State v. Blankenship
2013 Mo. LEXIS 305
| Mo. | 2013Background
- Defendant, Victim’s uncle, exchanged emails with Victim during a Missouri family visit; email exchanges began June 2010 after Victim provided Defendant’s address.
- Sgt. Kavanaugh, posing as Victim, engaged Defendant in extensive emails from July to September 2010, eliciting explicit sexual content and instructions for Victim.
- Defendant sent 67 emails, urging Victim to remove clothing, masturbate, and engage in sexual acts; Victim’s mother reported the matter after Victim showed her the emails.
- Defendant admitted to sending the emails during a December 1 telephone recording, stating it was a sexual release and that he would have stopped if Victim had responded negatively.
- Defendant was convicted of one count of attempted use of a child in a sexual performance under § 568.080, sentenced to four years with suspended execution, probation, and shock incarceration; on appeal, he challenges First Amendment applicability and sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of § 568.080 as applied | Draper argues speech was fantasy, protected by First Amendment | Speech not constituting a crime; statute overbroad as applied | Statute constitutional as applied; speech not protected if used to induce sexual conduct by a minor |
| Whether the speech constituted a criminal 'performance' | Speech involved exploitation through coercive instructions | Only fantasy; no audience requirement | Speech aided sexual conduct; 'performance' includes non-visual exploitation under statute |
| Sufficiency—whether substantial step toward crime was shown | Actions (instructions to masturbate, sexual prompts) show substantial step | No explicit request for Victim to perform sexual act on another; not a step | Sufficient evidence of substantial step given coercive, ongoing sexual guidance and actions toward sexual conduct |
Key Cases Cited
- State v. Vaughn, 366 S.W.3d 513 (Mo. banc 2012) (constitutional review of statutes; de novo standard)
- St. Louis County v. Prestige Travel Inc., 344 S.W.3d 708 (Mo. banc 2011) (statutory validity; presumption of validity)
- State v. Young, 362 S.W.3d 386 (Mo. banc 2012) (burden on constitutional challenge; clear violation standard)
- State v. Roberts, 779 S.W.2d 576 (Mo. banc 1989) (words in prostitution transactions not protected when no lawful objective)
- State v. Pribble, 285 S.W.3d 310 (Mo. banc 2009) (fantasy speech not protected when it involves sexual exploitation)
- State v. Butler, 88 S.W.3d 126 (Mo. App. S.D. 2002) (no visual requirement; 568.080 prohibits exploitation in sexual presentations)
- State v. George, 717 S.W.2d 857 (Mo. App. S.D. 1986) (defined 'performance' as presentations before an audience)
- Butler, 88 S.W.3d 126 (Mo. App.S.D.2002) (reiterates breadth of 568.080 beyond visual performance)