State v. Farr

• Citation: 611 S.W.3d 878
• Decision Date: 29 September 2020
• Docket Number: No. SD 36175,SD 36175
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Spenser A. FARR, Defendant-Appellant.
• Court: Missouri Court of Appeals

611 S.W.3d 878

STATE of Missouri, Plaintiff-Respondent,

v.Spenser A. FARR, Defendant-Appellant.

No. SD 36175

Missouri Court of Appeals, Southern District, Division Two.

Filed: September 29, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied October 21, 2020

Application for Transfer Denied December 22, 2020

CHRISTIAN LEHMBERG, Columbia, Mo, for Appellant.

SHAUN MACKELPRANG, Jefferson City, Mo, for Respondent.

DON E. BURRELL, J.

Spenser A. Farr ("Defendant") appeals his convictions after a jury trial of three counts of first-degree statutory sodomy perpetrated against two different children (counts 3, 4, and 5).¹ In finding Defendant guilty of those crimes, the jury declined to convict Defendant of the lesser crime of child molestation in the first degree. Defendant challenges his convictions on the ground that the trial court committed reversible error by refusing to also instruct the jury on the nested, lesser-included offense of child molestation in the second degree.

Because second-degree child molestation is a nested, lesser-included offense of first-degree child molestation, the trial court erred in refusing to give the requested instructions. As to counts 3 and 4, the State correctly argues that the presumed prejudice resulting from that error was rebutted because the element of the victim's age was adequately tested by the instructions given to the jury. Because no such testing of the second victim's age occurred in connection with Count 5, the presumption of prejudice was not rebutted, and we must reverse that conviction and remand the case for further proceedings consistent with this opinion.

Background

Defendant was charged by Amended Information with five counts of statutory sodomy in the first degree. Counts 1 through 4 pertained to J.S. ("Victim 1"). The alleged victim in Count 5 was J.G. ("Victim 2").² While both victims testified at trial that they were born just seven days apart in August 2000, the crimes against Victim 2 were alleged to have potentially occurred after Victim 2's twelfth birthday, so the State did not charge Defendant with enhanced statutory sodomy with respect to Victim 2.³ Thus, the counts at issue were charged as follows:

Count [3] [Enhanced] Statutory Sodomy 1^st Degree – Deviate Sexual Intercourse With Person Less Than 12 Years of Age

....

[D]efendant in violation of Section 566.062, RSMo, committed the felony of statutory sodomy in the first degree ... in that on or between May 1, 2012 and June 30, 2012 ... [D]efendant for the purpose of arousing or gratifying the sexual desire of [ ] Defendant, had deviate sexual intercourse with [Victim 1], who was then less than twelve years old , by using his hand to stimulate [Victim 1]’s penis.

Count [4] [Enhanced] Statutory Sodomy 1^st Degree – Deviate Sexual Intercourse With Person Less Than 12 Years of Age

.... [D]efendant in violation of Section 566.062, RSMo, committed the felony of statutory sodomy in the first degree ... in that on or between May 1, 2012 and June 30, 2012 ... [D]efendant for the purpose of arousing or gratifying the sexual desire of [ ] Defendant, had deviate sexual intercourse with [Victim 1], who was then less than twelve years old , by inserting his finger into [Victim 1]’s anus.

Count [5] ["Regular"] Statutory Sodomy 1^st Degree – Deviate Sexual Intercourse With A Person Less Than 14 Years old

....

[D]efendant in violation of Section 566.062, RSMo, committed the felony of statutory sodomy in the first degree ... in that on or between February 1, 2012 and September 1, 2012 ... [D]efendant for the purpose of arousing or gratifying the sexual desire of [ ] Defendant, had deviate sexual intercourse with [Victim 2], who was then less than fourteen years old , by using his hand to stimulate [Victim 2]’s penis.

(Emphasis added.)

During the instructions conference, the trial court indicated that it would tender an instruction on the lesser offense of first-degree child molestation on all counts. Each submitted instruction for first-degree child molestation stated that, if the jury found Defendant was not guilty of first-degree statutory sodomy, then it must consider whether he was guilty of first-degree child molestation against "a child less than fourteen years old[.]" Defendant also requested that the court instruct the jury on second-degree child molestation, which would have required the jury to find that the victims were less than seventeen years old.⁴ In response to that request, the State argued:

Judge, as to the lesser-included of child molestation in the second degree, I don't believe the Court is obligated to give that pursuant to 556.046, specifically [s]ubsection 2 that says, the Court shall not be obligated to charge the jury with respect to an included offense unless there's a basis for a verdict acquitting the person of the offense charged and convicting him of the included offense.

In this case statutory -- or child molestation in the first degree would be the -- would be, I guess, the included offense charged, if you want to call it that. And child molestation would be the included offense. And when comparing the two jury instructions, the only difference is in paragraph third relating to the age of the child.

The uncontroverted evidence in this case is that the dates of birth of the boys were in 2000, and I don't believe there's any basis in the evidence that's been elicited that a jury would find that the victim was more than 14 years old, but less than 17. So I don't think you're obligated to provide that.

The trial court agreed with the State and refused Defendant's request to instruct the jury on second-degree child molestation.

Standard of Review

We review the trial court's refusal to give a proffered instruction de novo. State v. Jackson , 433 S.W.3d 390, 395 (Mo. banc 2014).

Analysis

Despite the different age alleged in Count 5, each of Defendant's points claims:

The trial court erred in refusing to instruct the jury on child molestation in the second degree, a nested lesser-included offense of statutory sodomy in the first degree and a dominated lesser-included offense of child molestation in the second degree, for [counts 3, 4, and 5] ... in that there was a basis in the evidence for an acquittal of the higher offense and a conviction of the lesser offense, and [Defendant] was thereby prejudiced.

Section 556.046 governs the submission of lesser-included offenses and has been interpreted as follows.

Missouri law requires instruction on a lesser included offense when (1) "a party timely requests the instruction;" (2) "there is a basis in the evidence for acquitting the defendant of the charged offense;" and (3) "there is a basis in the evidence for convicting the defendant of the lesser included offense for which the instruction is requested." State v. Smith , 522 S.W.3d 221, 225 (Mo. banc 2017) (quoting [Jackson ], 433 S.W.3d [at 396] ). "Doubts concerning whether to instruct on a lesser included offense should be resolved in favor of including the instruction, leaving it to the jury to decide." Jackson , 433 S.W.3d at 399 (internal quotation omitted).

State v. Welch , 600 S.W.3d 796, 806-07 (Mo. App. E.D. 2020).

Section 556.046.1(1) defines a lesser-included offense as one "established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" We agree with the parties that second-degree child molestation is a lesser-included offense of first-degree child molestation within the meaning of section 556.046.1(1) as the only difference between the two crimes is the age of the victim. Compare section 566.067.1 (first-degree child molestation requires sexual contact with a child less than 14) with section 566.068.1 (second degree child molestation requires sexual contact with a child less than 17). See also State v. Hines , 377 S.W.3d 648, 657-58 (Mo. App. S.D. 2012) (discussing what constitutes a lesser-included offense).

There is no dispute that Defendant timely requested the instruction, and the State concedes in its brief that there was a basis in the evidence for convicting Defendant of the lesser-included offense of second-degree child molestation as the State presented evidence that Victims were less than 17 years’ old. Thus, the parties’ only disagreement is whether there was a basis in the evidence for acquitting Defendant of first-degree child molestation, the immediately-higher included offense.⁵

First-degree child molestation occurs when one has sexual contact with a child who is less than 14. Section 566.067.1. In contrast, second-degree child molestation has a higher age limit -- sexual contact with a child who is less than 17. Section 566.068.1.

"For there to be a basis in the evidence to acquit [Defendant] of first-degree [child molestation] and yet convict him of second-degree [child molestation], there must be a basis in the evidence for concluding that the [S]tate failed to prove the one element that separates the two crimes." See Jackson , 433 S.W.3d at 396. Here, that differential element is the age of the alleged victim. To prevail, Defendant must show that there was a basis in the evidence for the jury to conclude that Victims were at least 14, but were less than 17 years old. See id. at 397.

Victim 1 – the alleged victim in counts 3 and 4 – testified at trial that he was born in August 2000. If true, that would have made him eleven years old at the time of the charged events.⁶ The State also introduced a picture of Victim 1 taken in February 2012, a few months before the earliest range of the charged conduct.

Victim 2 – the alleged victim in Count 5 – testified at trial that he was also born in August 2000. If believed by the jury, that would have made Victim 2 eleven or twelve years old at the time of the charged conduct.⁷ The State also introduced a May 2012 photograph of Victim 2, a date within the charged range.

Defendant argues that, because the jury can disbelieve all, some, or none of the evidence, it could have disbelieved...