State v. Frey , 897 S.W.2d 25 ( 1995 )

HANNA, Judge.

The defendant, Clifton Frey, was convicted of the class B felony of rape, § 566.030, RSMo 1986, following a trial by jury. The jury assessed punishment at eight years imprisonment and the court entered judgment accordingly. The defendant filed his Rule 29.15 motion claiming ineffective assistance of counsel.

On appeal the defendant raises four points, the first three related to his criminal trial and the fourth related to his Rule 29.15 motion’s claim of ineffective assistance of counsel. One point in the criminal case challenges the sufficiency of the evidence to support the verdict, and the other two points relate to the admissibility of evidence — one involving prior uncharged crimes and the other concerning hearsay testimony.

The evidence showed that just before 6:00 a.m. on June 5, 1989, while Ms. Lillie Kay Salts was sleeping, the defendant entered her room at the Woodlawn Estates Nursing Home. The defendant, who was employed as a staff member at the nursing home, closed the door, removed Ms. Salts’ nightgown, pulled down her underwear and raped her on the bed. She “told him to quit it” and struggled with him “[pjretty hard,” but the defendant continued stating, “this feel[s] good. This feel[s] good. If you don’t let me, I’ll kill you.” Ms. Salts testified that she screamed and hollered but no one came to her aid.

Ralph Price, another resident of the nursing home, testified that he heard Ms. Salts screaming and noticed that the door to her room was cracked open slightly. He walked into the room and observed the defendant lying on top of Ms. Salts on her bed, “sticking his thing in her.” However, he did not attempt to help or summon help.

After the defendant left, Ms. Salts testified that she went into the hallway and screamed for help but no one came to her assistance. When she told the operators of the nursing home, Melvin and Darlene Matlock, what had happened, they refused to believe her.

Ms. Sharon Jones shared a bedroom with Ms. Salts at Woodlawn Estates in the winter of 1988. She testified that the defendant, on two other occasions, had entered the room at bedtime and felt their stomachs and chests under their bedclothes, supposedly to check them for fever.

Ms. Jones further testified that, in December 1990, approximately 3½ months before the trial, the defendant had accosted her in an alley near her apartment in Rolla, Missouri. She testified that he grabbed her, scratched her face with something and told her, “He did not want [her] to testify against him.” Elwood Rapier, a Rolla police officer, said that Ms. Jones was seated in a folding chair with her hands covering her face when he arrived at the scene. She appeared to be upset and when she removed her hands from her face, he noticed several minor lacerations and scratches on her face.

The first claim of error goes to the trial court’s ruling on the defendant’s motion for judgment of acquittal challenging the sufficiency of the evidence to support the conviction of forcible rape. The defendant argues that the evidence presented was contradictory and insufficient to sustain a finding of guilt beyond a reasonable doubt that he raped Ms. Salts. In determining the sufficiency of the evidence, we accept as true all evidence favorable to the state, including all favorable inferences drawn from the evidence, and we disregard all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, - U.S. -, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). An appellate court does not weigh the evidence, State v. Lindsey, 868 S.W.2d 114, 116 (Mo.App.1993), nor do we determine the reliability or credibility of witnesses. State v. Middleton, 854 S.W.2d 504, 506 (Mo.App.1993). The question presented is whether there was substantial evidence from which a trier of fact can reasonably find the issue in harmony with the verdict. State v. Martin, 852 S.W.2d 844, 849 (Mo.App.1992).

The defendant argues that the victim’s testimony was inconsistent, specifically as to the precise time the rape occurred, what she was wearing, whether she was asleep when the defendant first entered her room and what action she took immediately after the rape. Ms. Salts first testified that she was asleep when she first noticed the defendant and later testified that the defendant laid her down on the bed and would not let her get up. She first testified that she was wearing slacks at the time of the crime and later testified she was wearing a gown and that the defendant pulled it off. She testified that the incident occurred right before 6:00 a.m. and then testified that it occurred at 4:00 a.m. With respect to her actions following the incident, she first testified that she got out of the bed after the defendant left the room, got dressed and went down the ramp that was by her room. Her later testimony was that when she was able to get out of her room, she stood by the door and hollered, “Help. Help. Melvin, come and get him out of this room.” Finally, she testified that she first reported the rape to the Matlocks “the next morning” and later stated that she told them Tuesday evening “after I came in from workshop.” The defendant argues that these inconsistencies left the victim’s testimony so unconvincing and clouded with doubt that it needed corroboration in order to sustain the conviction. See State v. Kuzma, 751 S.W.2d 54, 58 (Mo.App. 1987). If the inconsistencies in the victim’s testimony leave her testimony unconvincing and clouded with doubt, corroboration is required. State v. Smith, 679 S.W.2d 899, 902-OS (Mo.App.1984). The defendant acknowledges that the state did present Mr. Ralph Price’s testimony, which was corroborating testimony.

The defendant, citing Kuzma, 751 S.W.2d at 58, claims that the “corroboration rule must be invoked.” He further argues that Mr. Price’s testimony was not corroborative in that it was substantially different from that of the victim. We will not detail Mr. Price’s testimony as we hold that corroboration, i.e., Mr. Price’s testimony, was not necessary to sustain the verdict. The corroboration rule does not apply when the inconsistencies or contradictions in the victim’s trial testimony involved “proof not essential to the case.” State v. Gardner, 849 S.W.2d 602, 604 (Mo.App.1993). The inconsistencies which appeared in this victim’s testimony are no more than those matters that a jury is called upon to decide when determining the sufficiency of the evidence and the credibility of the witness. As a matter of law they do not rise to the level of the inconsistencies that destroy the witness’s testimony. It frequently occurs that a witness’s testimony, during the course of a witness’s recitation of the facts, falls into inconsistencies or contradictions concerning minor points of a nonessential nature. See State v. Nelson, 818 S.W.2d 285, 289-90 (Mo.App.1991). This does not destroy the case. It is left for the trier of fact to believe all, some, or none of the witness’s testimony in arriving at a verdict. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). It is the trier of fact’s responsibility to resolve those contradictions or conflicts in the victim’s testimony. Id. The testimony of a single witness is ordinarily sufficient to constitute substantial evidence and to make a submissible case. State v. Sumowski 794 S.W.2d 643, 645 (Mo. banc 1990).

In this ease, Ms. Salts testified positively that in the early morning hours of June 5, 1989, the defendant entered her room and forcibly raped her on the bed in which she had been sleeping. The inconsistencies regarding the precise time, the clothing she was wearing and other minor details do not involve contradictions or inconsistencies that “go directly to an essential element of the state’s case.” Gardner, 849 S.W.2d at 604. Point denied.

The defendant raises the next point under the plain error doctrine pursuant to Rule 30.20. He complains that the court should have, sua sponte, excluded the testimony of Ms. Jones, the victim’s roommate. Ms. Jones testified that the defendant touched her under her bedclothing before the incident in question and, 3½ months before trial, assaulted her and threatened her to prevent her from testifying against him. Although the defendant’s counsel has raised this point under the plain error doctrine, the point was in fact properly preserved and should be reviewed as trial error and not under the plain error doctrine.

Before trial, the defendant, through his public defender counsel, filed a motion to test the competency of witness Jones and also filed and argued a “Motion in Limine to Exclude Evidence of Offenses and Acts Not Charged.” The latter motion, which was overruled by the court, raised the acts alleged to have been committed by the defendant upon Ms. Jones. The record reflects that the matter was in fact preserved, sua sponte, by the court.

When Ms. Jones was called as a witness the following colloquy took place between the court, Mr. Beger, the assistant prosecuting attorney, and Ms. Unterreiner, the assistant public defender.

Mr. Beger: Call Sharon Jones, your Hon- or.

5⅜ ⅜ ⅜ ⅝ ⅜ ⅝

Court: Is this a witness who’s going to testify on the earlier event?

(Mr. Beger nodded.)

Court: Can we just have an understanding that she’s objecting to this so she won’t have to come up here and do this?

Mr. Beger: Yes.

Ms. Unterreiner: Continuing objection as well.

Court: Just don’t want to interrupt—

Mr. Beger: State will agree that Defendant’s objection will be continuing. Don’t need to be otherwise stated. Court: Fine.

The court wanted the testimony of Ms. Jones to proceed uninterrupted. The court, assistant prosecuting attorney and defense counsel all agreed that the objections raised in the motion in limine would be preserved and would be continuing throughout her testimony. Our review should be as though the matter was properly preserved.¹

One piece of evidence about which the defendant complains was Ms. Jones’ testimony that some time more than one year² before the assault upon Ms. Salts, the defendant entered the room that Ms. Jones and Ms. Salts shared and felt Ms. Jones’ stomach and chest.³ Ms. Jones said this happened on two occasions. Ms. Salts did not testify about these matters. This testimony was offered to prove that defendant committed the rape upon Ms. Salts. The second piece of evidence challenged by defendant was Ms. Jones’ testimony that the defendant physically assaulted and threatened her shortly before the trial.

The state acknowledges that the admissibility of the testimony regarding the defendant’s prior sexual assaults upon Ms. Jones, without some nexus to Ms. Salts, would appear questionable in light of the holding in State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993). It is the state’s argument that since Ms. Jones’ testimony also included the same action by the defendant upon Ms. Salts, it is admissible because the events occurred contemporaneously with assaults on the eventual rape victim and in the same room. Further, the state claims this testimony gave meaning and context to the defendant’s subsequent physical assault of Ms. Jones and his warning to her that she should not testify against him. We address and rule only the admissibility of Jones’ testimony that the defendant felt her stomach and chest under her bedclothing.

The testimony of the physical assault against Ms. Jones approximately 3½ months before trial was evidence that demonstrated the defendant’s consciousness of guilt. Evidence that an accused threatens a witness is admissible as evidence of his consciousness of his guilt. State v. White, 870 S.W.2d 869, 875 (Mo.App.1993). However, we do not follow the state’s argument that the first incident was somehow a threat and therefore admissible to confirm the subsequent admittedly threatening assault. The state does not cite us to any eases that would allow uncharged acts or crimes against a third party to be admissible because they were contemporaneously committed against the victim. If the acts against a third party are admissible, it is not because they occurred contemporaneously, but rather as an exception to the well established general rule of law prohibiting the evidence of uncharged acts which is designed to prove the defendant’s propensity to commit the crime for which he is charged.

“Evidence is relevant only if it tends to prove or disprove a fact in issue or it corroborates other material evidence.” State v. Allen, 829 S.W.2d 524, 527 (Mo.App.1992). Evidence of a prior crime is inadmissible without some showing of special circumstances, which were summarized in State v. Sladek, 835 S.W.2d 308 (Mo. banc 1992). An uncharged act is admissible when it tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; or (5) the identity of the person charged with the commission of the crime on trial. Id. at 311; see also Bernard, 849 S.W.2d at 13.

The evidence that the defendant felt the stomach and chest of Ms. Jones did not go to show motive or intent, nor was it proof of the absence of mistake or accident. Identity was not an issue in the case. Additionally, these incidents did not involve a common scheme or plan and were not part of the same “general criminal enterprise.” State v. Buxton, 324 Mo. 78, 22 S.W.2d 635, 637 (1929).

Our Supreme Court has spoken on the subject of the admissibility of prior uncharged acts, wrongs or crimes. When the exception to evidence of other uncharged acts was first introduced by Judge Thomas in his concurring opinion in Sladek, he denominated it “signature modus operandi/corrobo-ration” ⁴ and warned repeatedly against the dangers of the application of the rule being “relaxed to the point where the exception does away with the rule.” Id. at 317. Judge Thomas carefully cautioned against the danger of the exception becoming “a slippery slope by which the general rule of exclusion gradually disappears case by case.” Id.

Sladek was convicted of first degree sexual assault and first degree deviate sexual assault of his dental patient after placing her under nitrous oxide in order to treat her dental problem. The state presented evidence from three former female patients describing his conduct toward them. They each testified that while they were in the dental chair he placed his hand or forearm on their breasts. The Supreme Court held that this evidence had no tendency to prove that Sladek sexually assaulted the victim in the case at trial. Id. at 312. In Sladek, the prior acts were that the dentist had fondled the breasts of the three patients. Here, we are confronted with the act of the defendant placing his hand on the stomach and chest of Ms. Jones, under her bedclothing. In Sla-dek, those acts were ruled inadmissible to prove he raped and sodomized a later patient. In this case, the prior acts are inadmissible to prove that Frey raped the roommate. The Sladek holding controls the decision in this case.

The Bernard court adopted the signature modus operaredi/eorroboration exception to the rule prohibiting evidence of prior uncharged misconduct after it was first suggested in the concurring opinion in Sladek. The holding of Bernard would also exclude the evidence in this case. The Supreme Court stated that the evidence of the prior crimes must be more than merely similar in nature to the sexual assault for which the defendant is charged. Bernard, 849 S.W.2d at 17. It “should be nearly identical to the charged crime and so unusual and distinctive as to be a signature of the defendant’s modus operandi.” Id. The adoption of the exception was specifically done subject to the constraints delineated above. Id.

In Bernard, the court only allowed one type of prior uncharged act to be admissible and excluded all of the others. The victim in Bernard testified that the defendant asked him to take off his clothes and run around the defendant’s car or, if not, to walk around the car in his underwear. Four boys, unrelated to this crime, testified to events that had occurred ten years earlier. Their testimony showed that the defendant had a preference for naked or partially clothed boys in motion on or around an automobile in motion. The Supreme Court held that this conduct amounted to a “signature” of the defendant’s conduct and was admissible. Id. at 19.

The Supreme Court specifically excluded other testimony given by the four boys, even though it had “strains of commonality with events in the case at trial.” Id. at 19-20. It is the exclusion of the other uncharged acts which give us direction in this case. For example, Bernard arranged for the victim to sleep over with him and took a photograph of the victim in his underwear. The state argued unsuccessfully for the admission of evidence that Bernard had previously possessed nude photographs of other members of this youth group and that the defendant had arranged for the four other boys to sleep over with him in order to abuse them sexually. The court described this conduct as “similar, even nearly identical,” but held that it “[was] not so unusual and distinctive as to be a signature of [defendant’s] modus operandi.” Id. at 19.

The Bernard court adopted Judge Thomas’ cautionary observations when applying this rule of corroboration evidence:

[Although we have called this exception corroboration, it really involves reasoning from the signature modus operandi based upon the propensity of the defendant to commit this type of crime to the conclusion that the defendant committed the crime charged. This reasoning goes squarely against the rationale for the general rule. This makes it particularly important that the requirement for a signature modus operandi be strictly enforced.

Id. at 17 (quoting Sladek, 835 S.W.2d at 317 (Thomas, J., concurring)).

The act of putting a hand on Ms. Jones’ stomach and chest under her bedelothing is neither similar nor nearly identical to the crime of rape or the events surrounding the rape. The similarity must be between the prior uncharged act and the present crime. None exists. Additionally, the uncharged act can hardly be described as so unusual and distinctive as to be a “signature” (similar to a fingerprint) of the defendant’s conduct. The examples of Bernard and Sladek clearly direct exclusion of the prior act of wrongdoing against Ms. Jones. The trial court erred by admitting this evidence.

Viewing the evidence of prior uncharged crimes, the admission was error and the question is whether the evidence was prejudicial. Because of the substantial risk of other crime evidence and the Bernard and Sladek cases, we conclude that the evidence was prejudicial and the judgment should be reversed and the ease remanded for a new trial. The general rule of law prohibiting the admission of uncharged acts, which is designed to prove the defendant’s propensity to commit the crime for which he is charged, should be followed.

Finally, we address the last claim of error because it may recur on retrial. This point concerns the rebuttal testimony of Ms. Melinda Reary that she overheard a statement made by Mr. Matlock.

While investigating the rape, the deputy sheriff interviewed Mr. and Mrs. Matlock, the owners of the nursing home. During the cross-examination of Ms. Darlene Matlock, the assistant prosecuting attorney asked her if she had overheard her husband tell the Phelps County deputy sheriff that the victim never lied about this sort of thing. She replied that she had been there but did not recall him saying that.

After the close of the defendant’s evidence, the state offered the rebuttal testimony of Ms. Reary, the ease manager for the sheltered workshop, who said she was present during the interview. She testified that Mr. Matlock “indicated that, to his knowledge, [the victim] had never lied or anything like that in the past.” At that time the defense attorney objected that her statement was hearsay.

A hearsay statement is any out-of-court statement offered to prove the truth of the matter asserted. State v. Shurn, 866 S.W.2d 447, 457 (Mo. banc 1993), cert. denied, — U.S. —, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). The state argues that the evidence is admissible under the frequently repeated explanation that the evidence was not offered to prove the truthfulness of the statement, but rather only to prove that the statement was made.

Whether the statement was made is of no importance or relevance. It was not only improper rebuttal evidence, it was clearly offered to prove the truth of the substance of the statement — that Mr. Matlock had never known the victim to lie. A good example of this can be seen in State v. Chambers, 891 S.W.2d 93, 104 (Mo. banc Dec. 20, 1994). That case discusses two out-of-court statements, one hearsay because it was offered to prove the truth of the statement, and one not hearsay because it was offered to prove state of mind.

Whether Mr. Matlock made the statement is not relevant to any issue in the case. The last witness to testify in the case was allowed to improperly bolster the victim’s character for truthfulness. The court erred in admitting the testimony over defendant’s objection. Because our decision is reached on other grounds, we do not decide the prejudicial effect of this evidence. Our review of this point is to prevent the matter from occurring on retrial.

It is not necessary to address the final point of error concerning the trial court’s denial of the defendant’s 29.15 motion. The judgment of conviction is reversed and the cause is remanded for a new trial.

ULRICH, J., concurs.

LOWENSTEIN, J., dissents in separate dissenting opinion.

1 . The dissent maintains there was no ruling by the trial court and, therefore, the point was not preserved. It is not our purpose to change the rale requiring a ruling by the trial court or to liberalize the standard of review. Considering the court's remarks and in light of the interlocutory ruling on the motion in limine, it is apparent that the court’s ruling on the motion in limine was understood by the parties and the court to apply to the witness’s testimony in court. All proceeded on that basis, and it would be inappropriate for us to consider the court’s ruling otherwise.

2 . The date was only described as the winter of 1988. Ms. Jones resided at the nursing home during 1987 through February 1988. The rape occurred June 5, 1989.

3 . There was also Ms. Jones' testimony, noted in the dissent, that the defendant did the same thing to Ms. Salts. On remand, we anticipate that this testimony would be admissible.

4 . The corroboration exception involves reasoning based upon the defendant's propensity to commit the crime charged. See Sladek, 835 S.W.2d at 314-15 (Thomas, J., concurring). This is the veiy reason that caution in application is critical because the exception can too easily engulf the rule.