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State v. Michaud

Supreme Court of Missouri, En Banc

December 10, 2019

STATE OF MISSOURI, Respondent,
v.
DUANE MICHAUD, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY The Honorable Thomas E. Mountjoy, Judge

          George W. Draper III, Judge

         Following a jury trial, Duane Michaud (hereinafter, "Defendant") was convicted of attempted enticement of a child, section 566.151, RSMo Supp. 2006.[1] The circuit court sentenced Defendant to five years' imprisonment. Defendant appeals.

         Defendant claims the circuit court erred in failing to submit his proffered instructions and in overruling his objection at trial. This Court finds there was no error. The circuit court's judgment is affirmed.

         Factual and Procedural Background

         J.R. (hereinafter, "Victim") was born in February 1998. When Victim was fourteen years old, she lived with her older sister (hereinafter, "Sister") and brother-in- law (add "Brother-in-Law") in Springfield. While Victim resided with Sister, Defendant also lived in the same house. Victim had her own bedroom at Sister's home, and Defendant slept on a couch in the living room.

         One evening, Victim and Defendant were watching television in the living room. Defendant had been drinking. Defendant told Victim his back hurt from sleeping on the couch. Victim offered to let him sleep in her room while she slept on the couch. Defendant stood and reached out his hand toward Victim; Victim took it and walked into to her room with Defendant.

         After entering Victim's bedroom, Defendant laid on her bed and asked her to join him because he was lonely. Defendant put his left arm and leg over Victim's body and started touching her neck and face, informing her to tell him when to stop. Defendant moved his hand from her torso to the waistband of her pants. When Defendant's hand crossed over her belly button, Victim nudged his hand away from her body. Defendant attempted to put his fingers inside Victim's mouth, but she prevented it by pursing her lips closed.

         Victim then left the house. She called her boyfriend to tell him what happened. When Victim returned to the house, the door was locked. Victim started to walk away but her brother-in-law opened the door. Upon seeing her crying, he asked what happened. Rather than explain, Victim handed her cellular telephone to her brother-in-law and her boyfriend relayed what Victim told him. After speaking with Sister the next morning, Sister took Victim to her in-laws' home. Victim and Sister did not return until after Defendant left.

         In 2013, Victim and her father argued about her current boyfriend, and in an attempt to deflect her father's anger, she told him Defendant raped her. Defendant's conduct was reported to the police.

         When police questioned Defendant, he denied ever living at Sister and brother-in-law's home. Defendant then modified his response, indicating he may have stayed at the home on one or two occasions. Defendant stated Brother-in-Law confronted him about inappropriately touching Victim, but he denied any inappropriate touching occurred. Defendant also stated he did not remember anything about the specific night at issue.

         Following all of the evidence at trial, a jury found Defendant guilty of attempted enticement of a child. After the penalty phase, the jury recommended a five-year sentence, which the circuit court imposed. Defendant appeals. This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution.

         Proffered Jury Instructions

         Defendant raises two issues on appeal regarding how the jury was instructed. Defendant claims the circuit court erred in refusing to submit his verdict directing instruction "A" and his converse instruction "B" because the state's instructions did not require the jury to find he knew Victim was younger than fifteen years old. Defendant argues, by not requiring the jury to find he knew Victim was younger than ...


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