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State v. McIntosh

Court of Appeals of Missouri, Western District, Second Division

February 20, 2018

STATE OF MISSOURI, Respondent,
v.
MIGUEL D. MCINTOSH, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Sandra Midkiff, Judge.

          James Edward Welsh, P.J., Alok Ahuja, and Anthony Rex Gabbert, JJ.

          OPINION

          James Edward Welsh, Presiding Judge

         Miguel McIntosh appeals his convictions, following a bench trial, on one count of first-degree statutory sodomy (§ 566.062, RSMo[1]), and one count of first-degree child molestation (§ 566.067). We affirm.

         Background

         In 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, [2]the evidence at trial showed the following:

         On March 12, 2013, the victim in this case (whom we refer to as "TJ")[3] 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.

         TJ was 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.

         The 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.

         After 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.

         The 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.

         The trial court acknowledged its mistake in issuing a verdict without hearing closing argument:

THE COURT: I'm sorry. You're right. That was my fault.
Do you wish to make a closing argument now? And if you would like to, you can do it in the morning ...

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