Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Jackson County The Honorable Joel
P. Fahnestock, Judge
Before: Alok Ahuja, P.J., and Thomas H. Newton and Cynthia L.
a jury trial in the Circuit Court of Jackson County, Derik
Davis was convicted of first-degree rape, felonious
restraint, and first-degree burglary. Davis appeals. He
argues that his felonious restraint conviction should be
reversed, because there was insufficient evidence that he
exposed his victim to "a substantial risk of serious
physical injury." § 565.120.1. He also argues
that the circuit court plainly erred in failing to declare a
mistrial after the prosecution referred to his failure to
testify during closing argument. Finally, Davis contends that
the circuit court erroneously convicted and sentenced him for
first-degree burglary on Count II, when the jury convicted
him of the lesser included offense of first-degree trespass.
affirm Davis' convictions and sentences for first-degree
rape and forcible restraint. As the State concedes, however,
Davis is correct that the circuit court erroneously entered a
conviction and sentence of first-degree burglary, when the
jury convicted him of a lesser offense. We accordingly
reverse the circuit court's conviction and sentence on
Count II, and remand to the circuit court for resentencing
and entry of a new judgment with respect to that count.
to the February 2015 incident underlying this prosecution,
the female Victim and Davis had been in a romantic
relationship since 2005. The Victim and Davis had lived
together on and off until they broke off their relationship
in August 2014. The couple have a daughter together, who was
six years old at the time of Davis' crimes.
Victim and Davis continued to have contact after he moved
out, when he would come over to visit their daughter.
According to the Victim, she last had consensual sexual
relations with Davis in November 2014.
the Victim had "prior issues" with Davis, she
obtained an ex parte order of protection against
him. That order had not been served on Davis on the date of
the underlying incident.
February 28, 2015, the Victim came home from a family party
she had hosted at a nearby restaurant. Her daughter was
spending the night with other family members, so the Victim
was alone at home. She fell asleep sometime between 8:00 and
9:00 p.m. At about 3:00 a.m. on the morning of March 1, the
Victim awoke to use the restroom. After she went back to bed
and checked the time on her cell phone, the Victim saw the
silhouette of a person in the doorway of her bedroom. She
recognized the person as Davis. The Victim texted the word
"cupcake" to a female friend; that word was a
pre-arranged signal that the friend should call 9-1-1 because
the Victim was in trouble with Davis. When the Victim sent
the text message, however, her friend was asleep; she did not
see the text message until later that morning.
Victim asked Davis what he was doing in her house. He said
that he needed to talk to her about "taking the
restraining order off of him." The Victim stated that
she was unwilling to release the order. Davis then jumped on
the Victim's bed and began tying her feet together with a
shirt. The Victim told Davis that the reason she had obtained
the order of protection was "because of this, "
what he was doing, "things like that."
Victim kept asking Davis what he was doing, and he told her
to shut up. Davis proceeded to "put his weight" on
the Victim to hold her down, and grabbed her arms. The Victim
tried to pull away, but because Davis was stronger than her,
he was able to tie the Victim's arms together with
another one of her shirts. The Victim testified that the
binding on her arms was tight, and caused her fingers to
swell. The Victim asked Davis why he was tying her up, and he
repeatedly said that he needed her "to take the
restraining order off because he didn't want to get in
binding the Victim's arms and legs, Davis pulled her
pants off; the Victim unsuccessfully attempted to shift her
body to prevent Davis from undressing her. The Victim told
Davis that she did not want to be intimate with him. Davis
told her that she could "lay here and let [him] do what
[he was] going to do, or it can hurt, " and asked her
which she preferred. The Victim testified that she laid still
because she "didn't want him to hurt [her] any more
than what [she] felt like he was hurting [her] already. [She]
didn't want - [she] didn't know what he would do more
than what he was already doing." The Victim did not
"want to be hit, like he said, it could hurt. [She]
didn't know what he meant by that, but [she] didn't
want any part of that."
engaged in vaginal intercourse with the Victim. When he was
done, he again complained about the order of protection. The
Victim repeated that she would not release it. Davis got
upset, grabbed a sock, and stuffed it in the Victim's
mouth. He then took a belt and wrapped it around her head to
hold the sock in place. Davis continued to "rant"
about the order of protection and how he would get in
trouble, and demanded that the Victim do what he asked her to
do. Davis would periodically remove the belt and sock to let
the Victim respond. When she would again refuse his request,
he would replace the sock and belt.
remained in bed with the Victim. The Victim testified that
she could not leave because she was bound, and because Davis
was bigger than her and had already used his body weight to
pin her down on the bed. The Victim was ultimately able to
free her legs, but could not untie her hands, which were
bound more tightly. Both Davis and the Victim eventually fell
asleep. As they slept, Davis continued to hold the Victim.
The Victim's arms were numb by the time she awoke. She
decided to tell Davis what he wanted to hear so that he would
untie her arms. The Victim had bruises on her wrists when
Davis eventually unbound her.
around 8:00 a.m., the Victim's friend woke up and saw the
text message with the signal "cupcake" from earlier
in the morning. She called the Victim but got no answer.
Davis grabbed the Victim's phone and saw who had called.
He told the Victim to call her friend back. Instead of
calling her friend, the Victim texted "cupcake"
again. That message was sent at 8:56 a.m. The friend called
the police arrived, the Victim ran to the door. She told the
police that Davis was inside, that she had an order of
protection that needed to be served on him, and that she did
not want him in her home. The officers found Davis hiding in
a closet in their daughter's bedroom, and arrested him.
Victim was taken to a hospital and a forensic sexual assault
examination was conducted. The Victim had no vaginal or other
injuries. The nurse who performed the examination observed
redness around the Victim's wrists.
was interrogated by police on the afternoon of March 1, 2015.
He claimed that he had been dropped off at the Victim's
house in the early morning, and that the Victim let him in.
Davis denied any sexual contact with the Victim that day.
Police swabbed Davis' penis for purposes of obtaining a
forensic specialist tested the vaginal and cervical swabs
collected during the Victim's examination, as well as her
shirts and underwear. No semen or spermatozoa were found on
the Victim's clothing or on the swabs. There were no
hairs or skin cells found in the pubic combing. Both
Davis' and the Victim's DNA was found on the swab
taken from Davis' penis.
was charged by indictment with one count of first-degree rape
in violation of § 566.030 (Count I), one count of
first-degree burglary in violation of § 569.160 (Count
II), and one count of felonious restraint in violation of
§ 565.120 (Count III).
trial was held in February 2015. Davis did not testify or
present any evidence in his own defense. During the
State's rebuttal closing argument, the prosecutor made a
reference to Davis' failure to testify by stating:
Ladies and gentlemen, you've seen the witnesses presented
here the last few days, 10 witnesses. And one through 10,
they told you exactly what happened. February 28th until she
woke up at 3:00 a.m. throughout the day of March 1, 2015.
In fact, you didn't have the benefit of seeing the
defendant try to explain himself by not saying he did
it. But you know what is a benefit, the lies that he
told within a 30 to 45 minute period. Lie, lie, lie. And why
was he lying? Because he was guilty and he knew it. And he
was hiding in the ...