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State v. Ganzorig

Court of Appeals of Missouri, Eastern District, Third Division

November 21, 2017

STATE OF MISSOURI, Respondent,
v.
DAGVACHULUUN GANZORIG, Appellant.

         Appeal from the Circuit Court of St. Louis County 16SL-CR02852 Honorable Joseph L. Green

          GARY M. GAERTNER JR 'PRESIDING JUDGE

         Introduction

         Dagvachuluun Ganzorig (Defendant) appeals from the trial court's sentence and judgment entered upon the jury's verdict of guilty on one count of sexual abuse in the second degree. On appeal, he asserts the trial court erred in admitting out-of-court identification evidence and Defendant's written statement, and he asserts the conviction was not supported by substantial evidence. We affirm.

         Background

         The State charged Defendant with one count of the class A misdemeanor of sexual abuse in the second degree, stemming from an incident in which he grabbed the vagina of H.L. (Victim) for the purpose of arousing or gratifying his sexual desire. The following occurred at trial, as relevant to the issues on appeal.

         At a pretrial hearing on Defendant's motion to suppress identification evidence, Officer Chris Hildebrand (Officer Hildebrand) testified to the following. He was an officer for the St. Louis County Police Department in the Metrolink Unit. On December 3, 2015, he received a report of a sexual assault at the Big Bend Metrolink station. Following Defendant's arrest, Officer Hildebrand compiled a photographic line-up with Defendant's mugshot and five other mugshots of individuals who looked similar to Defendant. Two days after the assault, Officer Hildebrand showed the photographic line-up to Victim, who identified Defendant as her assailant. Either Victim or Officer Hildebrand circled the number printed under Defendant's mugshot after Victim's identification. Prior to Victim's identification, the photographic line-up contained no markings and the number under Defendant's mugshot in the photographic line-up was not circled. Officer Hildebrand agreed on cross-examination that he did not keep a clean copy of the photographic line-up without Defendant's name circled on it. The trial court denied Defendant's motion to suppress, finding Officer Hildebrand's testimony credible that he showed Victim a clean photographic line-up with no markings on it.

         Defendant moved to suppress statements he made to the police while in custody. He asserted that because he was Mongolian and English was his second language, he was unable to intelligently and knowingly waive his constitutional rights under Miranda.[1] At a pretrial hearing on Defendant's motion to suppress his statements, St. Louis County Police Officer Michael Deck (Officer Deck) testified to the following. He interviewed Defendant at the St. Louis County Justice Center after reading Defendant his Miranda warnings. Defendant initialed each of written Miranda warnings on the waiver form after appearing to read each warning.

         Officer Deck testified Defendant spoke English well and in full sentences, and they were able to engage in a two-sided conversation. Officer Deck did not have any concerns that Defendant did not understand what Officer Deck was saying. Defendant made an oral admission that he touched Victim's buttocks. When Officer Deck asked Defendant to write out a confession, Defendant did so in English. Based on Defendant's ability to converse in English, Officer Deck assumed Defendant was comfortable writing in English, and neither he nor Defendant raised any concerns about Defendant writing in English.

         Moreover, at the start of trial, Defendant waived his right to use an interpreter, stating that he had lived in the United States for fifteen years and he both spoke and read English. The trial court denied the motion to suppress Defendant's statement, finding that Defendant made his statements voluntarily, knowingly, and with the understanding of his Fifth Amendment rights.

         Victim testified to the following. She was a law student at Washington University, and at approximately 5:40 a.m. on December 3, 2015, she was riding the Metrolink to school to take her first exam. She was studying and did not notice anyone else on the train. She exited the train and as she was climbing up the stairs, she felt someone touch her lightly on her vagina through her sweatpants. She then felt someone touch her vagina again through her sweatpants with enough pressure to penetrate into her vagina. She looked around and saw Defendant. She did not know Defendant and had not given him permission to touch her. She confronted Defendant angrily and told him to follow her to a police station, but when she could not find one, Defendant walked away. A couple days later, a police officer came to her apartment with a photographic line-up and she identified Defendant based on her memory of his face. She stated both that there were no markings on the photographic line-up, and that after she identified Defendant, she circled the number under his picture. The State played for the jury the Metrolink surveillance video of the assault, and Victim identified herself and Defendant in the video and agreed that the video showed Defendant following her off the train and up the stairs and her reaction to him groping her.

         Officer Hildebrand and Officer Deck also testified to substantially the same testimony as in the pretrial hearings. The State offered Defendant's written statement, again over Defendant's objection, and the trial court allowed the State to publish Defendant's statement to the jury. In his written statement, Defendant presented some of his background, including that someone had recently run over his leg, breaking his "metatarsal bone, " before stating: "That morning I toched [sic] (grabbed) one lady she was in walk up to the steps. I'm appoligize [sic] even I can't describe in a word which is what I did was wrong. As a man I take it, and I understand that consequnces [sic] very deeply. Please jude [sic] you honor give a chance and forgive for my thoutless [sic] steps."

         Defendant testified in his own defense to the following. He was riding the Metrolink because he was homeless. He saw Victim and followed her, hoping that she would be receptive to his request for money. He touched her to get her attention and she got angry, which conftised and scared him. After he was arrested, he made a written statement to the police because he was fearful of the police and felt pressured to make a statement. On cross-examination, he agreed that the Metrolink surveillance video showed him entering a train right after Victim, sitting near her, and walking directly behind Victim after she exited the train and walked up the stairs. When the State asked Defendant to confirm that the video showed his face turned in Victim's direction while they were both on the train, Defendant stated he did not see her on the train.

         In closing argument, the State argued that Defendant's testimony that he was just trying to get Victim's attention was not credible, in that he did not speak to her to get her attention and he did not touch her shoulder or elbow; rather, he intentionally touched her vagina twice without her permission. The defense in its closing argument, portrayed the touches as "a social faux pas" or an accident that Victim "took ... the wrong way." Defense counsel further argued there was no evidence that Defendant was attracted to Victim or was acting with the purpose of gratifying his own sexual desire. In rebuttal, the State argued there was no reason for a man to ...


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