State v. Bowens

• Decision Date: 03 March 1998
• Docket Number: No. 71629,71629
• Parties: STATE of Missouri, Respondent, v. Herbert BOWENS, Appellant.
• Court: Missouri Court of Appeals

Page 232

964 S.W.2d 232

STATE of Missouri, Respondent, v. Herbert BOWENS, Appellant.

No. 71629.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 3, 1998.

Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Joiner, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Presiding Judge.

Defendant, Herbert Bowens, appeals from the judgment entered by the trial court on a jury's convictions of two counts of rape, Section 566.030, ¹ one count of kidnapping, Section 565.110, and one count of creating a grave and unjustifiable risk of HIV infection, Section 191.677(2). The trial court sentenced defendant to consecutive terms of life imprisonment for each count of rape, thirty years for kidnapping, and ten years for risking infection with HIV. We affirm.

Defendant raises five points on appeal. He first contends that Section 191.677.1(2) is overbroad on its face, and therefore unconstitutional. Second, defendant argues the state failed to meet its burden of proof beyond a reasonable doubt that his conduct created a "grave and unjustifiable risk" of infecting victim with HIV. Defendant also contends his rights were violated when the trial court sustained the State's motion in limine and refused to let defense counsel present evidence that victim is HIV negative, when the trial court excluded defendant from the courtroom during the reading of the jury's verdict, and when the trial court overruled defense counsel's objection and let the State elicit testimony that Officer Hepler talked to one of defendant's alibi witnesses, and "wasn't able to verify" defendant's alibi.

We view the evidence in the light most favorable to the jury's verdicts. At about 9:30 P.M. on February 25, 1995, victim, an eighteen year old female, went to a caf on the "Loop" with her friends. Victim went outside to get away from the cigarette smoke and got in her car. Defendant knocked on victim's car window. Defendant asked victim if she felt okay because she looked depressed. Victim said she felt fine and began to roll up her window. Defendant pointed a gun at victim and grabbed her through the window.

Defendant unlocked the door and instructed victim to move over. She complied and defendant got into the driver's side of the car. Defendant told victim to get on the floor, which she did. Defendant drove victim's car for five to ten minutes, while victim remained on the floor. Finally, defendant told victim she could return to the seat. As they drove through a residential area in University City, he told her he wouldn't hurt her and that he just needed drug money. He drove victim to an alley and parked the car in back of one of the houses.

After victim told defendant she had no way to get money, defendant asked victim if she would have sex with him. She said, "No, not a chance." He asked again. Again, she denied his request. Defendant pointed the gun at the base of her neck.

Defendant made victim undress and twice raped her. When he stopped, defendant told victim to put her clothes back on. He obtained a towel from victim's trunk. He drove over a block, wiped off everything he thought he had touched, told victim not to tell anyone, and got out of the vehicle. He took the towel and victim's car phone. Victim drove away.

Victim stopped at a residence, to tell a stopped police officer what happened. The officer broadcast a description of the rapist. Officer Becker spotted defendant. Defendant matched the description. Defendant had a rectangular object, three or four inches thick, and a beige-colored towel. When Officer Becker eventually stopped defendant, defendant no longer carried the object. Police later found victim's car phone in the area where Officer Becker first spotted defendant carrying the object. Police also found a BB-gun, shaped like a semi-automatic pistol, near the area where the rape occurred. Victim identified defendant as her attacker. A victim rape kit was performed at St. Mary's Health Center.

Defendant told the police he had tested positive for HIV about one year earlier. ² Police tried to perform a suspect rape kit. Defendant refused. He admitted the gun was his and that he got rid of it because he thought he might be stopped.

Defendant told the police he walked from the Loop to visit two ladies, named Toni and Kim. He explained that he stayed with them until about midnight, then talked to two men at a vacant lot, went to visit his friend, Rob, who wasn't home, and began walking home when he was arrested. A detective testified that he spoke to Toni Buchanan, who did not verify defendant's story.

Defendant's underwear had stains indicating the presence of semen and the PGM subtype from the semen matched the defendant's subtype. Stains in the back of victim's car indicated the presence of semen with the same PGM type as defendant. Defendant also had semen stains on his jeans. DNA testing showed the DNA from the car's upholstery matched defendant's DNA. The frequency with which that DNA profile occurs is less than one in one hundred million people. Dog hairs found on defendant's shirt and in the vacuum sweepings from the victim's car were microscopically indistinguishable. Victim testified her two dogs rode in her car frequently.

Defendant first contends that Section 191.677.1(2) is overbroad on its face and therefore, unconstitutional. Defendant argues the statute is not narrowly drawn to criminalize only risking infection without consent, but also criminalizes otherwise constitutionally protected behavior such as consensual sexual intercourse between adults who have full knowledge of the risks and consequences of their actions.

When a state chooses to regulate matters involving sensitive rights of its citizens, it is obligated to do so in a manner that is narrowly drawn to express only those objectives. Carey v. Population Services International, 431 U.S. 678, 686, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977). Defendant argues Section 191.677 ³ is overbroad because it makes no exception for knowing and consenting partners, which is constitutionally protected conduct. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (applying the Fourteenth Amendment right of privacy).

If defendant's constitutional challenge had been preserved for review this Court would not have jurisdiction and the appeal would be transferred to the Missouri Supreme Court. State v. Sullivan, 935 S.W.2d 747 (Mo.App.1996). We have jurisdiction in this case because defendant failed to preserve the constitutional challenge for appellate review. During his argument on his motion for judgment of acquittal at the close of the state's case, defendant objected, stating Section 191.677.1(2) was unconstitutionally "vague" because HIV was not properly defined. Later, defendant objected to the instruction on the count of creating a grave and unjustifiable risk of HIV infection, claiming the statute was unconstitutionally vague. Defendant again argued the statute was unconstitutionally vague in his motion for new trial. Defendant raises the claim that the statute is unconstitutionally overbroad for the first time on appeal.

"A constitutional question is waived if not raised at the earliest opportunity." State v. Plummer, 860 S.W.2d 340, 351 (Mo.App.1993); See also State v. Sullivan, 935 S.W.2d 747, 754 (Mo.App.1996). Points raised on appeal are required to be based upon the same theory as the objection made at trial. State v. Lang, 515 S.W.2d 507, 511 (Mo.1974). Defendant did not raise constitutional overbreath by objection or in his motion for new trial. As a result, transfer to the Missouri Supreme Court is not required and there is also no issue for review before this Court. See State v. Roberds, 820 S.W.2d at 621, 622 (Mo.App.1991). ⁴

Defendant asserts the trial court erred in denying his motions for judgment of acquittal at the close of the state's case and the close of all the evidence and in sentencing him on his conviction of risking infection with HIV because there was less than substantial evidence to support every element of a violation of Section 191.677. Specifically, defendant contends the State presented no evidence from which the jury could find or decide that the defendant's acts created "a grave and unjustifiable risk" of infecting victim with HIV. We disagree.

In determining whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt, we view the record in the light most favorable to the State, and accept as true all evidence and inferences therefrom. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). The state's evidence showed defendant had HIV; defendant knew he had HIV; and defendant raped victim. Defendant argues that in addition, the State must present evidence that there existed a "grave and unjustifiable risk" of infecting victim.

Defendant waived any error with respect to the denial of his motion for judgment of acquittal at the close of the State's evidence when he presented evidence in his own behalf after the denial of that motion. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). The State must, however, present evidence sufficient to reasonably establish every element of the crime to overcome defendant's motion for judgment of acquittal at the end of all the evidence.

On appeal, defendant admits it is common knowledge that sexual intercourse can transmit HIV. Therefore, the jury could have found a "risk". The evidence of defendant's rape of victim indicates there could be no "justification" for this risk. Defendant contends that the point turns on the lack of proof that the risk was "grave".

A reasonable juror could have concluded that defendant created a grave and unjustifiable risk of infection. Contrary to defendant's assertion, statistical evidence concerning the actual risk of infection was...