State v. Nelson, 2011 Mo. App. LEXIS 361

K.B. was attacked in her home early morning after a porch sighting; Nelson was identified by K.B. as the attacker within a short time.
Police pursued a suspect fitting the description; Nelson was apprehended a short distance away in all-black clothing.
K.B. identified Nelson as her attacker at the scene and later at a hospital/ambulance location.
Nelson was charged as a prior offender with four offenses: attempted forcible sodomy, assault in the first degree, burglary in the first degree, and attempted robbery in the second degree.
The trial court conducted a bench trial and convicted Nelson on all counts, sentencing him to a total of eighteen years; Nelson appeals.
Evidence included physical description, clothing, and identification by K.B., along with Nelson’s statements and demeanor at custody and hospital.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the pretrial identification was unduly suggestive	Nelson; suggestive show-up in custody tainted ID	Nelson; identification relied on victim's independent recollection	Not unduly suggestive; identification reliable
Whether there was sufficient evidence for attempted forcible sodomy as charged	Nelson; information variance improper; evidence shows only outer genitals touched	Nelson; variance allowed; completion of sodomy does not require vaginal penetration	Sufficient evidence; variance immaterial; judgment affirmed

State v. Higgins, 592 S.W.2d 151 (Mo. banc 1979) (identification standards; reliability governs admissibility when not unduly suggestive)
State v. Robinson, 849 S.W.2d 693 (Mo. App. E.D. 1993) (reliability governs admissibility after suggestiveness inquiry)
State v. Chambers, 234 S.W.3d 501 (Mo. App. E.D. 2007) (five-factor reliability test for identifications)
State v. Glover, 951 S.W.2d 359 (Mo. App. W.D. 1997) (adequate basis independent of suggestive procedures)
State v. Overstreet, 694 S.W.2d 491 (Mo. App. E.D. 1985) (eyewitness identification permitted when not prompted by police)