341 S.W.3d 203
Mo. Ct. App.2011Background
- In June 2008, L.Z. and her six-year-old daughter M.B. moved into a Carrollton, Missouri home with Benn and L.Z.'s mother-in-law C.G. and Benn’s associate Randy Speakman.
- In July 2008, the household moved to a Bogard, Missouri residence.
- A neighbor reported to authorities that M.B. had told her Benn touched her and would take her to Benn’s room, asking her not to talk.
- M.B. disclosed to a Carroll County Children’s Division worker that Benn had engaged in inappropriate acts, including placing lotion on his genitals and touching her; she later described extensive sexualized conduct during a Child Safe interview.
- Police recovered a bottle of medicated lotion under Benn’s bed in Bogard that matched M.B.’s description.
- Benn denied the allegations in interviews with investigators and with a Children’s Division worker, offering alternative explanations about the lotion and his interactions with M.B.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for child molestation first degree | Benn argues no touching through clothing occurred and/or no sexual contact under §566.010(3). | Benn contends the state failed to prove sexual contact as defined in §566.010(3). | Evidence supported sexual contact under §566.010(3); sufficient for conviction. |
| Sufficiency of evidence for statutory sodomy first degree (Count I) | M.B.’s lotion-on-genitals act constitutes deviate sexual intercourse. | Even towel-assisted application did not meet deviate sexual intercourse. | Evidence sufficient; act involved hand/genital contact satisfying deviate sexual intercourse. |
| Sufficiency of evidence for statutory sodomy first degree (Count III) | M.B. testified Benn licked her; testimony circles genitals on drawings. | Testimony cannot prove Benn licked genitals. | Evidence sufficient to infer deviate sexual intercourse; licked/genital contact proven. |
| Plain error review of Kissick testimony | Kissick’s statements about Benn’s credibility were improper. | No preserved error; plain error review requested. | No plain error; admitted statements were contextual, not improper comments on credibility. |
Key Cases Cited
- State v. Crawford, 68 S.W.3d 406 (Mo. banc 2002) (settles standard for sufficiency review and standard of review in trials)
- State v. Peeples, 288 S.W.3d 767 (Mo. App. 2009) (through clothing sufficiency in sexual-contact definition)
- State v. Robinson, 108 S.W.3d 689 (Mo. App. 2003) (touching through clothing qualifies as sexual contact)
- State v. Clay, 909 S.W.2d 711 (Mo. App. 1995) (involvement of child’s hand with genitals can satisfy deviate intercourse)
- State v. Ray, 852 S.W.2d 165 (Mo. App. 1993) (verbal descriptions plus diagram support deviate intercourse finding)
- State v. Taylor, 298 S.W.3d 482 (Mo. banc 2009) (contextual credibility evidence during interview)
- Turner v. State, 245 S.W.3d 826 (Mo. banc 2008) (default rule of lenity and unambiguous statutes)
- State v. Pesce, 325 S.W.3d 565 (Mo. App. 2010) (statutory definitions and interpretation in multiple chapters)
- Weeks v. State, 140 S.W.3d 39 (Mo. banc 2004) (avoid absurd results in sexual-contact definitions)
- State v. Brown, 902 S.W.2d 278 (Mo. banc 1995) (plain error review framework)