State v. BurginState v. Burgin
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- Turnage
Arthur L. Burgin was charged with forcible rape,
Burgin contends that the jury verdict was inconsistent based on the evidence, and that the court was without authority to extend his sentence as a persistent sexual offender because the legislature had failed to provide a procedure for imposing an extended term. Affirmed.
The testimony of the victim, who testified that she had been both forcibly raped and sodomized, was the only direct evidence in the case. Thus, there was ample evidence on which the jury could have found Burgin guilty of both forcible rape and forcible sodomy, and Burgin does not contest the sufficiency of the evidence for his rape conviction.
*629 Burgin first contends that since the evidence from which the jury found him guilty of forcible rape also supported the forcible sodomy charge, the jury verdict was inconsistent. Burgin reasons that this inconsistency requires a reversal of his rape conviction.
This precise argument was raised and rejected in State v. Doney, 622 S.W.2d 227, 229[2] (Mo.App.1981). There, the defendant was convicted of rape and one count of deviate sexual intercourse and acquitted of another count of deviate sexual intercourse based upon the uniform testimony of a single witness. The Doney court relied on State v. McCall, 602 S.W.2d 702, 708[22] (Mo.App.1980), for the proposition that while a jury’s conclusions may offend the law’s penchant for consistency, inconsistent verdicts among the varied charges of a mul-ti-count indictment are not self-vitiating. Thus, Burgin’s conviction on the rape count and his acquittal on the sodomy count does not constitute an inconsistent verdict which requires reversal of the rape conviction.
Burgin’s next argument involves a claim that the legislature failed to provide a procedure for the imposition of an extended term for persons found by the court to be persistent sexual offenders. In 1980 the legislature passed
The gist of Burgin’s second argument is that the court was wrong in using
This argument is not supported by the law. The power to define crimes and prescribe punishment is exclusively vested in the legislature. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 235[19] (Mo. banc 1982). Before a defendant’s term may be extended, the courts must accord such a defendant due process by guaranteeing the right to be present with counsel, the opportunity to be heard and to be confronted with witnesses against him and the right to cross-examine and to offer evidence in his own behalf. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).
In State ex rel. Macklin v. Rombauer, 104 Mo. 619, 15 S.W. 850, 852 (1891), the court considered a provision of the 1875 constitution which granted the supreme court the power to issue writs of prohibition, but which failed to prescribe a procedure for the exercise of such jurisdiction. The Rom-bauer court stated: “It is a general rule of law which has passed into a maxim that a grant of power or jurisdiction is supposed to tacitly imply a grant of that without which the grant itself would be ineffectual.” This rule of construction was also stated in Ex Parte Sanford, 236 Mo. 665, 139 S.W. 376, 383 (banc 1911), where the court stated that “[tjhere is a familiar rule of statutory construction which fits this case like a glove fits the hand, namely, that, when a power is given by statute, everything necessary to make it effectual or requisite to attain the end is necessarily implied.” The same rule was stated in Shull v. Boyd, 251 Mo. 452, 158 S.W. 313, 320[7] (Mo.1913):
It has always been the rule that, when a clear main power is granted by the law, everything necessary to make it effectual *630 to attain its principal end is necessarily implied. A grant of power is to be construed so as to include the authority to do all usual things necessary to accomplish the object so granted.
Combining this rule of construction with the due process doctrine, it follows that when the legislature grants the power to impose an extended term for a person found to be a persistent sexual offender, the power to do all that is necessary to accomplish the sentencing of such a person has also been granted by necessary implication, and that in such cases the courts need only follow a procedure which will insure due process. Thus, the statutory grant of power to find persons to be persistent sexual offenders and to impose an extended term of imprisonment necessarily carries with it the power to adopt a procedure which would insure due process.
In extending Burgin’s prison term, the court followed the procedure outlined in § 558.021 even though that section was not specifically referred to in the persistent sexual offender section. That section prescribes a procedure which accords full due process rights, and Burgin in fact concedes that his full due process rights were granted. Thus, the court acted properly in implementing
Burgin further contends that the court was not authorized to extend his term of imprisonment under
Burgin contends that since pursuant to subsection 2(2) of § 557.036 the court may enhance the sentences of prior, persistent, or dangerous offenders only, 2 that section bars the court from enhancing a persistent sexual offender’s punishment because persistent sexual offenders are excluded from the section. Because of this, Burgin concludes that the court acted without authority in extending his imprisonment beyond the term fixed by the jury in its verdict.
Section 557.036 was passed in 1977 and amended in 1981.
In State v. Van Horn, 625 S.W.2d 874 (Mo.1981), the court was faced with a conflict involving § 557.036. There the court stated the applicable rule at 877[l-3]:
The primary rule of statutory construction in a situation such as this is to ascertain and give effect to the legislative intent. In doing so the entire legislative act must be considered and all provisions must be harmonized if reasonably possible. Every word, clause, sentence, and section of an act must be given some meaning unless it is in conflict with the ascertained legislative intent.
*631 Applying that rule of construction, it follows that the legislature intended to extend the term of imprisonment for those who have been found to be persistent sexual offenders. There is nothing in § 557.036 to indicate that a term of imprisonment may not be extended by another statute in the same manner that it may be extended as set forth in subsection 4 of that statute, which refers specifically to § 558.016.
A further line of reasoning is based on the fact that § 558.016 states that the court
may
extend the terms of prior, persistent, or dangerous offenders, while
There is an additional rule of statutory construction which provides that “statutes relating to the same or similar subject matter, even though enacted at different times and found in different chapters, are in pari materia and must be considered together when such statutes shed light on the statute being construed.”
State v. Kraus,
530 S.W.2d 684, 686—87[4] (Mo. banc 1975). This court has no difficulty in reading § 557.036 together with
Burgin further argues that § 557.-036 and
The judgment is affirmed.
All concur.
Notes
. All sectional references, unless otherwise indicated, are to Missouri Revised Statutes, 1978.
. Section 557.036 does not explicitly provide that the court may extend the punishment of a person found to be a prior, persistent, or dangerous offender. Rather, subsection 4 of that statute states that if the defendant is found to fit in one of those three categories of offenders and has been found guilty of a Class B, C, or D felony, the court shall proceed as provided in § 558.016.