State v. Hagan, No. 24246.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: James'K. Prewitt
• Citation: 79 S.W.3d 447
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Richard B. HAGAN, Defendant-Appellant.
• Decision Date: 09 July 2002
• Docket Number: No. 24246.

79 S.W.3d 447 STATE of Missouri, Plaintiff-Respondent,
v.
Richard B. HAGAN, Defendant-Appellant. No. 24246. Missouri Court of Appeals, Southern District, Division Two. July 9, 2002.

Page 448

Ellen H. Flottman, Asst. Public Defender, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, John M. Morris, Assistant Attorney General, Jefferson City, for respondent.

JAMES'K. PREWITT, Judge.

Following trial by jury, Richard B. Hagan ("Defendant") was convicted of one count of abuse of a child, § 568.060, RSMo Supp.1999, and two counts of promoting child pornography in the second degree, § 573.035, RSMo Supp.1999. With his one point relied on, Defendant argues that the trial court erred in instructing the jury on promoting child pornography in the second degree, and in entering judgment and sentence on those convictions, because (1) the minor involved ("R.S.") was not a child as

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defined by § 573.010, RSMo 2000; thus, Defendant was not guilty of promoting child pornography in the first degree, the offense with which he was charged, and (2) promoting child pornography in the second degree is not a lesser included offense of promoting child pornography in the first degree.

Defendant does not challenge the sufficiency of the evidence to sustain his convictions. Viewed in the light most favorable to the verdict, the evidence specifically related to the counts on which Defendant was convicted indicates that R.S., who turned sixteen on January 14, 1999, met Defendant in May of 1999. R.S. informed Defendant of her age at that time. Between May and November 1999, R.S. was at Defendant's house several times, where Defendant took photographs of her and they had sexual intercourse on at least one occasion. The photographs included some in which R.S. was wearing lingerie, but he also took photographs of her while she posed nude in the shower. R.S. also testified that "[e]very time I'd go over to [Defendant's] home we had some sort of sexual conduct going on whether or not it was him or I or someone else."

On November 20, 1999, Defendant took R.S. to his house, telling her that he had arranged for two or three men to have intercourse with her and that he would pay her at least $200 if she participated. When they arrived at Defendant's house, three men were there: Damien Kinner, Eric Dotson, and Mike Peoples. First, Kinner and R.S. had sexual intercourse and participated in other sexual activity while Defendant videotaped them. While he videotaped them, Defendant periodically instructed them to perform certain acts. Kinner and R.S. then took a shower, after which time Defendant instructed R.S. to remove her clothes again and she engaged in sexual intercourse and other sexual activity with Kinner, Dotson, and Peoples while Defendant videotaped them. During this videotaping, Defendant also instructed the participants regarding particular acts or positions to perform. Approximately a week later, R.S. engaged in sexual activity with the same three men at Defendant's house, but no videotaping occurred on that occasion.

After receiving information from R.S.'s foster parents or the Missouri Division of Family Services, the sheriff's department in Pettis County, Missouri took a statement from R.S. and executed a search warrant on Defendant's residence. Among the items seized were photographs of R.S. and two videotapes that were made in Defendant's home in which R.S., Kinner, Dotson, and Peoples appeared and Defendant's voice was audible.

On January 6, 2000, Defendant was charged by indictment with twenty-one felony offenses, and an information in lieu of indictment was subsequently filed that charged him with a total of six counts, including one count of abuse of a child and two counts of promoting child pornography in the first degree.¹ On Defendant's motion, the venue was changed to Dallas County and trial held on March 22 and 23, 2001.

At the close of the State's evidence, Defendant filed a motion for judgment of acquittal. With regard to the two counts of promoting child pornography in the first

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degree, the defense argued that the statute included an element that a participant portrayed in the material be a child, which was defined by § 573.010, RSMo 2000, as a person under the age of fourteen. See § 573.025, RSMo 2000. Therefore, since the State's evidence was that R.S. was sixteen at the time the alleged offenses occurred, the defense asked that the trial court find Defendant not guilty of those two counts.

The State argued that the statute in effect at the time of the offenses did not refer to a participant under age fourteen, but rather to a definition of child pornography that referred to the participant/observer being under the age of eighteen. See § 573.025, RSMo Supp.1999; § 573.010, RSMo Supp.1999. The defense countered by arguing that a defendant is always afforded the benefit of a change in statute, but not a detriment. As the bench conference continued, the defense compared the most current versions of the statutes for promoting child pornography in the first degree and second degree, respectively, and noted that the only difference in the two statutes was that first degree referred to a child under the age of fourteen and second degree referred to a minor under the age of eighteen.

The State conceded that the defense might be correct, but argued that the court should not dismiss the first degree counts, but submit the lesser included offense of child pornography in the second degree, "because that's what the evidence supports." Defendant argued that second degree was not a lesser included offense, because first degree included the element that the person be under the age of fourteen and second degree included the element that the person be under the age of eighteen; therefore, there was an element in each that was not in the other.

The trial court ruled that although Defendant had a valid point concerning promoting child pornography in the first degree, it agreed with the State that promoting child pornography in the second degree was a lesser included offense and that the situation would be handled in terms of instructions. Although the docket reflects that the State was granted leave to amend the charge in the two counts discussed from promoting child pornography in the first degree to the lesser included offense of promoting child pornography in the second degree, apparently because the trial court had determined the situation could be cured in the instructional phase, no such amendment occurred.

During the instruction phase of the trial, Defendant objected to the two instructions tendered by the State that related to promoting child pornography in the second degree, as well as allowing the State to amend the information to allege the second degree charge. The basis of Defendant's argument was that promoting child pornography in the second degree was not a lesser included offense. The trial court overruled Defendant's objections, but did allow the instructions to be re-written based on Defendant's suggestion that they should reference a maximum fine and punishment at the class C felony level, rather than the class D felony level, which the trial court agreed was an "error." The State agreed with and approved of the changes.

The jury convicted Defendant of one count of abuse of a child and two counts of promoting child pornography in the second degree, all of which were designated as class C felonies. Defendant was sentenced to six months for the count of abuse of a child and seven years on each of the counts of promoting child pornography in the secand

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degree, with the sentences to be served concurrently.

Defendant's sole point relied on charges that the trial court erred in instructing the jury on promoting child pornography in the second degree. Defendant argues that, since R.S. was not a child under the age of fourteen at the time the offenses were committed, Defendant was not guilty of promoting child pornography in the first degree. Further, Defendant argues that promoting child pornography in the second degree is not a lesser included offense of promoting child pornography in the first degree and, thus, the jury should not have been instructed on it. Therefore, Defendant contends that the judgment and sentence on those convictions must be reversed.

Our analysis must start with a consideration of the statutes for promoting child pornography in the first degree and promoting child pornography in the second degree that were in effect at the time the offenses were committed and the revisions or amendments that occurred in August 2000.

573.025. [RSMo Supp.1999] Promoting child pornography in the first degree

1. A person commits the crime of promoting child pornography in the first degree if, knowing of its content and character, he photographs, films, videotapes, produces or...