Boswell v. State

811 S.W.2d 509, 1991 Mo. App. LEXIS 1117, 1991 WL 128716

Opinion

MAUS, Presiding Judge.

Movant Jackie Eugene Boswell was charged with the class B felony of sodomy in that he had deviate sexual intercourse with M_L_A_ to whom he was not married and who was less than fourteen years old. § 566.060. Pursuant to a plea bargain, he entered a plea of guilty and was sentenced to imprisonment for ten years. The motion court denied his motion under Rule 24.035 attacking that plea and sentence.

M L_A_was movant’s stepdaughter. His sole point on appeal, presented by counsel upon movant’s insistence, is that he received ineffective assistance of counsel because he was not advised that incest, § 568.020, was a lesser included offense.

The. point has no merit for a number of reasons. It is sufficient to state only one. Incest is defined as engaging in sexual intercourse or deviate sexual intercourse with a person the defendant knows to be within one of four specified relationships, including a stepchild while the mar riage creating that relationship exists. § 568.020.

“The greater offense must include all the elements of the lesser offense, but if the lesser offense includes a necessary element not included in the greater offense, the lesser offense cannot be a lesser included offense, (citation omitted).” State v. Fields, 739 S.W.2d 700, 703 (Mo. banc 1987).

The requirement that a victim bear a specified relationship to a defendant is not an element of deviate sexual intercourse as defined in § 566.060. The judgment of the motion court is affirmed.

PREWITT and CROW, JJ., concur.