State v. Gonsalez
| Decision Date | 23 March 2021 |
| Docket Number | WD 82796 |
| Citation | 619 S.W.3d 559 |
| Parties | STATE of Missouri, Respondent, v. Joseph GONSALEZ, Appellant. |
| Court | Missouri Court of Appeals |
Richard A. Starnes, Jefferson City, for respondent.
Damien de Loyola, Kansas City, for appellant.
Before Division One: Alok Ahuja, P.J., and Thomas H. Newton and Thomas N. Chapman, JJ.
Following a jury trial in the Circuit Court of Jackson County, Joseph Gonsalez was convicted of voluntary manslaughter, first-degree endangering the welfare of a child, and two counts of armed criminal action. Gonsalez appeals. He challenges the sufficiency of the evidence to support his conviction of child endangerment, and the wording of the instruction used to submit child endangerment to the jury. Gonsalez also argues that the circuit court's judgment incorrectly states the felony classification of his voluntary manslaughter conviction. We affirm Gonsalez's child endangerment conviction. We vacate the judgment and remand to the circuit court, however, to permit the court to enter a judgment nunc pro tunc accurately reporting Gonsalez's conviction for voluntary manslaughter.
Joseph Gonsalez and E.R. met in 2014 and began an on-again-off-again relationship that would continue over the next four years. Gonsalez and E.R. shared a son, J.G., born in July 2015. The couple lived together for a period of time. In 2017, however, E.R. moved to live with her mother after a domestic violence incident, and Gonsalez moved back to his parents’ house in southern Kansas City. E.R. sought and obtained a protective order against Gonsalez, and Gonsalez filed a custody case regarding J.G. Under the protective order and the parties’ custody arrangement, Gonsalez and E.R. were required to exchange J.G. through a third-party organization, although they eventually began to exchange J.G. directly at Gonsalez's parents’ house.
In January 2018, Gonsalez and E.R. remained in contact but were not in a romantic relationship. E.R.’s best friend testified that, at the time, Gonsalez "was being obsessive, calling [E.R.] a lot," and that E.R. did not like it, and felt that she was constantly "being attacked."
On January 5, 2018, E.R.’s father suffered a broken leg
and required hospitalization. Although Gonsalez was not scheduled to have custody of J.G. until the following day, E.R. called him to see if he could take J.G. a day early so she could stay with her father at the hospital. Gonsalez refused, and the couple began to argue. E.R.’s best friend agreed to watch J.G. while E.R. was with her father. Gonsalez and E.R. agreed that E.R. would bring J.G. to Gonsalez's parents’ house the following day.
Later on January 5, Gonsalez went to a Home Depot hardware store and purchased duct tape. At trial, Gonsalez testified that he bought the duct tape because he planned to bind E.R. when she brought J.G. over the next day, and that his "main reason" for doing so was to enable him to go through her cell phone. He also hoped that the couple would have consensual sex; Gonsalez claimed that they had previously engaged in sexual acts in which E.R. was restrained. E.R.’s best friend testified that she and E.R. had discussed E.R.’s sex life with Gonsalez; her friend testified that E.R. "did not enjoy" being tied up or bound.
E.R. spent the night of January 5-6, 2018, at her best friend's home. Early on the morning of January 6, Gonsalez called E.R. and they argued about E.R. being late to bring J.G. to his parents’ home.
E.R.’s best friend testified that Gonsalez was angry, and yelled at E.R. E.R. left her best friend's house shortly thereafter to exchange J.G. with Gonsalez. She told her friend "that she would be right back"; E.R. and her friend then planned to go get coffee together.
Gonsalez told his parents that E.R. was coming over to bring J.G. and to talk; he requested that they leave so he and E.R. could have some privacy. Gonsalez's parents left the house, planning to return in approximately one hour.
E.R. entered Gonsalez's parents’ home through the basement and went upstairs to the main floor. Gonsalez had been in his bedroom on the upper level of the home. He descended and met E.R. as she was coming up the stairs to the main floor. Gonsalez testified that he picked up J.G., who was walking beside E.R. Gonsalez testified that he took J.G. upstairs to Gonsalez's bedroom, which was the northwest of three bedrooms on the upper floor. Gonsalez took off J.G.’s shoes and placed him down to play. After doing so, Gonsalez picked up a loaded .38 caliber handgun that was on a nightstand in his bedroom and placed it on a television stand in the guest bedroom (the northeast upstairs bedroom) across the hall from his room.
Gonsalez testified that he then met E.R. as she was coming up the stairs to the bedrooms on the upper level. They talked about their relationship, and soon began to argue. In his testimony, Gonsalez claimed that despite the argument, he and E.R. were planning to have sex, and began to undress in the guest bedroom. Gonsalez testified that E.R. agreed to be tied up. Gonsalez retrieved the duct tape from his bedroom and went back to the guest bedroom. He testified that E.R. became upset upon seeing the duct tape, and did not wish to continue. Although she resisted, Gonsalez testified that he tied E.R.’s wrists behind her body, and then bound her arms to her body with the duct tape. Gonsalez pushed her onto the bed, grabbed her cell phone, and went into the hallway to look through it. When E.R. started yelling, Gonsalez went back into the bedroom and placed duct tape over her mouth.
Gonsalez testified that as he went back into the hallway to continue going through E.R.’s phone, he heard a sound and as he turned around, E.R. shot him in the abdomen (although her wrists were bound behind her back, and her arms were restrained against her body). Gonsalez testified that E.R. dropped the gun and ran downstairs to the main floor. Gonsalez testified that he panicked, and picked up the gun and ran after her. Gonsalez shot E.R. in the head at point blank range in the living room. The medical examiner testified that E.R.’s head wound was a contact wound, meaning the barrel of the gun was in contact with the skin surface when the gun was discharged.
Gonsalez testified that he ran back upstairs to his bedroom to grab his keys to leave. Gonsalez testified that J.G. was in the bedroom when he opened the door, and that he left without shutting the bedroom door behind him. Gonsalez left in E.R.’s car. He drove to a friend's nearby house seeking help for his abdominal wound. When he discovered his friend was not home, Gonsalez flagged down a passerby, who called 9-1-1 around 11:02 a.m.
While Gonsalez's parents were out, his mother had several missed calls from Gonsalez. Gonsalez's mother attempted to return the missed calls twice, and connected with Gonsalez on her second attempt at approximately 10:48 a.m. After Gonsalez answered the phone, his mother heard him arguing with E.R., and then a gunshot. Gonsalez's parents rushed home from Overland Park, where they were visiting with their daughter.
When Gonsalez's parents arrived home, they found E.R.’s body in the living room surrounded by a pool of blood. E.R. was naked from the waist down. Gonsalez's mother testified that when they entered, J.G. was "nearby," sitting on the floor next to E.R.’s body. Gonsalez's father (who had entered the house first) testified that he saw J.G. walking in the kitchen and the living room. J.G. did not appear upset. Gonsalez's father picked J.G. up and held him outside the house as they waited for first responders to arrive. Police were dispatched to Gonsalez's parent's house around 11:13 a.m. A Kansas City Police Detective observed that J.G. had a small golf-ball-sized patch of blood on one leg of his pants.
During their investigation, crime scene investigators discovered two bullet holes in the home. The first was in the living room ceiling, above a couch on which particles of drywall were scattered. Investigators cut out the ceiling to gain access to the attic area above, but did not recover any further evidence. Investigators found a second bullet hole in a closet door in the upstairs hallway near the bedrooms. Investigators determined that the bullet entered the closet, shattered a glass vase holding a candle, and continued through the wall into an adjoining bathroom. In the bathroom, investigators found a bullet hole on the wall above the sink, and found a spent bullet inside a toilet paper roll located on top of the sink.
Police recovered a .38 caliber revolver in the northeast guest bedroom, with two spent casings inside the cylinder. Investigators determined that the spent bullet recovered in the upstairs bathroom had been fired from that gun. Testing of the trigger area of the revolver identified E.R. as a major DNA contributor, and Gonsalez as one of three minor contributors.
On February 2, 2018, Gonsalez was charged by indictment with four counts: first-degree murder (Count I); first-degree endangering the welfare of a child (Count III); and two associated counts of armed criminal action (Counts II and IV). As to Count III, the State charged Gonsalez with endangering the welfare of a child "by discharging a firearm in the presence of J.G."
After a six-day guilt-phase trial, the jury found Gonsalez guilty on Count I of the lesser-included offense of voluntary manslaughter. The jury also convicted him of the other three charges (endangering the welfare of a child in the first-degree, and two counts of armed criminal action). After a further penalty phase, the jury recommended that Gonsalez be sentenced to fifteen years’ imprisonment for voluntary manslaughter; twenty-five years for the associated count of armed criminal action; seven years for endangering the welfare of a child; and seven years for the second armed criminal action charge. The circuit court imposed the sentences recommended by the jury, and ordered...
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