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State v. Demark

Court of Appeals of Missouri, Western District, Third Division

April 2, 2019

STATE OF MISSOURI, Respondent,
v.
THOMAS RICHARD DEMARK, Appellant.

          Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Patrick K. Robb, Judge

          Before Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and Anthony Rex Gabbert, Judges

          MARK D. PFEIFFER, PRESIDING JUDGE

         Mr. Thomas Demark ("Demark") appeals from his conviction, following a trial by jury before the Circuit Court of Buchanan County, Missouri ("trial court"), of attempted child enticement, section 566.151, [1] for which he was sentenced to five years' imprisonment. Demark raises five points on appeal. Demark argues instructional, closing argument, and evidentiary errors. We affirm.

         Factual and Procedural Background[2]

         In May 2015, Detective Thomas Cates of the Buchanan County Sheriff's Department was working on the Western Missouri Cyber Crimes Task Force, which investigates various computer-facilitated crimes against children. At all relevant times to this case, Detective Cates used the undercover identity of Mika Williams ("Mika"), posing as a thirteen-year-old girl. In that capacity, Mika responded to an advertisement placed by Demark, a 49-year-old male, on the Craigslist website on May 19, 2015, titled "Daddy/Daughter Play . . . Taboo." In Mika's response to the advertisement, Mika represented herself to be a thirteen-year-old female. Demark gave Mika his personal email address and subsequently used email, instant messaging, and Craigslist to communicate with Mika.

         Thereafter, between May 16 and May 20, Demark sent numerous suggestive and explicit communications to Mika. He suggested they could play "daddy and stepdaughter" and that it would have to be their secret. Demark asked Mika if she baby-sat and suggested that could be a way to get out so they could meet. He asked for pictures and information about Mika's physical characteristics, including her bra size and the size of her buttocks. Demark referred to himself as "Daddy" and to Mika as "Baby girl." Demark told Mika he wanted to be with a young woman or girl and pretend that she was his daughter or stepdaughter, which he said was "[s]omewhat kinky" and excited him. He asked Mika if she was aroused by the idea, asked her about her own sexual experience, and told her he wanted to teach her about sex. Demark asked Mika if she wanted a picture of his "thick cock" and then sent two pictures of a penis to the email address Detective Cates gave as Mika's.

         Detective Cates then stopped replying to communications from Demark from May 21 to May 25, to give Demark a chance to change his mind about trying to engage in sexual conversation with a child. Demark, however, continued to try to contact Mika, and Detective Cates resumed communicating with him as "Mika." Demark suggested specific times when he and Mika could meet in person and suggested she bring bathing suits or "sexy bras and thongs."

         Demark eventually arranged to drive from Kansas City to St. Joseph to meet Mika at an apartment complex where he had been told that she lived. The address was really an apartment used by the sheriff's department for undercover operations. Detective Cates assembled a team of officers to assist in arresting Demark when he arrived. After Demark entered the apartment, two officers hiding by the door identified themselves as law enforcement and grabbed Demark by the shoulders. Demark backed up until all three men slammed into the door of the apartment across the hall. Demark was reaching his right hand into a backpack (later determined to contain a weapon) he was holding in his left hand. Detective Cates came out of hiding when he heard the commotion; an altercation ensued, and Demark was eventually subdued and placed under arrest for investigation of enticement.

         Demark consented to a search of his backpack, which was found to contain a pistol and holster, bullets, various sex toys, lubricant, condoms, band-aids, bubble gum, mouthwash, sanitary wipes, empty plastic bags, a white towel, and a bottle of liquid bubbles. Officers found a note in Demark's car written on his letterhead containing detailed directions to the apartment.

         Demark gave a written statement to police, in which he admitted to posting the Craigslist ad looking for girls who were "interested in a daddy/daughter oriented sexual relationship." He admitted to communicating with a girl named Mika who informed him she was thirteen years old. He said the conversations became sexual and that he traveled to St. Joseph from Kansas City to have sex with her. Demark requested to add a line to the statement saying that Mika seemed to be a willing participant "to the whole thing." At the time of the statement, Demark had not been told that he had been communicating with an undercover officer rather than a thirteen-year-old girl. Detective Cates described Demark's behavior during the interview as dismissive and "rather flippant about the allegations and about the case that he was facing."

         At trial, Demark testified that he was engaged in sexual role-playing and thought he was doing so with an adult pretending to be a young girl. Specifically, Demark testified that he believed the person he was communicating with was indicating a willingness to engage in consensual sex in which "Mika" was posing as, or playing the role of, a female child-but was, in fact, an adult.

         The jury rejected Demark's explanation and found him guilty of the charge of attempted enticement of a child. The trial court sentenced him to five years' imprisonment. This appeal timely follows.

         Analysis

         Section 566.151.1 provides that

[a] person at least twenty-one years of age or older commits the crime of enticement of a child if that person persuades, solicits, coaxes, entices, or lures whether by words, actions or through communication via the internet or any electronic communication, any person who is less than fifteen years of age for the purpose of engaging in sexual conduct.

         "The enticement statute is also subject to the general attempt statute." State v. Rice, 504 S.W.3d 198, 202 (Mo. App. W.D. 2016). Section 564.011 is the general attempt statute, and makes a person guilty of attempt to commit an offense when "he does any act which is a substantial step towards the commission of the offense. A 'substantial step' is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." § 564.011. See also State v. Craig, 498 S.W.3d 459, 464 (Mo. App. W.D. 2016) (The mental state prescribed for attempted enticement of a child is that the actor took a substantial step toward persuading, coaxing, enticing, or luring a child under the age of fifteen for the purpose of engaging in sexual conduct with her.).

         I.

         In Point I, Demark argues that the trial court plainly erred in giving the verdict-directing instruction. Demark concedes he failed to object to the verdict director submitted to the jury and to include such objection in a motion for new trial. He therefore requests that we review his claim for plain error.

         Rule 30.20 governs plain error review and provides for a two-step process. State v. Drake, 514 S.W.3d 633, 638 (Mo. App. W.D. 2017). That process includes the following:

The first step requires a determination of whether the claim of error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear. If plain error is found, the court must then proceed to the second step and determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.

State v. Kunonga, 490 S.W.3d 746, 760 (Mo. App. W.D. 2016) (citations omitted) (internal quotation marks omitted). "Instructional error seldom rises to the level of plain error." State v. Escobar, 523 S.W.3d 545, 548 (Mo. App. W.D. 2017) (internal quotation marks omitted).

         The Missouri Constitution guarantees defendants the right to a unanimous jury verdict. Drake, 514 S.W.3d at 638 (citing State v. Celis-Garcia, 344 S.W.3d 150, 155 (Mo. banc 2011)). For the jury verdict to be unanimous, "'the jurors [must] be in substantial agreement as to the defendant's acts, as a preliminary step to determining ...


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