text:
    STATE of Missouri, Respondent, v. Roger BROWN, Appellant.
    No. 40403.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 29, 1979.

      Robert C. Babione, Public Defender, Christelle Adelman Adler, Kevin C. Curran, Asst. Public Defenders, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas Dittmeier, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant was convicted by a jury on all three counts of a three count indictment. Counts I and II charged defendant with the First Degree Robbery of Joseph Williams and Karen Cook, respectively. Count III charged defendant with Armed Criminal Action in the commission of the aforementioned robberies. Following his conviction, defendant was sentenced (pursuant to the Second Offender Act) to ten years imprisonment on each of the first two counts, and thirty years imprisonment for the third. These sentences were scheduled to run concurrently.

Defendant raises two points of error on appeal: 1) that the trial court erred in admitting into evidence portions of a videotape which made reference to crimes committed by defendant other than those for which he stood charged; and 2) that the trial court further erred in refusing his Motion to Suppress the in-court identification of defendant because the pre-trial photographic identification procedure was so unnecessarily suggestive as to give rise to a substantial likelihood of irreparable mis-identification. Although defendant does not challenge the sufficiency of the evidence, a rather detailed recitation of the facts is necessary due to the nature of his contentions.

Ms. Cook and Mr. Williams were robbed at gun-point upon returning from a late date in the early morning hours of June 24, 1977. A man approached the pair while they were sitting in Mr. Williams’ automobile in front of Ms. Cook’s home. He began by asking directions but soon thereafter drew a revolver, told the couple to keep their hands where he could see them, and not to look at his face. He then demanded their valuables. Mr. Williams gave the man his wallet, money clip and keys. Ms. Cook relinquished her purse. The man instructed them to lie on the floor of the automobile for fifteen minutes while he made good his escape. The couple acted as per these instructions, and upon sitting up, found he was gone. The police were called and the assailant described.

Four days later, on June 28,1977 defendant entered a police-maintained, undercover “fencing” operation and sold the proprietor several credit and identification cards. Among those sold were Ms. Cook’s. The “cameras were rolling”, as it were, and the entire transaction was recorded on videotape. On film, defendant explained to the “proprietor” how he happened by these items he was attempting to market and, in so explaining, mentioned his involvement in criminal activities other than those for which he was on trial.

On July 1,1977, the police arranged for a photographic identification session with the two victims. This interview took place at the Cook residence and, apparently, Ms. Cook and Mr. Williams were shown the various photographs while sitting next to each other at a table in the home. The police gave five photographs to Mr. Williams who, as he looked at them, would then lay the pictures on the table for Ms. Cook to view. Mr. Williams testified that he immediately recognized defendant’s picture when first he saw it, but did not convey this recognition to the police officers until Ms. Cook made the same identification. At the time, Ms. Cook’s photographic identification of defendant was somewhat more tentative than that of Mr. Williams, but her in-court identification was equally unequivocal.

Defendant first contends that the trial court erred in refusing to suppress portions of videotape wherein defendant made reference to crimes he had committed other than those charged, the court thereby erroneously admitting evidence of unrelated crimes.

Generally, a confession or an admission is inadmissible when its language implicates the defendant in the commission of a different or separate offense. If that part of the admission which pertains to the crime being tried can be separated from the part or parts relating to the other offenses, only that portion material to the issue on trial is deemed admissible. State v. Wolff, 337 Mo. 1007, 87 S.W.2d 436, 443 (1935). However, where those portions are inseparable, courts almost universally hold the evidence admissible in its entirety, if given subject to a cautionary instruction. What may be considered reasonably separable is left to the sound discretion of the trial court. Bell v. State, 234 Md. 254, 198 A.2d 895, 896-897 (Md.App.1964); 23 C.J.S. Criminal Law, § 820, p. 201; 29 Am.Jur.2d, Evidence § 536; 2 Wharton, Criminal Law (12th Ed.) § 361; Wigmore on Evidence (3rd Ed.), § 2100, Pn. 9.

In the present instance, after having viewed the seven minute videotape, the trial court was of the opinion that the reference to other crimes was so “intricately woven in” with the evidence of this crime, as to make the two inseparable. We have carefully viewed the videotape and find that the trial court did not abuse its discretion in so holding. The videotape itself was not very long, and we believe that to edit those objectionable portions in the manner contemplated by defendant would have left the tape so fragmented and “piecemeal” as to render it useless to the prosecution and, in reality, would have amounted to its rejection.

The selling of all the credit cards, and other items, was inseparably interwoven and, in essence, constituted a single transaction. The other references came while defendant was laying out the cards and receiving the money. Moreover, defendant received a cautionary instruction to accompany the tape’s admission, as per his request. Lastly, defendant’s objection, though timely, was too broad in that he failed to specify which portions of the tape he wished the court to delete. State v. Tyler, 306 S.W.2d 452, 456 (Mo.1957). We rule against defendant on this point.

Defendant next complains of the unduly suggestive nature of the photographic identification which, he argues, impermissibly tainted the in-court identification. Defendant argues that it is suggestive inasmuch as the victims making the identification were allowed to view the photographs together and thus reinforce each other’s identification.

In determining whether an identification procedure employed by police is so unnecessarily suggestive as to impermissibly taint an in-court identification, we must look to the totality of the circumstances. State v. Macon, 547 S.W.2d 507, 512 (Mo.App.1977). And, even if the photographic identification is tainted or suggestive, the in-court identification is still admissible where there appears a sufficient factual basis for the independent identification. Macon, 547 S.W.2d at 512-513.

Aligning these principles against the present factual background, we hold that the admission of the victims’ in-court identification of defendant was not erroneous. Although research has failed to disclose an identical situation in Missouri case law, i.e., where several witnesses made a photographic identification in each other’s presence, several cases have adopted reasoning we consider illustrative. State v. Williams, 448 S.W.2d 865 (Mo.1970); State v. Carter, 571 S.W.2d 779 (Mo.App.1978). Both of these cases involved a confrontation rather than a photographic identification. Both involved several witnesses who were permitted to confront a suspect at the same time and identify the suspect more or less conjunctively. Both courts indicated there was no constitutional requirement that identifying witnesses be separated when they make their identification, but rather that this was but one factor to be considered in determining the witness’ credibility and in passing upon the totality of the circumstances. State v. Williams, 448 S.W.2d at 868; State v. Garter, 571 S.W.2d at 782.

Furthermore, we find an independent factual basis for the identification by each witness. There was a street light approximately one-car length from where the victims were sitting in their car. Williams testified that he was close to defendant and that he looked directly at defendant for three or four seconds. See State v. Young, 534 S.W.2d 585, 589 (Mo.App.1976); State v. Carson, 501 S.W.2d 503, 506 (Mo.App.1973). Ms. Cook testified that she saw defendant after he opened the car door. Their attention level was high due to the fact that their assailant had a gun which he was threatening to use. Under all these circumstances, we find a positive in-court identification with an adequate factual basis independent of the photographic identification.

Defendant’s second point is without merit.

Affirmed.

GUNN and CRIST, JJ., concur.

      . But see Tafoya v, Eyman, 315 F.Supp. 204, 209 (D.C.Ariz.1970); Commonwealth v. Cofield, 1 Mass.App. 660, 305 N.E.2d 858, 862 (1973); Tate v. United States, 268 A.2d 855, 857 (D.C.App.1970).


source: Caselaw Access Project

author: STEPHAN, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. MANCHESTER BANK WEST COUNTY and Manchester Financial Corp., Relators, State Banking Board of the State of Missouri, and Director of Finance of the State of Missouri, Intervenors, v. The Honorable Richard T. ENRIGHT, Judge of the Circuit Court of St. Louis County, Missouri, Division 3, Respondent.
    No. 40426.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 12, 1979.

      David F. Ulmer, Thompson & Mitchell, Peter A. Fanchi, St. Louis, for relators.
    Terry C. Allen, Asst. Atty. Gen., Irven L. Friedhoff, Division of Finance, Jefferson City, for intervenors.
   STEPHAN, Presiding Judge.

Relators seek to prohibit respondent from reinstating an order, stayed during the pendency of these proceedings. The order would remand to the State Banking Board the appeal of the Plaza Bank of West Port from the granting of a charter to the Manchester Bank West County. For reasons hereinafter stated, we make permanent the preliminary writ.

On April 8, 1976, five individual organizers filed an application with the director of finance to incorporate the proposed Manchester Bank. Pursuant to § 362.030, RSMo 1969, the director thereafter conducted an investigation based on the criteria specified in that statute to consider the viability, reputability and necessity of the proposed bank. As part of that examination, the director sought the views of competitor banks in the service area of the proposed bank. Having requested and received an extension of time in which to respond, Plaza Bank of West Port answered a questionnaire from the director and submitted various documents to the director in opposition to the issuance of the charter to Manchester Bank. On September 17, 1976, the director granted the charter, posting notice of such action on that date on the public bulletin board in the office of the Division of Finance in Jefferson City as required by § 361.110. In addition, notice of the director’s order granting the charter was mailed, on that same date, to a number of affected parties; in the case of Plaza Bank, such notice was sent directly to the bank president, Mr. S. Dale Boughton.

On October 5, 1976, eighteen days after the issuance of the charter, Plaza Bank submitted an appeal of that order of the director. As grounds for reversal, Plaza Bank therein alleged that an additional bank was unnecessary to provide for the convenience and needs of the community in the proposed service area and that the volume of business in the area was not such as to ensure the solvency of Plaza Bank and an additional bank. The appeal was rejected by the director on the grounds that he lacked authority to accept an appeal filed after the ten-day limit prescribed in § 361.-094. Plaza Bank appealed that decision to the State Banking Board. The board similarly dismissed the appeal and denied Plaza Bank’s request for a hearing on the matter, declaring itself without authority to hear the appeal because it had been untimely filed.

There then followed a series of appeals to the circuit courts of this state. Plaza Bank initially petitioned the Circuit Court of Cole County for a review of the board’s decision, requesting a remand for a hearing before the board on the merits of its appeal. Plaza Bank contended that the board had wrongly ruled on the issue of its jurisdiction to hear the appeal and that, furthermore, the decision had been rendered without a public meeting, thereby violating Chapter 610, RSMo, the “Sunshine Law.” The circuit court remanded the ease to the board for a hearing, ruling that any determination as to the sufficiency of Plaza Bank’s appeal had to be made at a meeting which complied with Chapter 610. Pursuant to that order of the circuit court, the board held such a public meeting on April 4, 1977, and again determined that it lacked jurisdiction to hear Plaza Bank’s appeal of the issuance of the charter to Manchester Bank.

Plaza Bank then petitioned the Circuit Court of St. Louis County for review of the board’s decision of April 4, alleging that that order was void because notice of the meeting was unreasonable, because Plaza Bank’s attorney was not allowed to participate and because the order was not accompanied by findings of fact and conclusions of law. Plaza Bank again requested a hearing on the merits of its appeal. Judge Orville Richardson again remanded to the board for a hearing “as required by law” on the issue of the board’s jurisdiction to hear the appeal, and for a hearing on the merits should the board determine that it had such jurisdiction. This order of the court was issued with the consent of all involved parties, which at this point included Manchester Bank as intervenor. On September 1, 1977, the board held the hearing mandated by the order, and on September 15, it issued an order, accompanied by findings of fact and conclusions of law, in which it again ruled that it lacked jurisdiction in the matter because of the untimeliness of the original appeal.

Plaza Bank then petitioned the St. Louis County Circuit Court for judicial review of the board’s ruling of September 15. After overruling motions to dismiss filed by Manchester Bank, the board and the director, and Manchester Bank’s motion for judgment on the pleadings, respondent Judge Richard T. Enright remanded the cause to the board for a full hearing of all the issues on their merits. Judge Enright thereafter set aside that order provisionally for ten days to allow the parties to apply to this court for a writ of prohibition. Manchester Bank did so within the time prescribed by Judge Enright; the director of finance and the State Banking Board appear herein as intervenors.

Plaza Bank’s counsel did not file a brief on behalf of the respondent judge, as is the custom in connection with writs of prohibition. However, in examining the voluminous pleadings in the underlying action, as well as the transcript of the September 1, 1977, hearing, we observe that Plaza Bank has attempted to inject issues into the case other than the timeliness, vel non, of the notice of appeal to the board. For example, Plaza Bank contends that the five incorporators of Manchester Bank were in fact straw parties for Manchester Financial Corporation (MFC) and, as such, lacked capacity to act as incorporators under Chapter 362, RSMo. Two recent cases, Mark Twain Cape Girardeau Bank v. State Banking Board, 528 S.W.2d 443 (Mo.App.1975), and Mark Twain Bancshares, Inc. v. Kostman, 541 S.W.2d 1 (Mo.App.1975), have held that a bank holding company could not act as an incorporator of a bank. However, if it was error for the director to issue the charter under the precise facts leading up to the filing of the application, Plaza Bank forfeited its right to develop those facts before the State Banking Board by its failure to file an appeal within ten days as required by § 361.094.

The board correctly held that it was without jurisdiction to entertain the appeal because of the untimeliness of its filing. As with judicial review, where the time for filing an appeal is dictated by statute, “timely notice is a prerequisite to jurisdiction.” Lafayette Federal Savings and Loan Association v. Koontz, 516 S.W.2d 502, 504 (Mo.App.1974). See also Hagen v. Perryville Board of Aldermen, 550 S.W.2d 797, 799 (Mo.App.1977). An ineffective notice of appeal to an administrative agency from a decision of a subordinate presents nothing to the administrative agency to review. State ex rel. Johnson v. Burks, 463 S.W.2d 586, 588 (Mo.App.1971). In affirming an appeal from a writ of prohibition issued against a municipal administrative agency in which a complaint, required by ordinance to be filed within sixty days, was not filed until 117 days after the act which gave rise to it, the court said:

“The remedy is an integral part of the right and the requirements of the ordinance, including the time limitation for the filing of a complaint, must be strictly followed or the right and corresponding liability ends. Not only is the remedy no longer available, but the right itself is extinguished.” St. Louis-San Francisco Railway Company v. Mayor’s Commission on Human Rights and Community Relations, 572 S.W.2d 492, 493 (Mo.App.1978).

Plaza Bank would excuse its tardiness in filing the notice of appeal on the grounds that the director’s decision granting the Manchester Bank charter was sent to its president rather than to its attorney, who maintained an office in the bank building. It was received by the president in due course of the mails. Under the circumstances of this case, we do not find this to be a fatal defect in the notice. The only requirement in the statutes for notice to interested persons is that found in § 361.110 which requires that the commissioner of finance post a notice on a public bulletin board in his office at noon on Friday of each week stating, inter alia, the name and location of every corporation to which he has granted a charter. This was done on the day the charter was issued, September 17, 1976, which was the same day that the notice was sent to the Plaza Bank president. Furthermore, up to the point when the charter issued, the investigation conducted by the commissioner was an ex parte proceeding, as contemplated by § 362.030. The fact of the investigation was communicated to the Plaza Bank in the performance of the commissioner’s functions, not as the fulfillment of some right possessed by that bank; the extension of time in which to respond to the commissioner’s inquiry was granted as an accommodation, not as a matter of right. In short, it was incumbent upon the Plaza Bank to remain informed of the developments relating to Manchester Bank’s charter application; the information was gratuitously imparted to Plaza Bank; and it can-, not now complain that, because the notice of the granting of the charter was sent to its president rather than to its attorney, the ten day limitation on appeals to the board did not run.

Finally, we reject the notion advanced by Plaza Bank in various pleadings and documents in the file to the effect that the granting of the charter was a “void order” and therefore subject to collateral attack at any time under § 536.100. A void judgment is one which is rendered by a tribunal acting without competency to render it, due to a lack of jurisdiction over the parties, the subject matter or the remedy ordered by that tribunal. Ringeisen v. Insulation Services, Inc., 539 S.W.2d 621, 625-626 (Mo.App.1976); Crockett Oil Company v. Effie, 374 S.W.2d 154, 156 (Mo.App.1964); Flynn v. Janssen, 266 S.W.2d 666, 670 (Mo.1954). The issue of the qualifications of the incorporators was clearly within the jurisdiction of the director and, even if it was erroneously decided (a question we do not reach), the decision was not void.

Inasmuch as the State Banking Board lacks jurisdiction to hear the appeal of Plaza Bank, reinstatement of the trial court’s order remanding the matter for such a hearing is beyond the jurisdiction of the trial court.

The preliminary rule in prohibition is made absolute.

KELLY and STEWART, JJ., concur.

      . Before passage of the Omnibus State Reorganization Act of 1974, RSMo Supp.1975, the director of finance was denominated the “Commissioner of Finance.” Section 361.010 RSMo 1969 and RSMo Supp. 1975, Appendix B, § 4.8. Most of the applicable banking laws to which we will refer have not been amended to reflect that change. The two terms will therefore be used interchangeably throughout this opinion.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John D. GORMON, Appellant.
    No. 40059.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.

      Doris Gregory Black, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Marjorie Whaley Haines, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Gordon L. Ankney, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals his conviction of both “statutory” rape and kidnapping. He was sentenced by the court under the Second Offender Act to twenty years on the rape charge and five years on the kidnapping charge, these sentences to run concurrently.

The prosecutrix was a fifteen year old girl who testified that at about a quarter to eight on the evening of August 7, 1977, she was standing at a bus stop on the corner of Easton and Dr. Martin Luther King Drive in the City of- St. Louis, awaiting a bus to take her to her boyfriend’s home. While so waiting, someone grabbed her around the neck from behind, dragged her past the corner, and thrust her in the front seat of his car. Her assailant drove her about the city for approximately twenty minutes before stopping the automobile in an alley and forcing her to engage in intercourse against her will. Finally, he drove her to her boyfriend’s home.

Upon leaving the automobile, the prose-cutrix made note of its license number and wrote it down once inside the house. The police were notified and the individual who ráped her described. The fact that the assailant wore a particular variety of tennis shoes was mentioned in this description.

She also told the police that the auto had a jacket and some magazines in the back seat, a cupholder sitting on the floor and several napkins in the glove compartment. She further testified that she was on her menstrual period and was using a sanitary napkin which she threw out the window at defendant’s behest.

Her boyfriend saw her alight from the automobile and testified that it was a green, 1972 Delta 88.

A green 1972 Delta 88 was registered in the name of defendant’s wife, and the testimony was that, at the time of the offense, he had been driving the vehicle.

On the morning of August 8, 1977, the prosecutrix was taken to the home of defendant’s wife where the car was parked. A jacket and several magazines were found in the back seat, a cupholder on the floor, and several napkins in the glove compartment.

The defendant was later arrested and selected from a line-up by the prosecutrix. Defendant presented an alibi defense.

On appeal, defendant first avers that the trial court erred in the admission of state’s exhibits 1-10 and 12, contending that the state failed to make a full disclosure, prior to trial, pursuant to defense counsel’s request under Rule 25.32.

Defendant’s motions to disclose were timely made and, in accordance with Rule 25.32, requested among other things:

(5) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments [and] comparisons.
(6) Any books, papers, documents, photographs or objects, which the state intends to introduce into evidence at the hearing or trial or which were obtained from or belonging to the defendant.

The day before the trial defendant also filed a “Motion to Inspect” which requested that the Court order the prosecution to make available for his inspection, “reports and clothes to be used in evidence.” This motion was granted.

Received in evidence over defendant’s objections were State’s Exhibit 10: a pair of tennis shoes seized from defendant after the August 8, line-up, State Exhibits 1-9: pictures taken of the interior of the car on August 8 and one photo of the line-up; and, State’s Exhibit 12: a medical report of the physician who examined the alleged victim.

The police report, which was supplied by the Prosecuting Attorney to defense counsel in compliance with the motion to disclose, stated:

It should be noted that during the lineup the victim informed Officer Reynolds that the subject she had identified was wearing the same tennis shoes at this trial as he had on at the time of the incident, therefore, Officer Reynolds seized same from the subject and packaged same as evidence.

The day before the trial the court took up defendant’s motion to inspect and the Prosecuting Attorney told the court, “We did not seize his clothing other than the shoes.”

The court, in overruling defendant’s objection to the admission in evidence of the shoes, reasoned that since defendant’s counsel was aware of the existence of the shoes; if he wanted to see them he should have made an effort to do so.

Also received in evidence over defendant’s objection was the medical report of the physician responsible for examining the prosecutrix. The defendant had been furnished a copy of a portion of the report but on the day before the trial, at which time the court sustained defendant’s motion to inspect, the Prosecuting Attorney informed the court that he had not yet received the results of the sperm test from the laboratory. The court ordered the Prosecuting Attorney to inform defense counsel as soon as the results were available and he complied. The test results show “spermatozoon found.” The court, in overruling the objection, stated that defense counsel knew the results of the test were not available before the trial began, and yet, had proceeded to trial offering no objection.

The trial court also received in evidence, over the objection of defendant that the prosecution failed to make disclosure, certain photographs: State Exhibits 1 through 9. Exhibit No. 1 was the photo of the line-up. The court, in overruling defendant’s objection to Exhibit No. 1 stated that the record indicated defense counsel had been aware of the state’s intention to offer the photograph into evidence and this awareness was demonstrated in one of defendant’s pre-trial motions.

Exhibits 2 through 9 were photographs of the interior of the car. The state argued that they were not produced only because they were developed immediately prior to trial. The court ruled that failure of the state to disclose Exhibits 2 through 9 was, “in violation of the rules of discovery.” The court then offered the defendant a one day continuance “for the purpose of whatever investigation the defendant might desire.” The court obviously felt the circumstances required a continuance but that the violation was itself, not so prejudicial as to necessitate the exclusion of the exhibit. The defense attorney refused the continuance stating that it was insufficient to alleviate the prejudice worked on defendant.

Rule 25.32 provides for disclosure by the state to a defendant of certain material and information upon his written request. Rule 25.45 provides for the exclusion of evidence not produced under discovery rules, as but one of the sanctions available to the trial court. Whether the exclusion of evidence not produced, as per request, is the appropriate sanction in a particular instance, is a matter within the trial court’s discretion. The ultimate question being: whether or not the failure to produce has resulted in fundamental unfairness or prejudice to the defendant. State v. Moten, 542 S.W.2d 317, 320 (Mo.App.1976).

On appeal, the basic issue for our consideration is whether or not the exercise of that discretion constituted abuse. And, again, a finding of abuse is necessarily a finding that the trial court’s action (or inaction) resulted in prejudice or fundamental unfairness to the defendant. Id at 321. This “prejudice”, in turn, depends upon the nature of the charge, the evidence presented, and the role the undisclosed evidence might have played in the preparation of a defense.

Turning our attention to the action of the trial court, we find no abuse of discretion. We agree with the trial court that the defendant had sufficient prior knowledge of the state’s possession of the shoes so as not to have been surprised by their introduction into evidence. Before the trial began the defendant knew that the state had not received the results of the “sperm test” and should well have known that if the results were favorable, the state would attempt its introduction. Armed with this knowledge, the defendant still made no request for a continuance, pending the results of the test.

The court properly found that the state should have disclosed the photographs to the defendant prior to trial. The court believed that a continuance until the next day was sufficient to give the defendant an opportunity to examine and investigate with regard to the pictures and their implication. A continuance is another of the remedies contemplated by Rule 25.45. The pictures merely corroborated the testimony of the prosecutrix and the police officer as to the contents of the automobile. The defendant himself offered testimony as to the contents of the automobile, denying that there were any napkins in the glove compartment. This, contrary to the testimony of his wife that she had, in fact, left some napkins in the glove compartment of the automobile. The pictures themselves served to shed some light on this contested issue.

Under the facts presented here, we find no abuse of discretion in the admission of the evidence of which defendant complains.

Defendant next contends that Section 559.260 RSMo 1975 Supp., is unconstitutional as it violates the Fourteenth Amendment to the United States Constitution in that said section denies equal protection of the law to males under the age of sixteen, while at the same time purporting to protect females under the age of sixteen from rape.

Section 559.260, provides in part:

Every person who shall be convicted of rape ... by carnally and unlawfully knowing any female child under the age of sixteen years . shall be punished by imprisonment by the division of corrections for not less than two years.

The Missouri Supreme Court in In re Interest of J.D.G., 498 S.W.2d 786 (Mo.1976) held that Section 559.260 does not violate the Equal Protection Clauses of the Missouri Constitution or the United States Constitution. We are bound by this decision and are not at liberty to render a different result. Defendant’s equal protection argument is without merit.

Defendant also contends that the court erred in finding defendant was a “Second Offender” within the meaning of Section 556.280 RSMo 1969, claiming that the state failed to establish that defendant had been found guilty of a prior felony.

The record showed that defendant entered a plea of guilty to the charge of unlawfully and feloniously having in his possession a quantity of marijuana, a controlled substance, in excess of 35 grams. He was sentenced to serve a term of six months in the county jail and placed on probation for four years.

He was charged and convicted under Section 195.200.1(l)(b) RSMo 1975 Supp. Conviction for the first offense of possession of more than thirty-five grams of marijuana is a felony with a penalty of imprisonment in the state correctional institution for a term of not more than five years; or, confinement in the county jail for not more than one year; or, a fine of not more than one thousand dollars; or, both confinement and a fine.

The fact that the punishment assessed for the felony was imprisonment in the City Workhouse of St. Louis, rather than the state penitentiary, does not prevent prosecution under the Second Offender Act. We note like circumstances in State v. Kennedy, 513 S.W.2d 697 (Mo.App.1974) wherein a defendant, charged with robbery and assault, made a similar claim to that of our defendant. In Kennedy, the state alleged two prior felony convictions for offering forged instruments. The defendant argued, albeit unsuccessfully, that the Second Offender Act did not apply inasmuch as he was sentenced to serve time in the workhouse rather than in the state penitentiary. The Kennedy court did not appreciate the fine distinction between time served in the Workhouse and time served in the penitentiary and held that the phrase contained in the Second Offender Act, “punishable by imprisonment in the penitentiary” was a term of art synonymous with the term “felony”. Use of the first term was designated as merely an indication of legislative intent that the Second Offender Act is to apply only where the earlier conviction was for a felony. Id at 700.

The three factors required to make the Second Offender Act applicable were both alleged and proven. The defendant was convicted of a prior offense punishable by imprisonment in the penitentiary, sentenced therefor, and subsequently placed on probation. State v. Blackwell, 459 S.W.2d 268 (Mo. banc 1970); State v. Kennedy, 513 S.W.2d at 700. Furthermore, as defendant failed to object at trial to the application of the act, this issue has not been preserved for review. State v. Lockhart, 501 S.W.2d 163 (Mo.1973).

Defendant next contends that the court erred in failing to sustain defendant’s motion to suppress identification because the pretrial line-up was impermissibly suggestive. The basis for this claim is that defendant was the only one in the line-up wearing tennis shoes. The prosecutrix testified at trial that defendant was wearing tennis shoes at the time of the offense. However, the shoes were not the only recognizable or distinguishing characteristic of defendant at the line-up. The prosecutrix testified that he had an afro hair cut approximately one inch long, bushy eyebrows, and a big stomach. We do not find the line-up to have been impermissibly suggestive. In State v. Arnold, 528 S.W.2d 164 (Mo.App.1975) we held that a line-up procedure was not unduly suggestive where the defendant was wearing the same articles of clothing as was the criminal offender.

Whether a line-up is so impermissi-bly suggestive as to require exclusion of the identification is to be determined by the totality of circumstances; and, even though the line-up identification is tainted or in some way suggestive, where there is an independent factual basis for the in-court identification, an in-court identification is proper. State v. Macon, 547 S.W.2d 507 (Mo.App.1977). Here, the prosecutrix was with the defendant for an hour and a half. No other crime offers a greater opportunity for the observation of its perpetrator as does the crime of rape. State v. Green, 515 S.W.2d 197 (Mo.App.1974). The prosecu-trix’ in-court identification was positive and the identification testimony was admissible.

In defendant’s next point he states that the evidence of detention and confinement necessary to establish kidnapping was merely incidental to the crime of statutory rape and, therefore, was insufficient to prove the separate crime of kidnapping.

In State v. Treadway, 558 S.W.2d 646, 651 (Mo. banc 1977), cert. denied 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978), our Supreme Court said:

Under Missouri’s several offense rule, such multiple convictions are permissible if the defendant has in law and in fact committed separate crimes.

In determining whether several charges from one act or transaction are identical we look to “whether each offense necessitates proof of an essential fact or element not required by the other; if so there is no identity of offense.” State v. Treadway, 558 S.W.2d at 651; State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976).

In State v. Johnson, 549 S.W.2d 627 (Mo.App.1977) our Western District Brethren were confronted with a defendant’s argument that the kidnapping of the victim was not a separate crime but incidental to the crime against nature. The court after having discussed the principles of law involved as to what constitutes proof of an entirely separate and distinct offense, determined that the facts in that case indicated the kidnapping was not merely incidental to the crime against nature.

Statutory rape requires proof that the defendant'inserted his sex organ into the sexual organ of the prosecutrix and, further, that she was less than 16 years of age. Section 559.260, RSMo 1975 Supp. The crime of kidnapping requires proof of a forcible seizure, confinement, inveiglement or enticement of another, with intent to asport or secretly confine the other against his will. Section 559.240 RSMo 1969. Kidnapping requires proof of an additional element: i. e., the intent to secretly confine. The crime of “statutory rape” does not require this essential element and, therefore, is not an identical offense which precludes prosecution under the concept of double jeopardy.

Defendant relies upon People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965), wherein the defendant forced his way into an automobile and (in the course of twenty minutes, twenty seven block drive) robbed the occupants. Thereafter, he was convicted of both kidnapping and robbery. The Levy court, in reviewing the kidnapping conviction, found that the kidnapping was incidental to the robbery. The court stated at [256 N.Y.S.2d at 796, 204 N.E.2d at 844]:

the movement of the automobile, which was itself the situs of the robbery, was not essentially different in relation to the robbery than would be the tying up of the victim in a bank and his movement into another room. In essence the crime remained a robbery.

A collection of cases which discuss this issue as raised by defendant, can be found in 43 A.L.R.2d 699. There appears to be two rather disparate views: 1) That the seizure or detention of a rape or robbery victim, with an accompanying movement, is sufficient to constitute the separate crime of kidnapping, or, that the facts may establish the movements as merely incidental to the commission of the rape or robbery. It is unnecessary for us to review these cases. They range from the asportation of the rape victim 11 feet wherein the court found the evidence sufficient to constitute the separate crime of kidnapping, State v. Ayers, 198 Kan. 467, 426 P.2d 21 (1967); to a movement from Manhattan to Queens which was insufficient to constitute kidnapping. People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206 (1967). We recognize that detention of the prosecu-trix for one and one-half hours does not equate with the 16 hour detention in State v. Johnson, supra. We find, however, that the conviction of kidnapping in this case was both separate and distinct from that of “statutory rape”. Accordingly, defendant’s claim of double jeopardy must fail.

It is a rare kidnapping that is an end in itself; almost invariably it is the means by which one attempts to facilitate the commission of another crime. We cannot approve any principle which exempts one from prosecution for all crimes he commits because he sees fit to compound or multiply them. Such a principle would inevitably encourage the compounding and, ultimate viciousness of criminal acts.

Finally, defendant urges that the court erred in failing to sustain his motion for judgment of acquittal because the state failed to make a submissible case on either charge. The state adduced evidence of all the elements of the crime of kidnapping. The prosecution offered evidence of forcible seizure with intent to secretly confine the prosecutrix in this state against her will. Contrary to defendant’s contention, secret confinement does not require total concealment nor complete isolation whereby the victim is rendered invisible to the entire world. Section 559.240 RSMo 1969; State v. Weir, 506 S.W.2d 437 (Mo.1974); State v. Jines, 539 S.W.2d 801 (Mo.App.1976).

The elements of the offense of “statutory rape” were also well established by the evidence. The prosecutrix testified that defendant’s sex organ entered her’s and that she was 15 years of age. The state made a submissible case on both charges.

We have carefully reviewed defendant’s pro se brief and find that his complaints are either covered by the points raised in his attorney’s brief or were not preserved for appellate review. We have considered these matters and find no error.

Affirmed.

GUNN, and CRIST, JJ., concur.


author: STEWART, Judge.

text:
    Ronald S. REED, Jr., Respondent, v. The LITTLE RIVER DRAINAGE DISTRICT, Appellant.
    No. 40129.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 10, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      Harry H. Bock, New Madrid, for appellant.
    John L. Oliver, Jr., Cape Girardeau, for respondent.
   STEWART, Judge.

Action to quiet title to real property. The subject property was purchased by plaintiff’s successor at a partition sale. Little River Drainage District (defendant) claims title by reason of warranty deeds from the grantees of Louis and Mary H. G. Houck, the common source of title. Alternatively it claims the fee by reason of adverse possession. Defendant appeals from judgment quieting title in plaintiff and ordering ejectment of defendant. We reverse in part and remand with instructions.

Prior to January, 1901 Louis Houck and Mary H. G. Houck, husband and wife, held fee simple title in certain lands including that in controversy here. On August 1, 1912 they conveyed to defendant a right of way for the purposes of a drainage ditch and flow-way over certain portions of their land. The grantors specifically retained fee simple title in the lands subject to the right of way.

On April 14, 1917 Louis and Mary H. G. Houck executed a deed that requires our interpretation. The deed recites that grantors in January of 1901 agreed to convey the controverted realty to their daughter Irma (Mrs. Charles Guild Juden, Jr.) and “the heirs of her body and at that time gave her immediate possession but not conveyance containing such covenants and stipulations as would fully protect the interests and rights of said Irma Houck during her life time in said real estate and the rights and interests of the heirs of her body, if any she should have, ...” The deed further recites that Irma and her husband built on the land cleared and improved it; that Irma died in August of 1911. She was survived by her husband and three children, Charles Andrew, Alexander Giboney, and Sally Virginia.' The deed then conveys certain properties including the property in controversy to “ . . . said parties of the second part, that is to say to Charles Andrew Juden, Alexander Giboney Juden and Sally Virginia Juden, and to their heirs in legal wedlock begotten, . . . ” The deed later provides that grantees are “TO HAVE AND TO HOLD FOREVER the above and foregoing real estate with all the rights, immunities, privileges, improvements and appurtenances thereto belonging or in any wise appertaining unto the said parties of the second part, share and share alike, that is to say Charles Andrew Juden, Alexander Giboney Juden and Sally Virginia Juden and the heir or heirs of their respective bodies in legal wedlock begotten, always provided that such heir or heirs shall attain the full age of twenty-one years from date of birth and provided further that such heir or heirs shall only take the share of their respective ancestors in said real estate and if any of the said parties of the second part, ... in case of death shall have or leave no such heir or heirs in legal wedlock begotten that shall attain the age of twenty-one years from date of birth then the share of such Grantee herein leaving no heir or heirs, as aforesaid, shall descend to, vest in, and inure to the benefit of the surviving Grantees herein, or in case of death to their respective heir or heirs as aforesaid.” The deed reserved rights to a percentage of rents and profits to Charles Guild Juden, Jr. and, in other real estate conveyed it reserved a percentage of the rents to Mary H. G. Houck.

Because the deed is the crux of this case we shall discuss the consequences of this writing before discussing other matters germane to the points raised by the parties.

It is said that the rule with respect to construction of deeds in Missouri “is to ascertain the intention of the grantor, and to give effect to that intention unless it conflicts with some positive rule of law.” Triplett v. Triplett, 332 Mo. 870, 60 S.W.2d 13, 15 (1933). The Supreme Court of Missouri in a later case discussing the rule stated, “In the event of an inconsistency, the provisions in the premises of a deed generally prevail over the habendum.” Bullock v. Porter, 365 Mo. 572, 284 S.W.2d 598 (1955). The “premises” is that part of the deed preceding the habendum and contains the names of the parties and the granting clause. The text writers would find some conflict between Triplett and Bullock but an examination of Triplett reveals that there was an inconsistency between the granting clause and the habendum and the court gave preference to the granting clause in determining the intention of the grantor.

In the case at bar defendant claims that the intention of the grantor is to be determined by the recitals preceding the formal portions of the deed. While there are no Missouri cases directly in point on the issue, the text writers and cases from other jurisdictions equate recitals in a deed with the habendum. 23 Am.Jur.2d Deeds § 201 (1965); 26 C.J.S. Deeds § 90(e) (1956); Wright v. Smith, 257 Ala. 665, 60 So.2d 688 (1952).

The defendant argues that the recitals evidence a contract which we should enforce. The pleadings in the case do not present us with an action in contract. The instrument is a deed. Its purpose is to grant an estate in land. The recitals do not attempt to make a grant of any interest. They state the motivation for the action the grantors are about to take. The recitals also expressed grantor’s appreciation to their daughter’s husband and their desire that he receive some benefit from the land.

The granting clause conveys to the three grandchildren and “their heirs in legal wedlock begotten.” The deed subsequently states that the persons taking are “Charles Andrew Juden, Alexander Giboney Juden and Sally Virginia Juden and the heir or heirs of their respective bodies in legal wedlock begotten, always provided that such heir or heirs shall attain the full age of twenty-one years from date of birth and provided further that such heir or heirs shall only take the share of their respective ancestors in said real estate and if any of the said parties of the second part, . in case of death shall have or leave no such heir or heirs in legal wedlock begotten that shall attain the age of twenty-one years from date of birth then the share of such Grantee herein leaving no heir or heirs, as aforesaid, shall descend to, vest in, and inure to the benefit of the surviving Grantees herein, or in case of death to their respective heir or heirs as aforesaid.” We believe as found by the trial court that the intent of grantors is clear. The conveyance is to their three grandchildren and their bodily heirs who reach the age of twenty-one years. See Shaw v. Bank of Dearborn, 324 Mo. 348, 23 S.W.2d 20 (1929). By reason of § 442.470 Charles Andrew Juden, Alexander Giboney Juden and Sally Virginia (Juden) Reed took a life estate with the contingent remainder in fee going to those heirs of their bodies who attain the age of twenty-one years.

It necessarily follows that the warranty deeds to the defendant did not convey the fee to it and that plaintiff as successor to the purchaser at the partition sale purchased the fee.

Defendant’s argument that it holds the fee by reason of adverse possession is premised upon the assumption that grantors grandchildren Charles Andrew Juden, Alexander Giboney Juden and Sally Virginia (Juden) Reed, were granted an estate in fee simple. Defendant recognizes that it could not claim adversely to the remainder-men if the grantors grandchildren had only a life estate even if it holds under a deed from the life tenants that gives it color of title. Klorner v. Nunn, 339 S.W.2d 838 (Mo.1960). In view of our holding that grantors’ grandchildren held only a life estate this contention must fail.

Defendant next contends that the court erred in ordering its ejectment from the land in question because Charles Andrew Juden, a life tenant under the deed, was still alive and defendant, his grantee, has the right to possession during the life of Charles Andrew Juden. We agree.

Grantor’s grandchildren undertook to convey the fee in the land to defendant by warranty deed. Because the grantors in the latter deed held only life estates they could not grant the fee. The effect of that deed was to convey to defendant the interest in the land that they had, a life estate. Smith v. City of St. Charles, 552 S.W.2d 60, 62[1] (Mo.App.1977). All of the life tenants except Charles Andrew Juden have died. A life estate held by more than one life tenant is terminated only at the death of the survivor. Bullock v. Porter, 365 Mo. 572, 284 S.W.2d 598 (1955).

At the time the decree was entered in this case Charles Andrew Juden was still alive and his grantee, the defendant, is entitled to possession until the life estate is terminated by the death of Charles Andrew Juden.

Plaintiff would argue that the judgment in partition terminated all interest of Charles Andrew Juden in the real estate and as a consequence all of the interest of defendant by reason of § 528.400 which provides that in partition suits, when the sale has been confirmed, the money paid over according to the order of the court, and the deed executed to the purchaser, same “shall be a bar against all persons interested in such premises who shall have been parties to the proceedings, and against all persons claiming from such parties

Defendant was seized of the life estate at the time the action in partition was filed, Charles Andrew Juden had no interest. Defendant was not made a party to the action for partition nor was it in privity with any party to the action. The interest of defendant was acquired prior to the time the suit was commenced. See Hocken v. Allstate Insurance Company, 235 Mo.App. 991, 147 S.W.2d 182 (1941) and Holloway v. Holloway, 103 Mo. 274, 15 S.W. 536, 538 (1891). The action in partition was not a bar to any claim defendant might have in the property in controversy. The defendant is entitled to possession of the property until the life estate is terminated by the death of Charles Andrew Juden.

The judgment is reversed in part with instructions to enter a new judgment quieting title in plaintiff subject to the life estate to be terminated upon the death of Charles Andrew Juden. The defendant also continues to have the rights conveyed by Louis and Mary H. G. Houck in the deed of August 1, 1912.

' STEPHAN, P. J., and KELLY, J., concur.

      . Annot., 58 A.L.R.2d 1375, 1394 (1958).


author: GREENE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. David E. REZABEK, Defendant-Appellant.
    No. 10975.
    Missouri Court of Appeals, Southern District, Division One.
    July 23, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Aug. 14, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Richard D. Bender, Honecker & Bender, Springfield, for defendant-appellant.
   GREENE, Judge.

Defendant David E. Rezabek was charged in separate informations with the crimes of first degree robbery and attempted murder of Mae Obrecht. The two charges were consolidated for trial. On February 3, 1978, defendant was convicted, after trial by jury in the Circuit Court of Greene County, of the crime of robbery in the first degree by means of a dangerous and deadly weapon, and was thereafter sentenced to a term of 50 years imprisonment by the trial court, in accordance with the jury verdict. He was acquitted by the jury of the companion charge of attempted murder. Defendant appeals the judgment and sentence of the trial court in the robbery case.

The facts germane to this appeal are as follows. On May 14, 1977, Mae Obrecht, a 69 year old widow, was the owner and operator of the Siesta Motel in Springfield, Missouri. On that date, at approximately 10:15 p. m., two young persons came into the motel lobby. They had arrived at the motel in what she described as “a small dark car”. At trial, Mrs. Obrecht identified one of the men as the defendant and the other as his companion, Paul Easton. After an inquiry about a room, Easton pulled a gun, pointed it at Mrs. Obrecht and demanded money. Defendant “put on” the no vacancy sign at that time and locked the front door. Easton took a motel bag containing about $70 from the office and then directed Mrs. Obrecht to go to her living quarters in the motel. He kept a gun in her back while she was walking to her living quarters. Defendant walked to a door at the rear of the motel office and “hit his side” before entering. Easton and Mrs. Obrecht followed defendant through the door to the living quarters area. When they got there, Mrs. Obrecht was told to sit down, and her hands were bound behind her with tape. Defendant took $10 out of her wallet, and Easton later found $52 more in a closer search of the wallet.

Easton then told her to go into the bedroom. She begged the men not to make her do it, but Easton insisted. Mrs. Obrecht was frightened as Easton had the gun pointed at her during all of this time. Defendant cut the telephone cord and cut up a curtain. He used the cord and curtain material to tie her up and tissues to gag her. Defendant went through the victim’s jewelry boxes and took a pair of diamond earrings, two necklaces and a bracelet. Easton then tore the clothes from the victim’s body, hit her in the breasts and stomach with his fist, removed the gag from her mouth and forced her to perform an act of oral sodomy upon him. He told defendant to “get the ether” to make the victim stop struggling. The gag was then replaced by Easton with the help of defendant. Easton then took a cloth toilet seat cover and pressed it down hard over Mrs. Obrecht’s nose and mouth until she passed out. When she regained consciousness, defendant and Easton were gone. She finally worked an arm loose, got to another phone and called the telephone operator for help. The operator called Helen Montgomery, a friend of Mrs. Obrecht’s, who came immediately to the motel. She found Mrs. Obrecht in the living room. Her hands and feet were still bound and her clothing was torn off. Springfield police officers arrived at the scene shortly thereafter. They processed the area and took a statement from Mrs. Obrecht.

In a further effort to place defendant in Springfield on the day in question and to show the facts and circumstances of flight after the robbery, the state, at trial, introduced further testimony. Margaret Mack, the manager of the Skyline Motel, which was located about five blocks from the Siesta, testified that at approximately 8 a. m. on the morning of May 14, 1977, defendant, and at least one other person, checked into the Skyline and paid for a room for four persons. They arrived in a blue Volkswagen, Nevada license no. C13246 and registered under the name of Habrowski. Mrs. Mack saw the Volkswagen leave the Skyline at approximately 10 p. m. on May 14th. Logan Hollingsworth, operator of Finn’s Motel in St. James, Missouri, located approximately 115 miles east of Springfield, testified that four persons checked into his motel in the early morning hours of May 15, 1977. They registered under the name of Habrokowski, and indicated on the registration form that they were driving a 1969 Volkswagen, Nevada license no. CI3246.

Patrolman Ronald Allen Borkowski, a Collinsville, Illinois police officer, testified that he was on routine patrol on May 16, 1977, when he noticed a turquoise Volkswagen parked at the Roundtable Motel with a 1969 Nevada plate on the front. The plate’s number was C13246. Since it was a 1969 plate, Borkowski requested a computer check and received information that the car was stolen. He checked the automobile and found that the ignition had been punched and “hot wired” so that it could be started without a key. Collinsville police officers Gerritt Gillespie and Michael Italiano then came to the scene in another car, as they had heard the dialogue concerning the stolen car on the police radio. The officers went into the motel lobby and asked the clerk on duty if anyone staying there “had” the Volkswagen. They checked registration records for that purpose, and Gillespie photocopied a registration record, later admitted into evidence as state’s exhibit 25, in the presence of Borkowski.

While they were talking to a motel clerk, the officers saw three men running from the motel area. The officers gave chase and caught the three men about one block from the motel. The three men were the defendant, Easton and Frank Post. Bor-kowski, during a search, removed a .22 cali-bre automatic pistol from the waistband of defendant’s trousers. Officer Gillespie found a 9 mm automatic pistol in a shaving kit in Easton’s possession. Both weapons were loaded. Easton also had a set of handcuffs in his possession. A can of chemical mace was found in the motel room that had been occupied by defendant and Ea-ston. Officer Gillespie, in his testimony, identified state’s exhibit 25 as a photocopy of the room registration record at the Roundtable Motel, showing the registration of a John Horbowski for room 217 and that a license number written on the registration card was CI2436.

During closing argument, the prosecuting attorney, over objection of defendant, was permitted to argue “when people like this are free in this community to terrorize elderly citizens of this community”, and that if Officer Borkowski had not seen the Volkswagen and taken further action “this defendant could have gone on and on up the interstate and who knows what would have happened?” After the jury verdict, defendant timely filed a motion for new trial which was overruled.

Defendant raises five points on appeal which are that the trial court erred in 1) overruling defendant’s objections to testimony from Collinsville, Illinois police officers to the effect that defendant’s arrest was precipitated by an investigation regarding a stolen Volkswagen for the reason that such testimony was hearsay, evidence of another crime, and irrelevant; 2) overruling defendant’s objections to testimony concerning an alleged sexual assault made upon the robbery victim by the companion of defendant for the reason that such testimony was irrelevant and prejudicial; 3) overruling defendant’s objections to testimony regarding a .22 calibre pistol, mace (paralyzer spray) and handcuffs seized at the time of defendant’s arrest in Illinois, and to the admission of such items in evidence, for the reason that such evidence was irrelevant and prejudicial; 4) overruling defendant’s objections to the statements of the prosecuting attorney in his closing argument to the effect that “people like this (meaning defendant) should not be free to terrorize elderly citizens of this community” and “had it not been for the work of a Collinsville, Illinois police officer the defendant could have gone on and on up the interstate and who knows what would have happened”, for the reason that such arguments constituted personalizing to the jury and improperly injected into the case defendant’s character and criminal proclivities; and 5) overruling defendant’s objections to state’s exhibit 25, a photocopy of a registration form of the Roundtable Motel in Collinsville, Illinois, and permitting testimony concerning the exhibit for the reason that the document was hearsay, and therefore inadmissible.

THE TESTIMONY OF OFFICER BORKOWSKI

The question in issue put to Borkowski was: “Q. Do you know what a computer hit is?” Defendant objected on the grounds that the answer to that question would indicate that the Volkswagen had been stolen, which fact would be 1) proof of an independent crime, and 2) hearsay. The objection was overruled. The witness then answered, “It’s information that the car is stolen or articles stolen, whatever it may be”. The witness then said he was still at the scene when he “got that information”, and that based on such information, he checked the vehicle further and found that the ignition had been “punched in”. No objection was made to such testimony. Borkowski and other officers then went into the motel office to try to determine who had been driving the Volkswagen, at which time defendant and his friends attempted to flee the scene and were captured. Defendant argues that evidence that the Volkswagen was stolen was irrelevant, and even though held to be relevant, was prejudicial hearsay. We disagree.

If Borkowski’s testimony tended to prove the Volkswagen was stolen, such testimony was competent to prove preparations beforehand of a means by which the robbery could be committed and an escape made afterward, even though such evidence might tend to prove the commission of another crime.’ The evidence also explained the basis for the conclusion of the police that they had reasonable grounds to investigate further and was not introduced for the purpose of proving that the Volkswagen was the getaway car. State v. McRoberts, 485 S.W.2d 70, 72-73 (Mo.1972); State v. Green, 575 S.W.2d 211, 212 (Mo.App.1978). The assignment of error is denied.

THE TESTIMONY REGARDING THE SEXUAL ASSAULT

Defendant here objects to the testimony of the victim concerning the details of a sexual assault made upon her by defendant’s companion during the course of the robbery. If two or more persons engage in the commission of a crime or crimes, proof of all relevant facts is proper. Where two crimes are committed, under such circumstances as to constitute one continuous transaction in the accomplishment of a common design, and the facts are so interrelated that the crimes are concurrent, evidence of all criminal acts that occur during such time span are admissible, as otherwise, a connected and intelligible statement of the occurrence could not easily be made, or understood. State v. Ward, 457 S.W.2d 701, 708 (Mo.1970); State v. Powell, 542 S.W.2d 588, 591 (Mo.App.1976). Defendant was searching the room in furtherance of the robbery and conversing with Easton during the period when the sexual assault took place. The testimony was admissible. The assignment of error is denied.

THE TESTIMONY REGARDING THE PISTOL, MACE AND HANDCUFFS

Defendant argues that the admission into evidence of the .22 calibre pistol taken from defendant’s person, the can of mace taken from defendant’s motel room, and the handcuffs taken from defendant’s accomplice at the time of arrest, was prejudicial, as testimony regarding the items was irrelevant.

1. The pistol

The state may introduce evidence that the defendant was armed when arrested, even if the gun is unconnected with the crime. Such evidence tends to show defendant contemplated resistance to arrest and is relevant to show consciousness of guilt. State v. Davis, 535 S.W.2d 259, 260 (Mo.App.1976).

2. The mace and handcuffs

The mace and handcuffs are items used to subdue and restrain persons. The facts of this crime indicate that the victim was tied and gagged during the course of the robbery and that Easton told defendant to “get the ether” when Mrs. Obrecht struggled. The evidence was relevant to show that defendant and his accomplice had access to articles with which the crimes of robbery and attempted murder were, or might have been, committed. State v. Stancliff, 467 S.W.2d 26, 30 (Mo.1971). The assignment of error is denied.

THE PROSECUTORIAL ARGUMENT

The prosecutor was permitted to argue, over objection, “When people like this are free in this community to terrorize elderly citizens of this community”, and, in praising Officer Borkowski’s role in apprehending defendant, “had it not been for that this defendant could have gone on and on up the interstate and who knows what would have happened”. Control of and determination of the existence of prejudice in closing argument are matters within the discretion of the trial judge, and the judge’s rulings on such matters will not be disturbed on review unless such discretion is clearly abused. State v. Treadway, 558 S.W.2d 646, 650 (Mo. banc 1977). An argument to the effect that a certain class of people need to be controlled, and including defendant in that class, has been held not to be prejudicial argument justifying a mistrial. State v. Dooley, 549 S.W.2d 677, 681 (Mo.App.1977). We put the portions of the argument quoted above in that category. The argument was within the evidence offered to the jury and was, therefore, permissible. State v. Taylor, 508 S.W.2d 506, 514 (Mo.App.1974). The assignment of error is denied.

THE ADMISSION OF STATE’S EXHIBIT 25 INTO EVIDENCE

Defendant complains of the introduction into evidence of state’s exhibit 25, which was a photocopy of a motel record from the Roundtable Motel in Collinsville, Illinois. The state concedes that no proper foundation was laid for the admission of this exhibit under the Business Records Act, and, therefore, the exhibit was hearsay. However, all of the information contained in this exhibit had been introduced into evidence through the testimony of Officer Borkowski and other witnesses. ■ The exhibit was not a key element in the state’s case and could not have been prejudicial. In addition, defendant fails to point out in his brief why the admission of the evidence in question was prejudicial. The evidence was used only to establish the license number of the Volkswagen, which fact had already been established by the testimony of Officer Borkowski and other witnesses. The document was cumulative evidence, and its admission into evidence was, at most, harmless error. State v. Williams, 448 S.W.2d 865, 869 (Mo.1970); State v. Merritt, 542 S.W.2d 14, 16 (Mo.App.1976).

We have carefully reviewed the entire record in defendant’s case. The evidence of guilt of the crime of robbery was strong and convincing. He received a fair trial, and the verdict should be upheld.

The judgment is affirmed.

FLANIGAN, C. J., and TITUS, J., concur.

PREWITT, J., not participating because not a member of the court when cause was submitted.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert McFALL, Jr., Defendant-Appellant.
    No. 10929.
    Missouri Court of Appeals, Southern District, Division One.
    July 5, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Richard L. Parker, Asst. Public Defender, Vienna, for defendant-appellant.
   GREENE, Judge.

Defendant Robert McFall, Jr. was convicted of tampering with a motor vehicle, in violation of § 560.175, RSMo 1969, V.A.M.S., and was sentenced to three years’ imprisonment in accordance with the jury verdict. Defendant appeals, alleging as his sole ground that the trial court erred in overruling defendant’s motion to strike the testimony of witness Chris Sawyer Hill for the reason that her testimony was qualified, in that she could not say, under oath, that her identification of the defendant at any time and place germane to the issues presented, was positive. We affirm.

A brief recital of the state’s evidence given at the trial is as follows. On December 23, 1976, at about 10:20 a. m., State Highway Patrolman Glenn Ford was patrolling Highway 1-44 in Phelps County. He was accompanied by Highway Patrolman Gene DeSalme. They saw a brown Ford automobile parked on the shoulder of the highway and observed two men walking away from the area. The troopers obtained the license number of the automobile and, as a result of the license check, found that the license had been issued to Gary Ozment of Rolla, Missouri. DeSalme knew Mr. and Mrs. Ozment, that Mrs. Ozment worked at the Holiday Inn in Rolla, and that she drove the brown Ford to work.

The troopers arrested the two men for suspicion of tampering with a motor vehicle, and advised them of their constitutional rights. One of the men was defendant, and the other was his friend, Mathis. The automobile was searched and an address book was found, which defendant admitted belonged to him. During the search, the troopers noticed that the ignition key system had been punched or pulled out. The troopers searched defendant’s suitcase and found a dent puller (a device that can be screwed into an ignition lock and, by means of pressure on a lever, pulls the lock out and exposes the ignition wires). The suspects were then questioned by the troopers. Defendant confessed to the crime. He admitted that the dent puller was his, and that he had purchased it for the express purpose of pulling ignition switches so that he could start other people’s automobiles without keys. He admitted that he had “punched” the ignition on the brown Ford at the Holiday Inn parking lot in Rolla, and had driven the automobile away from that location. The automobile, however, ran out of gasoline and defendant and Mathis were walking away from it when they were arrested.

Gary Ozment testified that he and his wife owned the brown Ford. His wife had driven the automobile to work at the Holiday Inn on December 23, 1976. He had not given anyone, other than his wife, permission to drive the car on that day. Joan Ozment testified that she was Gary’s wife. She drove the brown Ford to work about 8 a. m. on the morning in question and parked it on the west parking lot at the Holiday Inn. She received a call from the Highway Patrol about 10:30 a. m. and was asked to check and see if her car was still in the parking lot. She checked and it was gone. She told the troopers that two men had been at the Holiday Inn that morning “needing money or work”. She had observed one of the men closely enough to identify him. That man was Mathis. She could not identify the other man. She had not given anyone permission to drive her car on that day.

Chris Sawyer Hill was the state’s final witness. On direct examination, she testified that she also was working at the Holiday Inn on December 23, 1976. She stated she saw defendant in the motel lobby near the cigarette machine about 10 a. m. She was standing 6 to 8 feet from defendant. Another man, whose name she later learned was Mathis, was with defendant. She spoke briefly to Mathis, but did not talk to defendant. The two men left the premises. She saw them later, about 1 p. m., when the state troopers brought them back to the motel. At that time, she identified Mathis and defendant as the two men she had seen in the lobby earlier that morning. On cross-examination, her testimony was as follows.

“Q. Mrs. Hill, is it now?
A. Yes.
Q. Mrs. Hill, do you remember the preliminary hearing we had a few weeks ago in this case?
A. Yes.
Q. At that time, do you recall, you did identify Mr. Mathis, is that correct?
A. Yes.
Q. Do you also recall that you stated on cross-examination that you could not positively identify Mr. McFall?
A. I specified ‘positively’ yes.
Q. You’re not sure?
A. I could identify him, but when it came down to swearing to it, that puts a little different light on the situation.”

The state then rested its case. Defendant did not present any evidence.

Defendant contends that the answers of Mrs. Hill, to the questions put to her by defendant’s counsel during cross-examination, qualified her testimony and removed it from the sanctity of the oath that she had taken and, therefore, the admission of such testimony into evidence was prejudicially erroneous. His contention is not supported in his brief by any legal authority.

The first case cited by defendant as alleged support for his position is Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 16, 160 S.W.2d 740, 742 (1942). Bartlett holds, among other things, that the ultimate purpose of any trial upon an issue of fact is the ascertainment of truth and that two safeguards toward attaining that goal are 1) the judicial oath administered to the witness with its attendant penalties for false swearing, and, 2) cross-examination, through which false swearing can be exposed, as well as circumstances bearing upon inaccuracies in the testimony of the witness in the areas of observation, recollection and narration. Those appellate observations, true as they are, have no bearing here. Mrs. Hill was sworn as a witness before she commenced her testimony and she was cross-examined. The holdings in the other two cases cited by defendant, State v. Maxwell, 502 S.W.2d 382, 391 (Mo.App.1973) and State v. Cushenberry, 157 Mo. 168, 179-180, 56 S.W. 737, 742 (1900) are diametrically opposed to defendant’s position here. In Maxwell, the court held that competency of identification testimony is not affected by failure of the witness to testify positively as to the identity of the accused. It further held that the witness may testify as to his belief concerning such identification, provided that such belief was based on personal observation, as was the case here, and that it is up to the trier of fact to determine the issue of identification from all of the evidence and circumstances, including the qualified statements of the witness in question. The appellate court reached the same result in Cushenberry, saying that it is sufficient for the reception of a witness’ testimony for the witness to say that he believes the person to be the same, although he will not pointedly swear to such as a fact, and the weight to be attached to his testimony is for the jury. Defendant candidly admits the holdings of Maxwell and Cushenberry, but argues that the rule of law pronounced in those cases is wrong and should be changed because, by reason of such rule, witnesses are encouraged to testify as to supposition, not fact.

It is true that Rule 84.04(d), V.A. M.R., does not require a citation of authority in every instance to preserve a point for appellate review. Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978). However, in cases where the subject matter is not a first impression situation (as is the situation here since the precise point in issue has been ruled on many times by Missouri Appellate Courts ) an appellant has the burden of proving, by logic, that a rule of law should be changed because its application is prejudicially erroneous and in violation of due process. In that pursuit, an appellate court need not, and should not, serve as an advocate for defendant on appeal, by formulating legal arguments to buttress generalities contained in defendant’s brief.

We see no reason here to attempt to change the rule of law that a witness may give a qualified answer on the question of eyewitness identification. The testimony of witness Hill was under oath, as is required by law. The jury was aware that the witness was testifying only as to her degree of recollection based on her personal observations, and could not have been misled by her answers. Her testimony was competent, relevant, and material, and was properly admitted. The jury had the opportunity to weigh her testimony, along with all other facts and circumstances in the case, and to give it such credit as they thought it deserved. The evidence in this case, even if the jury had completely disregarded the testimony of Mrs. Hill, established beyond a reasonable doubt that defendant was guilty as charged. The jury so found. The verdict was proper and should be upheld.

The judgment is affirmed.

FLANIGAN, C. J., and TITUS, J., concur.

      . State v. Cushenberry, 157 Mo. 168, 56 S.W. 737, 742 (1900); State v. Williams, 515 S.W.2d 544, 549 (Mo.1974); State v. Blackmore, 327 Mo. 708, 715-716, 38 S.W.2d 32, 34-35 (1931); State v. Carolla, 316 Mo. 213, 226-227, 292 S.W. 721, 727 (1926); State v. Dixon, 420 S.W.2d 267, 271 (Mo.1967); State v. Maxwell, 502 S.W.2d 382, 391 (Mo.App.1973); Lamb v, Heiligers, 532 S.W.2d 820, 824 (Mo.App.1975).


author: TITUS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Zaharoula TSIBOUKAS, Appellant.
    No. 10998.
    Missouri Court of Appeals, Southern District, Division One.
    July 5, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Richard L. Parker, Asst. Public Defender, Vienna, for appellant.
   TITUS, Presiding Judge.

Having waived trial by jury, the female defendant was court-convicted of stealing over $50, a felony, from the Episcopal church of Rolla. The trial court denied defendant’s new trial motion and sentenced her to imprisonment for a term of three years. Defendant appealed.

The evidence was that defendant filched Sunday’s collections from the Episcopal rector’s office and hied herself to a nearby Baptist church where she secreted some of the pilferage (checks and alms envelopes) in the toilet tank of a women’s restroom. At the conclusion of the Baptist services, defendant was delivered to the Greyhound bus terminal via free vehicular accommodations provided by the Baptists and a female Baptist user of the same restroom found, upon flushing, that the toilet was given to overflow because the tank served as a depository of the checks and envelopes stolen from the Episcopalians. Apprised of the foregoing, Rolla police apprehended defendant at the Greyhound depot. When a policewoman thereafter undertook a “strip search” of defendant, the defendant “reached down the front of her dress and removed approximately $85” in cash which she was carrying in her “bra.” At trial, defendant asseverated the money was hers, not stolen, and that she habitually employed the cleavage cache to thwart purse snatchers.

Defendant’s lone point relied on upon appeal is: “The court erred in allowing the prosecutor to elicit details concerning a pri- or conviction from defendant and in allowing the prosecutor to question the defendant concerning the details of a prior conviction for an offense committed in a church.”

Rule 84.04(d) mandatorily requires that a point relied on “shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” (Emphasis supplied). This rule applies to criminal cases per the provisions of Rule 28.18 [State v. McClain, 541 S.W.2d 351, 354[2] (Mo.App.1976); State v. Brown, 535 S.W.2d 606[1] (Mo.App.1976); State v. Yearwood, 510 S.W.2d 43, 44 (Mo.App.1974)] and a point which cannot be comprehended without reference to the transcript on appeal or the argument portion of appellant’s brief preserves nothing for review [State v. Fields, 538 S.W.2d 348, 349[1] (Mo.App.1976); State v. Drake, 514 S.W.2d 653, 655[2] (Mo.App.1974)] for an appellate court is not obliged to read the transcript or the other sections of the brief to ascertain the intendment of a point penned in an abstract or conclusionary fashion. Dennis v. State, 559 S.W.2d 84, 85[2] (Mo.App.1977); State v. Hulsey, 557 S.W.2d 715, 717[1] (Mo.App.1977). Albeit the point relied on in this instance undertakes, in a most general fashion, to state “wherein” the trial court erred, it nowhere attempts to demonstrate “why” it was error to permit the state to elicit specifics of a prior conviction and details relative to an offense committed in a church. The failure to say “why” this was error results in the point preserving nothing for review. Riley v. State, 545 S.W.2d 711, 712[2] (Mo.App.1976); State v. Johnson, 539 S.W.2d 493, 519[64] (Mo.App.1976), cert. denied 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); State v. Orr, 493 S.W.2d 374, 376-377[9] (Mo.App.1973); State v. Robbins, 455 S.W.2d 24, 26[1] (Mo.App.1970).

While defendant’s lone point relied on has not been properly preserved or presented for appellate review, we will briefly consider it on its merits. The point concerns the following testimony of defendant who took the stand in her own defense.

Direct Examination : “Q Mrs. Tsiboukas, you have been convicted of several misdemeanors — A Yes. . Q Have you— you have been convicted of loud and abusive language; is that correct? A Yes, ma’am. Q And criminal trespass? A Yes. Q Have you ever been convicted of a felony? A Never.”

Cross-Examination : “Q Mrs. Tsiboukas, you say you’ve been convicted of several misdemeanors. How many is ‘several’? A Well . . (ponders) ... in August of 19— Q Just give me a number, if you would. ... A I won’t quote a number. I will just — if you want — Q Are there so many that you can’t recall them all; is that the problem? A No, that’s not the problem. Q Well, then, how many convictions have there been? A There haven’t been any convictions other than one at Marathon County in Warsaw. Q What was that for? A That was for trespassing and I had gone to a Catholic Church and the door was open and I had knocked and rang the doorbell and the pastor himself — [Defendant’s Counsel]: Your Honor, I object. I don’t believe that — THE WITNESS — verified that the bell did ring — [Defendant’s Counsel]: I don’t believe a defendant has to explain circumstances of prior convictions to be impeached. THE COURT: Well, she said that she’d been convicted several times, and he asked her how many was that and he was trying to get the number. It’s cross examination. Objection overruled. Q [by the prosecuting attorney] Okay. This criminal trespass conviction was for trespassing in a church; is that correct? A No, in the rectory to use the phone. Q How many convictions did you have? [Defendant’s Counsel]: Your Honor, I object. Q [by the prosecuting attorney]: Can you just give me the number? Is it five? Ten? [A] I won’t say. [Defendant’s Counsel] Your Honor . Q [by the prosecuting attorney] What other convictions have you had besides trespass? . A That, and in Meno-monee, Wisconsin I had to pay a fine of $100.00. Q Please just answer my question. How many convictions and what were they for? A Those are the two. Q Just two; is that what you’re telling us? A That’s right.”

When a defendant testifies in his own behalf, § 491.050 confers upon the state the absolute right to show prior convictions of both misdemeanors and felonies and the nature thereof for the purpose of impeachment. State v. Busby, 486 S.W.2d 501, 503[1] (Mo.1972); State v. Bagby, 338 Mo. 951, 962, 93 S.W.2d 241, 247[5] (1936). Nevertheless, this right is limited in that the state should not be permitted to go into the details of the crimes leading to the prior convictions. State v. Sullivan, 553 S.W.2d 510, 515[7] (Mo.App.1977). However, a reading of defendant’s cross-examination testimony, supra, reveals that the prosecutor’s questions were simply designed to ascertain “how many convictions have there been” after defendant, on direct examination, admitted to having “been convicted of several misdemeanors.” The prosecutor did not undertake to go into the details of any crime and what details that were revealed were of defendant’s own making in an answer which was unresponsive to the questioning. It is axiomatic that a defendant may not take advantage of self-invited error or error of his own making. State v. Harmon, 243 S.W.2d 326, 328 (Mo.1951); State v. Nenninger, 354 Mo. 53, 59, 188 S.W.2d 56, 58[5] (1945). Moreover, when the prosecutor inquired if the “criminal trespass conviction was for trespassing in a church,” defendant made no objection to the question. “The general rule requires an objection to preserve such alleged error.” State v. Greenhaw, 553 S.W.2d 318, 323[3] (Mo.App.1977).

Judgment affirmed.

FLANIGAN, C. J., and GREENE, J., concur.

      . References to rules are to Missouri Supreme Court Rules of Criminal and Civil Procedure, V.A.M.R. References to statutes are to RSMo 1969, V.A.M.S.