574 S.W.3d 342
Mo. Ct. App.2019Background
- Defendant Ronald McLemore was convicted by a jury of attempted first-degree forcible sodomy (Count 5) and sentenced to 10 years; this appeal challenges only the forcible compulsion element.
- Victim 1 was 8–9 years old (Victim 2 was 6–7) and both were sometimes babysat by Defendant in his home while their parents worked.
- Victim 1 reported repeated incidents where Defendant exposed himself, masturbated to ejaculation in their presence, and told the children it was a "secret."
- On one occasion Defendant grabbed Victim 1’s wrist and guided her hand to the hair above his penis; she pulled her hand away after touching it.
- The indictment charged Defendant with trying to make Victim 1 touch his penis between June 1, 2014 and December 29, 2015; the jury convicted on that count and others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supported forcible compulsion (physical force overcoming reasonable resistance) for attempted forcible sodomy | State: acts (grabbing Victim’s wrist and moving her hand to his genitals), defendant’s authority as caretaker, repeated incidents, location (defendant’s bedroom), and secrecy show physical force overcoming reasonable resistance | McLemore: lack of threats, fear, or evidence Victim was intimidated means no forcible compulsion; mere guidance of hand is insufficient | Court affirmed: physical force was shown (grabbing and moving the hand); totality of circumstances supports finding forcible compulsion despite absence of threats or ultimate success of the act |
Key Cases Cited
- State v. Niederstadt, 66 S.W.3d 12 (Mo. banc 2002) (defines forcible compulsion as physical force overcoming reasonable resistance; totality-of-circumstances test)
- State v. Vandevere, 175 S.W.3d 107 (Mo. banc 2005) (sufficient forcible compulsion found where defendant used physical control in an isolated sexual encounter)
- State v. Sanders, 449 S.W.3d 812 (Mo. App. S.D. 2014) (applies Niederstadt factors in assessing forcible compulsion)
- State v. Kilmartin, 904 S.W.2d 370 (Mo. App. W.D. 1995) (physical contact such as grabbing constitutes physical force)
- State v. Daleske, 866 S.W.2d 476 (Mo. App. W.D. 1993) (earlier decision suggesting hand-guiding may not be force; treated as dicta and distinguished by later cases)