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September 21, 1993



Before Spinden, P.j.; Fenner and Hanna, JJ.

The opinion of the court was delivered by: Hanna

This is an appeal from convictions for three counts of sodomy ( § 566.060, RSMo 1986) and one count of robbery in the second degree ( § 569.030, RSMo 1986) returned in the Circuit Court of Boone County. The defendant was sentenced in accordance with the jury verdict to sentences of ten years, twenty-two years, twenty-four years and seven years, respectively. The sentences were ordered to run consecutively.

The evidence, stated in the light most favorable to the verdicts, showed that the victim and her husband owned a garden center on Peachtree, south of Columbia in Boone County. While the victim was working at the garden center on October 28, 1991, her husband called on the telephone. Telephone records show that the call lasted from 1:28 p.m. to 1:30 p.m. While the victim was on the phone, the defendant walked into the greenhouse. The victim hung up the telephone and asked the defendant if he needed help, which he declined. Eventually the defendant asked the victim questions concerning ground cover. As the victim was looking through a book for pictures and answers to his questions, the defendant punched her in the nose and knocked her to the ground.

The victim screamed and the defendant put his hand over her mouth, at which time she bit a couple of the defendant's fingers. She thought she may have bitten the defendant's fingers hard enough to cause them to bleed. The defendant threatened to kill the victim and asked where the money was kept. She identified the cash box on the counter. He took money from the cash box and asked for the money in her purse. There was none.

The defendant led the victim around as he looked for customers on the grounds. The victim noticed a tan vehicle parked behind a pile of mulch behind the greenhouse. Just slightly more than a passenger window of the vehicle was visible.

The defendant said, "Do it." He unzipped his trousers, forced the victim to get down on her knees and forced her to perform an act of fellatio. He then ordered the victim to unzip her pants and when she did, he stuck his finger in her vagina. He continually threatened to kill the victim. He forced the victim to kneel down and again perform an act of fellatio. The defendant ejaculated in the victim's mouth and he indicated he would kill her if she did not swallow. After she swallowed the ejaculate, the defendant made the victim look up at him and said, "I know what your face looks like. If you tell anyone or the police, I'll come back and kill you. I know what you look like."

The defendant made the victim lie on her stomach and he put five or six large potted plants on top of her. She waited about five minutes after he left and then ran to a nearby carwash. Two individuals from the carwash took her to University Hospital. She arrived at the hospital at about 1:52 p.m. and she explained what had happened to her. Examination revealed bruises across the bridge of her nose, on the upper part of her abdomen, and on her knees. She also had abrasions on her knees. No semen was found in her mouth but this was described as not unusual.

At the hospital, the victim spoke to a Columbia police officer and described her assailant as a black male, about 5'11" tall, 170-180 pounds, medium build, in his late 20's and wearing a blue windbreaker and black jeans. She further described him as having black curly hair and two damaged front teeth, one of which was chipped and the other, gray.

Officer Susan Wooderson of the Columbia Police Department was dispatched to the hospital and took the victim to the police station. She took a statement from the victim and tried to construct a composite picture based on the victim's description. However, the composite was never released because the victim was not satisfied with the results.

Officer Wooderson determined that the defendant was a suspect and contacted his superior at the Columbia Public School System. She asked for a recent photograph of the defendant and photographs of other individuals working for the school system who had the same general appearance as defendant. Those photographs were received and constituted the photographic lineup.

The following day, the victim viewed the photographic array and immediately identified the defendant's photograph. She was 100% certain of her identification. She noted that she did not recall her assailant as having facial hair, but that the photograph looked just like him.

The victim was told that the defendant worked for the school system but was not told that he was a driver. The victim knew that the school system owned two vehicles which frequently drove by the garden center and that one of those vehicles was a tan van. She remembered that the driver of the van, whom she had seen from a distance of about seventy-five feet, looked like her assailant and often stared at her when he drove past her place of business. She had seen him on about twenty different occasions.

The next day, Officer Wooderson and her supervisor went to the defendant's place of employment and contacted the defendant. The defendant accompanied them to the police station where he was advised of his rights.

When the defendant was informed that a woman had been robbed and assaulted in the south part of town two days ago, he denied that he had been in that area at that time. The defendant was told he fit the description of the assailant, to which he replied that it could not have been him because he always wore a red baseball cap with Sixers on the front of it. Officer Wooderson inquired as to the clothing he wore on the day of the assaults. He said he wore a blue jacket that zipped up the front, a pair of black pants, a gray jersey shirt and a pair of tennis shoes. A search of the defendant's residence revealed a blue jacket made of poplin material, a blue jacket made from sweatshirt material and a pair of black jeans.

Wooderson saw a puncture wound on the middle finger of the defendant's left hand. He described this as a wound that occurred Monday (the day of the assaults) on a hook on the inside of the door of the van that he used to make deliveries. The wound was photographed. That afternoon a dentist was brought in to make a cast of the wound. However, the wound had been altered in that the skin had been torn back and signs of abrasions were present. The wound was again photographed. The dentist was unable to state conclusively ...

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