Finley v. State Of Mo.

• Decision Date: 13 July 2010
• Docket Number: No. WD 71234.,WD 71234.
• Citation: 321 S.W.3d 368
• Parties: Mark R. FINLEY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

321 S.W.3d 368

Mark R. FINLEY, Appellant,

v.STATE of Missouri, Respondent.

No. WD 71234.

Missouri Court of Appeals,Western District.

July 13, 2010.

COPYRIGHT MATERIAL OMITTED.

Frederick J. Ernst, Kansas City, MO, for Appellant.

John W. Grantham, Jefferson City, MO, for Respondent.

Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and KAREN KING MITCHELL, JJ.

JAMES EDWARD WELSH, Judge.

Mark R. Finley appeals from the circuit court's judgment denying his Rule 24.035 postconviction relief motion without an evidentiary hearing. ¹ Finley asserts that the circuit court erred in accepting his guilty plea to the charges of attempted forcible rape, armed criminal action, and burglary in the first degree because no factual bases existed for the plea. We disagree and affirm the circuit court's judgment.

In overruling Finley's challenges to the sufficiency of the factual bases on the three charges, the circuit court found that Finley's testimony at the plea hearing provided a sufficient factual basis to support his conviction for attempted forcible rape because Finley admitted that he entered the victim's apartment, lay on top of her, and held a box cutter to her throat. The court found that Finley's conduct toward the victim constituted more than a mere threat of forcible rape. The court also noted that, according to the victim, Finley kept trying to kiss her and threatened her whenever she attempted to move out from underneath him. The court found that Finley's admission at the hearing together with the statement by the victim was sufficient to support a finding that Finley had taken a substantial step toward the commission of forcible rape.

The circuit court also concluded that, because Finley admitted threatening the victim with a box cutter while he attempted to rape her, the record established a sufficient factual basis for armed criminal action. Further, the court found that Finley's admission that he entered the victim's apartment without her permission for the purpose of committing forcible rape to be sufficient to establish a factual basis for first-degree burglary.

Our review of the circuit court's ruling on a Rule 24.035 motion is limited to determining whether or not its findings and conclusions are clearly erroneous. Rule 24.035(k). To be entitled to an evidentiary hearing on a motion for post-conviction relief: (1) the movant must allege facts-not conclusions-which, if true, warrant relief; (2) the facts alleged must establish that the movant's case was prejudiced; and (3) the facts must not be refuted by the record. Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997). The circuit court may deny an evidentiary hearing if any of these elements is missing. Wedlow v. State, 841 S.W.2d 214, 216 (Mo.App.1992).

Finley argues that the factual basis for his guilty plea to attempted forcible rape was insufficient because the State never established that he took a substantial step toward the commission of a forcible rape. Relying on this argument, Finley also contends that the factual basis for armed criminal action, which was predicated on the attempted forcible rape, was also insufficient. Further, he asserts that, because there was insufficient proof of a substantial step toward the commission of a forcible rape, there was an insufficient factual basis to support his guilty plea to burglary because he was alleged to have entered the victim's home for the purpose of committing a forcible rape. We disagree.

“A factual basis for a guilty plea is necessary to ensure that the guilty plea was intelligently and voluntarily entered, thereby satisfying due process requirements.” State v. Henry, 88 S.W.3d 451, 457 (Mo.App.2002). Rule 24.02(e) says, “The court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” A “factual basis” for a guilty plea “is established where the information clearly charges the defendant with all elements of the crime, the nature of the charge is explained to the defendant, and the defendant admits guilt.” Ivy v. State, 81 S.W.3d 199, 202 (Mo.App.2002). As long as a movant understands “the nature of the charges against him, trial courts are not required to explain every element of the crime.” Id. A movant is “ ‘not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists.’ ” Johnson v. State, 172 S.W.3d 831, 835 (Mo.App.2005) (citation omitted). “An appellate court's focus is on whether the defendant understood the nature of the charge against him and not on whether a particular ritual was followed or every detail was explained.” Wagoner v. State, 240 S.W.3d 159, 165 (Mo.App.2007).

The State charged that Finley committed attempted forcible rape when he “climbed on top of [the victim], held a box cutter type knife to her throat and kissed her cheek, and such conduct was a substantial step toward the commission of forcible rape, and was done for the purpose of committing such forcible rape.” “A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense.” § 564.011.1, RSMo 2000. “A ‘substantial step’ is conduct that is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.” Fee v. State, 283 S.W.3d 296, 299 (Mo.App.2009) (citing § 564.011). “ ‘A person “acts purposely” or with purpose, with respect to his conduct or to a result thereof when it is his conscious object to engage in that conduct or to cause that result.’ ” Id. (quoting § 562.016, RSMo 2000). “[A] mere threat with the ability to carry out that threat does not necessarily constitute an attempt to commit a crime. Instead, there must be strongly corroborating evidence that it was the defendant's conscious object to carry out the threat.” State ex rel. Verweire v. Moore, 211 S.W.3d 89, 93 (Mo. banc 2006). “A defendant's purpose is rarely susceptible to direct proof.” State v. McFerron, 890 S.W.2d 764, 767 (Mo.App.1995). As a result, purpose will frequently be established by circumstantial evidence. See State v. Rafaeli, 905 S.W.2d 516, 518 (Mo.App.1995).

“A person commits the crime of forcible rape if such person has sexual intercourse with another by the use of forcible compulsion.” § 566.030, RSMo Cum.Supp.2007. Section 556.061 provides in relevant part that “forcible compulsion” includes “[a] threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of such person or another person[.]” § 556.061(12)(b), RSMo 2000.

In this case, the circuit court did all that was required to establish a sufficient factual basis for Finley's guilty plea to attempted forcible rape. First, the indictment, which contained all of the elements of attempted forcible rape, was read to Finley. ² Second, Finley stated in his own words that he entered into the victim's home at night without her permission and that he lay on top of her, placed a knife to her throat, and attempted to rape her. ³ The victim reported that Finley entered her home while she was sleeping and repeatedly instructed her to kiss him while he lay on top of her. Third, Finley admitted that he was guilty.

Finley argues, however, that the record in this case is insufficient to sustain a conviction of attempted rape because there was no showing that he took a substantial step toward engaging in forcible sexual intercourse. He asserts that nothing exists in the record to suggest that he intended to engage in sexual intercourse with the victim or that he understood that this is what he was pleading to when he pled guilty. He claims that the record does not indicate that he understood what constituted rape.

The record established that Finley was twenty-one years old, had a twelfth grade education, and graduated from high school. He also admitted that he reads, writes, and understands the English language. Finley acknowledged that he was not suffering from any mental disease or defect and that he did not have any mental condition that would make it difficult for him to concentrate and understand. ⁴ He also admitted that his attorneys had explained the charges against him. In pleading guilty, Finley admitted that he attempted to rape the victim.

Although, as we said above, a defendant's purpose is rarely susceptible to direct proof, here we have Finley directly testifying as to his purpose and intention by informing the court that “[o]n November 3rd, around three o'clock in the morning, I entered into the victim's apartment and laid on top of her and held a box cutter to her throat, and I attempted to rape her.” As to Finley's purpose and intent, evidence does not come any clearer than this, and to say it is a sufficient factual basis for the crime of attempted forcible rape is to demonstrate a knack for understatement. The fact that Finley now would like to say that he did not understand what he was saying and that his plea was therefore not made knowingly is belied by the record and common sense.

We find that the term “rape” is a commonly-known, layman term that is generally understood to mean non-consensual sexual intercourse. ⁵ Indeed, courts from other jurisdictions have so concluded. Commonwealth v. Sherman, 451 Mass. 332, 885 N.E.2d 122, 127 (2008); People v. Lankford, 819 P.2d 520, 521 (Colo.App.1991). Finley, therefore, admitted to attempting to do an act which has a widely-known, common meaning of non-consensual sexual intercourse. Where the allegations contained in the counts are “simple, specific and sufficient to inform the defendant in terms that a layman would understand what acts he was charged with committing,” then a factual basis is established. Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App.1993); ⁶ see also Johnson v. State, 115 S.W.3d 422, 426 (Mo.App.2003) (s...