State v. Dickerson

609 S.W.3d 839

STATE of Missouri, Respondent,

v.Carlton James DICKERSON, Appellant.

No. ED 107414

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: July 21, 2020

Motion for Rehearing and/or Application for Transfer to Supreme Court Denied August 27, 2020

Application for Transfer Denied November 24, 2020

For Appellant: Dominic R. Cicerelli, 1603 Boones Lick Rd., St. Charles, MO 63301.

For Respondent: Julia E. Rives, P.O. Box 899, Jefferson City, MO 65102.

KURT S. ODENWALD, Judge

Introduction

Carlton James Dickerson ("Dickerson") appeals from the trial court's judgment following jury convictions for one count of attempted rape in the first degree and two counts of sodomy in the first degree. Dickerson raises three points on appeal challenging the sufficiency of the State's evidence. In Points One and Two, Dickerson argues there was insufficient evidence to sustain his convictions on first-degree sodomy because the State did not prove Victim was incapable of consent due to intoxication in that Victim testified she pretended to be asleep and was capable of giving consent. In Point Three, Dickerson maintains there was insufficient evidence to sustain his conviction on attempted first-degree rape because the State did not prove he committed a substantial step towards and had the purpose of having intercourse with Victim. Because conflicting evidence is resolved in favor of the jury's verdict, and the jury could reasonably find from the evidence at trial that Victim was incapable of consent due to her level of intoxication, we deny Points One and Two. Because the State adduced sufficient evidence from which the jury could find beyond a reasonable doubt that Dickerson took a substantial step to commit first-degree rape with the requisite purpose towards having intercourse with Victim who was incapable of consent, we deny Point Three. Accordingly, we affirm the trial court's judgment.

Factual and Procedural History

On December 3, 2017, Dickerson and his girlfriend ("Girlfriend") hosted a housewarming party, and Victim, a friend of Girlfriend, attended. Victim, not generally drinking at that time due to starting a new job, consumed two bottles of wine, a shot of tequila, and a mixed alcoholic beverage. Friends noted that Victim was slurring her words and seemed to be getting really tired. Victim began to feel ill and stated she wanted to drive home. Girlfriend suggested Victim stay the night because Victim was too drunk to drive safely. Girlfriend told Victim she could sleep in Girlfriend and Dickerson's bedroom, while Dickerson would sleep on the couch. Victim agreed. Shortly afterwards, Victim retired to the bedroom. Victim vomited twice in the bathroom attached to the bedroom, then passed out fully clothed in the bed. Girlfriend checked in on Victim several times.

At some point that night, Victim woke up and felt a hand touching her vagina on top of her jeans. Victim testified: "I started to feel something. I thought it was a dream, because I didn't know what was going on. I felt a hand on my vagina.... And then I slowly started coming to but not really because I didn't know what was going on." Victim heard a knock on the bedroom door, and the hand quickly pulled away. Victim then heard Dickerson and Girlfriend talking at the door. Victim stated she fell back asleep and "didn't know—I wasn't fully there" and "was still kind [of] in that dream state."

Victim woke again when she heard the bedroom door lock and felt someone sit on the bed beside her. Victim recognized Dickerson from his shirt and the back of his head. At that time, Victim had not "magically sobered up" from when she threw up and passed out until the time that Dickerson reentered the room. Victim pretended to be asleep because she was intoxicated, felt helpless, and was afraid of Dickerson. When asked whether she was awake when he unzipped her pants, Victim answered: "As much as I could be.... I was drunk. I was tired. I was just coming out of being passed out."

Dickerson inserted his hand under Victim's buttoned jeans and penetrated her vagina with his fingers. Dickerson unbuttoned Victim's jeans and pushed them down over Victim's legs locked in an open position. When asked whether it was "registering to you what all of this was and what was going on" as her pants were pulled down, Victim testified, "[n]ot really. I was just—I was scared and I was tired and I just didn't know what was going on." Dickerson pulled down Victim's underwear and performed oral sex on her. Victim kept her eyes closed and did not say or do anything because Victim was scared, tired, and "still feeling pretty drunk." Victim did not know what was going on and was still under the influence of alcohol when she decided to feign sleep. Victim also stated that she was not using her best judgment because she was impaired from drinking too much alcohol. Victim was intoxicated, did not want to have any sexual activity with Dickerson, and regretted not having fought him.

Dickerson attempted to have sex with Victim, but was unable to penetrate Victim's vagina. Dickerson instead began masturbating on top of Victim when someone began knocking on the door, then stopped, dressed, and went to the bathroom. When Dickerson opened the door, he placed both hands on either side of the doorframe and blocked the view into the bedroom with his body. Girlfriend asked what he was doing, and he responded that he had to use the bathroom. Girlfriend and one of her friends looked over Dickerson's shoulder and saw Victim on the bed, uncovered with her pants down around her ankles. Girlfriend asked Dickerson if he had seen Victim like that, and Dickerson said he had not. Girlfriend covered Victim with a sheet, and Victim was still pretending to be asleep. Girlfriend then left Victim alone, but returned a few minutes later, and Victim then told Girlfriend what had happened.

When Girlfriend confronted Dickerson, he did not deny touching the Victim. Victim and Girlfriend told Dickerson to leave, and he refused, saying they would have to call the police. Victim first called Dickerson's mother, and then called the police. Victim was still feeling intoxicated when the police arrived shortly thereafter. When recounting the events to Girlfriend, Dickerson's mother, and the police, Victim stated that she had been passed out but had woken up and feigned sleep during the incident.

The police took Dickerson to the police station, where Detective Russ McDermott ("Det. McDermott") interviewed him. The State charged Dickerson with one count of rape or attempted rape in the first degree and two counts of sodomy or attempted sodomy in the first degree. For each count, the State alleged Dickerson knew that Victim "was incapable of consent because of intoxication." The case proceeded to a jury trial.

During cross-examination, Dickerson elicited mixed testimony from Victim about her level of awareness during the sexual contact. Specifically, Dickerson elicited testimony that at the time of the incident, Victim was awake, not black-out drunk, not incapacitated, and actively pretending to be asleep. When asked whether she was cognitively aware of what Dickerson was doing and that she did not want sexual contact with Dickerson, Victim agreed.

The recording of Dickerson's police interview with Det. McDermott was played for the jury but was not deposited with this Court. Det. McDermott provided the following testimony: Dickerson indicated he believed Victim wanted to have sex with him because she flirted with him earlier that night and she moaned and assisted him in pulling down her pants. Dickerson initially denied and then agreed that Victim had been "like dead weight" when he attempted to have intercourse with her. Dickerson stated that, overall, Victim did not consent.

The trial court instructed the jury on one count of rape or attempted rape in the first degree (Count I) and two counts of sodomy or attempted sodomy in the first degree for making contact with Victim's genitals with his hand (Count II) and his tongue (Count III) "knowing that [Victim] lacked capacity to consent because of intoxication and was known by [Dickerson] to be unable to make a reasonable judgment as to the nature or harmfulness of the deviate sexual intercourse[.]"

At the close of all evidence, Dickerson filed a motion for a judgment of acquittal, alleging the State failed to present evidence that Victim was incapable of giving consent due to intoxication because Victim testified she was awake during the incident and thus was not incapable of giving consent. The jury convicted Dickerson on Count I for attempted first-degree rape and on both Count II and III for first-degree sodomy. Dickerson renewed his sufficiency-of-the-evidence claim in his motion for a new trial. The trial court denied the motion for acquittal, noting it would not second-guess the jury's factual findings and guilty verdicts. Dickerson was sentenced as a prior offender and persistent assault offender to a total of fifteen years in prison. Dickerson now appeals.

Points on Appeal

Dickerson raises three points on appeal, each challenging the sufficiency of the evidence. Point One maintains the trial court erred in overruling Dickerson's motion for acquittal on Count II for first-degree sodomy because the State presented insufficient evidence of the essential element that the victim be incapable of consent due to intoxication in that Victim testified she pretended to be asleep and was capable of giving or denying consent. Point Two asserts the same sufficiency-of-the-evidence claim as to Count III for first-degree sodomy. Point Three asserts the trial court erred in overruling Dickerson's motion for acquittal as to Count I for attempted first-degree rape because the State presented insufficient evidence of the essential elements that Dickerson's purpose was to have sexual intercourse with a person who was incapable of consent and that Dickerson committed a substantial step towards having...