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09/28/93 STATE MISSOURI v. WILLIAM TOMLIN

September 28, 1993

STATE OF MISSOURI, RESPONDENT,
v.
WILLIAM TOMLIN, APPELLANT.



Appeal from the Circuit Court of the City of St. Louis. Hon. Michael B. Calvin, Judge.

Gerald M. Smith, Judge, Grimm, P.j. and C. Gaertner, J., concur.

The opinion of the court was delivered by: Smith

Defendant, William Tomlin, appeals his conviction of attempted sodomy, § 566.060 RSMo 1986, and kidnapping § 565.110 RSMo 1986. Defendant was sentenced to fifteen years for attempted sodomy and ten years for kidnapping to be served consecutively. We affirm.

Defendant appeals his conviction claiming: 1) the evidence did not support the verdict; 2) the convictions violated his protection against double jeopardy; 3) the prosecutor peremptorily struck minority venirepersons for racial reasons; 4) the trial Judge failed to instruct the jury on lesser included offenses; and 5) the instruction on reasonable doubt given to the jury was erroneous.

Defendant's first point challenges the sufficiency of the evidence to support the verdict. Specifically, defendant asserts the victim's testimony was so inherently incredible and self-destructive that it failed to provide substantial evidence for the jury to consider. In addition, defendant argues that since a charge against him involved a sex offense, inconsistencies in the State's evidence required corroboration of the victim's testimony.

In reviewing a conviction based on a challenge to the sufficiency of the State's evidence our inquiry is limited to whether the evidence, viewed in the light most favorable to the State, is sufficient to support the verdict. State v. Hudson, 793 S.W.2d 872 (Mo. App. 1990) [1]. In determining the sufficiency of the evidence, all evidence supporting the verdict is regarded as true with contrary evidence discarded. State v. Adkins, 800 S.W.2d 28 (Mo. App. 1990) [1, 2].

Viewed in this light, the jury could find that on August 13, 1993, the victim was walking down a residential street in North St. Louis around 8:00 a.m. when defendant and Alvin Poole (codefendant) accosted her. Defendant and co-defendant forced the victim into a nearby house where they forcibly disrobed her. Defendant then repeatedly slapped the victim on her rear and both defendant and co-defendant demanded the victim fellate them. Seizing an opportunity, the victim was able to escape the building by quickly gathering her clothes and running out an unlocked door. She fled across the street where she was able to clothe herself and enlist the assistance of a local merchant in contacting the police.

In challenging the substantiality of the evidence, defendant points to a number of factual discrepancies within the evidence produced by the State at trial. Specifically, the defendant notes:

1) the victim testified she called for help inside the local store, while the merchant testified she phoned the police from a pay phone outside; 2) the victim testified she told the 911 operator that two men tried to rape her, while the recording of the call to the 911 operator indicated she said, "someone is harassing me"; 3) at trial the victim stated defendant removed all of his clothes and co-defendant had only lowered his pants, while she had told the police both men were completely naked; and 4) the victim testified that when defendant and co-defendant attacked her around 8:30 a.m. the business across the street was not open, but the owner testified he had opened the store at 7:00 a.m.

Defendant attempts to invoke the doctrine of destructive contradiction whereby an appellate court may decide as a matter of law whether the evidence produced at trial was sufficient to induce a belief of the defendant's guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47 (1936) [5, 6]. Defendant's challenge to the substantiality of the State's evidence under this doctrine is of no avail. As noted by the Gregory court itself, "the cases in which court will set aside a conviction supported by evidence are rare." Id. at 53 [5, 6].

The testimony of a single witness is sufficient to support a conviction even if the testimony of the witness is inconsistent, as such inconsistencies are for the jury to resolve. State v. Cody, 800 S.W.2d 750 (Mo. App. 1990) [1, 2]. Contradictions within a witness' testimony do not inherently make the evidence insubstantial. State v. Loazia, 829 S.W.2d 558 (Mo. App. 1992) [1]. Additionally, "inconsistencies in a victim's story related to non-essential details do not destroy the submissibility of the case." State v. Pelz, 845 S.W.2d 561 (Mo. App. 1992) [3-5]. For evidence to be disregarded under the destructive contradictions rule the inconsistencies and contradictions must be "so diametrically opposed to one another as to preclude reliance thereon and rob the testimony of all probative force." State v. Ash, 840 S.W.2d 304 (Mo. App. 1992) quoting State v. Kuzma, 745 S.W.2d 700 (Mo. App. 1987) [2].

The inconsistencies in the victim's testimony relied on by defendant are of little import. The manner in which the victim notified the police, how the attack was characterized, the various states of undress of her assailants, and whether a local business was open at the time of the assault, do not go to any material element of the State's case. The discrepancies in the testimony are not so incongruous as to make the testimony inherently incredible, self-destructive, or opposed to known physical facts.

Defendant next contends that the victim's testimony must be corroborated. As previously noted, the general rule is the testimony of a single witness is sufficient to sustain a conviction. State v. Cody, 800 S.W.2d 750 (Mo. App. 1990) [1, 2]. In cases involving sexual offenses, the victim's testimony will ordinarily sustain a conviction, even if uncorroborated. State v. Hill, 808 S.W.2d 882 (Mo. App. 1991) [19, 20]. Some cases have recognized a narrow exception to the general rule requiring corroboration of the victim's testimony when: 1) the defendant is charged with a sexual offense; 2) the inconsistencies or contradictions bear on an issue essential to the case; 3) the inconsistencies exist within the victim's own statements; and 4) the victim's testimony is rendered doubtful by gross inconsistencies and contradictions. State v. Koonce, 731 S.W.2d 431 (Mo. App. 1987) [8]; State v. Daniel, 767 S.W.2d 592 (Mo. App. 1989) [1, 2]. The attorney general urges the abolition of the corroboration rule. The facts of the present case do not require that step.

The inconsistencies raised by defendant do not fall within the corroboration exception. None of the statements relied upon by defendant goes to an element of the State's case. Only one of the discrepancies involved statements by the witness herself and it related to a non-essential aspect of the case. Further, taken as a whole, the inconsistencies do not create gross contradictions that make the victim's testimony inherently unbelievable or shrouded in doubt. At best, the variances in the State's evidence would relate to the credibility of the ...


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