                                                           
                    In the Missouri Court of Appeals
                            Eastern District
                                        DIVISION FOUR

STATE OF MISSOURI,                           )       No. ED101892
                                             )
       Plaintiff/Respondent,                 )       Appeal from the Circuit Court of
                                             )       St. Charles County
       vs.                                   )
                                             )       Honorable Daniel G. Pelikan
HERMES MENDEZ,                               )
                                             )
       Defendant/Appellant.                  )       Filed: April 12, 2016

                                           Introduction

       Hermes Mendez (Appellant) appeals from the trial court’s judgment entered upon a jury

verdict convicting him of forcible sodomy and felonious restraint and sentencing him to a total of

twelve years in prison. We affirm and remand for correction of clerical error.

                               Factual and Procedural Background

       Twenty-year-old Victim and twenty-five-year-old Appellant were married with a one-

year-old daughter and a three-year-old daughter at the time of the events leading up to the

charges against Appellant for second-degree domestic assault, forcible sodomy, and felonious

restraint. Appellant was charged with second-degree domestic assault for attempting to cause

physical injury to Victim by holding her head under water, forcible sodomy for having deviate

sexual intercourse with Victim by forcible compulsion, and felonious restraint for restraining

Victim without her consent and exposing her to a substantial risk of serious physical injury.
       The facts supporting these charges are as follows. On March 16, 2012, Appellant and

Victim were home watching TV, when Appellant accused Victim of being a slut and a whore

and punched her in the head. Appellant then went into the bathroom, where he filled the bathtub

with water and assembled the following items: a hammer, cell phone chargers, shoelaces, and a

strip of cloth torn from a pair of their daughter’s pants.

       Appellant called Victim into the bathroom and proceeded to tie her hands behind her

back with the shoelaces, tie her feet with the cell phone chargers, tie the strip of pants around her

mouth, and told her to get into the bathtub. Victim got into the bathtub. Appellant then asked

her who she had been sleeping with. Victim did not answer. Appellant started repeating the

question, and every time Victim did not answer, he dunked her head under water. Victim finally

told Appellant she had slept with someone so he would stop putting her head under water.

Appellant then untied and released her.

       Later that evening, when Victim went into the bathroom, she saw Appellant had

assembled some cucumbers and had spread Vaseline petroleum jelly on them as well as the

hammer. Appellant then accused Victim of being a whore and said he was going to treat her like

one. Appellant held the hammer in a threatening manner and told her to bend over. Appellant

tried to put the hammer into Victim’s anus, and Victim protested and said it was dirty. Appellant

then retrieved one of the cucumbers and put it into Victim’s anus. Victim said it was very

painful and she screamed for Appellant to stop. Appellant tried to put the other cucumber in

Victim’s anus as well. Appellant then told Victim to take a shower because she smelled like

“poop” and disgusted him.

       Still later that evening, Victim tried to call 911 on their shared cell phone, but Appellant

stopped her and took the battery out of the phone. Victim then tried escaping the house but



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Appellant grabbed her and choked her. When the three-year-old daughter told Appellant to leave

Victim alone, Appellant hit her.

       The next morning, before he left the house to go to the store, Appellant told Victim he

wished he had killed her the night before. Once Appellant left the house, Victim took her

daughters and ran out the back door. A passerby motorist stopped and took them to the police

station, where Victim told Detective Michael Myers (Detective Myers) what Appellant had done

to her. Victim was transported to the hospital for a sexual assault examination. The attending

nurse took photographs of Victim’s injuries, which included a bruised and swollen eye; scratches

on the back of her neck, shoulder and left hand; a bite mark on her back; bruises on her shoulder,

arm, knees, and ankles; linear marks on her wrists; abrasions on her ankles; and bruising to

Victim’s anal area.

       At Appellant and Victim’s home, police found Appellant and arrested him. In the

bathroom Detective Myers and two accompanying police officers found shoelaces; coaxial cable;

a hammer with a Vaseline-coated handle; a wet towel with a cucumber, wrench, and phone

charger inside; a cucumber in the trashcan; a half-empty jar of Vaseline; scissors; and a pair of

pink children’s pants, with a portion cut off. Both cucumbers had a significant amount of

Vaseline on them. A DNA analysis of the cucumbers revealed Victim’s DNA on one and

Victim’s and Appellant’s DNA on the other. The DNA analyst observed brown stains on one of

the cucumbers consistent with fecal material.

       Appellant was charged by indictment with second-degree domestic assault (Count I),

forcible sodomy (Count II), and felonious restraint (Count III). A jury trial was held June 2,

2014, through June 4, 2014. The jury found Appellant guilty of forcible sodomy and felonious

restraint (Counts II and III), and not guilty of second-degree domestic assault (Count I).



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Appellant was sentenced to nine years on Count II and three years on Count III, to be served

consecutively for a total of twelve years. This appeal follows. Additional facts pertinent to the

points on appeal will be adduced as necessary.

                                         Points on Appeal

       In his first point, Appellant claims the trial court abused its discretion in admitting

evidence of his alleged prior abuse of Victim because, as evidence of uncharged crimes or prior

bad acts, its admission violated his right to be tried only on the charged offenses.

       In his second point, Appellant asserts the trial court erred in overruling his motion for

judgment of acquittal of felonious restraint at the close of all of the evidence because the

evidence was insufficient to establish beyond a reasonable doubt Victim was exposed to a

substantial risk of serious physical injury, as evidenced by the jury’s acquittal on the domestic

assault charge.

       In his third point, Appellant maintains the trial court made a clerical error in its written

judgment of conviction and sentence on Counts I and II because he was convicted and sentenced

on Counts II and III and acquitted of Count I.

                                       Standards of Review

       The trial court has broad discretion to admit or exclude evidence at trial and this Court

will reverse only upon a showing of a clear abuse of discretion. State v. Chaney, 967 S.W.2d 47,

55 (Mo.banc 1998).

       This Court reviews the denial of a motion for acquittal to determine if the State adduced

sufficient evidence to make a submissible case. State v. Moore, 432 S.W.3d 779, 781 (Mo.App.

E.D. 2014). We will affirm a trial court’s denial of a motion for judgment of acquittal if, at the

close of evidence, there was sufficient evidence from which reasonable persons could have found

the defendant guilty of the charged offense. Id. In considering whether the evidence is sufficient

                                                  4
 
to support the jury’s verdict, we must look to the elements of the crime and consider each in turn

to determine whether a reasonable juror could find each of the elements beyond a reasonable

doubt. Id. 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.

                                            Discussion

                         Point I – Admission of Evidence of Prior Abuse

       Appellant filed a motion in limine to exclude evidence of uncharged prior bad acts,

specifically his prior domestic abuse of Victim. On April 15, 2013, the trial court initially

granted the motion, but after hearing additional argument on June 2, 2013, decided to overrule

the motion, specifically stating:

       THE COURT: All right. The Court is going to reconsider its ruling from April
       the 15th of 2013 and will re-rule on that and motion in limine No. 7 and No. 8.
       I’m going to reverse my ruling of April 15th and allow evidence of prior bad acts.
       I find the totality of the circumstances, the violence that proceeded [sic] this act,
       the age differential of the victim, the atmosphere and setting of this incident, and
       authority position of this defendant, his domination and control over the victim,
       and the fact [that] this victim was under duress, the relevance here outweighs the
       prejudicial fact. So I’m going to allow the evidence of prior bad acts within
       reason.

       At trial, Victim testified the one time she used their cell phone without Appellant’s

permission, “[h]e gave me a really bad beating.” Victim testified a week before the incidents in

the instant case, Appellant had punched her in the face near her eyes, and the bruising was still

visible a week later, which the attending nurse had noted and photographed. The trial court

admitted Exhibits 3 and 4, photographs of Victim’s bruised eye. When asked how she got the

bruises to her eye, Victim stated, “[h]e hit me.” The attending nurse also testified at trial some of

the bruises on Victim’s knee appeared to be older. Victim also testified whenever she left the

house, Appellant kept one of their daughters with him at the house to ensure Victim’s return.



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          This evidence was admissible to show why Victim complied with Appellant’s request to

come into the bathroom and to get into the tub. It was also relevant to demonstrate why Victim

did not fight Appellant when he assaulted her with the cucumbers and hammer, and did not

attempt to call the police or escape the house the night of the incidents.

          Reasonable resistance is that which is suitable under the circumstances. State v.

Vandevere, 175 S.W.3d 107, 109 (Mo.banc 2005). The law does not require or expect

utmost resistance to a sexual assault when it appears that such resistance would be futile

or would provoke a more serious injury. Id. Here, evidence of past abuse as well as the

threatening manner in which Appellant held the hammer above Victim’s head was

relevant under the circumstances to help the jury understand why Victim did not resist

and that her lack of resistance did not indicate consent, but rather indicated she was under

duress.

          In determining if the force used is sufficient to overcome reasonable resistance,

the court does not look to any single fact but to the totality of the circumstances. Id.

“Among the factors taken into account in considering the totality of the circumstances are

whether violence or threats precede the sexual act; the relative ages of the victim and

accused; the atmosphere and setting of the incident; the extent to which the accused was

in a position of authority, domination, and control over the victim; and whether the victim

was under duress.” Id. Here, the trial court took these factors into account in its decision

to allow the jury to hear some evidence of Appellant’s prior abuse of Victim to

understand the totality of the circumstances surrounding Victim’s apparent passivity in

the face of Appellant’s sexual assault of her. Victim knew it would not be reasonable to




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resist Appellant’s actions and demands because of the violent repercussions she would

face if she did so, as well as harm to her children.

              For these reasons, the trial court did not clearly abuse its broad discretion in admitting

some evidence of Appellant’s prior abuse of Victim. Chaney, 967 S.W.2d at 55. Point I is

denied.

                                            Point II – Denial of Acquittal of Felonious Restraint

              A person commits the crime of felonious restraint if he knowingly restrains another

unlawfully and without consent so as to interfere substantially with her liberty and exposes her to

a substantial risk of serious physical injury. Section 565.120.1 Serious physical injury is injury

that creates a substantial risk of death, or causes serious disfigurement or protracted loss or

impairment of a body part’s function. Section 565.002(6).  Appellant claims insufficient

evidence was presented to establish beyond a reasonable doubt that he exposed Victim to a

substantial risk of serious physical injury because she had only a few bruises and scratches and

“possibly” a bite mark. He also claims the forcible sodomy only resulted in bruising but no

tearing, ripping, or bleeding. Appellant concludes these minor injuries were not life-threatening,

caused no serious disfigurement, and resulted in no permanent impairment of the function of any

part of Victim’s body.

              In establishing the elements of felonious restraint, whether the victim suffered serious

physical injury is irrelevant. State v. Smith, 902 S.W.2d 313, 315 (Mo.App. E.D. 1995).

Therefore, Appellant’s assertion that Victim, in his opinion, did not suffer serious physical injury

but only scratches and bruises, fails to lend support to his contention the State failed to prove he

committed felonious restraint.


                                                            
1
    All statutory references are to RSMo 2012, unless otherwise indicated.

                                                                     7
 
       Appellant also maintains to convict him of second-degree domestic assault, the jury had

to find beyond a reasonable doubt he attempted to cause Victim physical injury. Because the

jury acquitted him of second-degree domestic assault, Appellant maintains it could not have

found him guilty of the serious physical injury element of felonious restraint.

       Again, in proving felonious restraint, whether the victim actually suffered serious

physical injury is irrelevant. Smith, 902 S.W.2d at 315. The relevant issue is whether the

perpetrator exposed her to a substantial risk of serious physical injury. Section 565.120.

Whether unlawful restraint exposes a victim to the risk of serious physical injury is to be

determined from all of the circumstances. Smith, 902 S.W.2d at 315; State v. Warren, 779

S.W.2d 751 (Mo.App. S.D. 1989). Here, Appellant repeatedly held Victim’s head under water

while she was bound and gagged. When Victim attempted to flee the house, Appellant stopped

her and choked her. Appellant told Victim he should have killed her the night before. These

actions constitute “physical intimidation or violence which, if repeated or carried further, could

have seriously injured the victim or threats of or the propensity to commit violence which, if

carried out, could have seriously injured the victim.” Smith, 902 S.W.2d at 315; State v. Brokus,

858 S.W.2d 298, 301 (Mo.App. E.D. 1993).

       Accordingly, for the foregoing reasons, the trial court did not err in denying Appellant’s

motion for judgment of acquittal of the charge of felonious restraint at the close of evidence

because there was sufficient evidence presented from which reasonable persons could have

found him guilty of said charge. Point II is denied.

                          Point III – Clerical Error in Written Judgment

       The indictment charged Appellant with Count I - second-degree domestic assault, Count

II - forcible sodomy, and Count III - felonious restraint. The jury found Appellant not guilty of



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second-d
       degree domesstic assault (Count
                                (      I), an
                                            nd guilty of fforcible sodoomy and feloonious restraaint

(Counts II
        I and III). However,
                    H        the written jud
                                           dgment refleects Appellannt was foundd guilty of

forcible sodomy
         s      and felonious reestraint incorrrectly denotted as Countts I and II, reespectively,

instead of
        o Counts II and
                    a III. As such,
                              s     the jud
                                          dgment contaains clerical errors in thiis regard, whhich

the State concedes.

        The
        T trial courrt may correcct clerical mistakes
                                             m        in thhe judgment that result fr
                                                                                   from oversighht or

omission
       n. Rule 29.12
                   2(c). The triial court’s faailure to accuurately recorrd that Appeellant was foound

guilty of Counts II an
                     nd III and no
                                 ot guilty of Count
                                              C     I is a cclerical mistake and can be correctedd on

remand. State v. Sm
                  mith, 456 S.W
                              W.3d 849, 853 (Mo.banc 2015). Poinnt III is grannted.

                                             Conclusion
                                             C

        The
        T judgment and sentence of the triaal court is reemanded for correction oof the clericaal

error as set
         s forth in Point
                    P     III and is affirmed in
                                              i all other rrespects.




                                                        SHE
                                                          ERRI B. SUL
                                                                    LLIVAN, P.J.

Kurt S. Odenwald,
        O           J.., and
Lisa P. Page,
        P     J., conccur.
 

 




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