# In the Missouri Court of Appeals **Eastern District** DIVISION FOUR STATE OF MISSOURI, ) No. ED101892 ) Plaintiff/Respondent, ) App eal 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 th e trial court’s judgment entered upon a jury verdict convicting him of forcible sodomy and fel onious restraint and sentencing him to a total of twelve years in prison. We affirm and remand for corr ection of cler ical error. Factual and Procedural Background Twenty-year-old Victim and twenty-five-yea r-old Appellant were married with a oneyear-old daughter and a three- year-old daughter at the time of the events leading up to the charges against Appellant for s econd-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 unde r water, forcible sodomy for having deviate sexual intercourse with Victim by forcible compulsion, and feloni ous restraint for restraining Victim without her consent and exposing her to a s ubstantial risk of seriou s physical injury.2 The facts supporting these charges are as follows. On March 16, 2012, Appellant and Victim were home watching TV, when Appellant accused Victim of bein g a slut and a whore and punched her in the head. Appellant then went into the bathroom, wher e 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 char gers, tie the strip of pants around her mouth, and told her to get into the bathtub. Vi ctim got into the bathtub. Appellant then asked her who she had been sleeping with. Victim di d 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 an d released her. Later that evening, when Victim went in to 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 threateni ng manner and told her to bend over. Appellant tried to put the hammer into Victim’s anus, and Vi ctim protested and said it was dirty. Appellant then retrieved one of the cucumb ers 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 ev ening, Victim tried to call 911 on th eir shared cell phone, but Appellant stopped her and took the battery out of the phone . Victim then tried escaping the house but3 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, Appella nt 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 stoppe d and took them to the police station, where Victim told Det ective Michael Myers (D etective Myers) what Appellant had done to her. Victim was transported to the hospital for a sexual assault exam ination. The attending nurse took photographs of Victim’s injuries, whic h 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 wr ists; abrasions on her ankles; and bruising to Victim’s anal area. At Appellant and Victim’s home, police f ound Appellant and arrested him. In the bathroom Detective Myers and two accompanying po lice 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. Th e DNA analyst observed brown stains on one of the cucumbers consistent with fecal material. Appellant was charged by indictment with second-degree domesti c assault (Count I), forcible sodomy (Count II), and felonious restrain t (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), a nd not guilty of second-degree domestic assault (Count I).4 Appellant was sentenced to nine years on Count II and three year s 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 tr ial court abused its discretion in admitting evidence of his alleged prior abuse of Victim b ecause, 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 physic al injury, as evidenced by the jury’s acquittal on the domestic assault charge. In his third point, Appellant maintains the tria l court made a clerical error in its written judgment of conviction and sentence on Counts I and II because he was co nvicted and sentenced on Counts II and III and acqui tted 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 ca se. 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 su fficient evidence from which reas onable persons could have found the defendant guilty of the charged offense. Id. In considering whether the evidence is sufficient5 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 ta ke the evidence in the light most favorable to the State and grant the State all reasonable inferences from the eviden ce, disregarding all contra ry inferences. Id. Discussion Point I – Admission of Evidence of Prior Abuse Appellant filed a motion in limine to excl ude evidence of uncharg ed prior bad acts, specifically his prior domestic abuse of Victim. On April 15, 2013, the trial court initially granted the motion, but after he aring additional argument on J une 2, 2013, decided to overrule the motion, specifically stating: THE COURT: All right. The Court is goi ng 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 ev idence of prior bad acts. I find the totality of the circumstances, th e violence that proceeded [sic] this act, the age differential of the victim, the atmo sphere and setting of this incident, and authority position of this defendant, his dominati on 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 allo w the evidence of prior bad acts within reason. At trial, Victim testified the one time sh e 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 th e face near her eyes, and the bruising was still visible a week later, which the attending nur se 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.” Th e attending nurse also test ified 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 withhim at the house to ensure Victim’s return.6 This evidence was admissible to show why Vi ctim 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). Th e law does not require or expect utmost resistance to a sexual assault when it a ppears 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 he ld the hammer above Victim’s head was relevant under the circumstances to help th e jury understand why Vi ctim did not resist and that her lack of resistance did not indica te consent, but rather indicated she was under duress. In determining if the force used is suffi cient to overcome reasonable resistance, the court does not look to any si ngle fact but to the totality of the circumstances. Id. “Among the factors taken into account in consid ering 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 c ontrol over the victim; a nd whether the victim was under duress.” Id. Here, the trial court t ook 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 appa rent passivity in the face of Appellant’s sexual as sault of her. Victim knew it would not be reasonable to7 resist Appellant’s actions and demands becau se 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 cl early abuse its broad discretion in admitting some evidence of Appellant’s pr ior 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 re straint if he knowingl y 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 disfi gurement 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 re asonable doubt that he exposed Victim to a substantial risk of serious physic al 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. Appe llant concludes these minor inju ries 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 re straint, whether the vi ctim suffered serious physical injury is irrelevant. State v. Smith, 902 S.W.2d 313, 315 (Mo.App. E.D. 1995). Therefore, Appellant’s assertion th at Victim, in his opinion, did not suffer serious physical injury but only scratches and bruises, fail s to lend support to his contenti on the State failed to prove he committed felonious restraint.

1 All statutory references are to RS Mo 2012, unless otherwise indicated.8 Appellant also maintains to convict him of s econd-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-de gree domestic assault, Appella nt maintains it could not have found him guilty of the serious physical inju ry element of felonious restraint. Again, in proving felonious restraint, whet her 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 th e 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 re peatedly held Victim’s head under water while she was bound and gagged. When Victim atte mpted 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 violen ce 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 tr ial 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 presen ted from which reasonable persons could have found him guilty of said charge. Po int 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 ofsecond- d (Counts I forcible s instead o the State T omissio n guilty o f remand.

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