State v. Barbee

568 S.W.3d 28
CourtMissouri Court of Appeals
DecidedNovember 6, 2018
DocketWD 80736
StatusPublished
Cited by8 cases

This text of 568 S.W.3d 28 (State v. Barbee) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barbee, 568 S.W.3d 28 (Mo. Ct. App. 2018).

Opinion

But one thing I want you guys to understand is the State is not saying that he had sexual intercourse like you and I think of where it's a complete act, and I am not going to get gross, but what I want to say is that under the law, sexual intercourse is penetration, however slight, of the female sex organ by the male sex organ. So if you are rubbing your penis around in the vagina, that's penetration however slight.[3 ] And in the instructions, it uses the word whether or not an emission results, whether or not there is ejaculation. Penetration, however slight, is sexual intercourse.

Following deliberation, the jury found Barbee guilty of first-degree statutory rape, two counts of first-degree statutory sodomy, and one count of first-degree child molestation as a lesser-included offense of first-degree statutory sodomy. The court then sentenced him, as a prior offender, to consecutive terms of twenty-five years, twenty years, twenty years, and ten years. Barbee appeals.

Standard of Review

"In reviewing a claim that there was not sufficient evidence to sustain a criminal conviction, [a reviewing c]ourt does not weigh the evidence but, rather, 'accept[s] as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignore[s] all contrary evidence and inferences.' " State v. Claycomb , 470 S.W.3d 358, 362 (Mo. banc 2015) (quoting State v. Latall , 271 S.W.3d 561, 566 (Mo. banc 2008) ). We ask "only whether there was sufficient evidence from which the trier of fact reasonably could have found the defendant guilty." Id. (quoting Latall , 271 S.W.3d at 566 ).

Analysis

Barbee raises a single claim on appeal. He argues that the evidence was insufficient to establish "sexual intercourse," as is defined in § 566.010(4), and thus to support his conviction for statutory rape, because the evidence showed only that his penis touched Victim's sex organ but not that he penetrated her sex organ. We agree.

"A person commits the crime of statutory rape in the first degree if he has sexual intercourse with another person who is less than fourteen years old." § 566.032.1. "Sexual intercourse" is defined as "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." § 566.010(4). "The female sexual organs include a woman's vulva and external genitals." State v. Dunn , 7 S.W.3d 427, 430 (Mo. App. W.D. 1999).

"Proof of penetration may be shown by direct or circumstantial evidence," and "slight proof of penetration is sufficient." State v. Hill , 808 S.W.2d 882, 890 (Mo. App. E.D. 1991). But mere "touching does not suffice; there must be 'penetration, however slight.' " State v. Sanders , 481 S.W.3d 907, 913 (Mo. App. E.D. 2016).

Here, the evidence as reflected in both Victim's and Barbee's statements demonstrates that Barbee's penis "touched" Victim's *32genitals.4 But there was no evidence that Barbee's penis touched Victim's genitals in any way beyond mere surface contact.

The State argues, however, that there is a reasonable inference of penetration based upon evidence that Barbee's penis touched Victim's "vagina." The State argues that, anatomically speaking, because the vagina is located within the external genitals, Barbee's penis could not have come in contact with Victim's vagina without having first penetrated the external genitals, which would be sufficient evidence of "sexual intercourse." The problem with the State's argument, however, is that the record does not reflect that anyone was using the term "vagina" in a purely anatomical sense. On the contrary, the record indicates that, when used, the term "vagina" was meant to refer to the entirety of the female sex organ:

Q. And when you say "mine in his mouth," what are you talking about?
A. My private part.
Q. If I tell you my word for that is vagina, do you know what I am talking about?
A. Um-hum.
Q. Is the private part of yours that he put in his mouth, is that the part that you use to go pee?
A. Yes.
Q. And did the defendant do anything else?
A. He put his-he touched his private part with mine.
Q. What did he touch his private part to your what?
A. Mine, meaning my private part.
Q. And is that still the part we were just talking about that you use to go pee?
A. Yes.

In addition, in his statement to investigators, Barbee stated that the Victim put his penis between her legs. Based on this evidence, we cannot conclude that the State's inference is a reasonable one.5

Though we are to accept all reasonable inferences in support of the verdict in analyzing a challenge to the sufficiency of the evidence, we may not rely on "unreasonable, speculative, or forced inferences." State v. Ajak , 543 S.W.3d 43, 46 (Mo. banc 2018) (quoting State v. Lammers , 479 S.W.3d 624, 632 (Mo. banc 2016) ). And, here, there was simply a dearth of both facts and reasonable inferences to support a determination that penetration occurred.

Perhaps recognizing its uphill battle, the State argues in the alternative that, should we find the evidence insufficient, we may nevertheless enter a conviction for the lesser-included offense of attempted statutory rape. Again, however, we disagree.

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Bluebook (online)
568 S.W.3d 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barbee-moctapp-2018.