363 S.W.3d 114
Mo. Ct. App.2012Background
- Defendant Hernando Rowe was convicted by jury of first-degree statutory sodomy in Missouri.
- The alleged offense against T.B. occurred in Scott County; T.B. resided in Sikeston, with a Montgomery Street home.
- The State filed a Scott County complaint and information; venue was later transferred through a series of changes to New Madrid County.
- Defense argued venue issues at trial; testimony conflicted on the location of defendant’s home and events.
- Defendant testified he lived in New Madrid County; waived timely venue objections and consented to venue changes.
- Instruction No. 5 framed venue as part of the charged offense; no lesser-included offense instruction was requested.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue was properly proven or waived | State contends venue concerns were resolved by transfer and waiver; no reversible error. | Venue was improper and not properly proven; defendant was prejudiced by alleged location issues. | Point I denied; venue issues waived and case tried in proper county. |
| Whether the court erred by not giving a sua sponte instruction on first-degree child molestation | State argues no error because defendant did not request the lesser offense and instruction was not sua sponte required. | Defendant claims court should have instructed on the lesser offense if evidence supports acquittal on the greater offense. | Point II denied; no plain-error for failure to sua sponte give lesser-included instruction. |
Key Cases Cited
- State v. Gaines, 316 S.W.3d 440 (Mo.App.2010) (venue not an element of first-degree statutory sodomy)
- State v. Taylor, 238 S.W.3d 145 (Mo.Banc 2007) (venue element considerations; MAI-CR 320.11 note invalid)
- State v. Wolfe, 332 S.W.3d 877 (Mo.App.2011) (venue instructions not mandatory as element)
- State v. Derenzy, 89 S.W.3d 472 (Mo.Banc 2002) (required to request lesser-included offense for instruction)
- State v. Mayes, 63 S.W.3d 615 (Mo.Banc 2001) (lesser-included instructions not given absent request)
- State v. Fowler, 938 S.W.2d 894 (Mo.Banc 1997) (no plain error for failure to give lesser-included instruction without a request)
- State v. Black, 50 S.W.3d 778 (Mo.Banc 2001) (defendant waives lesser-included instructions absent request)
- State v. Dexter, 954 S.W.2d 332 (Mo.Banc 1997) (post-conviction tract for addressing trial strategy)
- State v. Williams, 145 S.W.3d 874 (Mo.App.2004) (fidelity to request requirement for lesser-included)
- State v. Amerson, 259 S.W.3d 91 (Mo.App.2008) (plain-error review standards for trial rulings)