State v. Holmes

626 S.W.3d 339

STATE of Missouri, Respondent,

v.Samuel I. HOLMES, Appellant.

No. ED 108949

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: July 20, 2021

FOR APPELLANT: Kyle D. Keenan, Missouri Public Defender's Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Karen L. Kramer, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Judge

Introduction

Following a jury trial, Samuel Holmes ("Appellant") was found guilty of two counts of class A felony first-degree child molestation under section 566.067¹ and one count of class B felony second-degree child molestation under section 566.068. The trial court sentenced Appellant to fifteen years in the Missouri Department of Corrections for each count to be served concurrently. Appellant appeals.

Appellant's sole point on appeal argues the trial court erred in denying his motion for judgment of acquittal or new trial because the State did not prove every element of his convictions beyond a reasonable doubt. Appellant concedes the State produced sufficient evidence through witness testimony to prove a touching occurred, however, Appellant contends the State failed to produce sufficient evidence to establish Appellant's actions were done "for the purpose of arousing or gratifying" his sexual desire. § 566.010(6). We affirm.

Factual and Procedural Background

This court views the facts in a jury-tried case in the light most favorable to the jury's verdict. State v. Kilgore , 505 S.W.3d 362, 369 (Mo. App. E.D. 2016). The evidence at trial established on October 15, 2017, Appellant was at his sister's ("Mother") house. Mother was home with Appellant, three other adults, her two minor children, eight-year-old BH and twelve-year-old CH, and BH's friend, seven-year-old SL, who was spending the night at the house. SL, BH, CH, and one of Mother's adult children were in Mother's room watching a movie. BH and SL fell asleep, and Mother left the house. CH left BH and SL sleeping in Mother's room and went outside to see friends but returned to the room to check on BH and SL periodically.

SL woke up to Appellant touching her with his hands on her private parts between her legs on top of her clothing. SL told Appellant to stop, but he denied touching her. Appellant then stopped touching SL and put his hands in BH's pants and touched her front and back private parts while she was still sleeping. Appellant took BH's hand and placed it over his clothing on his penis. SL again told Appellant to stop, and Appellant replied, "Why?" SL woke up BH, and the girls went to the living room. CH came in the house and saw SL and BH were awake. CH noticed SL looked distressed and asked the girls why there were awake. Appellant hurriedly left the room. Mother returned to the house at which point both BH and SL told Mother they felt someone touch them while they were sleeping. SL told Mother she felt something touch her over her pants and felt a hand on top of her clothes. Mother called the police and reported Appellant had touched the girls and was trying to run away. When the police came, Appellant left.

SL told the police she was sleeping when she awoke to Appellant touching her private parts. BH told the police she did not know if Appellant touched her because she was asleep. SL said she saw Appellant touch BH's front and back private parts underneath BH's clothing. Appellant was later interviewed by a Children's Division worker, and he denied touching SL and BH and denied being at the house. At trial, SL's mother testified since the incident SL had become very clingy and did not want to go anywhere without her mother.

As to BH, Appellant was charged with: (1) first-degree child molestation for touching BH's genitals, knowing she was his niece, for the purpose of arousing or gratifying his sexual desire and (2) first-degree child molestation for placing BH's hand on his genitals, knowing she was his niece, for the purpose of arousing or gratifying his sexual desire. As to SL, Appellant was charged with second-degree child molestation for touching SL's genitals through her clothing for the purpose of arousing or gratifying his sexual desire.

A jury trial was held. The State presented the testimony of nine witnesses, and the jury found Appellant guilty. Appellant then moved for judgment of acquittal notwithstanding the verdict or in the alternative a new trial, which the trial court denied. The trial court sentenced Appellant to fifteen years for each count to be served concurrently in the Missouri Department of Corrections. Appellant now appeals.

Standard of Review

When reviewing the sufficiency of the evidence, this Court's role is limited to determining "whether there was sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt" for each element of the charged offense. State v. Peeler , 603 S.W.3d 917, 920 (Mo. App. E.D. 2020). "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) (quoting State v. Bateman , 318 S.W.3d 681, 686–87 (Mo. banc 2010) ). The appellate court must review the record in the light most favorable to the State and "tak[e] as true the evidence and all logical inferences that support a finding of guilt and ignor[e] the evidence and inferences that do not support a finding of guilt." State v. Ray , 407 S.W.3d 162, 166–67 (Mo. App. E.D. 2013). "When reviewing the sufficiency of evidence supporting a criminal conviction, the Court does not act as a ‘super juror’ with veto powers, but gives great deference to the trier of fact." Nash , 339 S.W.3d at 509 (quoting State v. Chaney , 967 S.W.2d 47, 52 (Mo. banc 1998) ).

Discussion

Appellant contends the trial court erred in denying his motion for judgment of acquittal or new trial because the State did not produce sufficient evidence to establish beyond a reasonable doubt Appellant's actions were done for "the purpose of arousing or gratifying" his sexual desire. § 566.010(6). Appellant claims there was no additional evidence beyond the act of touching—such as evidence that Appellant was erect, ejaculated, or made statements he felt good—and, without such evidence, his intent could not be inferred from the touching itself.

The State must prove each element of a crime beyond a reasonable doubt. Peeler , 603 S.W.3d at 921. Here, Appellant was charged with class A felony first-degree child molestation and class B felony second-degree child molestation. A person is guilty of first-degree child molestation "if he or she subjects another person who is less than fourteen years of age to sexual contact and the offense is an aggravated sexual offense."² § 566.067(1). A person is guilty of second-degree child molestation "if he or she subjects another person who is less than seventeen years of age to sexual contact." § 566.068(1). Sexual contact is defined as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying the sexual desire of any person or for the purpose of terrorizing the victim." § 566.010(6). Thus, for each offense, the State had to prove beyond a reasonable doubt: (1) a touching occurred and (2) at the time of the touching Appellant acted with the purpose of arousing or gratifying his sexual desire.

"In assessing whether a defendant touched another ‘for the purpose of arousing or gratifying the sexual desire of any person,’ a jury may infer intent from the surrounding circumstances or from ‘the sexual nature of the act itself.’ " State v. Ganzorig , 533 S.W.3d 824, 830 (Mo. App. E.D. 2017). "Because direct evidence of a defendant's intent is rarely available, the State most often proves intent through circumstantial evidence." Id. The purpose of requiring proof of defendant's intent is to "exclude innocent contacts from being deemed criminal conduct." State v. Gaines , 316 S.W.3d 440, 456 (Mo. App. W.D. 2010) (quoting State v. Love , 134 S.W.3d 719, 723 (Mo. App. S.D. 2004) ). This Court has found, "[t]ouching a woman's vagina is an inherently sexual act, which can alone serve as evidence of Defendant's intent to arouse or gratify either his or her sexual desire." Ganzorig , 533 S.W.3d at 830.

Appellant incorrectly relies on A.B. v. Juvenile Officer to assert the jury improperly inferred Appellant's intent from the act of touching alone. 447 S.W.3d 799 (Mo. App. W.D. 2014). In A.B. , the Western District held intent could not be inferred from the act alone when a twelve-year-old boy touched the genitals of a five-year-old boy on multiple occasions. Id. at 805. The court noted the defendant's sexual knowledge was that of a seven or eight-year-old developmentally, and an expert psychologist found the nature of the incidents indicated they were exploratory and not sexual. Id. at 806. Two expert witnesses testified A.B. was sexually immature and had not acted for the purpose of sexual gratification. Id. Therefore, the court held the facts did not demonstrate A.B. acted with a sexual intent. Id. ; see also In re J.A.H. , 293 S.W.3d 116, 122 (Mo. App. E.D. 2009) (holding there was no evidence an eight or nine-year-old boy who touched the genitals of a five or six-year-old boy did so for the purpose of sexual arousal or gratification where there was no evidence of the child's knowledge of sexual subject matter or behavioral development).

This reasoning, however, has been applied only to cases in which both the victim and defendant were juveniles. In State v. Davis , the Western District rejected this standard when a...