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State v. Webber

Court of Appeals of Missouri, Western District, First Division

December 6, 2016


         Appeal from the Circuit Court of Jackson County, Missouri Honorable Wesley Brent Powell, Judge

          Before Thomas H. Newton, P.J., Cynthia L. Martin, and Edward R. Ardini, Jr., JJ.

          Thomas H. Newton, Presiding Judge

         Mr. Maurice P. Webber appeals his conviction in Jackson County Circuit Court, following a jury trial, for three counts of the class A felony of forcible rape, § 566.030, [1]three counts of the class A felony of forcible sodomy, § 566.060, and one count of the class A felony of attempted forcible sodomy, § 566.060, for which he was sentenced to a total thirty-four years imprisonment in the Department of Corrections. He challenges the forcible rape and forcible sodomy convictions under the necessarily incident provision of Missouri's accomplice-liability statute, § 562.041.2(2), argues ineffective assistance of counsel, as cognizable on direct appeal, for failure to raise a statute-of- limitations defense and the necessarily incident exception to accomplice liability, and asserts manifestly unjust court error in instructing the jury on sentencing. We affirm in part, reverse in part, and remand solely for retrial of his sentences.

         The seventeen-year-old victim attended a rock concert in September 1991 at the former Sandstone Amphitheater in Kansas and consumed a beer on an empty stomach.[2]Afterward, a friend drove her to her car, which was parked at a 24-hour market where she worked. The victim quickly realized on her way home that she should not be driving and parked in an apartment lot so she could sleep for awhile. She testified at trial that she became aware after falling asleep that people had surrounded her car. When she was fully awakened, the victim realized that she was in another car, in the back seat, with her head in one person's lap and her feet in another's. Her head was covered with a cloth that was held firmly on her face, but she was aware from the sound of voices that two other individuals were in the front seat. The men pulled the rings off her fingers and took a small amount of cash out of her pockets.

         The car stopped near a picnic bench in what the victim later learned was Swope Park, in Jackson County, Missouri. It was still dark, and one or two of the men's faces were partially covered with cloths. The victim pleaded with the men not to kill her, and she was told that if she cooperated she would not be killed. The men ordered her out of the car, told her to remove her pants, and then three of them took turns penetrating her vaginally and orally with their penises, at times simultaneously. One man tried to penetrate her anally with his penis, but was unsuccessful, and, after one of the men warned the victim not to tell anyone or he would kill her, they got back in the car and drove away.

         Terrified that the men would return, the victim ran or wandered around for some time, searching for a phone or help, and hiding when she saw approaching cars. A good samaritan finally called the police for her. The police took the victim to a hospital where evidence was collected, including swabs of her mouth, vagina, cervix, and anus, and her panties. The forensic testing available in the early 1990s could discern little more from the collected swabs than the presence of sperm from three individuals, so no suspects could be found until the case was reopened in 2009, when precise DNA testing allowed the identification of two of the perpetrators. The police learned that Mr. Webber was an alleged participant, and a buccal swab from him was definitively matched to DNA found on the victim's panties.[3] Though not definitive, Mr. Webber's DNA also matched the victim's cervical swab.[4]

         Mr. Webber was tried by a jury in May 2015, and, after the trial court overruled his boilerplate motions for judgment of acquittal at the close of the State's evidence and at the close of all evidence, he was convicted on all seven charges.[5] In a separate proceeding before the same jury, the court gave the following sentencing instruction as to each count:

[T]he punishment prescribed by law for [the offense] is one of the following:

1. life imprisonment,

2. imprisonment for a term of years fixed by you, but not less than ten years.

         Mr. Webber made only a "general objection" to these instructions. The jury sentenced Mr. Webber to twenty-four years on each count. The trial court then denied Mr. Webber's motion for new trial, which included none of the issues raised before this Court, and sentenced him to twenty-four years of imprisonment on each of six counts, to run concurrently, and to a consecutive term of ten years' imprisonment on one count of the class A felony of forcible sodomy. Mr. Webber filed this appeal.

         Legal Analysis

         Accomplice Liability Necessarily Incident Exception

         The first four points involve the necessarily incident exception to accomplice liability under section 562.041. Mr. Webber argues that (1) the evidence was insufficient to convict him of three counts of forcible rape and three counts of forcible sodomy under an accomplice-liability theory, because the State failed to prove that his acts were not necessarily incident to the crimes "where the victim is subjected to sexual intercourse [and deviate sexual intercourse] with more than one person, " and (2) the trial court erred in failing to instruct the jury that the necessarily incident exception applies "where a defendant is charged under accomplice liability with the crime[s] of forcible rape [and forcible sodomy] in which he subjects [the] victim to sexual intercourse with more than one person."

         The offenses here arose from a gang rape and sodomy involving three perpetrators. Section 566.030 classifies forcible rape as a class A felony where the actor "subjects the victim to sexual intercourse or deviate sexual intercourse with more than one person." § 566.030.2. Similarly, as to forcible sodomy, section 566.060 states that where the actor "subjects the victim to deviate sexual intercourse or sexual intercourse with more than one person, . . . forcible sodomy or an attempt to commit forcible sodomy is a class A felony." § 566.060.2. Missouri's accomplice-liability statute makes a person criminally responsible for another person's conduct under the following circumstances and subject to the following exceptions:

1. A person is criminally responsible for the conduct of another when
(1) The statute defining the offense makes him so responsible; or
(2) Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.
2. However, a person is not so responsible if:
(1) He is the victim of the offense committed or attempted;
(2) The offense is so defined that his conduct was necessarily incident to the commission or attempt to commit the offense. If his conduct constitutes a related but separate offense, he is criminally responsible for that offense but not for the conduct or offense committed or attempted by the other person;
(3) Before the commission of the offense he abandons his purpose and gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.
3. The defense provided by subdivision (3) of subsection 2 is an affirmative defense.

§ 562.041. We have observed that this statute "is designed to makeindividuals who could not be guilty of a crime solely on the basis of their own conduct, guilty nonetheless as an accessory." State v. Barker, 442 S.W.3d 165, 168(Mo. App. W.D. 2014).

         Mr. Webber argues that the necessarily incident exception set forth in the accomplice-liability statute applies to his case where the crimes charged required participation by more than one person. In other words, because Mr. Webber's participation in relation to his accomplices was as the other person needed to reclassify/enhance their offenses as class A felonies, his participation was necessarily incident and he could not be held responsible as an accomplice for their crimes. He claims that this issue is not an affirmative defense that would be waived if not timely raised because only the third exception is specified as an affirmative defense in the statute. Concluding on a statutory-construction basis that the necessarily incident exception is an element that must be negated by the State and that the State failed to produce sufficient evidence to do so, Mr. Webber argues that his failure to assert the necessarily incident exception before or during trial or in his motion for new trial did not waive the issue for purposes of appeal.[6] He claims that the appropriate remedy is to remand the case for entry of a judgment of acquittal on the three counts of class A felony rape and three counts of class A felony sodomy.

         We find it unnecessary to determine how to classify this exception, agreeing with the State that it does not apply.[7] In Bass v. State, 950 S.W.2d 940, 944 (Mo. App. W.D. 1997), this Court discussed the exception in upholding the conviction of a woman charged with rape for forcing her eleven-year-old daughter to have sexual intercourse with another person. As to the ...

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