Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Jackson County, Missouri Honorable
Marco Roldan, Judge
Mark D. Pfeiffer, Chief Judge Presiding, Thomas H. Newton,
and Anthony Rex Gabbert, Judges.
H. Newton, Judge.
Joseph Drake appeals a judgment convicting him of two counts
of first-degree statutory sodomy, § 566.062,
one count of first-degree child molestation, §
566.067, and one count of enticement of a child,
§ 566.151. The issues on appeal include claims of
trial court error in overruling Mr. Drake's motions for
acquittal on one count of child molestation and error in
presenting jury instructions that do not instruct the jury
that they must unanimously agree on a specific criminal
incident to convict Mr. Drake on each charge. We affirm in
part and reverse in part.
Drake appeals a judgment convicting him of two counts of
first-degree statutory sodomy, one count of first-degree
child molestation, and one count of enticement of a child. At
trial, the following evidence was produced:
victim's mother would leave her six-year-old daughter,
the victim, at Mr. Drake's house for multiple weekends a
month from June 2004 to September 2007. When the victim
stayed at Mr. Drake's home, she slept with him in his bed
in his room, which was in the attic of his mother's
house. In 2005, Mr. Drake's friend moved in with Mr.
Drake and his mother. That year, the friend living with Mr.
Drake became suspicious that Mr. Drake was sexually abusing
the victim although he never witnessed any improper touching.
The friend confronted Mr. Drake about his suspicions and Mr.
Drake explained that he was "checking her because he
thought somebody in the neighborhood had done something wrong
to her." The resident reported his concerns to the
police; Mr. Drake, however, was not charged based on this
years later, Mr. Drake's neighbor came over to borrow a
car jack, and Mr. Drake told him that he "checked [the
victim] on a weekly basis, that he was able to- he said
specifically, I can fit two fingers inside of her. I can
slide my hand down her stomach and down between her legs and
wake her up from a dead sleep."
the victim's ninth birthday, she told her mother about
the touching, and her parents confronted Mr. Drake. Mr. Drake
denied touching the victim during this confrontation. After
the confrontation, the victim disclosed that she had been
touched by Mr. Drake to a Children's Division
investigator. During this interview, the victim stated that
Mr. Drake began touching her under her clothes with his hands
in her private area" and on her chest when she was six
years old. She explained that this happened at night in his
room and he would "never stop." She explained that
Mr. Drake touched her every night she spent the night from
the time she was six until she was nine. During the
interview, the victim also stated that Mr. Drake showed her
"bad magazines" with pictures of naked people
touching one another. She also testified that Mr. Drake tried
to touch her "bikini" with his "private"
but was unsuccessful.
conclusion of trial, the jury was given identical
instructions for counts one and two for first-degree
statutory sodomy, as well as instructions for count three,
child molestation, and count four for enticement of a child.
Mr. Drake did not object to these instructions. The jury
returned guilty verdicts on all counts. In October 2009, the
trial court sentenced Mr. Drake to three concurrent
fifteen-year sentences and a concurrent seven-year sentence.
After a grant of habeas corpus, Mr. Drake was resentenced in
September 2015 to allow him to timely file a direct appeal.
This appeal follows.
of the Evidence
first point, Mr. Drake asserts that the trial court erred in
overruling his motions for acquittal and entering a judgment
of conviction on Count III, first-degree child molestation.
He asserts that first-degree child molestation requires the
State to produce sufficient evidence to establish that Mr.
Drake touched the victim with his genitals and that the State
failed to do so.
When reviewing a challenge to the sufficiency of the
evidence, our role is limited to determining whether
sufficient evidence exists from which a reasonable trier of
fact might have found the defendant guilty beyond a
reasonable doubt. In making this determination, we view the
evidence and all reasonable inferences in the light most
favorable to the verdict and disregard all contrary evidence
and inferences. We defer to the circuit court's decision
as to the credibility and weight of the witnesses'
testimony, and we recognize that the circuit court "may
believe all, some or none of the testimony of a
State v. Warren, 304 S.W.3d 796, 799-800 (Mo. App.
W.D. 2010) (internal citations omitted). "The Court may
'not supply missing evidence, or give the [State] the
benefit of unreasonable, speculative or forced
inferences.' 'If the evidence is insufficient to
sustain a conviction, plain error affecting substantial
rights is involved from which manifest injustice must have
resulted.'" State v. Whalen, 49 S.W.3d 181,
184 (Mo. banc) (internal citations omitted), cert.
denied, 534 U.S. 1030 (2001).
566.067.1 states that "[a] person commits the
crime of child molestation in the first degree if he or she
subjects another person who is less than fourteen years of
age to sexual contact." Under section 566.010
(3), sexual contact is defined as, "any touching of
another person with the genitals or any touching of the
genitals or anus of another person, or the breast of a female
person, or such touching through the clothing, for the
purpose of arousing or gratifying sexual desire of any
person." At trial, the jury was instructed as follows:
As to Count III, if you find and believe from the evidence
beyond a reasonable doubt:
First, that between and including June 26, 2004, and
September 23, 2007, in the County of Jackson, State of
Missouri, the defendant touched [the victim] on her body with
his genitals and
Second, that he did so for the purpose of arousing or
gratifying the sexual desire of any person, and
Third, that [the victim] was then less than fourteen years
then you will find the defendant guilty under Count III of
Child Molestation in the First Degree under this instruction.
However, unless you find and believe from the evidence beyond
a reasonable doubt each and all of these propositions, you
must find the defendant not guilty of that offense.
jury heard testimony from Ms. Kristin Gilgour, the Child
Protection Center Forensic Interviewer, who conducted the
forensic interview in which the victim disclosed sexual abuse
by Mr. Drake. During the course of her testimony, Mr. Gilgour
explained the following:
Q: (By Mr. Eason) Now, during - and you witnessed the playing
of this interview, right?
Q: During that interview I noted that [the victim] was
pointing out a spot on the diagram during your questioning to
her about where she was touched by his penis?
Q: Was there actually a mark that resulted from her pointing
to the diagram?
A: No, there was not.
Q: And do you remember exactly where she was pointing?
A: I don't recall specifically. I believe it was between
kind of the thighs and the ...