In the Missouri Court of Appeals
                             Eastern District
                                       DIVISION THREE

STATE OF MISSOURI,                              )    No. ED102138
                                                )
       Respondent,                              )    Appeal from the Circuit Court of
                                                )    the City of St. Louis
vs.                                             )    1222-CR06702-01
                                                )
RONALD WARD,                                    )    Honorable Thomas C. Grady
                                                )
       Appellant.                               )    Filed: March 29, 2016

                                            OPINION

       Ronald Ward appeals his convictions following a jury trial in the Circuit Court of the

City of St. Louis of four counts of first-degree statutory sodomy. In his sole point on appeal,

Ward contends that the trial court erred by refusing to instruct the jury on first-degree sexual

misconduct as a lesser included offense of first-degree statutory sodomy. We affirm because

first-degree sexual misconduct as defined by section 566.0901 is not a lesser included offense of

first-degree statutory sodomy.

                             Factual and Procedural Background

       Ronald Ward was convicted of four counts of first-degree statutory sodomy, among other

offenses, for engaging in a series of illicit sexual activities with his two nieces, neither of whom


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  All statutory references are to RSMo (Supp. 2012) unless otherwise indicated. We note that
subsequent to Ward’s crimes, in 2013, the offense of first-degree sexual misconduct was
transferred to section 566.101 and renamed second-degree sexual abuse. The elements of the
offense were not altered.
was above eight years old. At trial, Ward requested that the court instruct the jury on first-degree

sexual misconduct, which he claims is a lesser included offense of first-degree statutory sodomy.

The trial court refused and this appeal follows.

                                       Standard of Review

       Where the issue is preserved, we review de novo a trial court’s decision whether to give a

jury instruction requested under section 556.046, and if the statutory requirements for giving

such an instruction are met, a failure to give a requested instruction is reversible error. State v.

Jackson, 433 S.W.3d 390, 395 (Mo.banc 2014) (footnote omitted).

                                            Discussion

       An offense is a lesser included offense when (1) it is established by proof of the same or

less than all the facts required to establish the commission of the offense charged; (2) it is

specifically denominated by statute as a lesser degree of the offense charged; or (3) it consists of

an attempt to commit the offense charged or to commit an offense otherwise included therein.

Section 556.046.1(2).

       At the time of Ward’s offenses, first-degree sexual misconduct was defined by section

566.090 as “purposely subject[ing] another person to sexual contact without that person’s

consent.” First-degree statutory sodomy, however, was defined by section 566.062 as “ha[ving]

deviate sexual intercourse with another person who is less than fourteen years old.” Therefore,

first-degree sexual misconduct could not be proved by the same or less than all of the facts

required to prove first-degree sodomy, but only by more facts, namely that the sexual act was

committed both “purposely” and “without consent” of the victim.

       Moreover, first-degree sexual misconduct is not denominated by statute as a lesser degree

of first-degree statutory sodomy, and it does not consist of an attempt to commit the latter



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offense. Thus, first-degree sexual misconduct as defined by section 566.090 does not satisfy any

of the subparts of section 566.046.1(2) and therefore is not a lesser included offense of first-

degree statutory sodomy.

       Our holding is consistent with State v. Greenlee, 327 S.W.3d 602, 621 (Mo.App.E.D.

2010), in which this Court held that first-degree sexual misconduct as defined by section 566.090

is not a lesser included offense of first-degree statutory sodomy because the former requires

proof of “lack of consent.” Id.

       Ward’s argument is based entirely on the principle that a person under the age of fourteen

can never legally consent to any kind of sexual activity. State v. Stokely, 842 S.W.2d 77, 81

(Mo.banc 1992). In Ward’s view, the inability of a person under the age of fourteen to legally

consent to sexual activity demonstrates that first-degree statutory sodomy, like first-degree

sexual misconduct, requires proof of lack of consent. Thus, Ward concludes, first-degree sexual

misconduct is included in first-degree statutory sodomy because the former may be established

by proof of the same or less than all the facts required to prove the latter offense. However, as

Stokely confirms, the inability of a person under the age of fourteen to legally consent to sexual

activity actually demonstrates that “[a]ge is the essential element” in statutory sexual offenses

such as statutory sodomy, and thus the intent of the perpetrator and the consent of the victim are

irrelevant. Id. (holding that mistake as to the age of the victim is no defense to statutory rape);

see also State v. Ybarra, 386 S.W.2d 384, 386 (Mo.banc 1965) (holding that “intent and motive

play but little if any part in [statutory rape]”); State v. Baker, 276 S.W.2d 131, 133 (Mo.banc

1955) (stating that in prosecution for statutory rape, “consent . . . become[s] immaterial”).

Indeed, that is why section 566.062 plainly does not require proof of lack of consent to establish

first-degree statutory sodomy. Point denied.



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                                           Conclusion

       For the reasons stated above, we affirm the judgment of the trial court.




                                                            ___________________________
                                                            James M. Dowd, Judge

Robert M. Clayton III, P.J., and
Lawrence E. Mooney, J., concur.




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