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August 16, 1983


From the Circuit Court of St. Louis County; Criminal Appeal; Judge Milton Saitz.

Motion for Rehearing Overruled, Transfer Denied September 15, 1983. Application Denied October 1, 1983.

Before Simon, P.j., Stephan, Karohl, JJ.

The opinion of the court was delivered by: Simon

Appellant, Mark Van Doren (Van Doren), appeals from his convictions on the following: Count I - Burglary in the First Degree § 569.160; Count II - Forcible Rape § 566.030; Count III - Forcible Sodomy § 566.060 and Count IV - Attempted Burglary § 564.011. The acts composing Counts I, II, and III occurred on December 14, 1980, while the attempted burglary occurred on December 20, 1980. All the acts occurred in St. Louis County and were tried together.

The convictions were entered following a jury verdict in the St. Louis County Circuit Court. Van Doren was sentenced to serve a term of twenty years. It is from this sentence that he appeals. We affirm.

On appeal, Van Doren contends the trial court erred by: (1) submitting a verdict director on the attempted burglary charge that failed to define burglary; (2) failing to define the phrase "serious physical injury" as used in the definitional instruction; (3) submitting the burglary charge and the rape and sodomy charges, thereby subjecting him to "double jeopardy"; (4) permitting testimony that he refused to give a written statement at the time of his arrest; and (5) failing to sustain motions to limit or exclude testimony of witnesses pertaining to statements made by the victim after the commission of the rape as they were hearsay and prejudicial.

On appeal, the evidence and its reasonable inferences shall be examined in a light most favorable to the state; all contrary evidence will be disregarded unless it supports the verdict. State v. Arnold, 566 S.W.2d 185, 187 (Mo. banc 1978).

Applying this standard, the facts of the case are as follows: The victim, who is divorced, resides with her 11 year old son, in St. Louis County. She testified that on the evening of December 13, 1980, she had attended her employer's Christmas party. She had taken her son to her mother's house to remain there overnight. She left the party at 1:30 a.m. on December 14, 1980 and went directly to her home. After putting on her nightgown, she fell asleep while reading on the living room couch between 2:00 - 2:30 a.m.

Shortly thereafter, she was awakened by a man with his hand over her mouth telling her to perform oral sodomy or he would kill her. She felt a knife at her throat; the man was on the couch, straddled atop her. He ordered her into the bedroom, holding his hand on her shoulder with the knife at her throat as they went to the bedroom. He told her if she did not remove her nightgown, he would tear it off, so she complied. He told her to lay down on the bed. She did and he forced her legs apart with his legs while still holding the knife at her throat and had sexual intercourse with her.

The intruder wanted a cigarette. The victim replied she had some in the kitchen, so he accompanied her to the kitchen with his hand on her shoulder and the knife still in his hand. Once in the kitchen, he asked for a beer. She went to the refrigerator to get a beer, and the refrigerator light and light coming from the backyard gaslight enabled her to see her attacker, who she identified as Van Doren.

Van Doren remained in the victim's home for several hours, continually displaying the knife, holding it to her throat, successfully forcing her to engage in acts of sexual intercourse and oral sodomy. It was after sunrise when he left, providing sufficient lighting for her to observe Van Doren.

After Van Doren left, the victim did not call the police to report the rape. She was afraid to call the police and concerned what her son and neighbors would think. Later that day, she talked on the phone to her friend and implied that she had been raped. That evening, another friend phoned her. She told her someone had broken into her home and "the worst possible thing that could happen, happened." Her friend gave her the number of a "Rape" hot line, which she called the same day and told the counselor that she had been raped.

That same day the victim found her basement window had been broken out. She put plastic over it and rigged bedsprings on a hook behind the window so they would crash loudly if the window was tampered with again. The following day, Monday, December 15th, she went to the Women's Self Help Center, where she was counseled. When she left the center it was late afternoon, so she waited until the next day to see her gynecologist to whom she implied she had been raped.

On December 20, 1980, at approximately 12:00 a.m., Van Doren was apprehended by the police in the vicinity of the victim's home. The police had responded to her telephone call reporting a possible intrusion into her home. One of the responding officers, Fitzsimmons, approached the suspect, who was hiding under a parked car in the vicinity. Fitzsimmons identified the suspect as Van Doren. Fitzsimmons gave Van Doren Miranda warnings and then asked him where he was going. Van Doren replied that he had been at a friend's house and was returning home. Van Doren was taken to the police station for questioning. Van Doren admitted to the officers that he had attempted to enter the victim's home by removing the basement window. He explained he intended to gain access to the house in order to have sexual intercourse with the victim. He also admitted to having sexual relations with the victim on December 14, 1980, although claiming the intercourse was consensual. He was booked on a charge of attempted burglary.

The following day the police showed a photograph of Van Doren to the victim. Upon seeing the photograph, she broke down in tears and informed the police for the first time that Van Doren had raped her on December 14th.

At trial, Van Doren testified in his own defense and contended that sexual intercourse on December 14th was consensual in nature and once again admitted to the attempted entry of the victim's home on December 20th.

The jury rendered a verdict of guilty with respect to each of the four counts. Pursuant to these verdicts, the trial court imposed the following sentences: twenty years each for Counts II (rape) and III (sodomy), ten years for Count I (burglary), and six years for Count IV (attempted burglary). All sentences are to be served concurrently. Van Doren filed a timely motion for a new trial, which was denied. Van Doren duly filed his notice of appeal.

Van Doren's first point of error contends that the trial court submitted an incomplete instruction for the charge of attempted burglary because the instruction did not define the object crime of burglary as mandated by the Note on Use in MAI-CR2d 18.02. However, the issue was not preserved for review. Consequently, our review is limited to the consideration of this point as plain error. Crim. Rule 29.12(b). We shall review all of the instructions together to determine if Van Doren's rights have been prejudiced by the failure to set forth the elements of burglary in the verdict director on attempted burglary (MAI-CR2d 18.02). State v. Holt, 592 S.W.2d 759, 776 (Mo. banc 1980).

It is clear that the purpose of No. 3 of the Note on Use (MAI-CR2d 18.02) is to insure that whenever an inchoate offense instruction is submitted, the jury is correspondingly informed of the elements of the object crime which ...

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