State v. Mitchell

• Decision Date: 11 April 1985
• Docket Number: No. 13797,13797
• Citation: 689 S.W.2d 143
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerry Ray MITCHELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 143

689 S.W.2d 143

STATE of Missouri, Plaintiff-Respondent, v. Jerry Ray MITCHELL, Defendant-Appellant.

No. 13797.

Missouri Court of Appeals,

Southern District,

Division Three.

April 11, 1985.

John D. Ashcroft, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Beth L. Moutrie, Sp. Asst. Public Defender, Doniphan, for defendant-appellant.

PREWITT, Chief Judge.

Defendant was convicted of burglary in the first degree and sentenced as a persistent offender to twenty-five years' imprisonment. He presents four points relied on which we consider in the order stated.

Defendant contends in his first point that the trial court erred in failing to quash the amended information on which he was tried. It charged that defendant entered the premises "for the purpose of committing sexual abuse in the third degree therein" and did not further describe that intended act. The information followed MACH-CR 23.50 and § 569.160, RSMo 1978. Defendant claims it should have been quashed as it failed to apprise him of the intent element of burglary because it did not set forth the facts constituting the crime of sexual abuse in the third degree. Defendant states in his brief, "Unlike the crime of stealing, for example, the crime of sexual abuse in the third degree is not one easily recognizable or understandable upon sight when read from an information."

Specific factual allegations are required when the statute in which the charge is based uses generic terms to describe a variety of factual formulations by which the offense may be committed. State v. Mondaine, 646 S.W.2d 372, 374 (Mo.App.1982). See also State v. Eckard, 655 S.W.2d 596 (Mo.App.1983).

Sexual abuse in the third degree is subjecting "another person to whom he is not married to sexual contact without that person's consent." § 566.120.1, RSMo 1978. Sexual contact is "any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person." § 566.010.1(3), RSMo 1978. Although the manner of touching may vary, the crime can only be committed one way. Thus, it is not subject to the "generic" rule on which defendant relies.

Intent is rarely shown by direct evidence and usually is inferred from the circumstances. Generally, absent an admission, there would be no direct evidence of intent and it would be impossible to specifically know how a burglar planned to commit the intended crime. Often the offender would not know the specifics as to how it would be carried out before entering.

Rule 23.01(b) states what an indictment or information shall contain. As the information here followed the approved charge it complies with the requirements of Rule 23.01(b). Rule 23.01(e). Cf. also State v. Reese, 687 S.W.2d 635 (Mo.App.1985); State v. Gilmore, 617 S.W.2d 581, 584 (Mo.App.1981); State v. Glover, 554 S.W.2d 457, 458 (Mo.App.1977). Defendant was sufficiently apprised of what he was charged with that he could have defended against it. Point one is denied.

Defendant contends in his second point that the trial court erred by denying defendant's challenges for cause of three veniremen who answered affirmatively to "Are there any of you that believe that a man's girl friend would probably tell a lie for him under most circumstances?" Defendant contends that these persons did not enter upon jury service with an open mind, free from bias and prejudice.

Of course, a defendant's girl friend would be more likely to tell a lie to benefit him than she would for a stranger, but perhaps not if she believed he committed a crime intending to have sexual contact with someone else. Also, the question asked the jurors did not cover the situation where a girl friend would be under oath and subject to the penalties of perjury. Whether those jurors would have thought that she "would probably tell a lie" under those circumstances is not shown in the record. By these comments we are not suggesting that the initial question asked of the jurors on this subject was proper, or that by narrowing the question to a trial setting it would have been made proper. The jurors responded negatively when asked if they would "have trouble believing the testimony of a man's girl friend if it conflicted with other testimony, if you thought she was telling the truth?"

The trial court has wide discretion in determining the qualifications of a prospective juror, and its ruling will not be disturbed on appeal unless it constitutes a clear abuse of discretion. All doubt shall be resolved in favor of the trial court because it is in a better position to determine a challenge for cause than an appellate court. State v. Hemphill, 669 S.W.2d 633 (Mo.App.1984).

The question asked of the jurors did not establish that they could not give due consideration to defendant's girl friend's testimony. The trial judge was in a better position than we are to determine if they could fairly determine the facts, and we cannot say that he clearly abused his discretion. This point is denied.

Defendant contends in his third point that there was insufficient evidence to prove the crime as no evidence was presented showing defendant's purpose in entering the residence. Defendant asserts that as there was no evidence showing that defendant intended to commit sexual abuse in the third degree, his motion for judgment of acquittal should have been sustained.

The intent element of burglary is generally not susceptible to direct proof. State v. Simpson, 670 S.W.2d 577, 579 (Mo.App.1984). In reviewing to determine if the evidence was sufficient to support the charge, we accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregard all evidence and inferences to the contrary. State v. Morrison, 659 S.W.2d 346, 347 (Mo.App.1983). On this standard the evidence was sufficient.

On August 1, 1983, at approximately 2:00 a.m., Cecelia West was asleep in bed alone, in a mobile home. Also in the mobile home were her mother, father, and her son. At that time she was awakened by defendant touching her "between the legs". He was naked, sitting on the floor. She knew defendant and asked him how he got in. He told her to forget about that, and then she told him to get out. Defendant had not been given permission to enter the mobile home, or to touch her as he did. He kept sitting there, so West left. She went down the hallway and woke up her mother, and then went back to her room as defendant was putting on his pants. Defendant then came out of the room and left the mobile home through one of its doors. The screen had been pushed off and locks on that door broken. West knew defendant because her brother lives with defendant's girl friend's family about two miles away. Defendant was living there also. About two weeks previously he had come by her mobile home and asked her to go out with him and his girl friend. She declined.

Defendant may have had a purpose beyond the touching, but the jury could have reasonably found he entered with at least that in mind. There was no indication of any purpose other than sexual. How he...