State v. McIntosh

• Decision Date: 20 February 2018
• Docket Number: WD 79709
• Citation: State v. McIntosh, 540 S.W.3d 418 (Mo. App. 2018)
• Parties: STATE of Missouri, Respondent, v. Miguel D. MCINTOSH, Appellant.
• Court: Missouri Court of Appeals

540 S.W.3d 418

STATE of Missouri, Respondent,

v.Miguel D. MCINTOSH, Appellant.

WD 79709

Missouri Court of Appeals, Western District.

OPINION FILED: February 20, 2018

Damien De Loyola, Kansas City, MO, for Appellant.

Daniel McPherson, Jefferson City, MO, for Respondent.

Before Division Two: James Edward Welsh, P.J., Alok Ahuja, and Anthony Rex Gabbert, JJ.

James Edward Welsh, Presiding Judge

Miguel McIntosh appeals his convictions, following a bench trial, on one count of first-degree statutory sodomy ( § 566.062, RSMo¹ ), and one count of first-degree child molestation (§ 566.067).We affirm.

Background

In March 2013, the State charged McIntosh with first-degree statutory sodomy and first-degree statutory rape based on allegations that he had licked his nine-year-old cousin's vagina and anus.McIntosh waived his right to a jury trial in exchange for the State's agreement that he would not be sentenced to more than twenty years' incarceration if found guilty.The case proceeded to a bench trial in January 2016.Viewed in the light most favorable to the verdict,² the evidence at trial showed the following:

On March 12, 2013, the victim in this case(whom we refer to as "TJ")³ was staying at her grandmother's house while her mother was in the hospital.TJ's twenty-year-old cousin, Miguel McIntosh, lived at their grandmother's house.TJ testified that, at around 9:30 or 10:00 p.m. that night, McIntosh came into her bedroom.McIntosh first told her "not to worry" about him, but then he grabbed her arm, flipped her onto her hands and knees, and held her down.He removed her pajama bottoms and underwear and then licked her anus and her vagina.McIntosh let TJ go when she said that she had to go to the bathroom.TJ instead ran to Grandmother's bedroom and told her what had happened.Grandmother confronted McIntosh with what TJ had told her and told him that he had to leave.McIntosh did not respond but gathered his belongings and left.

TJ was first interviewed at school by an investigator with the Children's Division.She then was referred to the Child Protection Center for a forensic interview.Kristin Gilgour testified that she interviewed TJ for the Child Protection Center, and the State introduced a video recording and transcript of that interview into evidence.The State also introduced a video recording of McIntosh's interrogation by the police and played that for the court.During the interrogation, McIntosh acknowledged that he had engaged in the acts that TJ had alleged.A letter of apology that McIntosh had written to TJ also was admitted into evidence.

The State also presented the testimony of Grandmother and of TJ's mother.Grandmother confirmed that, while McIntosh and TJ were staying with her in March 2013, TJ came to her one night and reported that McIntosh had done something sexual to her.Mother testified that Grandmother was caring for TJ while Mother was having a baby and that TJ told her McIntosh had attempted to sexually abuse her at that time.

After the close of the State's evidence, defense counsel announced that she had no evidence to present and submitted a motion for acquittal at the close of all the evidence.Both sides made brief arguments on the motion focusing on whether the State had to prove penetration on the statutory sodomy charge.The court overruled the motion and then announced:

Okay, so considering the evidence in the case and the information in lieu of indictment on Count I ..., the Court finds that the defendant is guilty and that the State has proven beyond a reasonable doubt each of the elements of the crimes charged, and, therefore, finds the defendant guilty on Count I of Statutory Sodomy in the First Degree.

On Count II, the Class B felony of Child Molestation in the First Degree, the Court finds the defendant guilty and finds that the State has proven beyond a reasonable doubt each and every element of the [crime], in that the defendant knowingly subjected [TJ] who was then under 14 years of age to sexual contact by putting his tongue on her anus for the purpose of arousing or gratifying his own sexual desire.

And the Court having made those findings will request a Sentencing Assessment Report, and we can set a sentencing hearing now or we can wait until we receive that, the SAR.

The prosecutor agreed to set a date for sentencing, but defense counsel objected to the lack of closing argument, stating:

Your Honor, I am not trying to cause any problems; however, I think I'm going to, I think so that the record is clear, I'm going to object to the fact that we were not allowed to make a closing argument.

The trial court acknowledged its mistake in issuing a verdict without hearing closing argument:

THE COURT: I'm sorry.You're right.That was my fault.

Do you wish to make a closing argument now?And if you would like to, you can do it in the morning if you want to do that.

[DEFENSE COUNSEL]: I can—I just don't know.I've never been in a situation where you've already made a ruling.I'm not sure how to proceed since—

THE COURT: Okay.And I apologize for this.I am—you know, I have really been fixed on looking at the clock here because I have a commitment this evening.And so I will—you know, totally retract what I have just done.That was really my fault.And so, you know, if you would like to proceed with closing arguments tomorrow morning, we can do that at 9 o'clock.

[DEFENSE COUNSEL]: Okay.I think that would probably be in the best interests of Mr. McIntosh.

THE COURT: All right.Okay.We'll return then tomorrow morning.Thank you.

When the trial resumed the next morning, the court stated that it had "made a great misstep by announcing a verdict which I believe I set aside upon the objection of the defense counsel and for which I—again, I'm sorry for my complete mental glip."The court then asked defense counsel if she wanted to make any further record.Counsel declined to do so.

The parties then presented their closing arguments.Defense counsel argued that certain inconsistencies between TJ's trial testimony and her deposition proved that, although McIntosh had attempted the charged acts, he did not complete them.Defense counsel conceded that the State had proven that McIntosh committed first-degree child molestation as to both counts and asked the court to find McIntosh guilty of that lesser-included offense on Count I.Following the State's rebuttal argument, the court took a recess.Upon reconvening, the court announced:

In reviewing the State's Exhibit 15, the redacted copy of the statement made by [TJ] on March 29—actually, I think it was March 20th, it appears to me that in both cases this child victim describes licking in the hole.And I just for the record want to reference that.On page 9 of the CPC statement when she is describing the defendant's acts regarding her anus, at that point she said in response to the question she was asked, that it was like, in the hole.And I don't think there is any question about that in terms of the anus.

In addition, on page 10 of that same statement, the child again describes the action that was taken towards her and the defendant's licking her near and around her vagina.And again, she specifically answered again at the bottom on page 10 of that CPC statement that it was in the hole.

The Court again having considered all of the evidence in this case finds that the defendant is guilty on Count I of Statutory Sodomy in the First Degree.And also finds the defendant guilty on Count II of Child Molestation, the Class B felony with which he is charged.

Defense counsel made no further record, and the discussion turned to the sentencing hearing.

At the sentencing hearing, the court heard arguments from counsel and then sentenced McIntosh to concurrent prison sentences of twenty years for first-degree statutory sodomy and fifteen years for first-degree child molestation.Defense counsel made no further request for relief regarding the court's initial denial of closing argument.This appeal followed.

Standard of Review

When a party objects, and the objection is sustained, but the party does not request relief beyond what is given, the trial court's failure to provide additional relief is reviewable, if at all, for plain error only.State v. Hartmann , 781 S.W.2d 251, 252(Mo. App.1989).McIntosh concedes that he failed to properly preserve this claim by not making further objection or requesting any additional relief after the court set aside its initial finding of guilt and heard closing arguments.He, therefore, requests plain error review of his claim.

Rule 30.20 authorizes this Court to review, in its discretion, "plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted therefrom."Our Supreme Court has established a threshold review to determine if a court should exercise its discretion to entertain a Rule 30.20 review of a claimed plain error.First, we determine whether or not the claimed error "facially establishes substantial grounds for believing that ‘manifest injustice or miscarriage of justice has resulted[.]’ "State v. Brown,902 S.W.2d 278, 284(Mo. banc 1995)(quotingRule 30.20).If not, we should not exercise our discretion to conduct a Rule 30.20 plain error review.If, however, we conclude that we have passed this threshold, we may proceed to review the claim under a two-step process pursuant to Rule 30.20.In the first step, we decide whether plain error has, in fact, occurred.State v. Baumruk , 280 S.W.3d 600, 607(Mo. banc 2009).All prejudicial error is not plain error; "plain errors are those which are evident, obvious, and clear."Id.In the absence of evident, obvious, and clear error, we should not proceed further with our plain error review.If, however, we find plain error, we must continue to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected.Id. at 607–08.

Discussion

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