State of Missouri v. Gerald L. Smith, Jr.

Kansas City, Missouri, criminal defense lawyers represented the Defendant charged with one count of first-degree statutory sodomy, section 566.062[2] (Count 1), one count of first-degree assault, section 565.050 (Count 2), and one count of first-degree endangering the welfare of a child, section 568.045 (Count 3).

Digested by: Kent Morlan

The Defendant was found guilty and was sentenced to 20 years in prison.

Where, as here, the charge is for statutory sodomy committed against a child, "time is not essential . . . because it can be impossible to ascertain specific dates of the sexual abuse." State v. Miller, 372 S.W.3d 455, 464 (Mo. banc 2012). Nonetheless, "the State should not be permitted to secure a conviction with respect to specific conduct occurring during a broadly stated yet substantially different period of time from that stated in the information and instruction." Id. at 465 (emphasis added) (reversing conviction because the evidence was insufficient to prove defendant committed statutory sodomy within the year in which the offense was charged when the evidence at trial related to a completely different year-long time frame). Indeed, as the Miller court noted, the State could have charged Miller with two counts of statutory sodomy based on the two distinct time frames; thus, if the convictions were allowed to stand, Miller could later be charged with another offense arising out of the same circumstances for which he had already been convicted. Id. at 468.