him what he wanted; the defendant instructed her to disrobe.

The roads were covered with ice and snow, and as the defendant came to the place where the assault occurred, he went in the ditch and became stuck in the snow. The defendant became very angry because he could not get out of the ditch, so angry, according to the prosecutrix, that he broke the "stick" off the "stick shift." The victim had disrobed. The defendant pulled his trousers down and started to force the victim to perform an oral sexual act. The victim begged the defendant not to make her "do that." The defendant then ordered the prosecutrix to "get on top of [him]." She did so and the defendant did "penetrate in front." The defendant then attempted to "penetrate in the rear" but was unsuccessful. The victim was then allowed to dress.

The defendant and the victim then made an effort to get the defendant's car out of the ditch. A farmer who lived nearby heard the noise of a "car stuck in the ditch." This farmer, Charles Webb, testified that he got in his truck and helped the defendant out of the ditch. The victim made no outcry and did not ask for help.

Apparently the defendant's vehicle was operative despite the broken stick shift, for he drove the victim back to the intersection where he had accosted her. The victim's vehicle was gone. At her request, the defendant drove the victim to a telephone so she could call the police department about her car. The prosecutrix called the police department. She was told there was no report on her car and she did not report the rape. Defendant then drove to a service station where he bought gasoline. Thereafter, the defendant took his victim to her sister's residence. As he was leaving, the victim was able to obtain the number of his license plate. The victim then reported the assault.

The defendant argues that the State failed to prove forcible rape because it did not prove penetration, lack of consent, or forcible compulsion. The victim was a mature woman; she testified directly to penetration. On this issue, the uncorroborated testimony of the prosecutrix is sufficient. Willis v. State, 630 S.W.2d 229, 234[11] (Mo.App.1982). The fact that a physician, upon examination, could find no evidence of trauma nor any sperm cells in the victim's vagina does not invalidate the conviction. State v. Edgar, 710 S.W.2d 2, 3-4[1][4] (Mo.App.1985); State v. Salkil, 659 S.W.2d 330, 333[1-4] (Mo.App.1983); State v. Mazzeri, 578 S.W.2d 355, 356[3, 4] (Mo.App.1979). As far as lack of consent and forcible compulsion are concerned, the victim testified she did not consent but submitted because she was put in fear. Sexual intercourse which is not resisted because of fear is not consensual. State v. Hannett, 713 S.W.2d 267, 271[1, 2] (Mo.App.1986); State v. Salkil, 659 S.W.2d at 333[5-7]. Here, the defendant had literally tracked his victim a considerable distance very late on a cold night; he pulled her from her vehicle into his, forcing her to abandon her car at an intersection where it was later found by police officers. When the victim's automobile was found, the engine was still running, the headlights were on, and the passenger door was open. The defendant drove to a relatively remote area, indicating that he intended to have carnal knowledge of the prosecutrix. Defendant had a club of some order. The evidence was sufficient to establish "forcible compulsion" as that term was defined by s 556.061(11), RSMo Supp.1983.