State v. Nibarger
| Decision Date | 23 March 2010 |
| Docket Number | No. WD 68834.,WD 68834. |
| Citation | 304 SW 3d 199 |
| Parties | STATE of Missouri, Respondent v. Roxie W. NIBARGER, Appellant. |
| Court | Missouri Court of Appeals |
Melinda K. Pendergraph, Columbia, MO, for appellant.
Shaun J. Mackelprang, Jefferson City, MO, for respondent.
Before Division Three: MARK PFEIFFER, Presiding Judge, KAREN KING MITCHELL, Judge and CYNTHIA L. MARTIN, Judge.
Roxie Nibarger appeals the trial court's judgment convicting him of one count of attempted statutory sodomy in the first degree and two counts of child molestation in the first degree. Nibarger contends that the trial court erred in: (1) entering a judgment of conviction for attempted statutory sodomy, and (2) overruling his motion for judgment of acquittal at the close of all the evidence. We affirm.
Viewed in the light most favorable to the verdict, State v. Donahue, 280 S.W.3d 700, 701 (Mo.App. W.D.2009), the record reflected the following facts. On October 27, 2005, Nibarger's daughter, A.N., was twelve years old and in the sixth grade. After school that afternoon, A.N. went to Nibarger's home, which he shared with A.N.'s step-mother. When Nibarger arrived home from work, he requested repeated hugs from A.N. before leading her down the hallway into his bedroom. Once inside the bedroom, Nibarger removed A.N.'s pants and underwear. Nibarger laid A.N. on his bed, and then he removed his own pants and underwear. Nibarger placed his penis between A.N.'s buttocks. Nibarger also touched A.N.'s chest and vagina with his hands. The incident lasted five to seven minutes. When it was over, they put their clothes back on. Later, Nibarger's wife came home, and they took A.N. to her mother's home.
A.N. was too scared to tell anyone about the incident until a month later after a school presentation on good and bad touches. A.N. told the school presenter about the abuse. The school presenter told A.N.'s school counselor. The school counselor reported the abuse through a hotline.
At trial, A.N. testified that there were other times in October 2005 that Nibarger touched her at his home. A.N. stated that the first time she recalled being molested by her father was when she was approximately five years old. A.N. estimated that her father had molested her more than ten times.
Nibarger was charged with one count of attempted statutory sodomy in the first degree and two counts of child molestation in the first degree, all arising out of the incident on October 27, 2005. After a bench trial, Nibarger was found guilty on all counts. Nibarger was sentenced to ten years on the attempted statutory sodomy and five years on each of the child molestation counts. The five year sentences were ordered to run concurrent to each other but consecutive to the ten year sentence. Nibarger appeals.
Nibarger concedes that he failed to properly preserve either of the points he has raised on appeal and, therefore, requests plain error review pursuant to Rule 30.20. State v. Lewis, 243 S.W.3d 523, 525 (Mo.App. W.D.2008) (citations omitted). Not all prejudicial error can be deemed plain error. State v. Calhoun, 259 S.W.3d 53, 58 (Mo.App. W.D.2008). "Plain error is evident, obvious, and clear error." Id. If plain error is evident on the face of the claim, then we may proceed to consider whether or not a miscarriage of justice or manifest injustice will occur if left uncorrected. Lewis, 243 S.W.3d at 525. Where no plain error appears on the face of the claim, we should decline to exercise our discretion to review the claim. Id.
In point one, Nibarger contends that the trial court plainly erred in finding him guilty of attempted statutory sodomy in the first degree. Nibarger asserts that this offense did not exist in October 2005 because it did not have a statutorily authorized punishment. We disagree.
Section 564.011, RSMo 2000, defines the inchoate offense of attempt. Section 564.011 provides that an attempt to commit an offense is to be charged one class lower than the class applicable to the completed offense. The completed felony offenses enumerated in section 564.011 are class A, B, C, and D felonies, the classified felony offenses delineated in section 557.016, RSMo 2000. The authorized terms of imprisonment for the classified offenses delineated in section 557.016 are set forth in section 558.011, RSMo Cum. Supp.2008.
The offense of statutory sodomy in the first degree is an unclassified offense. In other words, it is not described as a class A, B, C, or D felony. Section 566.062 RSMo Cum.Supp.2008. The version of section 566.062 in effect in 2005 when Nibarger was convicted did not expressly include attempt to commit the offense of statutory sodomy in the first degree within its scope.1 Thus, at the time Nibarger was convicted, attempt to commit statutory sodomy in the first degree could only be charged under section 564.011.
Section 566.062 provides that the defined range of punishment for the unclassified offense of statutory sodomy in the first degree is five years to life imprisonment. This range of punishment does not precisely match any of the ranges of punishment for the classified offenses described in section 558.011. Nibarger thus contends that statutory sodomy in the first degree does not fit precisely into any of the classified completed offenses enumerated in section 564.011 and, therefore, that he could not have been charged with attempt to commit statutory sodomy in violation of section 564.011, as there is no means by which to determine the class of his offense or the corresponding range of punishment under section 558.011.
Nibarger's argument is without merit. Section 557.021, RSMo 2000, expressly addresses determination of the penalty for attempts to commit unclassified offenses. Section 557.021.3 provides that:
For the purpose of ... determining the penalty for attempts ..., offenses defined outside of this code shall be classified as follows: (1) If the offense is a felony: (a) It is a class A felony if the authorized penalty includes death, life imprisonment or imprisonment for a term of twenty years or more....
(Emphasis added.)
Statutory sodomy in the first degree has a statutorily proscribed punishment of life imprisonment. As a result, statutory sodomy in the first degree is to be treated as a class A felony pursuant to, and for the limited purposes set forth in, section 557.021.3. Consequently, section 564.011 permits the offense of attempt to commit statutory sodomy in the first degree to be punished as a class B felony, employing the range of punishment for a class B felony set forth in section 558.011. A class B felony is subject to the range of punishment of five to fifteen years imprisonment. Section 558.011. In this case, Nibarger was sentenced to ten years imprisonment. This is well within the statutorily authorized range of punishment for a class B felony. Nibarger was thus appropriately punished upon conviction for attempt to commit statutory sodomy in the first degree under sections 564.011 and 558.011.
This court's southern district reached the same conclusion in State v. Bonich, 289 S.W.3d 767 (Mo.App. S.D.2009).2 Bonich appealed his convictions on two counts of class B felony attempted statutory sodomy in the first degree. Id. at 768. Bonich was sentenced to ten years imprisonment on each count. Id. Bonich also argued that, because there was no defined punishment for attempted statutory sodomy in the first degree, the trial court had no authority to enter a judgment of conviction. Id. at 773. Like the present case, this issue was reviewed for plain error due to Bonich's failure to raise the issue at trial. Id. The Bonich court held that, because the offense of statutory sodomy in the first degree is unclassified and punishable by life imprisonment, section 557.021 directs that the offense is to be treated as a class A felony for purposes of determining the appropriate punishment for attempt to commit the offense. Id. at 774. Bonich was sentenced within the range of punishment for a class B felony. Therefore, the southern district found that no plain error occurred. Id.
In an effort to overcome the effect of section 557.021.3, Nibarger argues that the phrase "outside the code" does not mean unclassified offenses. Nibarger relies on State v. Hyman, 37 S.W.3d 384 (Mo.App. W.D.2001). Nibarger's reliance on Hyman is misplaced. In Hyman, this court held that section 557.021 could not be read to permit treating the unclassified offense of armed criminal action, which has a penalty that includes life imprisonment, as a class A felony for purposes of determining the appropriate statute of limitations. Hyman, 37 S.W.3d at 390. This court held that section 557.021.3 was expressly intended "to classify noncode offenses for... determining the penalty for attempts and conspiracies." Id. This...
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