449 S.W.3d 812
Mo. Ct. App.2014Background
- Defendant Colby L. Sanders appeals his convictions for forcible rape, forcible sodomy, and first-degree child molestation arising from sexual abuse of his daughters and stepdaughter.
- Evidence showed multiple occasions of sexual contact with B.S. (daughter, 1999) including touching and attempted intercourse, culminating in rape allegations.
- A.S. (daughter, 1995) was touched inappropriately while on a computer, with further misconduct noted but not central to counts at issue.
- L.S. (daughter, 1991) was involved in acts of sodomy and rape in Sanders’ bedroom, with mental illness and medications noted.
- Jury convicted on Counts I, III, V, VI, VII, VIII and acquitted on some counts; sentence included concurrent terms for multiple offenses.
- Sanders waived jury sentencing; conviction review centers on sufficiency of evidence for forcible compulsion and alleged instructional error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence of forcible compulsion for the rape | Sanders contends no forcible compulsion was shown | State failed to prove physical force overcoming resistance | Sufficient evidence supports forcible rape |
| Whether there was sufficient evidence of forcible compulsion for the sodomy | Forcible compulsion existed in sodomy charge | Evidence insufficient to show forcible compulsion for sodomy | Insufficient evidence supports forcible sodomy |
| Whether Instruction No. 5 (On Count I) was properly submitted or waived | Instruction omission could prejudice jurors | No objection; waiver of instructional error | Waived and not reviewed for plain error |
| Whether plain error review is appropriate given waiver | Plain error review should apply when instructional error occurred | Waiver bars plain error review | Plain error review declined; waiver prevails |
Key Cases Cited
- State v. Gomez, 92 S.W.3d 253 (Mo.App.2002) (reversed forcible compulsion inference where no physical force)
- State v. Campbell, 143 S.W.3d 695 (Mo.App.2004) (upheld forcible rape/sodomy in a pattern involving threats)
- State v. Wright, 30 S.W.3d 906 (Mo.App.2000) (waiver and plain error review standards)
- State v. Goodwin, 891 S.W.2d 435 (Mo.App.1994) (approved use of MAI-CR instructions; cannot be plain error)
- State v. Niederstadt, 66 S.W.3d 12 (Mo. banc 2002) (defining forcible compulsion and totality of the circumstances)