State v. Mashek
2011 Mo. App. LEXIS 229
| Mo. Ct. App. | 2011Background
- Mashek was convicted by bench trial of sexual misconduct with a child under 14 (section 566.083) and placed on five years' supervised probation after suspended execution of a three-year DOC sentence.
- Thirteen-year-old M.B. and her eight-year-old sister stayed at Mashek's home on Nov 21, 2008; M.B. and Mashek were alone in a bathroom after her sister left.
- Mashek pulled up M.B.'s jeans and underwear, exposing her genital area and instructing her to suck in her stomach; he leaned in and looked down her pants.
- Later that day, in a furnace room, Mashek questioned M.B. about shaving and suggested leaving hair, and M.B. shaved her pubic area.
- M.B. later told her mother what happened; the mother reported the incident to police; eleven witnesses testified, including M.B.
- At sentencing, the State sought Sex Offender Assessment Unit; defense urged probation with SES rather than SIS so the judgment would be final and appealable; the court sentenced Mashek to three years, suspended execution, and five years' probation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the exposed area falls within the definition of genitals under §566.083 | Mashek argues the exposed area is not genitals, based on his view of what was seen. | Mashek contends the evidence shows only a partial exposure not reaching genitals. | Yes; sufficient evidence showed exposure of the vagina, within §566.083. |
| Whether there was sufficient evidence that Mashek could have seen M.B.'s genitals | Mashek claims it was physically impossible to observe genitals given distance and clothing. | Evidence showed he leaned in and looked down from about 12 inches away; distances supported observation. | Yes; substantial evidence supported that Mashek could have seen M.B.'s genitals. |
| Whether the trial court plainly erred in SES/SIS and finality for appeal | Appealability requires final judgment; SES was improper for appeal. | Statutory SES was properly ordered at Mashek's request; plain error not shown. | No plain error; SES was properly ordered; judgment affirmed. |
Key Cases Cited
- State v. Ernst, 164 S.W.3d 70 (Mo.App. S.D. 2005) (trial findings in bench trial have jury-like effect; defer to trial court on credibility)
- State v. Polson, 145 S.W.3d 881 (Mo.App. W.D. 2004) (preservation and plain error review standards for sentencing challenges)
- State v. Williams, 118 S.W.3d 308 (Mo.App. S.D. 2003) (no error from lawfully-imposed sentence based on previous errors; allocution context)
- State v. Marshall, 302 S.W.3d 720 (Mo.App. S.D. 2010) (party cannot complain of error when requesting the precise remedy later granted)
- State v. Jennings, 322 S.W.3d 598 (Mo.App. S.D. 2010) (plain-error review framework for sentenced-based claims)