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State v. Cruz-Basurto

Court of Appeals of Missouri, Western District, Second Division

March 26, 2019

STATE OF MISSOURI, Respondent,
v.
ISIDRO CRUZ-BASURTO, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE KEVIN D. HARRELL, JUDGE

          Before: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge

          OPINION

          EDWARD R. ARDINI, JR., JUDGE.

         Isidro Cruz-Basurto appeals his convictions and sentences for four counts of statutory sodomy in the first degree and two counts of child molestation in the first degree following a jury trial in the Circuit Court of Jackson County. On appeal, he alleges that the trial court erred by overruling his objections to certain verdict directors and plainly erred by imposing consecutive sentences on the statutory sodomy counts based on a mistaken belief that it was obligated by law to do so. We affirm.

         Factual and Procedural Background[1]

         Victim was born on December 10, 2004. When Victim was seven years old and in the first grade, she lived with her mother and siblings in Kansas City. Beginning around that time, Victim and her siblings would visit the home of Cruz-Basurto on weekends. Cruz-Basurto is Victim's uncle.

         When Victim was alone with Cruz-Basurto, he would take her to his bedroom, close and lock the door, and instruct her to take off her clothes. Cruz-Basurto would throw Victim onto the bed and touch her on her "chest," "front," and "back."[2] Cruz-Basurto would touch Victim's chest under her shirt "most of the times." Cruz-Basurto would touch both the inside and the outside of Victim's "front," and sometimes it hurt. Cruz-Basurto would "sometimes touch[ ]" Victim's "back" "in [the] inside," and "he sometimes put his private in [Victim] right there." When Cruz-Basurto put his "private" in her "back," Victim felt "something nasty" that "felt like liquid." This conduct happened multiple times beginning when Victim was in the first grade and continued during second and third grade. Cruz-Basurto instructed Victim not to disclose the abuse to her mother which caused Victim concern that Cruz-Basurto would do harm to her brothers and mother if she reported the conduct to others.

         Around July 3, 2014, when Victim was nine years old, she disclosed to a friend and subsequently to a teacher that she had been inappropriately touched by Cruz-Basurto. Victim was then interviewed by investigators from the Children's Division, police officers, and a forensic interviewer from the Child Advocacy Center. Victim stated that the last act of abuse by Cruz-Basurto had occurred a month before her disclosure to her friend.

         Cruz-Basurto was arrested and later interviewed by police. He initially denied ever touching Victim before eventually admitting that he had touched her vagina multiple times. He claimed this was done for the purpose of examining Victim to determine if she was being abused by one of her mother's boyfriends. Cruz-Basurto acknowledged that he lacked any training that would qualify him to perform such examinations or assess signs of sexual abuse.

         Cruz-Basurto was charged with four counts of statutory sodomy in the first degree and two counts of child molestation in the first degree. A jury found him guilty of all six counts. The trial court sentenced Cruz-Basurto to consecutive terms of 15 years in the Department of Corrections for each of the four counts of statutory sodomy. The trial court sentenced Cruz-Basurto to ten years for each of the child molestation counts, with those sentences ordered to run concurrent to each other and to the sentences for statutory sodomy. Cruz-Basurto timely appealed. Additional facts will be discussed throughout this opinion.

         Discussion

         Cruz-Basurto raises two points on appeal. In Point I, he alleges that the trial court committed reversible error by overruling his objections to the verdict directors relating to the statutory sodomy counts because they contained a fatal variance from the Information. In Point II, Cruz-Basurto alleges that the trial court plainly erred by sentencing him to consecutive terms of imprisonment for each of the statutory sodomy counts based on a mistaken belief that it was required to do so by law.

         Point I - Variance

         In Point I, Cruz-Basurto alleges there was a material and prejudicial variance between the Information and the verdict directors for each of the statutory sodomy counts. He specifically complains that the Information alleged that the charged conduct was committed for the purpose of arousing or gratifying his sexual desire while the verdict directors defined "deviate sexual intercourse" as conduct performed for the purpose of arousing or gratifying the sexual desire of any person.[3]

         In Counts I, II, IV, and V, Cruz-Basurto was charged with statutory sodomy in the first degree. Counts I and V alleged that Cruz-Basurto had deviate sexual intercourse with Victim by penetrating her vagina with his finger. Count II alleged that Cruz-Basurto had deviate sexual intercourse with Victim by penetrating her anus with his finger. Count IV alleged that Cruz-Basurto had deviate sexual intercourse with Victim by penetrating Victim's anus with his penis. All four counts alleged that Cruz-Basurto committed the offense "for the purpose of arousing or gratifying the sexual desire of the defendant[.]"

         During the instructions conference, the State submitted verdict directors for the statutory sodomy counts that stated as follows:

As to Count [I, II, IV, or V], if you find and believe from the evidence beyond a reasonable doubt:
First, that [on or about, or between the prescribed dates], in the County of Jackson, State of Missouri, the defendant knowingly penetrated the [vagina or anus] of [Victim] with his [finger or penis], and
Second, that such conduct constituted deviate sexual intercourse, and
Third, that at the time [Victim] was a child less than twelve years old,
then you will find the defendant guilty under Count [I, II, IV, or V] of statutory sodomy in the first degree.

         Each of these verdict directors then included a definition for "deviate sexual intercourse." Counts I, II, and V, defined "deviate sexual intercourse" as "any act involving the penetration, however slight, of the [female sex organ or anus] by a finger, done for the purpose of arousing or gratifying the sexual desire of any person." The verdict director for Count IV defined "deviate sexual intercourse" as "any act involving the genitals of one person and the anus of another person, done for the purpose of arousing or gratifying the sexual desire of any person."

         Cruz-Basurto objected to each verdict director, arguing that "it deviates from the charging instrument which specified that the purpose of the act had to be for defendant's gratification, and the proposed instruction from the state expands that to include the gratification or desire of any person, which is more than what the charging instrument says[.]" The State countered that the definitions provided in the verdict directors were taken from the MAI definition of "deviate sexual intercourse." The trial court overruled Cruz-Basurto's objections.

         "When reviewing claims of instructional error, this Court will reverse the circuit court's decision only if the instructional error misled the jury and, thereby, prejudiced the defendant." State v. Richter, 504 S.W.3d 205, 211 (Mo. App. W.D. 2016) (citation omitted). In addition, reversal is required only "when the instructional error is so prejudicial that it deprived the defendant of a fair trial." State v. Zetina-Torres, 482 S.W.3d 801, 810 (Mo. banc 2016) (citation omitted). "Prejudice occurs when an erroneous instruction may have influenced the jury adversely." Id. "However, there is no prejudice if an instruction is an accurate statement of law and supported by the evidence." Id.

         A variance occurs when the conduct described in the charging instrument differs from the conduct described in the jury instructions. "[W]hen a crime may be committed by any of several methods, . . . the method or methods submitted in the verdict directing instruction must be among those alleged in the information." State v. Hendren, 524 S.W.3d 76, 83 (Mo. App. W.D. 2017) (quoting State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992)). The purpose of this rule is to provide notice to the defendant so that he may prepare a defense against the charge. Id. (citations omitted). A variance between the charging document and the verdict directing instructions "is not fatal, and will not require reversal, unless it submits 'a new and distinct offense from that with which defendant was charged.'" State v. Glass, 136 S.W.3d 496, 520 (Mo. banc 2004) (quoting State v. Clark, 782 S.W.2d 105, 108 (Mo. App. E.D. 1989)). "A variance must be material, and defendant must be prejudiced, to warrant reversal." Id. (citation omitted). "Variances are material when they affect whether the accused received adequate notice; variances are prejudicial when they affect the defendant's ability to defend against the charges." Id. (citation omitted).

         Here, the Information alleged that Cruz-Basurto committed the acts of statutory sodomy "for the purpose of arousing or gratifying the sexual desire of the defendant[.]" In the corresponding verdict directors, the phrase "deviate sexual intercourse" was defined and required the jury to find that Cruz-Basurto committed the acts of statutory sodomy "for the purpose of arousing or gratifying the sexual desire of any person." Cruz-Basurto alleges that this was a material and prejudicial variance because he had "no notice he would need to defend not only acting for the purpose of gratifying his sexual desire . . . but against having the purpose to gratify the sexual desire of anyone." The variance in this case was neither material nor prejudicial.

         First, Cruz-Basurto's defense to the allegations that he penetrated Victim's anus with both his finger and his penis was a complete denial that any of these acts occurred. This theory was in no way reliant on or affected by whether the charged conduct was committed for the purpose of arousing or gratifying his own or someone else's sexual desires. See State v. Williams, 18 S.W.3d 461, 469 (Mo. App. E.D. 2000) (finding no fatal variance between the Information and instructions because the defendant denied any involvement in the crime).

         Next, as to the statutory sodomy counts relating to vaginal penetration, Cruz-Basurto admitted to touching Victim's vagina multiple times but claimed that his actions were done for the purpose of conducting an examination to determine whether Victim had been abused by one of her mother's boyfriends. In other words, Cruz-Basurto's defense was that he engaged in the vaginal touching with an innocent purpose devoid of any motivation to cause sexual arousal or gratification. Significant to the resolution of this point on appeal, this defense did not rely on any nuance as to who the conduct was intended to sexually arouse or gratify.

         Finally, "[t]he identity of the person for whose gratification or arousal [Cruz-Basurto] was acting was not an element of the crime[.]" State v. Doubenmier, 444 S.W.3d 921, 931 (Mo. App. S.D. 2014); see also State v. Gaines, 316 S.W.3d 440, 455 (Mo. App. W.D. 2010) (finding that statutory sodomy in the first degree requires only "evidence that the culpable conduct was engaged in for the purpose of someone's gratification."). Therefore, the State did not need to prove specifically whose sexual desire Cruz-Basurto intended to gratify or arouse, only that the purpose of Cruz-Basurto's conduct was to arouse or gratify someone's sexual desire.[4] Because such identity was not an element of the offense, the variance could not have submitted a new and distinct offense and could not have been a fatal variance. See Glass, 136 S.W.3d at 520 (stating that a variance "is not fatal, and will not require reversal, unless it submits 'a new and distinct offense from that with which defendant was charged.'") (citation omitted).

         Therefore, because neither defense pursued by Cruz-Basurto was affected by the language deviation, and the inconsistency did not lead to the charging of a new and distinct offense, any variance between the charging instrument and the verdict directing instructions was not fatal and reversal is not warranted. Point I denied.

         Point II - Sentencing Error

         In his second point, Cruz-Basurto alleges that the trial court plainly erred in sentencing him to consecutive terms of imprisonment on the statutory sodomy counts, arguing the trial court violated his due process rights by imposing consecutive sentences under a mistaken understanding that it was required by law.

         Cruz-Basurto was found guilty of four counts of statutory sodomy in the first degree alleged to have occurred during the following date ranges: Counts I and II for conduct that occurred on or about June 1, 2014; and Counts IV and V for conduct that occurred between June 1, 2012 and May 31, 2014.

         At the sentencing hearing, the State argued for the maximum sentence and stated that the trial court was required to run the sentences for the four statutory sodomy counts consecutively. Prior to the sentences being imposed, the State again reminded the trial court that the sentences for the statutory sodomy counts had to be run consecutively. Cruz-Basurto's counsel generally argued for "the minimum sentence provided by statute" but made no specific argument, comment or objection directed to whether the sentences for the statutory sodomy counts were statutorily required to run consecutively. The trial court then imposed its sentence:

On Counts I, II, IV, and V, statutory sodomy in the first degree, I sentence the defendant to 15 years in the Missouri Department of Corrections. By law those counts shall run consecutive to one another.
Counts III and VI, I sentence the defendant to ten years. They shall run concurrent to ...

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