Dеfendant, Joseph Staples, appeals from his judgments of conviction, following a jury trial, for two counts of forcible rapе and one count of forcible sodomy. He was sentenced, as a prior and persistent offender, to three conseсutive twenty-year terms of imprisonment. Defendant also appeals the denial of his Rule 29.15 motion following an evidentia-ry hearing. We affirm.
On November 7,1991, defendant arrived at victim’s house and asked her if she wanted to go with him to look for his nephew, who was victim’s boyfriend. Victim was sixteen years old. Instead of actually searching for victim’s boyfriend, defendant and victim drove around. Defendant purchasеd some beer and two marijuana cigarettes. Defendant and victim both smoked the marijuana. Eventually, defendant drove victim to аn isolated location and parked.
Defendant told victim that she “owed him something for the joints.” He told her to take off her clothes. When victim refused, defendant took victim by the neck and hair. He told her that if she did not do what he wanted, she would not make it home аlive. Defendant raped her, then sodomized her, and then raped her again. Victim testified
In his second point on appeal, defendаnt claims the trial court erred when it gave the verdict directing instructions for the two counts of forcible rape because thе instructions failed to specify the time of day or night of the rapes, or identify the separate rapes by other references. Defendant contends he was prejudiced by the submission of similarly worded instructions for the two rape counts because it negated the jury’s ability to consider each charge independently.
Over defendant’s objection, the trial court gave Instruction Nos. 6 and 10. Instruction No. 6 read as follows:
INSTRUCTION NO. 6
As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or abоut November 7, 1991, in the County of St. Charles, State of Missouri, the defendant had sexual intercourse with [victim], and
Second, that defendant did so without thе consent of [victim] by the use of forcible compulsion, [sic]
then you will find the defendant guilty under Count I of forcible rape.
However, unlеss you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find thе defendant not guilty of that offense.
Consent or lack of consent may be expressed or implied. Assent does not constitute consent if it is induced by force or duress. “Forcible compulsion” means physical force that overcomes reasonablе resistance or a threat, express or implied, that places a person in reasonable fear of death or serious physical injury of herself.
Instruction No. 10 was identical to Instruction No. 6, except that it replaced the words “Count I” with “Count III”.
When a defendant is charged with more than one rape of the same victim on the same day, MAI-CR3d 320.02.1B, Notes On Use 2, instructs that “paragraph First of thе instruction should submit the ‘time of day or night’ ”. “If it is impossible to fix the occasion of the offense by time or date, the instruction should be modified to identify the occurrence by some other reference.” Id.
“Whenever there is an MAI-CR instruction or verdict form applicablе under the law and Notes On Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form.” Rulе 28.02(c). The failure to give an instruction or verdict form as provided by the applicable Notes on Use is error, the prejudiciаl effect of which is to be judicially determined. Rule 28.02(f).
While it may have been error for the trial court to give the two verdict directing instructions without a time reference or other identifying reference, we can discern no prejudice to defendant. The jury was аlso instructed that the defendant was charged with a separate offense in each of the submitted counts and was directed tо consider each count separately, returning a separate verdict for each count. Jurors are presumed tо follow the instructions given to them at trial. State v. Cody,
In Cody, the defendant was charged with two counts of rape and two counts of sodomy. Id. at 431. The сrimes involved one victim and occurred in sequence, over a short period of time, in the same location and under almоst identical circumstances. Id. at 432, 433. The verdict directing instructions for each of the rape counts were identical, except for the count numbers, as were the instructions for each of the sodomy counts. Id. at 432. Although this court concluded that it may have bеen error to fail to identify each occurrence by some reference, we held that error was not prejudicial because the defendant’s defense did not depend upon surrounding facts and circumstances which differed greatly from count to сount, but upon the credibility of the victim. Id. at 433.
Here, as in Cody, the rapes involved one victim and occurred in sequence, over a brief period оf time. Both rapes took place in the ear as it was parked in the same isolated parking lot, and the circumstancеs of each rape were almost identical. Like Cody, the
We have reviewed defendant’s remaining points on his direct appeal. No jurisprudential purpose would be served by a written opinion on these points. Points one and three are denied. Rule 30.25(b).
Defendant’s final point concerns his Rule 29.15 motion. We have carefully reviewed the record. The trial court’s judgment is based on findings of fact that are not clearly erroneous; no error of law appears. A written opinion on this point wоuld have no prec-edential value. Defendant’s point of error relative to his Rule 29.15 motion is denied. Rule 84.16(b).
Defendant’s judgments of conviction are affirmed. The denial of defendant’s Rule 29.15 motion is affirmed.