Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Jackson County, Missouri The
Honorable Sandra Midkiff, Judge.
Edward Welsh, P.J., Alok Ahuja, and Anthony Rex Gabbert, JJ.
Edward Welsh, Presiding Judge
McIntosh appeals his convictions, following a bench trial, on
one count of first-degree statutory sodomy (§ 566.062,
RSMo), and one count of first-degree child
molestation (§ 566.067). We affirm.
March 2013, the State charged McIntosh with first-degree
statutory sodomy and first-degree statutory rape based on
allegations that he had licked his nine-year-old cousin's
vagina and anus. McIntosh waived his right to a jury trial in
exchange for the State's agreement that he would not be
sentenced to more than twenty years' incarceration if
found guilty. The case proceeded to a bench trial in January
2016. Viewed in the light most favorable to the verdict,
evidence at trial showed the following:
March 12, 2013, the victim in this case (whom we refer to as
"TJ") was staying at her grandmother's house
while her mother was in the hospital. TJ's
twenty-year-old cousin, Miguel McIntosh, lived at their
grandmother's house. TJ testified that, at around 9:30 or
10:00 p.m. that night, McIntosh came into her bedroom.
McIntosh first told her "not to worry" about him,
but then he grabbed her arm, flipped her onto her hands and
knees, and held her down. He removed her pajama bottoms and
underwear and then licked her anus and her vagina. McIntosh
let TJ go when she said that she had to go to the bathroom.
TJ instead ran to Grandmother's bedroom and told her what
had happened. Grandmother confronted McIntosh with what TJ
had told her and told him that he had to leave. McIntosh did
not respond but gathered his belongings and left.
first interviewed at school by an investigator with the
Children's Division. She then was referred to the Child
Protection Center for a forensic interview. Kristin Gilgour
testified that she interviewed TJ for the Child Protection
Center, and the State introduced a video recording and
transcript of that interview into evidence. The State also
introduced a video recording of McIntosh's interrogation
by the police and played that for the court. During the
interrogation, McIntosh acknowledged that he had engaged in
the acts that TJ had alleged. A letter of apology that
McIntosh had written to TJ also was admitted into evidence.
State also presented the testimony of Grandmother and of
TJ's mother. Grandmother confirmed that, while McIntosh
and TJ were staying with her in March 2013, TJ came to her
one night and reported that McIntosh had done something
sexual to her. Mother testified that Grandmother was caring
for TJ while Mother was having a baby and that TJ told her
McIntosh had attempted to sexually abuse her at that time.
the close of the State's evidence, defense counsel
announced that she had no evidence to present and submitted a
motion for acquittal at the close of all the evidence. Both
sides made brief arguments on the motion focusing on whether
the State had to prove penetration on the statutory sodomy
charge. The court overruled the motion and then announced:
Okay, so considering the evidence in the case and the
information in lieu of indictment on Count I . . ., the Court
finds that the defendant is guilty and that the State has
proven beyond a reasonable doubt each of the elements of the
crimes charged, and, therefore, finds the defendant guilty on
Count I of Statutory Sodomy in the First Degree.
On Count II, the Class B felony of Child Molestation in the
First Degree, the Court finds the defendant guilty and finds
that the State has proven beyond a reasonable doubt each and
every element of the [crime], in that the defendant knowingly
subjected [TJ] who was then under 14 years of age to sexual
contact by putting his tongue on her anus for the purpose of
arousing or gratifying his own sexual desire.
And the Court having made those findings will request a
Sentencing Assessment Report, and we can set a sentencing
hearing now or we can wait until we receive that, the SAR.
prosecutor agreed to set a date for sentencing, but defense
counsel objected to the lack of closing argument, stating:
Your Honor, I am not trying to cause any problems; however, I
think I'm going to, I think so that the record is clear,
I'm going to object to the fact that we were not allowed
to make a closing argument.
trial court acknowledged its mistake in issuing a verdict
without hearing closing argument:
THE COURT: I'm sorry. You're right. That was my
Do you wish to make a closing argument now? And if you would
like to, you can do it in the morning ...