State v. Brokus

Decision Date03 August 1993
Docket NumberNo. 61582,61582
Citation858 S.W.2d 298
PartiesSTATE of Missouri, Respondent, v. Tony T. BROKUS, Appellant.
CourtMissouri Court of Appeals

Marcie W. Bower, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Michael J. Spillane, Asst. Atty. Gen., Jefferson City, for respondent.

CRAHAN, Judge.

Defendant was convicted by a jury of indecent exposure and attempted felonious restraint. In accordance with the jury's verdict and sentencing recommendations, the trial court imposed concurrent sentences of one year imprisonment and a $100.00 fine and five years imprisonment and a $150.00 fine, respectively. On appeal, Defendant claims the State failed to make a submissible case on the attempted felonious restraint count. Defendant also asserts plain error in the submission of the verdict directing instruction on attempted felonious restraint on the grounds that the instruction 1) misdefined felonious restraint, 2) failed to define "serious physical injury" and 3) varied from the indictment. Finally, Defendant asserts plain error in the trial court's failure to intervene and grant a mistrial sua sponte because of allegedly improper statements in the prosecutor's closing argument. We affirm Defendant's conviction for indecent exposure and reverse the conviction for attempted felonious restraint, which we remand for a new trial.

The facts most favorable to the verdict are as follows. On February 2, 1990, at approximately 7:30 a.m., Victim was walking to school when Defendant drove up alongside her. Victim was walking in the street because there was no sidewalk and the grass was wet and muddy due to a recent rain. Victim recognized the car because an occupant of the same car, who she could not see at that time, had offered her a ride home from school the evening before. On the morning in question, the passenger side window was open and Defendant asked Victim if she wanted a ride. When Victim said "no," Defendant ordered her to "get in the car." Victim declined a second time and Defendant said "get in the car you f------ bitch." Victim could see through the car window that Defendant's penis was exposed and he was masturbating.

Defendant pulled slowly ahead of Victim and stopped at a stop sign at the next corner. Victim attempted to walk as fast as she could past his car. Defendant reached through the passenger side window, grabbed Victim's arm and attempted to pull her into the vehicle. Victim was able to break free and ran to school. As Victim was running, Defendant sped away.

Defendant contends that the State failed to make a submissible case on the attempted felonious restraint count. More specifically, Defendant argues that no rational trier of fact could find that any of his actions constituted a substantial step toward the commission of felonious restraint because the evidence was insufficient to support a finding that Victim was "exposed to a substantial risk of serious physical injury."

Where the record contains sufficient evidence to permit a rational trier of fact to find the defendant guilty beyond a reasonable doubt, the verdict will not be disturbed on appeal. State v. Dudley, 809 S.W.2d 40, 44 (Mo.App.1991). The court must accept as true all evidence and inferences favorable to the verdict and disregard contrary evidence and inferences. State v. Evans, 802 S.W.2d 507, 514 (Mo. banc 1991).

"A person commits the crime of felonious restraint if he knowingly restrains another unlawfully and without consent so as to interfere substantially with his liberty and exposes him to a substantial risk of serious physical injury." Section 565.120 RSMo.1986. Attempt requires any act, with the purpose of committing the offense, which is a substantial step toward the commission of the offense. Section 564.011 RSMo.1986. "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.

"Serious physical injury" is "physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body." Section 565.002(6) RSMo.1986. "Protracted" loss or impairment of a part of the body means something short of permanent but more than a short duration. State v. Stewart, 811 S.W.2d 805, 808 (Mo.App.1991). "Impairment" means damage, injury or deterioration and is properly distinguishable from "loss" of function. State v. Baker, 859 S.W.2d 805, 813 (Mo.App.E.D.1993).

Because this is an attempt crime, it is irrelevant whether actual physical harm occurred. The record supports a determination that Defendant grabbed Victim's arm through the open passenger window of his car and attempted to pull Victim forcibly into the car through the window against her will. It is certainly within the common experience of jurors to know that car windows are not designed for entering or leaving a vehicle and to infer that protracted impairment of one's limbs can result from being forcibly dragged through a car window. Based on the evidence presented, we hold that a rational trier of fact could find that, had Defendant succeeded in pulling Victim through the car window, she would have been exposed to a substantial risk of protracted impairment of the function of her arm, leg, neck, or some other part of her body. Therefore, we find the evidence is sufficient to support a jury finding that Defendant's actions constituted a substantial step toward the commission of felonious restraint and that the State therefore made a submissible case.

Defendant next raises several issues pertaining to Instruction No. 6, the verdict directing instruction on attempted felonious restraint. This instruction was not objected to at trial nor were the issues raised on appeal included in the motion for new trial. Therefore, we review under plain error. To succeed, Defendant must show error and that he suffered prejudice from that error which resulted in manifest injustice or a miscarriage of justice. Rule 29.12(b). Instruction No. 6 provided, in relevant part:

INSTRUCTION NO. 6

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 2, 1990, in the County of St. Louis, State of Missouri, the defendant pulled [Victim] through his car window while exposing his penis and ordering her to get into the car, and

Second, that such conduct was a substantial step toward the commission of the offense of felonious restraint upon [Victim], and

Third, that defendant engaged in such conduct for the purpose of committing such felonious restraint, then you will find the defendant guilty under Count I of an attempt to commit felonious restraint.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

A person commits the crime of felonious restraint when he knowingly restrains a victim without consent so as to interfere substantially with his or her liberty and exposes the victim to a serious risk of physical injury.

As used in this instruction, the term "substantial step" means conduct which is strongly corroborative of the firmness of the defendant's purpose to complete the commission of the offense of felonious restraint. It is no defense that it was factually or legally impossible to commit felonious restraint if such offense could have been committed had the circumstances been as the defendant believed them to be.

If you do find the defendant guilty under Count I of attempted felonious restraint, you will assess and declare one of the following punishments:

....

Defendant first claims that the evidence does not support a finding that "Defendant pulled [Victim] through his car window" as required by Instruction No. 6. Based on this same allegation of error, Defendant also claims Instruction No. 6 was not supported by substantial evidence and that it constituted a fatal variance from the indictment. The indictment stated Defendant attempted to commit the crime of felonious restraint, "in that he reached through an open automobile window...."

This issue is merely one of semantics. The record demonstrates that Defendant reached through the window and grabbed Victim's arm and attempted to pull Victim forcibly into the car. Victim was able to break free before any part of...

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