Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of the City of St. Louis. Honorable Elizabeth B. Hogan.
FOR APPELLANT: Michael Gross, Michael Gross Law Office, St. Louis, Missouri.
FOR RESPONDENT: Chris Koster, Attorney General, Adam Rowley, Assistant Attorney General, Jefferson City, Missouri.
Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., J., Concurs. Gary M. Gaertner, Jr., J., Concurs.
Kurt S. Odenwald, Presiding Judge.
Appellant James Rayburn (" Rayburn" ) appeals from the judgment of the trial court convicting him of attempted forcible sodomy, Section 566.060. Following a bench trial, the trial court sentenced Rayburn to seven years in prison. Rayburn now challenges the sufficiency of the evidence to support his conviction, alleging that there is no evidence that he took a substantial step toward completion of the offense. Rayburn contends the evidence shows that he withdrew from his plan to commit forcible sodomy on Victim, which demonstrates his lack of intent to act on his threat and complete the offense of forcible sodomy. Because evidence of Rayburn's conduct, which included removing his penis from his pants and threatening to kill the victim if she did not perform oral sex on him, demonstrates a substantial step toward completion of the offense of forcible sodomy, and because Rayburn did not voluntarily withdraw from his conduct against Victim, we find no error and affirm the judgment of the trial court.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the following facts were adduced at trial: On the evening of March 12, 2012, Victim was walking to a gas station near her home on Dr. Martin Luther King Boulevard. Rayburn had been drinking with his friends earlier that evening and had decided to hire a prostitute. When Rayburn saw Victim walking on the street, he assumed she was a prostitute and approached her. Victim got into Rayburn's car, and Rayburn began driving around and asking Victim personal questions. Victim became afraid of Rayburn so she answered his questions but gave false information. Rayburn then stopped the car at a park and told Victim " bitch, do what I say or else I am going to kill you." Rayburn then removed his penis from his pants. When Rayburn exposed his penis, Victim feigned an asthma attack, gasping for breath and banging on the dashboard of the car. Rayburn asked Victim what was going on, and when Victim did not answer, he drove to a Walgreens pharmacy to get water. When they arrived at Walgreens, Rayburn got out of his car. As Rayburn exited his car, Victim pulled a knife out of her purse and threatened Rayburn with it. Victim then ran to a woman in the parking lot and screamed for her to call the police. At that point Rayburn jumped back into his car and drove away.
Victim gave the police Rayburn's license plate number. After the police found that the car was registered to Rayburn, they placed his photograph in a photo lineup for Victim to review. Victim identified Rayburn from the photo lineup, and Rayburn was subsequently arrested. Rayburn waived his Miranda rights and gave a statement to the police in which he admitted that he formed the intent to beat Victim until she gave him oral sex.
The State of Missouri (" State" ) charged Rayburn with one count of kidnapping and one count of attempted forcible sodomy. Rayburn waived his right to a jury and proceeded with a bench trial. The trial court acquitted Rayburn of kidnapping but found him guilty of attempted forcible sodomy. Thereafter, the trial court entered judgment and sentenced Rayburn to seven years in prison. This appeal follows.
Point on Appeal