Opinion
No. ED87796
April 3, 2007
Appeal from Circuit Court of the City of St. Louis, Hon. Michael P. David.
Michelle M. Rivera, Counsel for Appellant.
Dora A. Fichter, Counsel for Respondent.
TRANSFERRED TO THE MISSOURI SUPREME COURT. Draper III, P.J. and Gaertner, Sr., J., concur.
Opinion
Leonard Taylor ("Defendant") appeals from the judgment upon his conviction by a jury of one count of the unclassified felony of forcible rape, Section 566.030, RSMo 2000, in the Circuit Court of the City of St. Louis. Defendant was sentenced, as a persistent offender pursuant to Section 588.016 and a persistent sexual offender pursuant to Section 558.018, to one hundred years' imprisonment. Defendant contends the trial court erred in not allowing defense counsel to argue during closing argument that the State did not prove the offense occurred in the City of St. Louis because the applicable MAI requires the jury to find beyond a reasonable doubt that the offense occurred in the City of St. Louis. We would affirm the judgment; however, in light of the general interest and importance of the issues involved, we transfer the case to the Missouri Supreme Court, pursuant to Rule 83.02.
All further statutory references are to RSMo 2000 unless otherwise indicated.
Viewed in the light most favorable to the verdict, the following facts were adduced at trial. The victim lived with her mother, her siblings, and Defendant, her step-father, in Alton, Illinois. The victim and some family members went to a park in Alton. While at the park, Defendant asked the victim, who was sixteen years old and had her driver's permit, to drive him across the bridge to St. Louis. Defendant told the victim they would drive across the bridge and come back. They left the park and the victim drove the vehicle across the bridge. When they crossed the bridge Defendant placed his hand on the victim's chest and said he was checking to see if her heart was beating fast.
Defendant gave the victim directions where to drive. Defendant had her stop at a house, where he took his gun out of the glove compartment and went inside. Defendant came back into the car and directed her to another house, where he did the same thing. The victim did not know where the house was located, but believed it was in the City of St. Louis. When Defendant got back in the car, they drove to the house of a woman named Winnifer, around Union and Page in the City of St. Louis. They stayed at Winnifer's house for a long time. When they left, it was dark outside.
From Winnifer's house, they drove about five minutes to a liquor store in the City of St. Louis. Defendant went into the liquor store and came out with some liquor, and he then told the victim to "pull off" and he put his hand inside her shirt on her chest. The victim told him to stop and Defendant said he was checking to see if she was scared. Defendant stated, "I can touch you if I want to. Those are my titties. I can do that." The victim started crying and told Defendant that she didn't want to drive anymore. The victim moved to the passenger's side and Defendant started driving. Defendant drove to what appeared to be an abandoned grocery store five or ten minutes away from the liquor store. She did not know the exact location of the grocery store, but said she was sure it was in the City of St. Louis.
While in the parking lot of the grocery store, the victim was crying and told Defendant she wanted to go home. Defendant hit the victim in the face and told her to open the door while he got out of the driver's side. He came around to the passenger's side and told the victim to take her pants down. Defendant pushed the victim down on the seat, got on top of her, and put his penis in her vagina. Following the incident, Defendant began to drive home to Alton, passing Halls Ferry Circle on the way. Defendant told the victim not to tell anyone and that he was going to kill her mother and her siblings if she told.
The victim did not tell anyone about the rape until Defendant left the family six months later. Thereafter, the incident was reported to Detective John Blaskiewicz of the City of St. Louis Police Department. Detective Blaskiewicz drove the victim around to places in the City of St. Louis and St. Louis County to try to locate the abandoned grocery store, but she did not see any places that she recognized. The victim testified that when Detective Blaskiewicz took her around to see if anything looked familiar, she believed a liquor store on West Florissant and Kingshighway in the City of St. Louis was the liquor store Defendant bought liquor from on the day of the incident. The victim told Detective Blaskiewicz she was sure that the incident happened in the City of St. Louis, but was unable to identify the exact location of where it happened. When they reached St. Louis County, the victim stated that they had gone too far and that they needed to go back into the City of St. Louis.
At the close of the State's case, defense counsel filed a motion for judgment of acquittal arguing improper venue. Defense counsel argued there was no sufficient evidence that the incident occurred in the City of St. Louis because the victim could not say for sure where the incident occurred. The trial court held that "there's enough to submit to the jury on that issue," and denied the motion. During the instruction conference, the parties agreed that the verdict director as to the forcible rape count should follow MAI 320.01, and read, in pertinent part:
We note Defendant had previously filed, on the first day of the trial, a motion to dismiss for improper venue because the victim did not know where the incident took place. This motion was denied.
As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that between July 19, 2000 through July 20, 2000, in the City of St. Louis, State of Missouri, the defendant had sexual intercourse with [the victim], and
Second, that defendant did so by the use of forcible compulsion, and
Third, that defendant did so knowingly, then you will find the defendant guilty under Count I of forcible rape.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
Defense counsel then requested he be allowed to argue to the jury during closing argument that the State failed to prove beyond a reasonable doubt that the incident occurred in the City of St. Louis as required by the instruction. The trial court would not allow defense counsel to argue the issue relying on case law stating the State does not have to prove venue beyond a reasonable doubt. During closing argument, defense counsel argued that the victim was lying and if she was telling the truth she would know where the incident occurred.
Following closing argument and deliberation, the jury found Defendant guilty of one count of the unclassified felony of forcible rape. Defendant was sentenced as a prior offender and prior sexual offender to one hundred years' imprisonment. This appeal follows.
In his sole point, Defendant argues the trial court erred in not allowing defense counsel to argue during closing argument that the State did not prove the offense occurred in the City of St. Louis. Defendant maintains the applicable MAI requires the jury to find beyond a reasonable doubt that the offense occurred in the City of St. Louis and therefore he should have been allowed to argue the issue to the jury during closing argument. Defendant contends that by not allowing him to make the argument, the State's burden of proof was lessened.
The trial court has broad discretion in controlling the scope of closing argument and we will reverse the trial court's ruling only upon a clear showing of an abuse of that discretion. State v. Sheridan, 188 S.W.3d 55, 62 (Mo.App.E.D. 2006). The trial court abuses its discretion only when a ruling is clearly against the logic of the circumstances then before the trial court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Dismang, 151 S.W.3d 155, 163 (Mo.App.S.D. 2004).
While venue must be proved, it is not an integral part of the offense and thus need not be proved beyond a reasonable doubt. State v. Lingar, 726 S.W.2d 728, 732 (Mo. banc 1987); State v. Seaton, 817 S.W.2d 535, 538 (Mo.App.E.D. 1991); State v. Mack, 903 S.W.2d 623, 626 (Mo.App.W.D. 1995) (superseded on other grounds by State v. Anders, 975 S.W.2d 462, 465 (Mo.App.W.D. 1998));State v. Thompson, 147 S.W.3d 150, 157 (Mo.App.S.D. 2004). Instead, venue may be inferred from all the evidence. Lingar, 726 S.W.2d at 732; Seaton, 817 S.W.2d at 538; Mack, 903 S.W.2d at 626; Thompson, S.W.3d at 157. On review, the standard for whether venue has been established is whether it could reasonably be inferred from the facts and circumstances that the crime with which the defendant is charged occurred within the trial court's jurisdiction. Lingar, 726 S.W.2d at 732;Seaton, 817 S.W.2d at 538; Mack, 903 S.W.2d at 626.
Here, Defendant complains that he was not permitted to argue that the State failed to prove venue beyond a reasonable doubt. This argument is a misstatement of the substantive law because the law does not require the State to prove venue beyond a reasonable doubt because it is not an integral part of the offense and may be inferred from the evidence. Misstatements of law are impermissible during closing argument, and a positive and absolute duty rests upon the trial court to restrain such arguments. State v. Lockett, 165 S.W.3d 199, 206 (Mo.App.E.D. 2005). Moreover, Defendant bases his argument on the language of the instruction, which required the jury to find Defendant guilty if it believed beyond a reasonable doubt that the crime occurred in the City of St. Louis. However, when an instruction conflicts with the substantive law, the substantive law prevails over the instruction. State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997). Here, we believe the trial court properly followed the substantive law on the issue of proving venue.
Furthermore, Defendant does not argue that the facts presented at the trial did not support a reasonable inference that the crime was committed in the City of St. Louis. The facts and circumstances of this case clearly allow the inference that venue was proper in the City of St. Louis. The victim testified that she was "a hundred percent positive" that the incident happened in the City of St. Louis. The victim testified that when Detective Blaskiewicz took her around to see if anything looked familiar, she believed a liquor store on West Florissant and Kingshighway in the City of St. Louis was the liquor store Defendant bought liquor from on the day of the incident and the incident occurred after driving approximately five minutes away from the liquor store. It could be reasonably inferred from the facts and circumstances that the incident happened in the City of St. Louis and that is all that is required by law.
Defendant does, however, argue that the jury was instructed to find Defendant guilty if the jury found beyond a reasonable doubt that the crime occurred in the City of St. Louis and that prohibiting his argument deprived him of the ability to argue the facts of the case and lessened the State's burden. Contrary to Defendant's argument, the trial court's ruling did not prevent defense counsel from arguing that the facts did not support a reasonable inference that the crime occurred in the City of St. Louis. The trial court's ruling merely prevented Defendant from making a misstatement of law during closing argument. Furthermore, Defendant was not precluded from arguing the facts as they related to venue. Defendant, however, chose to argue the facts of venue as they related to the victim's credibility. Finally, the State's burden was not lessened. The State proved beyond a reasonable doubt that Defendant committed the crime of forcible rape and the State proved facts supporting a reasonable inference that the crime occurred in the City of St. Louis. We believe the trial court did not abuse its discretion in denying Defendant's argument during closing argument and we would deny Defendant's point. However, because the language of MAI 320.01 is confusing as to the burden of proof concerning venue, we transfer this case to the Missouri Supreme Court because of the general interest and importance regarding the wording of an MAI.
Based on the foregoing, we would affirm the judgment. However, because of the general interest and importance of the issue concerning the language of MAI 320.01, this case is transferred to the Missouri Supreme Court pursuant to Rule 83.02.