Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY. Honorable Mark E. Orr, Circuit Judge.
AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.
For Appellant: Margaret M. Johnston, Columbia, Missouri.
For Respondent: Chris Koster, Attorney General, and Mary H. Moore, Assistant Attorney General, Jefferson City, MO.
GARY W. LYNCH, J. - Opinion author. NANCY STEFFEN RAHMEYER, J. - concurs in part; dissents in part in separate opinion. DON E. BURRELL, J. - concurs.
GARY W. LYNCH, J. - Opinion author
Colby L. Sanders (" Defendant" ) appeals his convictions of forcible rape, see section 566.030, forcible sodomy, see section 566.060, and first-degree child molestation, see section 566.067. Defendant contends that there was insufficient evidence to support that he used forcible compulsion in
raping and sodomizing his daughter and that the trial court plainly erred in submitting Instruction No. 5 to the jury because the instruction did not inform the jurors that they must agree on a specific act of first-degree child molestation in order to convict Defendant on that count. Finding sufficient evidence supporting Defendant's use of forcible compulsion in the rape of his daughter and that Defendant's express statement that he had no objection to Instruction No. 5 constituted a waiver of any alleged instructional error, we affirm Defendant's convictions of forcible rape and first-degree child molestation; finding insufficient evidence supporting Defendant's use of forcible compulsion in sodomizing his daughter, we reverse Defendant's conviction of forcible sodomy and remand for entry of an amended judgment accordingly.
Factual and Procedural Background
Taken in the light most favorable to the verdict, see State v. Callen, 97 S.W.3d 105, 109 (Mo.App. 2002), the following evidence was adduced at trial.
B.S. was born in August 1999. Defendant, B.S.'s stepfather, touched B.S.'s vaginal area on several occasions between August and September 2008. Once, when B.S. was on the couch playing video games, Defendant came into the room and " started snuggling [her] and rubbing his hands all over [her] body." At that time, Defendant put his hands over B.S.'s jeans but underneath B.S.'s shirt. Another time, when B.S. was in Defendant's home office, Defendant sat B.S. on his lap, pulled down her jeans, pulled off her underwear, and unzipped his pants. Defendant pushed B.S. back and forth on his lap several times, rubbing her vaginal area over his penis, until he ejaculated.
On another occasion, B.S. was lying on the couch in the living room when Defendant lay down behind her. He unzipped both their pants, pulled B.S.'s pants down, and rubbed his penis against B.S.'s " butt." When B.S. told Defendant to stop, he replied that " [i]t would be okay because it was only going to be a little while longer." This time, Defendant stopped before he ejaculated. This scenario occurred several times.
On yet another occasion, B.S. was again on the couch in the living room. Defendant entered the room and sat next to her, rubbing her neck. He then unzipped his pants and pulled out his penis. Defendant grabbed B.S.'s hand, " wrapped" it around his penis, and moved it in an " up-and-down motion" until he ejaculated. ...