State v. Davis
422 S.W.3d 458
Mo. Ct. App.2014Background
- Davis worked as a Krispy Kreme driver; October 6, 2009 incident with M.H. where he grabbed her, pressed against wall, and attempted to touch her genitals; he loosened grip when another employee was about to arrive.
- The next day, Davis had a sexual encounter with R.H. which she reported; Davis was charged with forcible sodomy, attempted forcible rape, and first-degree misdemeanor sexual misconduct for R.H., and with attempted forcible sodomy and first-degree misdemeanor sexual misconduct for M.H.
- Jury trial found Davis not guilty on R.H. charges but guilty on the M.H. charges; he was sentenced to ten years for attempted forcible sodomy and one year for sexual misconduct, to run concurrently.
- On appeal, Davis challenges sufficiency of the evidence, double jeopardy, relevance of R.H. conduct at sentencing, and clerical error in the written sentence.
- Court remands to correct the written judgment to reflect the concurrent terms actually pronounced by the court.
- All references to statutes and rules are Missouri law; for convenience, forcible sodomy and sodomy in the first degree are treated interchangeably.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for attempted forcible sodomy | Davis argues there was insufficient proof of intent to touch genitals. | State asserts sufficient evidence of purpose and substantial step. | Sufficient evidence supports conviction. |
| Double jeopardy under Missouri Constitution for considering R.H.'s conduct at sentencing | Admission of R.H.'s statement and consideration violated double jeopardy. | Sentencing may consider acquitted conduct if proven by a preponderance. | No double jeopardy violation; within sentencing range even with acquitted conduct. |
| Legal relevance of R.H. conduct at sentencing | Evidence of R.H.'s conduct was not legally relevant because of acquittal. | Conduct proven by preponderance supports sentencing relevance. | Conduct proven by preponderance properly considered at sentencing. |
| Clerical error in written sentence vs. oral pronouncement | Remand to correct written judgment nunc pro tunc to reflect concurrent sentences. |
Key Cases Cited
- Clark v. State, 197 S.W.3d 598 (Mo. banc 2006) (allowing retrial or admission of conduct in penalty phase under Missouri law; relevance at sentencing)
- Watts v. United States, 519 U.S. 148 (1997) (acquittal does not preclude consideration of underlying conduct in later proceedings under lower standard of proof)
- Keeler v. State, 856 S.W.2d 928 (Mo.App.S.D. 1993) (insufficient evidence of defendant’s purpose; potential for speculation rejected)
- Bonich v. State, 289 S.W.3d 767 (Mo.App.S.D. 2009) (touched outside underwear and stopped supports inference of intent to commit offense)
- Liberty v. State, 370 S.W.3d 537 (Mo. banc 2012) (standard of review for sufficiency of evidence; juror may infer guilt)