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State v. McLemore

Court of Appeals of Missouri, Southern District, First Division

May 14, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
v.
RONALD MCLEMORE, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Eric D. Eighmy

          DON E. BURRELL, P.J.

         Ronald McLemore ("Defendant") appeals his conviction, after a jury trial, for attempted forcible sodomy in the first degree. See section 566.060.[1] Defendant's sole point claims there was insufficient evidence supporting the necessary element that he used forcible compulsion in attempting to sodomize his victim. We disagree and affirm his conviction.

         Applicable Law and Standard of Review

         "A person commits the offense of sodomy in the first degree if he or she has deviate sexual intercourse with another person . . . by the use of forcible compulsion." Section 566.060.1. "Deviate sexual intercourse" includes "any act involving the genitals of one person and the hand . . . of another person[.]" Section 566.010(1). "Forcible compulsion" constitutes "[p]hysical force that overcomes reasonable resistance[.] Section 556.061(12)(a).[2]

Under Section 564.011.1 RSMo ([Cum. Supp. 2013]), a person is guilty of attempt when, "with the purpose of committing the offense, 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." Therefore, in order to prove the crime of attempt, the State must prove two elements: (1) the defendant's purpose to commit the underlying offense, which in this case is forcible sodomy; and (2) conduct which constitutes a substantial step toward the commission of the offense. See Finley v. State, 321 S.W.3d 368, 371 (Mo.App.W.D.2010). Section 564.011 does not require an actual and specific attempt to perform each and every element of the crime. Id. In addition, the defendant's conduct does not have to be the ultimate step toward or the last possible act in the completion of the crime attempted. Id.

State v. Davis, 422 S.W.3d 458, 461 (Mo. App. E.D. 2014).

         "Our review of a challenge to the sufficiency of the evidence is limited only to a determination of whether there was sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt." Id. "We accept all evidence and reasonable inferences therefrom in support of the defendant's guilt as true, and we disregard all evidence and inferences to the contrary." Id.

         The Evidence

         Viewed in the light most favorable to the verdict, State v. Sanders, 449 S.W.3d 812, 814 (Mo. App. S.D. 2014), the evidence adduced at trial was as follows. Defendant had been dating the grandmother ("grandmother") of Victim 1 and Victim 2 (collectively, "Victims") for eight years at the time of the conduct charged in this case. Victims are sisters; Victim 1 was between eight and nine at the time of these events, and Victim 2 was between six and seven. Defendant was not working due to having recently undergone heart surgery, and he sometimes babysat Victims at his home when their parents were working and the Boys and Girls Club was closed.

         In late December 2015, Victims told their mother that Defendant had engaged in inappropriate sexual behaviors while babysitting them. Specifically, Victim 1 told her mother that Defendant would play with his privates in front of her and Victim 2, and he would talk about animals and other things in order to make Victims look at him while he was touching himself. Victim 1 said that Defendant had once taken hold of her hand and tried to make her touch his genitals, but she had pulled her hand away. In attempting to avoid these types of situations, Victim 1 said "she would go outside or do other things." Defendant told Victims "not to tell because it would be their secret."

         Victim 1 underwent a forensic interview at the Child Advocacy Center.[3] During that interview, Victim 1 disclosed that "many times" while her parents were at work, Defendant played with his privates in front of her and Victim 2.[4] Victim 1 asked Defendant to stop many times, but he did not quit. Victim 1 could not say how many times this happened, but she characterized it as "quite a few." Defendant would sometimes be completely naked, and at other times he would be wearing only a robe. The incidents occurred in the home's two living rooms and in the bedroom Defendant shared with grandmother. Sometimes, Defendant would call Victim 1 to his bedroom as she was going to the bathroom, and Victim 1 would try to get away by pretending that she did not hear him or make excuses like her sister needing a glass of water. Victim 1 said she "sometimes" succeeded in remaining in the hallway by the use of these techniques.

         Although she did not use the same words, Victim 1's recounting of Defendant's activities included his masturbating to ejaculation in Victims' presence. She also described a time when Defendant was in his bedroom and tried to make Victim 1 touch his penis. Defendant had ahold of her wrist and brought her hand all the way to the hair on his genitals before she "yanked" it away and left. Defendant told Victim 1 not to tell, that it was his, hers, and Victim 2's secret.

         Defendant was charged with six felony offenses.[5] The count challenged on ...


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