State v. Soliben

• Decision Date: 01 February 2021
• Docket Number: No. SD 36600,SD 36600
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ricarte SOLIBEN, Defendant-Appellant.
• Court: Missouri Court of Appeals

621 S.W.3d 585

STATE of Missouri, Plaintiff-Respondent,

v.Ricarte SOLIBEN, Defendant-Appellant.

No. SD 36600

Missouri Court of Appeals, Southern District, Division One.

Filed: February 1, 2021

Motion for Rehearing and/or Application for Transfer Denied February 25, 2021

Application for Transfer Denied June 1, 2021

Appellant acting pro se.

Attorneys for Respondent: Eric S. Schmitt, Atty. Gen., and Dora A. Fichter, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, J.

Ricarte Soliben (Defendant) appeals from his convictions of the class E felony of domestic assault in the third degree and the class A misdemeanor of domestic assault in the fourth degree, after a jury found him guilty of both offenses. See § 565.074; § 565.076.¹ Defendant is representing himself on appeal, as he did below. While that is his right, he is required to follow the same rules of procedure as an attorney. Kline v. Casey's General Stores, Inc. , 998 S.W.2d 140, 141 (Mo. App. 1999). Though we recognize the problems faced by self-represented litigants, we cannot relax our standards for non-lawyers. Gibson v. Rice , 571 S.W.3d 232, 233 (Mo. App. 2019). "It is not for lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties." Sutton v. Goldenberg , 862 S.W.2d 515, 517 (Mo. App. 1993). Defendant presents four points on appeal. Finding no merit in any of them, we affirm the trial court's judgment.

Procedural Background

In July 2019, the State filed a two-count information alleging that Defendant committed the following offenses:

Count 1: the class D felony of domestic assault in the second degree, in violation of § 565.073, by knowingly causing "physical injury" to family or household member T.S. by choking her; and

Count 2: the class A misdemeanor of domestic assault in the fourth degree, in violation of § 565.076, by recklessly causing "physical pain" to family or household member K.C. by shoving him.

A public defender was appointed to represent Defendant. Thereafter, Defendant filed a motion asking leave to proceed pro se. After conducting a hearing and receiving Defendant's written waiver of counsel, the trial court granted the motion and permitted appointed counsel to withdraw.

Defendant's jury trial commenced in January 2020. At the instruction conference, the trial court decided to give Instruction No. 6. This instruction, which was requested by the State, submitted the lesser-included offense of domestic assault in the third degree. See § 565.074. In relevant part, this instruction hypothesized that Defendant committed the offense by "knowingly caus[ing] physical pain to T.C. by grabbing [her] neck[.]"

The jury found Defendant: (1) not guilty of second-degree domestic assault; (2) guilty of the lesser-included third-degree domestic assault; and (3) guilty of fourth-degree domestic assault. Thereafter, the trial court imposed the jury's recommended sentences of two years in prison for third-degree domestic assault and six months in jail for fourth-degree domestic assault.

For ease of analysis, we will include the facts relevant to each of Defendant's four points in our discussion and disposition of the issues presented.

Point 1

Defendant's first point challenges the sufficiency of the evidence to support his convictions for third-degree and fourth-degree domestic assault. On appeal, sufficiency of the evidence is reviewed on the merits, regardless of whether that issue was raised at trial. State v. Claycomb , 470 S.W.3d 358, 361-62 (Mo. banc 2015). "Appellate review of sufficiency of the evidence is limited to whether the State has introduced adequate evidence from which a reasonable finder of fact could have found each element of the crime beyond a reasonable doubt." State v. Lammers , 479 S.W.3d 624, 632 (Mo. banc 2016).² An appellate court considers all evidence in the light most favorable to the verdict, and grants the State all reasonable inferences. Id . Contrary evidence and inferences are disregarded. Id . "This is not an assessment of whether the Court believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt." State v. Nash , 339 S.W.3d 500, 509 (Mo. banc 2011) (internal quotation marks omitted); see State v. Bateman , 318 S.W.3d 681, 687 (Mo. banc 2010). We defer to the fact-finder's "superior position to weigh and value the evidence, determine the witnesses’ credibility and resolve any inconsistencies in their testimony." State v. Lopez-McCurdy , 266 S.W.3d 874, 876 (Mo. App. 2008). Viewed from this perspective, the following evidence was adduced at trial.

Defendant and T.C. were married in November 2018. T.C. had three children from a previous marriage: a 22-year-old son, K.C.; a 19-year-old daughter; and a 17-year-old daughter. T.C. resided in Springfield, Missouri, with Defendant and the 17-year-old daughter. On December 23, 2018, T.C. drove to Lawrence, Kansas, to pick up K.C. from the University of Kansas so he could spend Christmas at home.

As soon as T.C. got home, she and Defendant got into an argument because Defendant no longer wanted to remain married. Defendant gathered up his things and exited through a kitchen door that led to the garage. He came back and started pounding on the locked interior door. T.C. unlocked the door and told Defendant that he needed to leave. Defendant came inside the house, pushed T.C. against the nearest wall, and pressed his forearm against her throat. Defendant lifted T.C. up, pushed her backwards over a half-wall railing, and started choking her. T.C.’s feet were off the ground, and she struggled to breathe. T.C. was in pain while this was happening.

K.C. heard his mother screaming, so he came up the stairs from the basement to see what was happening. Defendant pushed K.C. against a wall. As K.C. and Defendant struggled, they ended up on a loveseat. Defendant began choking K.C. T.C. yelled at Defendant to let K.C. go. When Defendant did not stop, T.C. called 911. Once T.C. started talking to the police on the telephone, Defendant finally let go of K.C.

Springfield Police Officer Caleb Meyers (Officer Meyers) arrived and saw the garage door and the interior door open. He heard yelling from the house and walked inside. T.C. was in the kitchen, and K.C. and Defendant were in the living room. Defendant was yelling and told Officer Meyers that he needed permission to enter the home. Defendant took up a "confrontational body position" and refused to let Officer Meyers investigate. Defendant was handcuffed and taken to Officer Meyers’ vehicle by a back-up officer.

Officer Meyers interviewed T.C. and K.C. Officer Meyers saw red marks on the left side of T.C.’s neck and on her back, that were consistent with her description of what had happened. The officer also saw marks on K.C.’s face, neck and back. Officer Meyers requested that photos be taken of the marks on both T.C. and K.C.

Defendant challenges the sufficiency of the evidence to support his conviction for third-degree domestic assault. "A person commits the offense of domestic assault in the third degree if he or she attempts to cause physical injury or knowingly causes physical pain or illness to a domestic victim, as the term ‘domestic victim’ is defined under section 565.002." § 565.074.1.³

"Physical injury" is defined as "slight impairment of any function of the body or temporary loss of use of any part of the body[.]" § 556.061(36).⁴ Defendant argues that the evidence was insufficient to support his conviction because he did not cause physical injury to T.C. This argument lacks merit. As noted above, Instruction No. 6 hypothesized that Defendant committed the offense of third-degree domestic assault by knowingly causing "physical pain" to T.C. by grabbing her neck. Viewed most favorably to the jury's verdict, there was evidence that Defendant knowingly caused physical pain to T.C. While arguing with T.C., Defendant pushed T.C. against a wall and started choking her. Her feet were off the ground. She was in pain while this was occurring. Defendant's assault left red marks on the left side of T.C.’s neck and on her back. There was sufficient evidence to support Defendant's conviction for third-degree domestic assault.

Defendant challenges the sufficiency of the evidence to support his conviction for fourth-degree domestic assault. In relevant part, "[a] person commits the offense of domestic assault in the fourth degree if the act involves a domestic victim, as the term ‘domestic victim’ is defined under section 565.002, and: (1) The person attempts to cause or recklessly causes physical injury, physical pain, or illness to such domestic victim[.]" § 565.076.1(1).⁵ Once again, Defendant argues that the evidence was insufficient to support his conviction because he did not cause physical injury to K.C. This argument lacks merit. Viewed most favorably to the jury's verdict, there was evidence that Defendant recklessly caused physical pain to K.C. Defendant pushed K.C. up against a wall and over to a loveseat, where Defendant began choking K.C. This did not stop until T.C. was talking to police on the 911 call. K.C. had abrasions and scratches on his face, neck and back. The jury could reasonably infer that K.C. suffered physical pain while being assaulted by Defendant. There was sufficient evidence to support Defendant's conviction for fourth-degree domestic assault. Point 1 is denied.

Point 2

Defendant's second point challenges the denial of Defendant's motion for new trial. The motion alleged that Defendant was entitled to a new trial based on prosecutorial misconduct of counsel involving, inter alia , false testimony and spoliation of evidence. The following facts are relevant to this point.

The prosecutorial misconduct ground appears to involve...