State v. Bonich

• Decision Date: 14 May 2009
• Docket Number: No. SD 28945.,SD 28945.
• Citation: 289 S.W.3d 767
• Parties: STATE of Missouri, Respondent, v. Roger BONICH, Appellant.
• Court: Missouri Court of Appeals

289 S.W.3d 767

STATE of Missouri, Respondent, v. Roger BONICH, Appellant.

No. SD 28945.

Missouri Court of Appeals, Southern District, Division One.

May 14, 2009.

Motion for Rehearing or Transfer Denied June 5, 2009.

Application for Transfer Denied September 1, 2009.

Kent Denzel, Columbia, for Appellant.

Chris Koster, Atty. Gen., and Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Roger Bonich ("Appellant") appeals his convictions following a jury trial for two counts of the Class B felony of attempted statutory sodomy in the first degree, violations of section 564.011, and one count of the unclassified felony of statutory sodomy in the first degree, a violation of section 566.062.¹ Appellant was sentenced by the trial court to ten years imprisonment on each of the two counts of attempted statutory sodomy and seventeen years imprisonment on the statutory sodomy count. The trial court ordered the ten year sentence on the first count of attempted statutory sodomy to run consecutively to the sentences imposed on the remaining two counts and ordered the remaining two counts to run concurrently for a total of twenty seven years. Appellant asserts two points of trial court error. We affirm the judgment and sentence of the trial court.

Appellant's first point relied on maintains the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and in entering judgment against him on Count I, the attempted statutory sodomy in the first degree of S.M., because "the evidence was insufficient to establish [the crime] beyond a reasonable doubt. ..." Specifically, he asserts there was insufficient evidence adduced at trial to prove he

took a substantial step toward the commission of the offense charged, or that he had the purpose to complete the offense, because, even in the light most favorable to the verdict, the evidence showed only that [Appellant] touched S.M. in the genital area outside her underwear, and there was no evidence from which the jury could reasonably infer that he had any purpose to touch her beneath her clothing, which would have been necessary to engage in deviate sexual intercourse.

Viewing the record in the light most favorable to the jury's verdict, State v. Lopez-McCurdy, 266 S.W.3d 874, 876 (Mo. App.2008), the record reveals that in February of 2004 Appellant and his daughter, K.B., who was eight years old at the time, moved to Springfield, Missouri.² On May 8-9, 2004, K.B.'s thirteen-year-old friend, S.M., who was also a neighbor, spent the weekend with K.B. at the home she shared with Appellant. The girls slept in Appellant's bedroom. K.B. was sleeping in bed with Appellant and S.M. was sleeping on some blankets on the floor. When S.M. went to sleep she was wearing a t-shirt Appellant had provided her and a pair of jeans she had borrowed from her mother.

At some point in the night S.M. awoke to find that her pants were off and Appellant was lying on the floor next to her clad only in boxer shorts. Appellant's hand was on her vagina on the outside of her underwear. As S.M. awakened he withdrew his hand from her body and rolled away from her. S.M., who was scared, got up from the floor and went into K.B.'s bedroom, which was connected to Appellant's bedroom. Once she was in the bedroom, S.M. "found some clothes and put them on." She encountered Appellant, who was on his way to the bathroom, and she told him she was going to sleep in the bedroom for the remainder of the evening. S.M. testified she wanted to "[j]ust to get out of there ..." and had no intention of staying in the house. S.M. then "went downstairs and left."

S.M. walked home and knocked on her mother's window to wake her up. When S.M.'s mother, C.K., came to the door to let S.M. into the house, S.M. told her that she woke up and her pants were off. She testified at trial that she was at that time scared to tell her mother what had happened to her. While the two were standing by the front door talking, C.K. saw Appellant drive by their home in his vehicle. C.K., who did not have a telephone in the home, then took her husband and S.M. to a nearby convenience store to telephone the authorities and C.K. went to Appellant's house to confront him.³ C.K. approached Appellant's home and began yelling at him through the front door. Police officers soon arrived on the scene. At some point during the altercation, Appellant told C.K. he had removed S.M.'s jeans because "her pants looked tight. [He] was trying to make her comfortable."

In his initial discussions with the police that evening, Appellant told the officers that he had been sleeping in his room and the girls had been sleeping in K.B.'s room. While at the house interviewing Appellant, the officers recovered the clothing S.M. said she left behind in K.B.'s room when she changed clothes.⁴

S.M. was taken to the hospital that evening for an examination. While at the hospital, she reported to an officer that she woke up at her friend's house and "her pants had been removed and that the father of her friend she was spending the night with ... was in bed with her." C.K. thereafter placed a hotline call to the Children's Division of the Department of Social Services ("the Children's Division") in relation to S.M.'s allegations⁵ and K.B. was ultimately removed from the home based on this hotline call.

In early May of 2004, Appellant met with police officers and juvenile authorities on several occasions. Kevin Hazelrigg ("Mr. Hazelrigg"), a Greene County deputy juvenile officer, testified that "[o]riginally, [Appellant's] story was that [S.M.] and his daughter [K.B.] ... were sleeping in ... [K.B.'s] bedroom." However, during one interview, Appellant changed his story and admitted the girls had been sleeping in his bedroom. Appellant then admitted he did remove S.M.'s pants, but he stated he did so "because she was sleeping and looked uncomfortable." Further, Mr. Hazelrigg testified that in an earlier meeting Appellant told him that on the evening in question he "was not aware that [S.M.] had ever left the home until he woke up [at] approximately 1:30 in the morning and [C.K. was] honking in his driveway ... and they got into a confrontation in the front lawn." Appellant then changed his story and told Mr. Hazelrigg that

in the middle of the night — 1 o'clock, 1:30 in the morning — he heard a door shut. It woke him up, it startled him, he got up, looked — [K.B.] was next to him in his bed, [S.M.] was no longer on the floor where she had been sleeping in front of the television. He searched the house quickly; she was gone. He went out the front door, saw her — a figure running down the street. He got in his car, and he followed her to make sure she got home safely.

At trial, S.M. testified that she told the entire story of what happened to her for the first time to the people at the Child Advocacy Center when she was interviewed there on May 13, 2004. She stated that up until that point she had not been able to bring herself to tell anyone, including C.K., that Appellant had touched her.⁶

Appellant did not testify in this matter or present any evidence in his defense. At the close of all the evidence, the jury convicted Appellant of the crimes charged and he was thereafter sentenced by the trial court as set out above.

"In a jury-tried case, an appellate court reviews a trial court's ruling on a motion for judgment of acquittal to determine whether the State made a submissible case." Lopez-McCurdy, 266 S.W.3d at 876. In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. This Court accepts as true all evidence tending to prove guilt along with all reasonable inferences that support the guilty finding while all contrary evidence and inferences are disregarded. Id. This Court defers "to the jurors' superior position to weigh and value the evidence, determine the witnesses' credibility and resolve any inconsistencies in their testimony." Id. Whether in a trial before a judge or a jury trial, "[g]reat deference is given to the trier of fact, and an appellate court is not to act as a `super juror' with veto power over a verdict." State v. Daniels, 179 S.W.3d 273, 285 (Mo.App.2005).

Section 566.062 states that "[a] person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old."⁷ Section 566.010(1), RSMo Cum.Supp.2003, defines "[d]eviate sexual intercourse" as

any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person[.]

"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. "A `substantial step' is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." Id.; see State v. Kusgen, 178 S.W.3d 595, 599 (Mo.App. 2005). "Thus, the crime of attempt has two elements: (1) the purpose to commit the underlying offense, and (2) the doing of an act which is a substantial step toward the commission of that offense." Id. at 598. The facts of each particular case dictate which acts or conduct will constitute a substantial step. Id. at 601.

"The `attempt' statute, [section] 564.011, does not require that an actual and specific attempt be made to perform each and every element of the crime. Moreover, `a defendant's overt act need not be the ultimate step toward, or...