State v. Bjorgo

571 S.W.3d 651

STATE of Missouri, Respondent,

v.Richard Lowell BJORGO, Appellant.

WD 81191

Missouri Court of Appeals, Western District.

OPINION FILED: April 2, 2019

Eric S. Schmitt, Attorney General, and Julia E. Rives, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Steven Willibey, Special Appellate Defender, Kansas City, MO, Attorney for Appellant.

Before Division Four: Karen King Mitchell, Chief Judge, and Alok Ahuja and Thomas N. Chapman, Judges

Karen King Mitchell, Chief Judge

Richard Bjorgo appeals, following a jury trial, his convictions of attempted sexual abuse in the first degree, §§ 566.100 and 564.011,¹ and armed criminal action, § 571.015, for which he was sentenced, as a persistent offender, to consecutive terms of fifteen and one hundred years' imprisonment, respectively.² Bjorgo raises three claims on appeal. The first challenges the sufficiency of the evidence to support his convictions for attempted sexual abuse and its corresponding conviction of armed criminal action. The second challenges the verdict director for attempted sexual abuse, alleging that it omitted a necessary element. And the third argues that the written judgment fails to accurately reflect the oral pronouncement of Bjorgo’s sentence—an error the State concedes. As the only point with merit is Bjorgo’s third point on appeal, we remand for the limited purpose of directing the trial court to enter a new judgment that properly reflects the oral pronouncement of Bjorgo’s sentence. In all other respects, the judgment is affirmed.

Background³

Around six o'clock in the evening of May 4, 2015, Spencer Smith (pastor of First United Methodist Church in Kearney, Missouri) met with six other church members, including Victim, to interview candidates for the position of worship leader in the church. The interview took place in the church sanctuary. During a break in the interview, Victim left the sanctuary to use the women’s restroom located in the lobby attached to the sanctuary.

When Victim entered the restroom, she went into and used the first stall; it did not appear that anyone else was in the restroom at the time. When she exited the stall, however, she saw a man later identified as Bjorgo standing outside the stall.⁴ Victim did not know Bjorgo and had not heard or seen him enter the restroom. Bjorgo stepped toward Victim and put his hands on her shoulders and neck. Victim initially thought someone was playing a joke on her but quickly realized she was, in fact, in a dangerous situation. The two began to struggle, and Bjorgo gained control over Victim and pushed her into the larger accessible stall at the rear of the restroom.

Victim continued to struggle, but Bjorgo pushed her to the floor, where he straddled her while she was on her back, blocking the stall exit. Bjorgo pulled a knife from his pocket and extended the blade. Victim continued screaming and began kicking her legs and swinging her arms, while Bjorgo tried to stab her in the stomach and slashed at her neck and arms. Bjorgo repeatedly told Victim to "shut the fuck up" and "shut the fuck up, bitch," but he said it in a calm way that troubled Victim even more. Victim continued to resist and fight back, and eventually, Bjorgo stood up and began to leave the restroom. As Bjorgo did so, Victim crawled behind him in hopes of shouting out the door when he opened it, so that someone would hear and come to her aid. Victim was able to get to her feet just before Bjorgo reached the door, but, at that point, he turned and saw her standing and came after her again. The two struggled again, and Bjorgo threw Victim to the ground. Victim kicked at Bjorgo’s stomach and groin, at which point, he stood back up and then kicked Victim hard twice in the head before walking out of the restroom.

After Bjorgo left, Victim ran back to the sanctuary. When Victim reentered the sanctuary, she was screaming and hysterical, repeating, "he’s at the door." The pastor and two other men went to the exterior doors of the church, where they saw a dome light turn on inside an unfamiliar car in the parking lot. The men ran to the car and tried to get the occupant out. But the occupant, later identified as Bjorgo, started the car, put it in reverse, and quickly drove away toward a nearby highway.

One of the church members that pursued Bjorgo on foot was able to follow him by car while contacting 9-1-1. The church member pursued Bjorgo’s car for several minutes until the Kearney Police arrived and took over the pursuit. The police pursued Bjorgo, with lights and sirens on, for several minutes before he eventually stopped. After Bjorgo stopped, the police took him into custody. During a search incident to arrest, officers found a pocket knife in the left front pocket of Bjorgo’s pants.

Following Bjorgo’s apprehension, officers went to the church to speak with Victim. When they arrived, Victim was crying and very distraught, and she had visible injuries to her neck, hands, wrists, earlobe, foot, hip, head, and elbow. Victim was shown a picture of Bjorgo taken upon his apprehension, and Victim immediately said, "yep, yep, that’s him," and resumed crying.

Once in custody, Bjorgo waived his rights and agreed to answer questions. During the interview, Bjorgo initially denied being at the church, but, after being confronted with evidence, Bjorgo admitted he had been there, hiding behind the women’s restroom door. Bjorgo described the knife he used during the attack, and he admitted that his intent was to see and touch Victim’s breasts. Bjorgo also wrote an apology letter to Victim, which stated:

Dear Ma'am, I'm sorry for what happened tonight. This is not the real me. I am very self-conscious about my weight. It also causes physical problems. So I smoked some methamphetamine to help lose weight. For some reason, the drug have [sic] an adverse effect on me and cause[s] me to want to touch a woman. I am so sorry that my stupidity of turning to drugs caused me to traumatize you and cause you pain. I am a very nice person when I'm not on drugs. I am not making excuses. I am responsible for my actions, and I sincerely want to apologize for everything you suffered through. Again, I am so sorry for what I did. I truly hope you can find it in your heart to accept my apologies.... [T]hank you.^{[5 ]}

Bjorgo was charged, as a persistent felony offender, with first-degree assault, attempted first-degree sexual abuse (based on his statement during the interview that he intended to touch Victim’s breasts during the assault), and two corresponding counts of armed criminal action. During trial, the jury was given the following verdict director for attempted first-degree sexual abuse:

As to Count III, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about May 4, 2015, in the County of Clay, State of Missouri, the defendant with the intent to touch the breasts of [Victim], assaulted [Victim] in the women’s restroom while displaying a sharp instrument in a threatening manner, andSecond, that such conduct was a substantial step toward the commission of the offense of sexual abuse in the first degree of [Victim] at 1000 E. Highway 92, Kearney, Clay County, Missouri, and

Third, that defendant engaged in such conduct for the purpose of committing such sexual abuse in the first degree,

then you will find the defendant guilty under Count III of an attempt to commit sexual abuse in the first degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

A person commits the crime of sexual abuse in the first degree when first, he has sexual contact with [Victim] by touching the breast of [Victim] through the clothing, and second, he does so for the purpose of gratifying his own sexual desire, and third, he does so by use of forcible compulsion, and fourth, in regards to the facts and circumstances submitted in this instruction he acted knowingly, and fifth, ... in the course of this conduct he displays a dangerous instrument in a threatening manner.

As used in this instruction, the term "substantial step" means conduct that is strongly corroborative of the firmness of the defendant’s purpose to complete the commission of the offense of sexual abuse in the first degree.

The jury found Bjorgo guilty as charged, and the court sentenced him, as a persistent offender to consecutive terms of life imprisonment for assault, fifteen years' imprisonment for attempted sexual abuse, and one hundred years' imprisonment for each armed criminal action count.⁶ Bjorgo appeals.

Analysis

Bjorgo raises three points on appeal; first, he challenges the sufficiency of the evidence to support his convictions of attempted sexual abuse and its corresponding count of armed criminal action; second, he challenges the verdict director for attempted sexual abuse, alleging that it failed to include a disputed element; and third, he argues that the written judgment does not reflect the oral pronouncement of his sentence for first-degree assault.

A. The evidence was sufficient to support the verdicts for attempted sexual abuse and armed criminal action.

"To determine whether the evidence is sufficient to support the conviction, ‘we must look to the elements of the crime and consider each in turn to determine whether a reasonable [factfinder] could find each of the elements beyond a reasonable doubt.’ " State v. Barac , 558 S.W.3d 126, 129 (Mo. App. W.D. 2018) (quoting State v. Sutton , 427 S.W.3d 359, 360 (Mo. App. W.D. 2014) ). In doing so "we are required to take the evidence in the light most favorable to the State and grant the State all reasonable inferences from the evidence, disregarding all contrary inferences." Id. (quoting Sutton , 427 S.W.3d at 360 ).

"A person commits the offense of sexual abuse in the first degree if he ... subjects another person to sexual contact ... by the use of forcible compulsion." §...