State v. Bryan, SD24013

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PER CURIAM
• Citation: 60 S.W.3d 713
• Decision Date: 06 December 2001
• Docket Number: SD24013
• Parties: State of Missouri, Respondent v. Scott E. Bryan, Appellant. SD24013 Missouri Court of Appeals Southern District

State of Missouri, Respondent
v.
Scott E. Bryan, Appellant.

SD24013

Missouri Court of Appeals Southern District

12/06/2001

Appeal From: Circuit Court of Greene County, Hon. Calvin R. Holden

Counsel for Appellant: Rosalynn Koch

Counsel for Respondent: Stephanie Morrell

Opinion Summary: None

Shrum, P.J., and Montgomery, J., concur.

Robert S. Barney, Chief Judge

Scott E. Bryan ("Defendant") appeals from a jury conviction of two counts of kidnapping, section 565.110, one count of attempted forcible sodomy, section 566.060, RSMo Cum. Supp. 1998 and section 564.011, and three counts of assault in the second degree assault, section 565.060, in the Circuit Court of Greene County.(FN1) Defendant was sentenced to concurrent terms of fifteen years imprisonment in the Missouri Department of Corrections for each count of kidnapping, five years for one count of assault, and seven years for the remaining two counts of assault, to run consecutively with ten years imprisonment for sodomy.

On appeal, Defendant raises four points of error. First, Defendant maintains the trial court erred in admitting exhibits and evidence relating to a video deposition of one of the victims. Second, Defendant asserts that the trial court erred in overruling Defendant's motion for judgment of acquittal as to one count of assault because insufficient evidence was presented to establish that Defendant attempted to cause physical injury. Third, Defendant argues the trial court erred in overruling Defendant's motion for judgment of acquittal to attempted forcible sodomy because there was insufficient evidence to establish that Defendant acted "with intent to arouse or gratify sexual desire." Fourth, Defendant alleges trial court error in entering a judgment of guilt as to forcible sodomy because the jury found Defendant guilty only of attempted forcible sodomy. As the State of Missouri ("the State") concurs with Defendant on this latter point, we reverse. However, in all other respects we affirm.

Two of Defendant's points challenge the sufficiency of the evidence supporting his conviction. This Court's review of Defendant's challenge to the sufficiency of the evidence 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.'" State v. Hayes, 15 S.W.3d 779, 782 (Mo.App. 2000) (quoting State v. Robinson, 982 S.W.2d 747, 748 (Mo.App. 1998)). "[A]ll evidence favorable to the state is accepted as true, which includes favorable inferences adduced by the evidence; all evidence and inferences to the contrary are disregarded." Id. "Questions of credibility of a witness and the effects of conflicts or inconsistencies in the testimony of any witness are questions for the jury." State v. Vaughn, 32 S.W.3d 798, 799 (Mo.App. 2000). As such, "'[a] jury is permitted to draw such reasonable inferences from the evidence as the evidence will permit, and may believe or disbelieve all, part, or none of the testimony of any witness.'" State v. Immekus, 28 S.W.3d 421, 426 (Mo.App. 2000) (quoting State v. White, 847 S.W.2d 929, 933 (Mo.App. 1993)).

Viewed in a light most favorable to the verdict, the evidence shows that in the early morning hours of June 6, 1999, Defendant engaged in a telephonic conversation with William DeLong ("DeLong") and Phillip Smith ("Smith"). Defendant related the allegations of a young female friend of Defendant who had accused both DeLong and Smith of raping her. Defendant told DeLong and Smith to come to his apartment to discuss this situation, and threatened "to come looking for [them]" if they did not meet with him at his apartment.

DeLong and Smith proceeded to Defendant's apartment in Smith's vehicle. Upon arriving in the parking lot, Defendant, James Splain ("Splain"), and Jacob Horwitz ("Horwitz") were standing outside and approached Smith's vehicle. Defendant reached inside and pulled out the keys from the vehicle, and then Splain pulled Smith out of the vehicle while Horwitz grabbed DeLong and pulled him out of the vehicle. At that point, Defendant proceeded to punch and kick Smith in the face, stomach, and legs while Horwitz provided the same treatment to DeLong.(FN2) Defendant, Horwitz, and Splain then dragged Smith and DeLong into Defendant's apartment located on the second-floor of the apartment complex.

Once inside, Smith and DeLong were...