State v. Ward, ED 102138
| Citation | 485 S.W.3d 380 |
| Decision Date | 29 March 2016 |
| Docket Number | No. ED 102138,ED 102138 |
| Parties | State of Missouri, Respondent, v. Ronald Ward, Appellant. |
| Court | Court of Appeal of Missouri (US) |
Timothy J. Forneris, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101, for Appellant.
Chris Koster, Shaun J. Mackelprang, P.O. Box 899, Jefferson City, Missouri 65102, for Respondent.
Ronald Ward appeals his convictions following a jury trial in the Circuit Court of the City of St. Louis of four counts of first-degree statutory sodomy. In his sole point on appeal, Ward contends that the trial court erred by refusing to instruct the jury on first-degree sexual misconduct as a lesser included offense of first-degree statutory sodomy. We affirm because first-degree sexual misconduct as defined by section 566.0901 is not a lesser included offense of first-degree statutory sodomy.
Ronald Ward was convicted of four counts of first-degree statutory sodomy, among other offenses, for engaging in a series of illicit sexual activities with his two nieces, neither of whom was above eight years old. At trial, Ward requested that the court instruct the jury on first-degree sexual misconduct, which he claims is a lesser included offense of first-degree statutory sodomy. The trial court refused and this appeal follows.
Where the issue is preserved, we review de novo a trial court's decision whether to give a jury instruction requested under section 556.046, and if the statutory requirements for giving such an instruction are met, a failure to give a requested instruction is reversible error. State v. Jackson, 433 S.W.3d 390, 395 (Mo.banc 2014) (footnote omitted).
An offense is a lesser included offense when (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it is specifically denominated by statute as a lesser degree of the offense charged; or (3) it consists of an attempt to commit the offense charged or to commit an offense otherwise included therein. Section 556.046.1(2).
At the time of Ward's offenses, first-degree sexual misconduct was defined by section 566.090 as "purposely subject[ing] another person to sexual contact without that person's consent." First-degree statutory sodomy, however, was defined by section 566.062 as "ha[ving] deviate sexual intercourse with another person who is less than fourteen years old." Therefore, first-degree sexual misconduct could not be proved by the same or less than all of the facts required to prove first-degree sodomy, but only by more facts, namely that the sexual act was committed both "purposely" and "without consent" of the victim.
Moreover, first-degree sexual misconduct is not denominated by statute as a lesser degree of first-degree statutory sodomy, and it does not consist of an attempt to commit the latter offense. Thus, first-degree sexual misconduct as defined by section 566.090 does not satisfy any of the subparts of section 566.046.1(2) and therefore is not a lesser included offense of first-degree statutory sodomy.
Our holding is consistent with State v. Greenlee, 327 S.W.3d 602, 621 (Mo.App.E.D. 2010), in which this Court held that first-degree sexual misconduct as defined by section 566.090 is not a lesser included offense of first-degree statutory sodomy because the former requires proof of "lack of consent." Id.
Ward's argument is based entirely on the principle that a person under the age of fourteen can never legally consent to any kind of sexual activity. State v. Stokely, 842 S.W.2d 77, 81 (Mo.banc 1992). In Ward's view, the inability of a person under the age of fourteen to legally consent to sexual activity demonstrates that first-degree statutory sodomy, like first-degree sexual misconduct, requires proof of lack of consent. Thus, Ward concludes, first-degree sexual misconduct is included in...
To continue reading
Request your trial
-
Dixon v. Mo. State Highway Patrol
...degree, was repealed. The offense was "transferred to section 566.101 and renamed second-degree sexual abuse." State v. Ward , 485 S.W.3d 380, 380 n.1 (Mo. App. E.D. 2016).4 As a result of the repeal of § 566.090, and the elimination of what had been the first-degree offense, the remaining ......