State v. Ganzorig, 533 S.W.3d 824

Defendant (Ganzorig) was charged with one count of second-degree sexual abuse for grabbing a woman’s vagina on a MetroLink train on December 3, 2015.
Victim identified Defendant from a photographic lineup shown by Officer Hildebrand two days after the incident; both officer and victim testified the lineup was unmarked and victim circled the number under Defendant’s photo after identifying him.
MetroLink surveillance video showed Defendant following Victim off the train and up stairs and Victim’s reaction; Victim identified the people in the video.
Defendant gave an English-written statement to police admitting touching the victim and later testified he was homeless, followed Victim to ask for money, touched her to get attention, and signed the statement because he felt pressured.
Trial court denied motions to suppress the out-of-court identification and the written statement; a jury convicted Defendant of sexual abuse in the second degree and he was sentenced to six months’ imprisonment.
On appeal Defendant argued (1) the photo lineup was impermissibly suggestive (pre-circled), (2) his Miranda waiver was not knowing due to limited English, and (3) insufficient evidence of intent to gratify sexual desire. The court affirmed on all points.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of out-of-court photographic identification	Lineup was not suggestive; victim’s identification was from recollection	Lineup was impermissibly suggestive because defendant’s photo was pre-circled	Trial court credibility finding that lineup was unmarked was supported; identification admissible
Voluntariness/knowingness of Miranda waiver and written statement	Officer testified Defendant spoke English well, waived interpreter, and signed English waiver and statement	Defendant lacked sufficient English to knowingly waive Miranda	Trial court reasonably found waiver knowing and intelligent; statement admissible
Sufficiency of evidence of intent to arouse or gratify sexual desire	Touching a woman’s vagina (twice; once with enough force to penetrate through clothing), following victim, and Defendant’s admission supported intent	Touch was accidental/social faux pas; no evidence of sexual motive	Evidence (act’s sexual nature, following, two contacts, admission) sufficed for jury to infer intent; conviction affirmed

State v. Johnson, 207 S.W.3d 24 (Mo. banc 2006) (standard for appellate review of evidentiary rulings)
State v. Moorehead, 438 S.W.3d 515 (Mo. App. E.D. 2014) (identification admissibility framework)
State v. Thomas, 407 S.W.3d 190 (Mo. App. E.D. 2013) (two-pronged test for out-of-court identifications)
State v. Floyd, 347 S.W.3d 115 (Mo. App. E.D. 2011) (unduly suggestive identification discussed)
State v. Woodrome, 407 S.W.3d 702 (Mo. App. W.D. 2013) (deference to trial court credibility in suppression hearings)
State v. Norman, 431 S.W.3d 563 (Mo. App. E.D. 2014) (review standard for suppression rulings)
State v. Sparkling, 363 S.W.3d 46 (Mo. App. W.D. 2011) (burden to prove a valid Miranda waiver)
Colorado v. Connelly, 479 U.S. 157 (U.S. 1986) (State must prove waiver by preponderance)
State v. Trujillo, 869 S.W.2d 844 (Mo. App. W.D. 1994) (totality of circumstances for waiver; credibility deference)
State v. Nash, 339 S.W.3d 600 (Mo. banc 2011) (sufficiency of evidence review; accept evidence favorable to verdict)
State v. McIntyre, 63 S.W.3d 312 (Mo. App. W.D. 2001) (sexual nature of act may support intent inference)
State v. Greenlee, 327 S.W.3d 602 (Mo. App. E.D. 2010) (proof of intent often circumstantial)
Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda warning requirement for custodial interrogation)