State v. Yocco

• Docket Number: ED111409
• Decision Date: 30 July 2024
• Citation: State v. Yocco, ED111409 (Mo. App. Jul 30, 2024)
• Parties: STATE OF MISSOURI, Plaintiff/Respondent, v. DOMINIC S. YOCCO, Defendant/Appellant.
• Court: Missouri Court of Appeals

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STATE OF MISSOURI, Plaintiff/Respondent, v. DOMINIC S. YOCCO, Defendant/Appellant.

No. ED111409

Court of Appeals of Missouri, Eastern District, Third Division

July 30, 2024

Appeal from the Circuit Court of St. Louis County No 19SL-CR04093-01 Honorable Ellen H. Ribaudo

OPINION

Angela T. Quigless, J.

Defendant Dominic S. Yocco, appeals the judgment and sentence entered by the Circuit Court of St. Louis County following his conviction by a jury of 16 counts of sexual offenses involving eight victims: five counts of first-degree rape in violation of section 566.030 RSMo. (2016); four counts of second-degree rape in violation of section 566.031; one count of first-degree sodomy in violation of section 566.060; five counts of second-degree sodomy in violation of section 566.061; and one count of attempted second-degree sodomy in violation of section 566.061. The jury further found Defendant to be a predatory sexual offender, as charged pursuant to section 566.125.5(3).^[1] The trial court sentenced Defendant to 16 consecutive terms of life imprisonment with eligibility for parole after 83 years.

Defendant raises 42 points on appeal, in which he challenges the jury instructions, the admission of certain testimony, the exclusion of certain evidence, the sufficiency of the evidence, the imposition of consecutive sentences, the length of sentences imposed, and the jury's finding that he is a predatory sexual offender.

We reverse in part, and affirm in part. As conceded by the State, we find the trial court plainly erred in sentencing Defendant to a term of life imprisonment as a predatory sexual offender for each of the following ten counts: four convictions for the class D felony of second-degree rape (counts 8, 14, 15, and 17); five convictions for the class D felony of second-degree sodomy (counts 3, 9, 10, 11, and 12) and one conviction for the class E felony of attempted second-degree sodomy (count 18). Because section 566.125.1 does not encompass the offenses of second-degree rape or second-degree sodomy, the sentence of life imprisonment imposed for each of those ten counts exceeded the maximum sentence for the respective offense. As a result, we set aside Defendant's life sentences for counts 3, 8, 9, 10, 11, 12, 14, 15, 17, and 18, and remand the cause to the trial court for resentencing for those counts only, in accordance with this opinion.

The trial court's judgment is affirmed in all other respects. We affirm Defendant's conviction of all 16 counts; the life sentences imposed for the five counts of first-degree rape (counts 1, 2, 4, 5, and 6) and one count of first-degree sodomy (count 13); the imposition of consecutive sentences; and the jury's finding that Defendant is a predatory sexual offender.

Factual and Procedural Background

The State charged Defendant with numerous counts of first- and second-degree rape, first- and second-degree sodomy, and attempted second-degree sodomy or in the alternative second-degree sexual abuse. The offenses involved nine different victims, and were alleged to have occurred between 2016 and 2018. Most of the victims did not know one another, and most were teenagers at the time of the offenses. The parties proceeded to trial on 19 counts. Nine victims testified for the State, along with three lay witnesses, a forensic interviewer with the Child Advocacy Center, and a detective with the St. Louis County Police Department. Defendant exercised his right not to testify, and presented no evidence other than through crossexamination. Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. State v. Clark, 490 S.W.3d 704, 707 (Mo. banc 2016).

Evidence Presented At Trial

Victim CC - Counts 1 through 3

In early July 2018, CC had run away from home. CC had stayed with her friend, JH, for about two weeks, and then went to the home of a second friend. That second friend introduced CC to Defendant. Defendant came and picked up CC, and she went with Defendant to his home in North St. Louis County and "hung out." CC had no phone, no transportation, and nowhere else to stay. She knew the police were looking for her because she had run away from home. While CC and Defendant were hanging out after dinner, Defendant began to show CC videos of other girls doing "sexual things to him." Defendant told CC that he wanted her to do similar things, but she told him she did not want to.

CC eventually fell asleep, and when she awoke, Defendant was attempting to put his penis into her mouth. CC told Defendant she did not want to engage in sexual activity. Nevertheless, Defendant held CC down, covered her mouth with one hand, and forced his penis into her vagina. CC went to sleep after the assault. The next morning, Defendant again held CC down and had vaginal intercourse with her, despite CC's statements that she did not want to. Two of Defendant's friends came over to his house later that day, including DP, and CC hung out with Defendant and his friends. CC told DP what Defendant did to her. Over Defendant's objection, DP also testified that while he and CC were at Defendant's house, CC told him Defendant "forced himself on her. And that she had been stuck there for at least two, three days." CC and DP tried to find someone to come pick them up from Defendant's house, but they were unsuccessful in finding a ride. They eventually left Defendant's house on foot after Defendant, who had become increasingly agitated, threatened to get his gun. The State charged Defendant with two counts of first-degree rape and one count of second-degree sodomy with regard to CC.

Victim GG - Count 4

GG met Defendant through a social media app. In November 2017, prior to Thanksgiving, GG and her friend, AA, met up with Defendant and his friend at a mall. The group then went to the apartment of another of Defendant's friends, where Defendant offered the girls alcohol. This was GG's first experience drinking alcohol, and she felt "completely out of it." She then went with AA, Defendant, and two other men to Defendant's home where GG "kind of blacked in and out." She remembered that AA went home, and the next thing she remembered after that was Defendant being on top of her on the living room couch with his penis in her vagina. GG said "no," and tried unsuccessfully to push Defendant off her. Defendant continued to hold GG down, and covered her mouth with his hand. GG testified that when she "came to" again, the two other men were also assaulting her. The trial court admitted State's exhibits 17 and 18, a video of GG and a still photograph of GG apparently passed out on a couch taken from the video, respectively.

AA, GG's friend who was with her for the earlier part of the evening, testified that GG was "very not herself" and was slurring her words after drinking alcohol that evening. She confirmed that GG was "having trouble functioning normally" and "seemed pretty out of it." The State charged Defendant with one count of first-degree rape as to GG.

Victim KS - Count 5

KS met Defendant via a social media app, and they hung out together on the weekends during August. They were hanging out again in November 2016 at Defendant's home, along with two of KS's friends, while Defendant drank alcohol and KS smoked marijuana. KS fell asleep on Defendant's couch, but Defendant woke her up by flicking water in her face and took her upstairs to his room, where one of KS's friends was already in bed. KS lay in bed with her friend, so that she would not "have to worry about [Defendant]." Defendant surprised KS by lying down between her and her friend some five to ten minutes later. He asked KS to perform oral sex on him, and she agreed although she did not want to. Defendant then asked her to have sex. KS said "no," but Defendant removed her pants and sought to remove her underwear. KS held onto her underwear, and cried and pleaded with Defendant not to have sex, at which point Defendant pulled KS's underwear to the side and inserted his penis in her vagina. KS continued to protest and to tell Defendant that he was hurting her, but Defendant ignored her protests. The State charged Defendant with one count of first-degree rape as to KS.

Victim JH - Count 6

JH became acquainted with Defendant via a social media app in December 2017 when she was 15 years old. That same month, JH sneaked out of her mother's house, Defendant and two other persons picked up JH. In the car, Defendant drank alcohol with JH, and JH estimated she and the other persons in the car drank half a bottle of Smirnoff. Defendant also provided JH with three marijuana blunts, which she smoked by herself as Defendant directed. The group went to Defendant's house. JH was unsure how much she had to drink although she felt "very intoxicated. Um, to the point that you're, like you're not even thinking of anything, you're kind of just following someone sitting down." At one point, JH testified, she was so intoxicated that when she placed her hand on her other arm, she could not feel her own arm. Eventually, JH "blacked out" on a couch in the front living room of Defendant's home while watching a movie.

JH awakened on a different couch in a different room at the back of the house, and found her pants and underwear had been removed. She did not recall removing her pants or underwear, and felt pain in her vagina. She testified to feeling "[a] lot of discomfort. I could obviously tell that, um, something had happened." JH also saw blood on the couch. She asked Defendant what happened, and he told her they had sex. JH testified that she felt confused, because she did not recall either wanting to have sex or actually having sex.

JH then entered into a dating relationship with Defendant. She explained:

A. I was

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