State v. Immekus
| Decision Date | 31 August 2000 |
| Citation | 28 S.W.3d 421 |
| Parties | (Mo.App. S.D. 2000) State of Missouri, Plaintiff/Respondent, v. Mark E. Immekus, Defendant/Appellant. 22746 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Pulaski County, Hon. John D. Wiggins
Counsel for Appellant: Kent Denzel
Counsel for Respondent: Linda Lemke
Opinion Summary: None
Opinion:Mark E. Immekus ("Defendant") appeals his conviction by a jury of first-degree assault, section 565.050,1 armed criminal action, section 571.015, and felonious restraint, section 565.120. The trial court found him to be a prior and persistent offender, and sentenced him to consecutive terms of life, twenty years, and ten years, respectively. Defendant also appeals the sentence imposed for the first-degree assault conviction. We affirm Defendant's conviction, but set aside the sentence imposed for the assault conviction, and remand for the imposition of a new sentence.
Included in the issues raised by Defendant on this appeal is the sufficiency of the evidence. In testing the sufficiency of evidence, all evidence and inferences reasonably drawn from the evidence are viewed in the light most favorable to the verdict, and contrary evidence and inferences are disregarded. State v. West, 939 S.W.2d 399, 401 (Mo.App. W.D. 1996). Viewed in that manner, the evidence demonstrates the following:
Defendant had dated Saveda Bollinger ("Victim") before leaving the state, after which she started dating Mike McQueen ("McQueen"). On October 3, 1996, Defendant returned to Missouri, and Victim and McQueen took him to Victim's home to get clothes and belongings that he had left there before leaving the state. After doing so, Victim and McQueen took Defendant to a motel in Rolla where Victim rented a room for Defendant to spend the night. That evening, Defendant called Victim and told her that he had taken pills from her home and that if she did not come alone to the motel to see him, he would attempt suicide by taking them.
Victim and McQueen started for the motel, but Victim dropped McQueen off at a grocery store and told him to walk to the motel. She instructed McQueen that if she was not outside when he arrived at the motel, it meant she was having trouble and he should come to the door. When Defendant answered Victim's knock on the door, he threw her to the floor, hit her in the face, and pulled her by her hair to a chair where he tied her up with a cord. Defendant proceeded to hit Victim in the face several times, cut her face with a single-edged razor, cut her hair to a length of 1 1/2 inches (it had come to the middle of her back), cut the back of her head, and shaved her eyebrows off. While he was doing these things, he told Victim that he was going to make her "as ugly as her boyfriend," and he put a mirror in front of her, saying, "Aren't you pretty now?" At one point, Defendant told her that if she thought she had been beaten, "now you're going to be beat," and also said, "Dead time, bitch." In addition to hitting her in the face, Defendant also ripped off Victim's pants, tearing the buttons on the fly off, and kicked her in the lower part of the stomach with his cowboy boots. Defendant used a tape recorder he had taken from Victim's house to record some of his comments about what he had done to her and what he intended to do, including that he intended to inject her with methamphetamine. He also told her that his friend, Rick Fisher, was going to arrive and rape her.
The motel clerk's office was directly beneath the room that Victim had rented for Defendant. The clerk heard loud banging coming from that room and thought they were tearing up the room. She called the room and told Defendant that he was going to have to curtail their activities because she didn't want the room torn up, and he said "Okay." McQueen then arrived at the motel and asked the clerk to call the room after he got no answer by knocking on the door to see if Victim was ready to go. The clerk called Defendant again and asked to speak to Victim. Defendant gave the phone to Victim who told the clerk, "Oh, help me, please God . . ." The clerk then called 911.
At some point Rick Fisher arrived at the room but, although he was acquainted with Victim, he did not recognize her because of her condition. At that time, Victim was still bound in the chair and was bleeding from her wounds. Fisher said, "I don't need this, I'm leaving," and Defendant said he was going with him. Defendant untied Victim and threw her clothes at her. As soon as Victim could get her clothes on, she left the room and ran downstairs. Fisher then left the motel room and got in his car. Defendant followed Fisher out and got in the car with him and they left. The police and an ambulance arrived at the motel shortly after they left. Some officers left the scene to look for Defendant and Fisher, and one or more officers went to the room to see if anyone else was there. They entered the room through the door which Defendant left open and saw the room in disarray, hair on the floor, a chair with a cord tied around the arms, and blood on the wall behind the chair. Word shortly came that Fisher's car had been stopped, and the officers in the room left to assist in the arrest, pulling the motel room door shut resulting in it being locked.
Victim was taken to the hospital where she was found to have severely swollen eyes, cuts on both cheeks, a cut on the back of her head, and cut-off hair. The physician who examined her had to hold her eyes open in order to examine them because of the swelling. Although Victim was not kept in the hospital overnight, she came back the next day for a CT scan that revealed a fracture of the left orbital floor (underneath the eye in the cavity that the eye sits in). The risks of a fractured orbital floor include the possibility of paralysis of the eye by trapping the optic nerve, and of infection. She also had a loose front tooth that was cracked and eventually fell out. Other facts will be discussed in the body of this opinion, as they become relevant to the points raised on appeal.
Defendant contends in his first point on appeal that the trial court erred in overruling his motion for judgment of acquittal at the close of the evidence. He argues that the State failed to prove the offenses of first-degree assault and armed criminal action beyond a reasonable doubt "because it did not produce sufficient evidence to convince a rational trier of fact that [he] attempted to kill or cause serious physical injury." In conjunction with this, he argues that the jury found that he did not actually cause serious physical injury, and the only reasonable inference from the evidence was that he intended "simply to cause injury and to humiliate [Victim], but did not intend to cause serious injury." He also concludes that the armed criminal action conviction cannot stand without the underlying felony of first-degree assault.
Defendant was charged with the class A felony of assault in the first degree by attempting "to kill or cause serious physical injury to [Victim] by cutting her with a razor blade and striking her with his fists and in the course thereof inflicted serious physical injury . . ." Section 565.050.2 He claims in this point that the State failed to prove the required element that he attempted to kill or cause serious physical injury to Victim.
He argues that there was "absolutely no evidence" that he attempted to kill Victim because he had a razor blade and had her tied in a chair, and if he had any thoughts of killing her he could easily have done so. With reference to the element of attempting to cause serious physical injury, Defendant points out that the jury found that he did not actually cause serious physical injury to Victim.3 He acknowledges that this finding does not foreclose the possibility that he attempted to cause such injury, and he agrees that his actions may be probative of that element. While he admits that he committed "assaultive" acts by beating Victim about the face, causing "superficial cuts to her face and head," kicking her "two or three" times, and cutting her hair, he argues that these actions do not show an intent to cause serious physical injury, defined by section 565.002(6) as "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." He points to testimony of a doctor he called at trial who testified that based upon his review of the CT scan and medical records, Victim did not sustain "serious" physical injuries. He also contends that he did not have the purpose to cause protracted loss or impairment of the function of any part of Victim's body, and in support argues that he "had the means to do this had he wished," but that "[w]hat the evidence shows is an attempt to humiliate, to cause physical injury, and probably emotional injury, but not protracted loss or impairment." In support of his contention that he did not have the purpose of causing serious disfigurement, he points to evidence that the cuts Victim sustained were superficial.
In determining whether there was sufficient evidence to support a conviction, we accept as true all of the evidence and inferences favorable to the State, and disregard all evidence and inferences to the contrary. 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). 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.
Intent, as an element of assault, is generally not susceptible of direct evidentiary proof and may be established by circumstantial evidence or inferred from surrounding facts. State v. White, 847 S.W.2d 929, 933 (Mo.App. E.D. 1993). "A jury is...
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