State v. Hall

321 S.W.3d 453, 2010 Mo. App. LEXIS 1068, 2010 WL 3295597
CourtMissouri Court of Appeals
DecidedAugust 23, 2010
DocketSD 29961
StatusPublished
Cited by11 cases

This text of 321 S.W.3d 453 (State v. Hall) 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. Hall, 321 S.W.3d 453, 2010 Mo. App. LEXIS 1068, 2010 WL 3295597 (Mo. Ct. App. 2010).

Opinions

[454]*454NANCY STEFFEN RAHMEYER, Presiding Judge.

Dale Eugene Hall (“Appellant”) was tried before a jury on two charges of sexual misconduct involving a child in violation of section 566.083, RSMo Cum.Supp.2006.1 Appellant’s first point on appeal is that the evidence is insufficient to show that he “knowingly” exposed his genitals to a child less than fourteen years of age because he actually exposed his genitals over the internet to a sheriffs deputy posing as a child. Appellant’s second point on appeal requests plain error review of the MAI-approved jury instruction for this offense. We reject both claims of error.

On March 19, 2008, St. Clair County Sheriffs Deputy Betty Roth was conducting an undercover operation in a Yahoo internet chat room. Participants in a chat room can engage in instant messaging through public or private chats. Instant messaging is a real time one-on-one conversation, or chat, between two users, and begins when the first user clicks on a second user’s profile to begin a chat. Deputy Roth was conducting her undercover operation in a chat room that was designated for people in Missouri interested in romance.

Deputy Roth identified herself in her Yahoo profile, which could be viewed by others, as a thirteen-year-old girl named Madison Richmonds. Appellant sent an instant message for a private chat to Deputy Roth with screen name “magic-hands_6969” while Deputy Roth was in the chat room on March 19th. Appellant indicated in the message that he was a forty-three-year-old male living in southwest Missouri. Deputy Roth replied that she was a thirteen-year-old female living in the Truman Lake area. A webcam image of Appellant’s exposed penis with a hand wrapped around it appeared on Deputy Roth’s screen during the conversation.

Deputy Roth was next contacted by Appellant on March 21, 2008. Deputy Roth had accepted Appellant as a contact for purposes of the chat room at the end of the previous conversation, so the subsequent message was displayed as coming from “Dale Hall” rather than from “magic-hands_6969.” Appellant sent Deputy Roth, who was still posing as thirteen-year-old Madison Richmonds, a webcam transmission that revealed his face and showed him masturbating during the March 21st chat. Appellant was convicted at trial of violating section 566.088 on both March 19th and March 21st. Appellant’s defense was that he did not think or know that Madison Richmonds was a thirteen-year-old girl.

In Appellant’s first point on appeal, he argues that the evidence is insufficient to [455]*455show that he “knowingly expos[ed] his ... genitals to a child less than fourteen years of age” because he exposed his genitals over the internet to a sheriffs deputy posing as a child. When considering sufficiency of evidence claims, our review is limited to determining whether the evidence is sufficient for a reasonable juror to find each element of the crime beyond a reasonable doubt. State v. O’Brien, 857 S.W.2d 212, 215 (Mo. banc 1993). We consider the record in the light most favorable to the verdict, taking as true the evidence and all logical inferences that support a finding of guilt, and ignoring the evidence and inferences that do not support a finding of guilt. Id. at 215-16. We give deference to the jury’s credibility decisions as “[t]he jury is entitled to believe some, all or none of the testimony of witnesses when arriving at their verdict.” State v. Brashier, 301 S.W.3d 598, 599 (Mo.App. W.D.2010). Furthermore, we construe statutes in a common sense manner consistent with legislative intent. State v. Bouse, 150 S.W.3d 326, 332 (Mo.App. W.D.2004). The legislature is never presumed to have committed a useless act, and a statute should not be construed in a manner that renders a provision meaningless. State v. Joos, 218 S.W.3d 543, 548-19 (Mo.App. S.D.2007).

At the time of the charged crimes, the relevant portion of section 566.083 creating the offense of sexual misconduct involving a child made it a class D felony when a person “[kjnowlingly exposes his or her genitals to a child less than fourteen years of age for the purpose of arousing or gratifying the sexual desire of any person[J” Section 566.083.1(2). The statute also contained a provision stating that “[i]t is not an affirmative defense to prosecution for a violation of this section that the other person was a peace officer masquerading as a minor.” Section 566.083.3.

Appellant contends that the statute requires exposure to an actual child under the age of fourteen. The issue, therefore, is whether a defendant can be convicted of violating section 566.083 when the victim is not a child, but a law enforcement officer masquerading as a child. Appellant argues that section 566.083.3, which states that “[i]t is not an affirmative defense to prosecution for a violation of this section that the other person was a peace officer masquerading as a minor[,]” merely shifts the burden of persuasion of proving whether the intended target of exposure was a peace officer masquerading as a minor. An affirmative defense is a defense where the defendant has the burden of persuasion. Section 556.056. Appellant argues that the language stating that an act is not an affirmative defense implies that the act still is a defense, though not a defense for which the defendant bears the burden of persuasion. In other words, Appellant argues that it is a defense to section 566.083 that the victim was over the age of fourteen and the State must prove that the victim was less than fourteen years of age. Appellant argues that there is no proof of a victim under the age of fourteen because Deputy Roth is clearly over fourteen years of age. We disagree with Appellant’s interpretation of the statute.

The purpose of the statute leads us to the conclusion that the legislature intended to say that it is not a defense to the crime that the intended victim was a police officer masquerading as a minor. Put more simply, with section 566.083.3, the legislature intended to criminalize exposure of a defendant’s genitals to a child or someone that the defendant believed to be a child. Other statutes in chapter 566 support our interpretation of the phrase “not an affirmative defense” as meaning “not a defense” to the crime.

[456]*456For example, under section 566.020, “[c]onsent is not an affirmative defense to any offense under chapter 566 if the alleged victim is less than twelve years of age.” Section 566.020.4, RSMo Cum.Supp. 2006. Under Appellant’s construction of the “not an affirmative defense” language, consent would be a defense to an alleged act involving a victim less than twelve years old, it just would not be a defense on which the defendant had the burden of producing evidence and the burden of persuasion. The legislature clearly could not have intended such an interpretation. The better reading of section 566.020.4 is that consent is not a defense to alleged acts involving a victim less than twelve years old.

Likewise, section 566.145 criminalized the offense of sexual contact with a prisoner or offender by an employee of a correctional facility and contains a provision that “[cjonsent of a prisoner or offender is not an affirmative defense.” Section 566.145.4, RSMo Cum.Supp.2009.

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State v. Hall
321 S.W.3d 453 (Missouri Court of Appeals, 2010)

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Bluebook (online)
321 S.W.3d 453, 2010 Mo. App. LEXIS 1068, 2010 WL 3295597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hall-moctapp-2010.