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State v. Conner

Court of Appeals of Missouri, Eastern District, Second Division

July 9, 2019

STATE OF MISSOURI, Respondent,
v.
WILLIAM R. CONNER, Appellant.

          Appeal from the Circuit Court of St. Charles County Honorable Jon A. Cunningham

          Philip M. Hess, Presiding Judge.

         Introduction

         William R. Conner ("Appellant") was convicted of enticement of a child under § 566.151, [1] attempted statutory rape under §§ 566.034 and 564.011, attempted statutory sodomy under §§ 566.064 and 564.011, and sexual misconduct involving a child under § 566.083 following a jury trial in the Circuit Court of St. Charles County. In three points relied on, Appellant raises five claims on appeal.

         In Point I, Appellant makes two sufficiency of the evidence claims and an entrapment claim. Appellant first contests the sufficiency of the evidence at trial for a conviction of enticement of a child and sexual misconduct involving a child because the person he was interacting with was, in fact, an officer masquerading as a girl under fifteen years of age. Next, Appellant contests the sufficiency of the evidence at trial convicting Appellant of attempted statutory rape or statutory sodomy because the State failed to show a substantial step towards the commission of those offenses. Last, Appellant argues the State failed to rebut his claimed defense of entrapment.

         In Point II, Appellant claims the enticement of a child statute is unconstitutionally vague and inconsistent. In Point III, Appellant asserts double jeopardy claiming the four charges are cumulative punishments for the same conduct.

         We grant, in part, Point I. Appellant's other points are denied. On Appellant's claim involving the sufficiency of the evidence for the enticement of a child and sexual misconduct involving a child convictions, we reverse the convictions and remand for resentencing on convictions for attempted enticement of a child and attempted sexual misconduct involving a child. In all other respects, the judgment is affirmed.

         Factual Procedural Background

         On July 19, 2016, an officer with the St. Charles County Cyber Crimes Task Force posted an advertisement in the "adult casual encounters" section of Craigslist. Craigslist is a website that allows anyone to post an advertisement for free. The officer created a profile for Jackie Anderson ("Jackie") to post the advertisement. The advertisement was titled "Pokemon friend" and contained the following message: "Hey im [sic] looking for a friend who can have some fun with Pokemon Go! Looking to hang out! hit me up."[2] The advertisement indicated "Jackie" was 18 years of age.

         Appellant responded to the advertisement via email: "If you want to teach an older man how to play Pokemon GO, I would like to play it and other grownup games with you. Forty-ish white male, 6'2", 195, clean cut and professional. Want to play with daddy?"

         By email, "Jackie" responded, "I'm 14 so I can't drive yet." Appellant then asked, "Are you just looking to play Pokemon or are you looking for someone to have sex with?" "Jackie" responded, "LOL. I'm just looking to meet new people and hang out." Appellant asked for a picture of "Jackie". "Jackie" sent Appellant a photograph of a former employee of the St. Charles County Cyber Crimes Task Force at around 17 years of age. Appellant later said, "So it would be just chatting and hanging out. I'm cool with that unless if you are looking to have sex?" "Jackie" responded, "I'm looking for whatever you are. I'm only 14 so you take the lead, LOL." "Jackie" sent Appellant a phone number to continue the conversation via text messages.

         The conversation continued through text messages. Appellant sent a picture of his penis to the phone number provided by "Jackie". Appellant offered to pick "Jackie" up over his lunch hour the following day. He suggested they could go to lunch and look for Pokémon. Then he said, "you could play with my cock. If you don't want to…I'm cool with that." "Jackie" responded, "You'll have to teach me stuff. I'm only 14 so you probably have more experience, LOL." Appellant asked, "Have you given a guy a blow job or hand job?" And then said, "We can start with that." "Jackie" then asked Appellant what else he would want to do. Appellant said he was interested in performing sexual acts on her genitals with his mouth, his hands, and his genitals.

         "Jackie" asked Appellant what time they would meet. Appellant suggested between 12:00-1:00pm. "Jackie" indicated they could meet at a gas station near her house. Appellant arrived at the gas station at around 12:15pm. Appellant was arrested in the gas station parking lot. Appellant's phone was seized.

         Appellant was indicted for enticement of a child, sexual misconduct involving a child, attempted statutory rape, and attempted statutory sodomy. Before trial, Appellant moved to dismiss all of the charges based on an entrapment defense. The trial court denied Appellant's motion to dismiss. The trial court allowed the defense of entrapment in the jury instructions. Jury Instructions 7, 9, 11, and 13 outlined the elements of each of the four charged crimes. Jury Instruction No. 15 outlined the defense of entrapment. In order to find Appellant guilty of the charged crimes, the jury was required to find Appellant was not entrapped as outlined in Instruction 15. Each charging instruction contained the following language as a necessary element: "…that defendant was not entrapped as submitted in Instruction No. 15 …"

         The jury found Appellant guilty on all four counts. The trial court sentenced Appellant to the Missouri Department of Corrections for seven years for enticement of a child and three terms of three years for sexual misconduct involving a child, attempted statutory rape, and attempted statutory sodomy, all to run concurrently for a total of seven years.

         This appeal followed.

         Point I

         In Point I, Appellant claims three separate legal errors with the State's case. Although Point I is inexcusably multifarious, we can "discern the basis" of Appellant's argument allowing us to address the point ex gratia. State v. Adams, 443 S.W.3d 50, 54 (Mo. App. E.D. 2014).

         Standard of Review

         In considering a sufficiency of the evidence challenge, we determine whether "any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt." State v. Bowen, 523 S.W.3d 483, 487 (Mo. App. E.D. 2017) quoting Williams v. State, 386 S.W.3d 750, 754 (Mo. banc 2012). It is "not an assessment of whether the Court believes that the evidence at trial established guilt beyond a reasonable doubt…" Bowen, 523 S.W.3d at 487 quoting Williams, 386 S.W.3d at 754. We view the evidence and all reasonable inferences in the light most favorable to the verdict disregarding any evidence or inferences to the contrary. State v. White, 466 S.W.3d 682, 689-90 (Mo. App. E.D. 2015).

         Analysis

         Officer Masquerading as a Child

         Appellant claims the State did not provide sufficient evidence for the jury to convict him for either enticement of a child under § 566.151 or sexual misconduct involving a child under § 566.083 because Appellant did not communicate with a person under fifteen years of age. Both statutes require a person under fifteen years of age to be involved in the communication. § 566.151.1; § 566.083.1(2). Appellant claims he communicated with an officer masquerading as a girl under 15 years of age so this essential element of both crimes was not met. The State concedes this element of enticement of a child and sexual misconduct involving a child was not met. The State asserts Appellant should be convicted of attempted enticement of a child and attempted sexual misconduct involving a child. We agree. We reverse the convictions and enter convictions of attempted enticement of a child under §§ 566.151 and 564.011 for attempted sexual misconduct of a child under §§ 566.083 and 564.011. The State argues we can enter the convictions for the attempted offenses and affirm the sentences. However, Appellant suggests we should remand for resentencing. We agree with Appellant and remand to the trial court for sentencing on the convictions of attempted enticement and attempted sexual misconduct.

         An attempt is a lesser-included offense of completing a crime. § 556.046.1(3). "Where a conviction of a greater offense has been reversed for insufficiency of the evidence, the reviewing court may enter a conviction for a lesser offense if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements to enter the ill-fated conviction on the greater offense." State v. O'Brien, 857 S.W.2d 212, 220 (Mo. banc 1993) (internal citations omitted). In the O'Brien case, the jury did not make all of the findings necessary to charge the appellant with the lesser-included offense so the case was remanded for a new trial. Id. We find the Supreme Court's analysis in O'Brien instructive to the facts of this case.

         In this case, we must determine if the evidence was sufficient for the jury to find Appellant guilty of attempted enticement of a child and attempted sexual misconduct involving a child as required by O'Brien. Id. We will outline the requirements applicable for each of the crimes, review the jury instructions, and determine whether the evidence was sufficient for the necessary findings for each of these alleged crimes. We will read the jury instructions together in order to determine whether the elements of each of these attempted charges were met. State v. Davies, 330 S.W.3d 775, 787 (Mo. App. W.D. 2010) (internal citations omitted).

         "A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense." § 564.011.1. "A 'substantial step' is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." § 564.011.1. "What act or conduct will constitute a substantial step will depend on the facts of the particular case." State v. Molasky, 765 S.W.2d 597, 601 (Mo. banc 1989). As such, the attempt statute requires only a showing that "defendant's purpose was to commit the underlying offense and that defendant took a substantial step toward its commission." State v. Faruqi, 344 S.W.3d 193, 202 (Mo. banc 2011) quoting State v. Wadsworth, 203 S.W.3d 825, 832-33 (Mo. App. S.D. 2006).

         To convict a defendant for attempted enticement of a child under this version of the statute, the State needed to show: a defendant is twenty-one years of age or older; the defendant was persuading, soliciting, coaxing, enticing, or luring through words, actions, or other communication; the defendant believed the recipient was under fifteen years of age; ...


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