State of Missouri v. Timothy Howell ( 2015 )

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DIVISION THREE
STATE OF MISSOURI, ) ED200924
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
v. ) 1222-CR03899-01
)
TIMOTHY HOWELL, ) Honorable John J. Riley
)
Appellant. ) Filed: February 10, 2015
Introduction
Timothy Howell (Defendant) appeals the judgment entered upon his conviction
for one count of attempted sexual misconduct involving a child by knowingly exposing
his genitals to a person he believed to be thirteen years oid. Defendant argues the State
failed to prove his conduct was knowing as to the age of the person. We affirm.
Background
Defendant’s conviction arises from an event occurring in October of 2010.
Defendant, who was in St. Louis, communicated via the internet with a Georgia Bureau
of Investigation Special Agent (the officer), who was posing as a thiiteen-year-old girl
with the chat name “mandylool3.” Defendant initiated a chat with the officer, and
shortly thereafter Defendant sent mandyiool3 a webcam request. When the officer
accepted as mandylool3, he received live streaming video of Defendant, who was naked
and masturbating.
This video lasted approximately twentwaour minutes, and Defendant
simultaneously chatted with mandyiooi3 while streaming the video. During the course
of this chat, the officer made comments indicating that mandylool3 was a minor, and
eventually, the officer explicitly gave an age of thirteen. Defendant continued to
masturbate on camera, then he ejaculated and ended both the video and the chat.
The State charged Defendant in Count I with enticement of a child and in Count H
with attempted sexual misconduct involving a child by knowingly exposing his genitals
to a child for his own sexual gratification. At Defendant’s bench trial, Defendant’s
counsel conceded Defendant’s guilt regarding Count ll, but contested it regarding Count
I. The trial court convicted Defendant of Count II and acquitted him of Count I. The trial
court sentenced Defendant as a prior and persistent offender to five years in prison.
This appeal follows.
Discussion
Defendant’s sole point on appeal is that there was insufficient evidence presented
at trial to prove under Count II that Defendant acted knowingly regarding inandylool3’s
age. We disagree.
Our review of a challenge to sufficiency of the evidence to support a conviction is
limited to a determination of “whether the State introduced sufficient evidence at trial
from which a reasonable trier of fact could have found each element of the offense to
have been established beyond a reasonable doubt.” State v. Anderson, 386 S.W.3d 186,
189-90 (Mo. App. ED. 2012) (quoting State v. Bateman, 318 S.W.3d 681, 686~87 (Mo.
banc 2010)). We accept as true all evidence and reasonable inferences favorable to the
verdict, disregarding contrary inferences “unless they are such a natural and logical
extension of the evidence that a reasonablejuror would be unable to disregard them.” I_d.
Additionally, “when a defendant makes a voluntary judicial admission . . ., it
serves as a substitute for evidence and dispenses with proof of the actual fact.” Sfltgy,
Denzmore, 436 S.W.3d 635, 643 (Mo. App. ED. 2014) (quoting State v. Eacret, 456
S.W.2d 324, 327 (Mo. 1970)). Admissions made by a defendant’s attorney are presumed
true and may be acted on by the court. Denzmore, 436 S.W.3d at 643 (citing m
Vandiver, 592 S.W.2d 304, 306 (Mo. App. ED. 1979)). An admission of guilt regarding
a charged crime can be sufficient to waive the production of evidence regarding all
elements of the charged crime. Sgt; Denzmore, 436 S.W.3d at 643 (concluding defense
counsel’s opening statement that defendant was guilty of felony leaving scene of accident
was sufficient to waive production of evidence relating to that charge).
Here, Defendant’s counsel stated both in opening statement and in closing
argument that Defendant conceded guiit regarding Count II, the charge of attempted
sexual misconduct. In fact, Defendant’s counset asked the trial court to find Defendant
guilty of Count Ii. Defense counsel’s opening statement began as follows:
Your Honor, this is a case that we will ask you to find
[Defendant] guilty of . . . Count II of Sexual Misconduct . . .
We don’t dispute that, back in October, 2010, [Defendant]
exposed his genitals on camera to an Agent that was posing as .
. . a 13-year-old girl at that time.
Similarly, in closing argument, Defendant’s counsel stated the foilowing:
Count It, Your Honor: As I stated in my Opening Statement to
you, we concede to that.
These admissions were sufficient to waive the production of evidence regarding that
charge. fig; g
Nevertheless, the State also produced sufficient evidence from which a reasonable
finder of fact could have found Defendant guilty of Count ll. Section 566.083.1(2) states
that a person commits the crime of sexual misconduct involving a child if he or she
“[k]knowingly exposes his or her genitals to a child less than fifteen years of age for the
purpose of arousing or gratifying the sexual desire of any person, including the child.”
One of the elements of this crime is that the defendant knows that the person is less than
fifieen years old. E State v. Jeffrey, 400 S.W.3d 303, 313 (Mo. banc 2013). The
statute also makes clear that it is not an affirmative defense to this section where “the
other person was a peace officer masquerading as a minor.” Section 566.083.3. The
purpose of the statute is to punish perpetrators who believe they are exposing themselves
to children under the age of fifteen. Egg State v. Hall, 321 S.W.3d 453, 456 (Mo. App.
SD. 2010).
Here, Defendant disputes only this element of knowledge regarding the person’s
age. He argues that he did not expose his genitals to someone he knew to be a child,
because the officer did not explicitly state mandylool3’s age until after Defendant had
ah‘eady begun streaming video of himself masturbating. Defendant argues his conduct
was one continuous act, and therefore because he did not know inandylool3’s age when
he began his conduct, he cannot have done so knowingly. We disagree.
Defendant’s argument is based on the premise that he could not have developed
the element of knowledge of the child’s age midway through the act of exposing his
genitals. Defendant cites cases involving possession of contraband, in which courts
found that a single act of possession could not encompass both the crime of possession
and the crime of possession with intent to distribute or promote. Stag State v. Kamaka,
277 S.W.3d 807, 812 (Mo. App. W.D. 2009) (finding double jeopardy Vioiated where
State charged possession of chiid pornography and promotion of child pornography
regarding same Video file from defendant’s computer); State V. Cunningham, 193 S.W.3d
774, 782 (Mo. App. SD. 2006) (finding double jeopardy violated where State charged
both possession of controiied substance and possession with intent to distribute regarding
same controlled substance found in defendant’s pocket). We find the act of possession
distinguishable from Defendant’s conduct here.
It is the public poiicy of this State to “encourage criminals to abandon criminal
behavior.” State v. Barber, 37 S.W.3d 400, 405 (Mo. App. ED. 2001). Here, Defendant
streamed a twenty-four-minute video of himself, during which he made choices to
alternate the focus of the camera between his face and his penis, and during which he
chose intermittently to type comments into a chat conversation. At any point, instead of
responding to any one of the officer’s statements, he could have terminated this encounter
or moved the camera away from his genitais. Even if he believed his initial exposure to
mandylool3 was legal, there was nothing that prevented him from ending the video upon
becoming aware of mandylool3’s age.
instead, Defendant did not make this choice to end the video, but Defendant
voiitionaily continued to focus the video on his penis, even going so far as to ensure that
the “child’s” mother was not around to observe his conduct. Whether or not he knew
when he began the video feed, Defendant’s continuation of his lewd conduct upon
receiving an expiicit statement of mandylool3’s age clearly demonstrated the knowing
element of this crime. Thus, there was sufficient evidence from which the trial court
could have found Defendant knowingly chose to continue exposing his genitals to a
person he believed to be thirteen years old, for his own sexual gratification. Section
586.083.1. Point denied.
Conclusion
Defense counsel’s admission of Defendant’s guilt regarding the crime of
attempted sexual misconduct involving a child was sufficient to waive the production of
evidence regarding that charge. Nevertheless, with the evidence that Defendant made a
series of volitional choices to continue to expose his genitals throughout a conversation
with an officer posing as a thirteen-year-old, even after the officer’s explicit statements
regarding age, the State presented sufficient evidence that Defendant acted knowingly.
We affirm.
Kurt S. Odenwald, P. J., concurs.
Robert G. Dowd, Jr., J ., concurs.