Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Charles County Honorable Jon A.
M. Hess, Presiding Judge.
R. Conner ("Appellant") was convicted of enticement
of a child under § 566.151, 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
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.
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.
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.
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." The advertisement indicated
"Jackie" was 18 years of age.
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?"
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.
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.
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.
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.
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.
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).
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).
Masquerading as a Child
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.
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, 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).
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).
convict a defendant for attempted enticement of a child under
this version of the statute when a law enforcement officer
was masquerading as the person under fifteen years of age,
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 ...