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State v. Davis

Court of Appeals of Missouri, Western District, Third Division

November 28, 2017

STATE OF MISSOURI, Respondent,
v.
DERIK T. DAVIS, Appellant.

         Appeal 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. Martin, JJ.

          ALOK AHUJA, JUDGE.

         Following 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.[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.

         We 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.

         Factual Background[2]

         Prior to the February 2015 incident underlying this prosecution, the female Victim[3] 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.

         The 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.

         Because 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.

         On 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.

         The 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."

         The 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 trouble."

         After 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."

         Davis 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.

         Davis 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.

         By 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 9-1-1.

         When 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.

         The 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.

         Davis 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 DNA sample.

         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.

         Davis 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).

         A jury 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 ...

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