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State v. Berry

Court of Appeals of Missouri, Western District, Fourth Division

October 11, 2016

STATE OF MISSOURI, Respondent,
v.
JASON L. BERRY, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Kevin D. Harrell, Judge

          Before Mark D. Pfeiffer, Chief Judge, and James Edward Welsh and Alok Ahuja, Judges.

          MARK D. PFEIFFER, CHIEF JUDGE.

         Mr. Jason Berry ("Berry") appeals from his convictions for the class B felony of burglary in the first degree, § 569.160;[1] the unclassified felony of rape in the first degree, § 566.030; and the class B felony of sexual abuse in the first degree, § 566.100, following a jury trial in the Circuit Court of Jackson County, Missouri ("trial court"). Berry claims the trial court plainly erred in instructing the jury and in sentencing. We affirm Berry's convictions, vacate his sentence on Count IV (first-degree sexual abuse), and remand with directions to resentence Berry consistent with today's ruling as to Count IV only.

         Factual and Procedural Background[2]

         Berry was living with his girlfriend and their children in a house about 200 feet from E.W.'s[3] home in Kansas City, Missouri. On the morning of May 23, 2014, when Berry's girlfriend left to take their son to school at 8:00 a.m., Berry was home asleep. When she got back home at 9:25 a.m., Berry was gone, and the back door was unlocked, which was unusual because she kept the doors locked. Berry returned about 9:45 a.m.

         That same morning, E.W. returned home after taking care of her elderly mother. She was sitting down to eat her breakfast when she heard someone fiddling with the lock on the front door. She went to the door and asked the person what he wanted. The man, whom E.W. identified as Berry, opened the door and entered the house. E.W. again asked Berry what he wanted, and he told her, "I'll show you what I want." Berry started pulling at E.W.'s clothing. She tried pushing him and kicking him, but Berry pushed E.W. onto the couch on her back and started taking off her pants and underwear. Berry then penetrated E.W.'s vagina with his penis, touched her breast with his mouth, and choked her with his hands. Berry then told E.W. to lick his penis, and when she moved her head out of the way, he started choking her. Then, E.W. fainted.

         When E.W. woke up, Berry was gone. She called the police. Officer Prough and another officer were dispatched to E.W.'s home on a report of rape. When the officers arrived, Officer Prough contacted E.W., and she told him that a man had forced his way into her home and raped her. She described the man as a black male with collar length hair and facial hair, and he referred to himself as "Jason." E.W. related to Officer Prough that Berry forced his way into her living room, pushed her in, pulled off her clothes, made her insert his penis into her mouth, kissed and sucked on her breasts, choked her, and inserted his penis into her vagina. Officer Prough observed that E.W. was "highly upset" and lost consciousness multiple times while he was talking to her.

         Officer Prough observed that the screen door to E.W.'s home was slit and the exterior handle appeared to be pulled away from the door frame. Berry's fingerprints were recovered from the exterior and interior sides of the storm door. E.W.'s living room was in disarray. A pair of women's white underwear was on the floor near the couch. There was a large stain on one of the couch cushions.

         E.W. was taken to the hospital. An examination revealed that she had petechiae markings on the right and left side of her neck. While E.W. was at the hospital, a detective presented her with a photographic lineup, from which she identified Berry as her assailant.

         Officer Prough had additional officers canvass the area to see if they could find a male matching the description given by E.W. Berry was interviewed by police and claimed that he was home all day and had not left the house. Later, he said he left the house the night before at 6:00 p.m. to take his uncle to work.

         The Kansas City police crime laboratory analyzed evidence that had been collected during the investigation of the case. E.W.'s vaginal, oral, and external genitalia were all positive for a protein indicative of the presence of semen. Tests run on E.W.'s right breast swab indicated the presence of saliva. DNA testing on the right breast swab revealed both E.W.'s and Berry's DNA were present. The frequency of the DNA profile that matched Berry's was one in forty-five quintillion unrelated individuals. Testing of E.W.'s vaginal swab identified Berry's DNA profile.

         The State charged Berry by indictment with one count of the class B felony of burglary in the first degree, one count of the unclassified felony of rape in the first degree, one count of the unclassified felony of sodomy in the first degree, and one count of the class C felony of sexual abuse in the first degree. An information in lieu of indictment was subsequently filed, charging Berry as a prior and persistent offender. While Berry was in jail awaiting trial, he called his girlfriend and told her that he needed her to testify that he was with her when she took their son to school on the morning of the assault.

         Berry testified at trial in his own defense and claimed that he did not rape, sodomize, or sexually abuse E.W. He stated that he was in E.W.'s house in 2012 but not on the day she was assaulted.

         The jury found Berry guilty of burglary in the first degree, rape in the first degree, and sexual abuse in the first degree, and not guilty of sodomy in the first degree. The trial court, having previously found Berry was a prior and persistent offender, subsequently sentenced him to thirty years' imprisonment on the burglary charge, seventy years' imprisonment on the rape charge, and fifteen years' imprisonment on the sexual abuse charge, to be served consecutively.

         Berry timely appealed.

         Analysis Point I - ...


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