State v. Barbee, 568 S.W.3d 28

Defendant Barbee was convicted by a jury of first‑degree statutory rape, two counts of first‑degree statutory sodomy, and one count of first‑degree child molestation; sentenced to consecutive terms as a prior offender. He appealed the statutory rape conviction.
Statutory rape under Mo. Rev. Stat. § 566.032.1 requires "sexual intercourse," defined as "any penetration, however slight, of the female sex organ by the male sex organ" (§ 566.010(4)).
Victim and Barbee both described contact where Barbee’s penis "touched" Victim’s genitals (variously described in the record as "vagina," "private part," "the part you go pee with," "between her legs").
There was no testimony or other evidence showing penetration beyond mere surface contact; no clear anatomical use of the term "vagina" to support an inference of internal penetration.
The State asked the court to infer penetration from evidence that Barbee’s penis contacted Victim’s “vagina,” but the court found that inference unreasonable given how parties used the term.
The court reversed the statutory rape conviction for insufficient evidence, declined to enter attempted statutory rape (insufficient record of a substantial step and jury finding), but remanded directing entry of conviction for first‑degree child molestation and resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence proved "sexual intercourse" (penetration, however slight) for first‑degree statutory rape	State: contact described as to Victim’s “vagina” supports reasonable inference of penetration	Barbee: evidence shows only surface touching of genitals, not penetration	Reversed statutory rape conviction; evidence insufficient to prove penetration
Whether the court may enter a conviction for attempted statutory rape if completed offense reversed	State: attempted statutory rape is lesser‑included and may be entered if elements supported	Barbee: jury never found "substantial step" so attempt not established	Court declined to enter attempt conviction—record lacked jury finding on substantial step and purpose
Whether first‑degree child molestation is a proper lesser‑included remedy and supported by evidence	State: request to convert to lesser‑included child molestation if rape vacated	Barbee: not argued to preclude lesser remedy	Court ordered conviction for first‑degree child molestation and resentencing as evidence supported sexual contact with purpose to arouse/gratify
Whether the term "vagina" in record could be read anatomically to support penetration inference	State: anatomical meaning could support inference of penetration	Barbee: record shows lay usage equating vagina with external private part; not anatomical	Court: record shows non‑anatomical use; inference of penetration based on "vagina" was unreasonable

State v. Claycomb, 470 S.W.3d 358 (Mo. banc 2015) (standard for reviewing sufficiency of evidence)
State v. Latall, 271 S.W.3d 561 (Mo. banc 2008) (sufficiency review; accept evidence supporting verdict)
State v. Hill, 808 S.W.2d 882 (Mo. App. 1991) (slight proof of penetration is sufficient)
State v. Sanders, 481 S.W.3d 907 (Mo. App. 2016) (mere touching insufficient; penetration required)
State v. Miller, 372 S.W.3d 455 (Mo. banc 2012) (sexual intercourse necessarily involves sexual contact)
State v. Payne, 250 S.W.3d 815 (Mo. App. 2008) (criteria for entering conviction for lesser offense on review)
State v. Blair, 443 S.W.3d 677 (Mo. App. 2014) (attempt is lesser‑included of completed offense)
State v. Ajak, 543 S.W.3d 43 (Mo. banc 2018) (courts may not rely on unreasonable or speculative inferences)
State v. Smith, 330 S.W.3d 548 (Mo. App. 2010) (attempt requires proof of substantial step and purpose)