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Date: 04-05-2019
Case Style:
State of Missouri vs. Isidro Cruz-Basurto
Case Number: WD80880
Judge: EDWARD R. ARDINI, JR.
Court: MISSOURI COURT OF APPEALS WESTERN DISTRICT
Plaintiff's Attorney: Nathan J. Aquino
Defendant's Attorney: S. Kate Webber
Description:
Victim was born on December 10, 2004. When Victim was seven years old and in the first
grade, she lived with her mother and siblings in Kansas City. Beginning around that time, Victim
and her siblings would visit the home of Cruz-Basurto on weekends. Cruz-Basurto is Victim’s
uncle.
When Victim was alone with Cruz-Basurto, he would take her to his bedroom, close and
lock the door, and instruct her to take off her clothes. Cruz-Basurto would throw Victim onto the
bed and touch her on her “chest,” “front,” and “back.”2 Cruz-Basurto would touch Victim’s chest
under her shirt “most of the times.” Cruz-Basurto would touch both the inside and the outside of
Victim’s “front,” and sometimes it hurt. Cruz-Basurto would “sometimes touch[ ]” Victim’s
“back” “in [the] inside,” and “he sometimes put his private in [Victim] right there.” When Cruz
Basurto put his “private” in her “back,” Victim felt “something nasty” that “felt like liquid.” This
conduct happened multiple times beginning when Victim was in the first grade and continued
during second and third grade. Cruz-Basurto instructed Victim not to disclose the abuse to her
mother which caused Victim concern that Cruz-Basurto would do harm to her brothers and mother
if she reported the conduct to others.
Around July 3, 2014, when Victim was nine years old, she disclosed to a friend and
subsequently to a teacher that she had been inappropriately touched by Cruz-Basurto. Victim was
then interviewed by investigators from the Children’s Division, police officers, and a forensic
interviewer from the Child Advocacy Center. Victim stated that the last act of abuse by Cruz
Basurto had occurred a month before her disclosure to her friend.
1 The facts are presented in the light most favorable to the jury’s verdict. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009).
2 Victim used the word “chest” to describe her breasts, “front” to describe her vagina, and “back” to describe her anus.
3
Cruz-Basurto was arrested and later interviewed by police. He initially denied ever
touching Victim before eventually admitting that he had touched her vagina multiple times. He
claimed this was done for the purpose of examining Victim to determine if she was being abused
by one of her mother’s boyfriends. Cruz-Basurto acknowledged that he lacked any training that
would qualify him to perform such examinations or assess signs of sexual abuse.
Cruz-Basurto was charged with four counts of statutory sodomy in the first degree and two
counts of child molestation in the first degree. A jury found him guilty of all six counts. The trial
court sentenced Cruz-Basurto to consecutive terms of 15 years in the Department of Corrections
for each of the four counts of statutory sodomy. The trial court sentenced Cruz-Basurto to ten years
for each of the child molestation counts, with those sentences ordered to run concurrent to each
other and to the sentences for statutory sodomy. Cruz-Basurto timely appealed. Additional facts
will be discussed throughout this opinion.
Discussion
Cruz-Basurto raises two points on appeal. In Point I, he alleges that the trial court
committed reversible error by overruling his objections to the verdict directors relating to the
statutory sodomy counts because they contained a fatal variance from the Information. In Point II,
Cruz-Basurto alleges that the trial court plainly erred by sentencing him to consecutive terms of
imprisonment for each of the statutory sodomy counts based on a mistaken belief that it was
required to do so by law.
Point I – Variance
In Point I, Cruz-Basurto alleges there was a material and prejudicial variance between the
Information and the verdict directors for each of the statutory sodomy counts. He specifically
complains that the Information alleged that the charged conduct was committed for the purpose of
4
arousing or gratifying his sexual desire while the verdict directors defined “deviate sexual
intercourse” as conduct performed for the purpose of arousing or gratifying the sexual desire of
any person.3
In Counts I, II, IV, and V, Cruz-Basurto was charged with statutory sodomy in the first
degree. Counts I and V alleged that Cruz-Basurto had deviate sexual intercourse with Victim by
penetrating her vagina with his finger. Count II alleged that Cruz-Basurto had deviate sexual
intercourse with Victim by penetrating her anus with his finger. Count IV alleged that Cruz
Basurto had deviate sexual intercourse with Victim by penetrating Victim’s anus with his penis.
All four counts alleged that Cruz-Basurto committed the offense “for the purpose of arousing or
gratifying the sexual desire of the defendant[.]”
During the instructions conference, the State submitted verdict directors for the statutory
sodomy counts that stated as follows:
As to Count [I, II, IV, or V], if you find and believe from the evidence beyond a reasonable doubt:
First, that [on or about, or between the prescribed dates], in the County of Jackson, State of Missouri, the defendant knowingly penetrated the [vagina or anus] of [Victim] with his [finger or penis], and
Second, that such conduct constituted deviate sexual intercourse, and
Third, that at the time [Victim] was a child less than twelve years old,
3 Cruz-Basurto also argues in Point I that a variance between the Information and verdict directors existed for the child molestation counts. This allegation is not preserved for appeal, and we decline to review for plain error because there was no variance. Child molestation, under section 566.067, RSMo, occurs when a person “subjects another person who is less than fourteen years of age to sexual contact.” Cruz-Basurto was charged with two counts of child molestation in that he “knowingly subjected [Victim] who was then less than fourteen years old to sexual contact by touching the breast of [Victim] with the hand of the defendant.” “Sexual contact” is defined by section 566.010, RSMo, as “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, . . . for the purpose of arousing or gratifying sexual desire of any person.” The verdict directors for the child molestation counts required the jury to find that Cruz-Basurto touched Victim’s breasts “for the purpose of arousing or gratifying the defendant’s sexual desire.” There was no variance between the Information and the verdict directors.
5
then you will find the defendant guilty under Count [I, II, IV, or V] of statutory sodomy in the first degree.
Each of these verdict directors then included a definition for “deviate sexual intercourse.”
Counts I, II, and V, defined “deviate sexual intercourse” as “any act involving the penetration,
however slight, of the [female sex organ or anus] by a finger, done for the purpose of arousing or
gratifying the sexual desire of any person.” The verdict director for Count IV defined “deviate
sexual intercourse” as “any act involving the genitals of one person and the anus of another person,
done for the purpose of arousing or gratifying the sexual desire of any person.”
Cruz-Basurto objected to each verdict director, arguing that “it deviates from the charging
instrument which specified that the purpose of the act had to be for defendant’s gratification, and
the proposed instruction from the state expands that to include the gratification or desire of any
person, which is more than what the charging instrument says[.]” The State countered that the
definitions provided in the verdict directors were taken from the MAI definition of “deviate sexual
intercourse.” The trial court overruled Cruz-Basurto’s objections.
“When reviewing claims of instructional error, this Court will reverse the circuit court’s
decision only if the instructional error misled the jury and, thereby, prejudiced the defendant.”
State v. Richter, 504 S.W.3d 205, 211 (Mo. App. W.D. 2016) (citation omitted). In addition,
reversal is required only “when the instructional error is so prejudicial that it deprived the
defendant of a fair trial.” State v. Zetina-Torres, 482 S.W.3d 801, 810 (Mo. banc 2016) (citation
omitted). “Prejudice occurs when an erroneous instruction may have influenced the jury
adversely.” Id. “However, there is no prejudice if an instruction is an accurate statement of law
and supported by the evidence.” Id.
A variance occurs when the conduct described in the charging instrument differs from the
conduct described in the jury instructions. “[W]hen a crime may be committed by any of several
6
methods, . . . the method or methods submitted in the verdict directing instruction must be among
those alleged in the information.” State v. Hendren, 524 S.W.3d 76, 83 (Mo. App. W.D. 2017)
(quoting State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992)). The purpose of this rule is to provide
notice to the defendant so that he may prepare a defense against the charge. Id. (citations omitted).
A variance between the charging document and the verdict directing instructions “is not fatal, and
will not require reversal, unless it submits ‘a new and distinct offense from that with which
defendant was charged.’” State v. Glass, 136 S.W.3d 496, 520 (Mo. banc 2004) (quoting State v.
Clark, 782 S.W.2d 105, 108 (Mo. App. E.D. 1989)). “A variance must be material, and defendant
must be prejudiced, to warrant reversal.” Id. (citation omitted). “Variances are material when they
affect whether the accused received adequate notice; variances are prejudicial when they affect the
defendant’s ability to defend against the charges.” Id. (citation omitted).
Here, the Information alleged that Cruz-Basurto committed the acts of statutory sodomy
“for the purpose of arousing or gratifying the sexual desire of the defendant[.]” In the
corresponding verdict directors, the phrase “deviate sexual intercourse” was defined and required
the jury to find that Cruz-Basurto committed the acts of statutory sodomy “for the purpose of
arousing or gratifying the sexual desire of any person.” Cruz-Basurto alleges that this was a
material and prejudicial variance because he had “no notice he would need to defend not only
acting for the purpose of gratifying his sexual desire . . . but against having the purpose to gratify
the sexual desire of anyone.” The variance in this case was neither material nor prejudicial.
First, Cruz-Basurto’s defense to the allegations that he penetrated Victim’s anus with both
his finger and his penis was a complete denial that any of these acts occurred. This theory was in
no way reliant on or affected by whether the charged conduct was committed for the purpose of
arousing or gratifying his own or someone else’s sexual desires. See State v. Williams, 18 S.W.3d
7
461, 469 (Mo. App. E.D. 2000) (finding no fatal variance between the Information and instructions
because the defendant denied any involvement in the crime).
Next, as to the statutory sodomy counts relating to vaginal penetration, Cruz-Basurto
admitted to touching Victim’s vagina multiple times but claimed that his actions were done for the
purpose of conducting an examination to determine whether Victim had been abused by one of her
mother’s boyfriends. In other words, Cruz-Basurto’s defense was that he engaged in the vaginal
touching with an innocent purpose devoid of any motivation to cause sexual arousal or
gratification. Significant to the resolution of this point on appeal, this defense did not rely on any
nuance as to who the conduct was intended to sexually arouse or gratify.
Finally, “[t]he identity of the person for whose gratification or arousal [Cruz-Basurto] was
acting was not an element of the crime[.]” State v. Doubenmier, 444 S.W.3d 921, 931 (Mo. App.
S.D. 2014); see also State v. Gaines, 316 S.W.3d 440, 455 (Mo. App. W.D. 2010) (finding that
statutory sodomy in the first degree requires only “evidence that the culpable conduct was engaged
in for the purpose of someone’s gratification.”). Therefore, the State did not need to prove
specifically whose sexual desire Cruz-Basurto intended to gratify or arouse, only that the purpose
of Cruz-Basurto’s conduct was to arouse or gratify someone’s sexual desire.4 Because such
identity was not an element of the offense, the variance could not have submitted a new and distinct
offense and could not have been a fatal variance. See Glass, 136 S.W.3d at 520 (stating that a
variance “is not fatal, and will not require reversal, unless it submits ‘a new and distinct offense
from that with which defendant was charged.’”) (citation omitted).
4 “The language ‘for the purpose of arousing or gratifying sexual desire’ is meant ‘to exclude innocent contacts from being deemed criminal conduct.’” State v. Gaines, 316 S.W.3d 440, 456 (Mo. App. W.D. 2010) (quoting State v. Love, 134 S.W.3d 719, 722 (Mo. App. S.D. 2004)).
8
Therefore, because neither defense pursued by Cruz-Basurto was affected by the language
deviation, and the inconsistency did not lead to the charging of a new and distinct offense, any
variance between the charging instrument and the verdict directing instructions was not fatal and
reversal is not warranted. Point I denied.
Point II – Sentencing Error
In his second point, Cruz-Basurto alleges that the trial court plainly erred in sentencing him
to consecutive terms of imprisonment on the statutory sodomy counts, arguing the trial court
violated his due process rights by imposing consecutive sentences under a mistaken understanding
that it was required by law.
Cruz-Basurto was found guilty of four counts of statutory sodomy in the first degree
alleged to have occurred during the following date ranges: Counts I and II for conduct that occurred
on or about June 1, 2014; and Counts IV and V for conduct that occurred between June 1, 2012
and May 31, 2014.
At the sentencing hearing, the State argued for the maximum sentence and stated that the
trial court was required to run the sentences for the four statutory sodomy counts consecutively.
Prior to the sentences being imposed, the State again reminded the trial court that the sentences for
the statutory sodomy counts had to be run consecutively. Cruz-Basurto’s counsel generally argued
for “the minimum sentence provided by statute” but made no specific argument, comment or
objection directed to whether the sentences for the statutory sodomy counts were statutorily
required to run consecutively. The trial court then imposed its sentence:
On Counts I, II, IV, and V, statutory sodomy in the first degree, I sentence the defendant to 15 years in the Missouri Department of Corrections. By law those counts shall run consecutive to one another.
Counts III and VI, I sentence the defendant to ten years. They shall run concurrent to Counts I, II, IV, and V.
9
Cruz-Basurto did not object to the sentences imposed by the trial court.
Because Cruz-Basurto failed to object to the sentences when they were imposed, this claim
of error is not preserved for appellate review. This Court reviews, at its discretion, “plain errors
affecting substantial rights” if “manifest injustice or miscarriage of justice results therefrom.” Rule
30.20.5 “Plain-error review begins with a threshold review to ‘determine whether or not the
claimed error facially establishes substantial grounds for believing that manifest injustice or
miscarriage of justice has resulted.’” State v. Tillitt, 552 S.W.3d 571, 577 (Mo. App. W.D. 2018)
(quoting State v. Williams, 465 S.W.3d 516, 519 (Mo. App. W.D. 2015) (additional quotations and
citation omitted). “If not, we should not exercise our discretion to conduct plain error review.” Id.
at 578. “If, however, we conclude that we have passed this threshold, we may proceed to review
the claim under a two-step process.” Id. (quoting Williams, 465 S.W.3d at 519).
“In the first prong, we determine whether there is, indeed, plain error, which is error that
is evident, obvious, and clear.” State v. Celis-Garcia, 420 S.W.3d 723, 726-27 (Mo. App. W.D.
2014) (quoting State v. Ray, 407 S.W.3d 162, 170 (Mo. App. E.D. 2013)). “If so, then we look to
the second prong of the analysis, which considers whether a manifest injustice or miscarriage of
justice has, indeed, occurred as a result of the error.” Id. at 727 (quoting Ray, 407 S.W.3d at 170).
“A criminal defendant seeking plain error review bears the burden of showing that plain error
occurred and that it resulted in a manifest injustice or miscarriage of justice.” Id. (quoting Ray,
407 S.W.3d at 170).
After a careful review of the record from the sentencing hearing, we are persuaded that the
trial court believed that it was required “by law” to run the sentences for each statutory sodomy
count consecutively and that it sentenced Cruz-Basurto based on this understanding. See Tillitt,
5 Rule references are to the Missouri Supreme Court Rules (2012).
10
552 S.W.3d at 582. However, this does not end the analysis. It is Cruz-Basurto’s burden to
establish that the trial court’s belief that it was statutorily required to impose consecutive sentences
on the statutory sodomy counts constituted evident, obvious, and clear error. For the reasons
explained below, we find that Cruz-Basurto has failed to satisfy this burden.
Section 558.026.1, RSMo6
Under the current version of section 558.026.1, RSMo,7 which came into effect on August
28, 2013, trial courts are required to run multiple sentences for certain sex offenses, including
statutory sodomy in the first degree, “consecutively to the other sentences.” See also State v.
Contreras-Cornejo, 526 S.W.3d 146, 152-53 (Mo. App. W.D. 2017) (finding that “[t]his
amendment makes clear that multiple sentences for the listed felonies must run consecutive to each
other”).
Prior to the 2013 amendment, the statute contained similar language and appears to have
been similarly designed to mandate consecutive sentences for certain sex offenses.8 However, the
6 Unless otherwise noted, statutory references are to the Missouri Revised Statutes (2000).
7 Section 558.026.1, RSMo (2013) states:
Multiple sentences of imprisonment shall run concurrently unless the court specifies that they shall run consecutively; except in the case of multiple sentences of imprisonment imposed for any offense committed during or at the same time as, or multiple offenses of, the following felonies: (1) Rape in the first degree, forcible rape, or rape; (2) Statutory rape in the first degree; (3) Sodomy in the first degree, forcible sodomy, or sodomy; (4) Statutory sodomy in the first degree; or (5) An attempt to commit any of the felonies listed in this subsection. In such case, the sentence of imprisonment imposed for any felony listed in this subsection or an attempt to commit any of the aforesaid shall run consecutively to the other sentences. The sentences imposed for any other offense may run concurrently.
8 The version of section 558.026.1, RSMo in effect prior to August 28, 2013 stated as follows:
Multiple sentences of imprisonment shall run concurrently unless the court specifies that they shall run consecutively; except that, in the case of multiple sentences of imprisonment imposed for the felony of rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid and for other offenses committed during or at the same time as that rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid, the sentences of imprisonment
11
Missouri Supreme Court examined the statute and found an ambiguity existed relating to its
application in cases involving multiple convictions involving the listed offenses. See Williams v.
State, 800 S.W.2d 739 (Mo. banc 1990). The Court explained:
The language [of section 558.026.1] makes it clear that sentences for “rape, forcible rape, sodomy, forcible sodomy, or attempt to commit any of the aforesaid” must be run consecutively to “other sentences,” which are defined as “multiple sentences of imprisonment ... for other offenses committed during or at the same time....” The statute establishes two kinds of offenses for sentencing purposes—the listed offenses and “other offenses.” It states clearly what the court must do if the defendant is convicted of an offense in each class. It does not, however, say in explicit language what must be done if there are multiple convictions of those offenses listed.
Id. at 740. The Court addressed the ambiguity by declaring that trial courts must be afforded
“maximum discretion.” As a result of Williams, prior to the 2013 amendment to section 558.026.1,
a trial court was vested with discretion to impose concurrent sentences for multiple counts of the
listed offenses. Id.
We have already determined that the trial court sentenced Cruz-Basurto under a post-2013
view of section 558.026.1 that required consecutive terms of imprisonment. However, in order to
prevail on this claim, Cruz-Basurto must establish that the trial court’s adherence to the current
version of section 526.026.1 was clearly erroneous and that, instead, the pre-2013 version of that
provision, which afforded the trial court “maximum discretion,” including consideration of
concurrent terms of imprisonment, governed his sentencing on the statutory sodomy counts.
Counts I and II
“As a general rule, penalties imposed for the violations of criminal laws are to be governed
by statutes in effect at the time of the commission of the crimes.” State v. Williams, 936 S.W.2d
imposed for the other offenses may run concurrently, but the sentence of imprisonment imposed for the felony of rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid shall run consecutively to the other sentences.
12
828, 830-31 (Mo. App. W.D. 1996) (citation omitted). Counts I and II were based on conduct
alleged to have occurred in June 2014. Therefore, the current version of section 558.026.1 applies.
As stated above, under the current language of that section, the trial court was required to run the
sentences for statutory sodomy in the first degree “consecutively to the other sentences[,]”
including other sentences for statutory sodomy in the first degree. As a result, we find the trial
court properly sentenced Cruz-Basurto to consecutive terms of imprisonment for Counts I and II.
Counts IV and V
The conduct supporting the statutory sodomy in the first degree offenses charged in Counts
IV and V was alleged to have occurred “in between and including June 1, 2012 and May 31, 2014.”
This admittedly presents a more complicated situation because the charged time period straddled
the effective date of the 2013 amendment to section 558.026.1.
Under plain error review, it is Cruz-Basurto’s burden to demonstrate that, in the context of
the evidence related to these counts, the trial court’s reliance on the current version of section
558.026.1 was evident, obvious and clear error resulting in manifest injustice. State v. Baxter, 204
S.W.3d 650, 652 (Mo. banc 2006) (“Manifest injustice is determined by the facts and
circumstances of the case, and the defendant bears the burden of establishing manifest injustice”).
In other words, Cruz-Basurto must establish that the evidence did not support a finding that the
criminal conduct alleged in Counts IV and V occurred after August 28, 2013.
Before proceeding, we address the dissent’s position that Point II raises an ex post facto
claim. Cruz-Basurto’s Point Relied On states:
The court plainly erred in sentencing Mr. Cruz-Basurto to consecutive terms of imprisonment, resulting in manifest injustice, in violation of Mr. Cruz-Basurto’s right to due process as guaranteed by the Fifth and Fourteen Amendments of the United States Constitution and article I, §10 of the Missouri Constitution, because the court’s sentences were based on a materially false foundation, in that the court
13
mistakenly believed it was compelled by law to run the sentence for each count of first-degree statutory sodomy consecutively to each other count.
As the foregoing confirms, Point II alleges only a due process violation.9 The ex post facto clause
is not referenced in the Point Relied On and is never mentioned, let alone analyzed in Cruz
Basurto’s brief. Indeed, it is only the dissent that seeks to inject an ex post facto claim into this
appeal. Our appellate courts have consistently rejected attempts by appellants to raise arguments
for the first time in a reply brief due to the prejudice such conduct imposes on respondents who,
under those circumstances, have no opportunity to respond. See State v. Renfrow, 495 S.W.3d 840,
845 (Mo. App. W.D. 2016) (refusing to consider a new argument brought for the first time in a
party’s reply brief); State v. Plunkett, 487 S.W.3d 480, 489 n. 7 (Mo. App. S.D. 2016) (same);
State v. Coleman, 449 S.W.3d 387, 389 n. 1 (Mo. App. E.D. 2014) (same). These concerns are
magnified when it is the Court itself that acts untethered to the claims of error raised by the
appellant10 because, in such situations, we abandon our role as jurists and morph into advocates
for a party. While undoubtedly well-intentioned, the dissent has, in this instance, crossed that line.
9 The Due Process clause is found in the Fifth and Fourteenth Amendments to the United States Constitution and article I, §10 of the Missouri Constitution. The ex post facto clause is separately found in Article I, §§ 9 and 10 of the United States Constitution and article I, §13 of the Missouri Constitution.
10 The dissent correctly notes that Rule 30.20 permits us to consider, at our discretion, plain errors affecting substantial rights, “[w]hether briefed or not” and cites to the recent case of State v. Ingalsbe, 557 S.W.3d 515 (Mo. App. S.D. 2018), decided by the southern district of this Court. In Ingalsbe, however, the error was obvious, evident and clear— the defendant was sentenced under a provision that took effect on January 1, 2017 for an offense that was alleged to have occurred in 2016. Neither the facts nor the relevant law was in dispute and, due to the obvious nature of the error, the exercise of discretion to correct the unbriefed mistake did not prejudice the State. By contrast, in the present case, the State presented evidence from the victim that the offenses alleged in Counts IV and V were committed before and after the law changed. Cf. State v. Jackson, 896 S.W.2d 77 (Mo. App. W.D. 1995) (noting that the State conceded that it did not establish the offense was committed after the change in the law). Moreover, the dissent does not simply apply settled law to clear facts, as was done in Ingalsbe, but instead makes sweeping legal proclamations that would have a profound impact on our criminal jurisprudence founded, in some instances, on fragile little or no precedent and does so without the benefit of input from the parties.
14
Cruz-Basurto argues that his due process rights were violated,11 the parties briefed that claim and
it is that issue that we should decide.
Cruz-Basurto argues that this case is on point with Tillitt12. It is not. In that case, it was
undisputed that the defendant’s conduct only occurred prior to August 28, 2013. Tillitt, 552
S.W.3d at 581.13 Therefore, it was clear that the trial court plainly erred when it relied on the post
2013 version of section 558.026.1 to sentence Tillitt. By contrast, Counts IV and V alleged that
Cruz-Basurto committed the charged conduct before and after the current version of section
558.026.1 became effective, and evidence was presented at trial that Cruz-Basurto committed the
acts supporting these counts throughout the entirety of the charged time period, including a
significant period after the 2013 amendments to section 558.026.1.
Cruz-Basurto does not dispute this point but asserts that “there is no way to know for sure
when the jury determined the charged act occurred within that time range,” and argues that this
creates an ambiguity that should inure to his benefit. This approach, however, ignores the standard
of review applicable to this unpreserved claim that places the burden on him to show an evident,
obvious, and clear error has been committed by the trial court. We will not abandon this
requirement and presume such an error.
Cruz-Basurto was charged in Counts IV and V with statutory sodomy in the first degree
committed, in part, after the amendment to section 558.026.1. The evidence presented at trial
11 “A sentence passed on the basis of a materially false foundation lacks due process of law and entitles the defendant to a reconsideration of the question of punishment in the light of the true facts, regardless of the eventual outcome.” State v. Pierce, 548 S.W.3d 900, 904 (Mo. banc 2018) (quoting Wraggs v. State, 549 S.W.2d 881, 884 (Mo. banc 1977)).
12 In Tillitt, we cited State v. Johnson, 150 S.W. 3d 132, 138 (Mo. App E.D. 2004) for a proposition that relied on section 1.160(2). However, subsection (2) of section 1.160 had been removed by the time Tillitt was decided. Tillitt’s reliance on Johnson and on section 1.160(2) should be disregarded.
13 In Tillitt, the defendant was charged with five counts of statutory sodomy in the first degree and one count of child molestation in the first degree with the “final alleged offense here occur[ing] in June 2013.” Tillitt, 552 S.W.3d at 581.
15
provided a sufficient factual basis from which the jury could have found that the charged conduct
occurred after the effective date of the amendment, allowing the trial court to sentence him, as we
find it did, in accordance with the amended version of section 558.026.1. Cruz-Basurto has failed
to establish that this was evident, obvious, and clear error. Point II denied.
Outcome: The judgment of the trial court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: