State of Missouri, Respondent, v. Richard E. McCoy, Appellant.

STATE OF MISSOURI, Respondent, v. RICHARD E. MCCOY, Appellant. ) ) ) ) ) ) ) ) ) ED113082

Appeal from the Circuit Court of Cape Girardeau County The Honorable Scott A. Lipke, Judge Before: Michael S. Wright, Presiding Judge, Philip M. Hess, Judge, and Virginia W. Lay, Judge. Introduction Richard McCoy (McCoy) appeals from his convictions after a jury trial of statutory sodomy in the first degree and felony enticement of a child. McCoy raises two points on appeal: the trial court erred (1) by admitting a portion of Victim's forensic interview including a recalled statement by her sister that McCoy had gotten "too close to her butt" while tickling her, and (2) by denying McCoy's motion for a judgment of acquittal because the State's evidence was insufficient to support his conviction for enticement.

2 Finding no error, we affirm. On Point One, the trial court did not commit plain error because the testimony in question did not describe an uncharged "prior bad act" and was thus not subject to the restrictions on such evidence. On Point Two, we find the record contains sufficient evidence to support an inference that McCoy's conduct falls within the ambit of "solicitation." Factual and Procedural Background This case relates to an incident that occurred sometime between June of 2006 and June of 2007. Victim, age four at the time, was the daughter of McCoy's then-girlfriend, J.M. McCoy initially met J.M. when Victim was less than a year old, and had moved in shortly after. J.M. had one other child, followed by two more with McCoy, E.M. and D.M. McCoy would sometimes care for all four children, and engaged in typical "co- parenting" with J.M. Though Victim was not McCoy's biological daughter, McCoy was the only "father figure" in her life. One day, while McCoy was taking care of the children, Victim got in a fight with her little brother, D.M. McCoy took Victim into the bedroom he shared with her mother and locked the door. He then laid down on the bed, pulled down his shorts, and exposed himself to Victim. He then told Victim to put his penis in her mouth, causing Victim to refuse and start crying. McCoy got angry and yelled at Victim to "just do it." McCoy then put his hand on Victim's head and forced her to comply. After, McCoy told Victim to leave the room. Victim did not report what happened to her for nearly a decade, at first fearing she would get in trouble, then worrying that her younger siblings might lose their relationship with McCoy, their biological father.

3 On April 25, 2016, Victim—then thirteen—confided in her mother's cousin about her experience. The cousin urged Victim's mother to have a conversation with Victim about the incident with McCoy. Victim began explaining the incident to her mother. Once she began to describe the sexual abuse by McCoy, her mother immediately halted the conversation and took Victim to the police department. There, Victim spoke to an officer and filled out a statement. The next day, Victim participated in a forensic interview wherein she described the incident in question. During the interview, Victim referenced a recent conversation where she had asked her sister E.M. whether McCoy had done anything inappropriate with her. Victim recalled that E.M. denied experiencing anything inappropriate, only sharing that McCoy had gotten "really close to [her] butt" while tickling her. McCoy was charged with two unclassified felonies: one count of statutory sodomy in the first degree pursuant to section 566.062 1 (Count I), and one count of felony enticement of a child pursuant to section 566.151 (Count II). A jury trial was held July 22–23, 2024. At trial, the State introduced into evidence (and played for the jury) Victim's forensic interview. McCoy objected to the portion of Victim's interview involving E.M.'s statement about McCoy tickling her, arguing it was inappropriate propensity evidence. The trial court overruled the objection. The prosecution did not emphasize the statement or reference it for the rest of the trial. The trial court denied

1 All section references are to RSMo (Cum. Supp. 2007). All rule references are to the Missouri Supreme Court Rules (2025).

4 McCoy's motion for a judgment of acquittal after the close of State's evidence. The jury found McCoy guilty on both counts and recommended sentences of eighteen and fifteen years of imprisonment for Counts I and II respectively. The trial court sentenced McCoy accordingly, ordering the sentences to run consecutively for a total of 33 years imprisonment. This appeal follows. Discussion Point One: E.M.'s Statement Did Not Reference Prior Bad Act In his first point on appeal, McCoy argues the trial court plainly erred 2 by admitting Victim's statement that E.M. had told Victim McCoy had tickled her too close to her butt because this constituted admission of evidence of a prior bad act with no other relevance. We disagree, and decline to conduct plain error review. Standard of Review Plain error review is discretionary, and we will decline to review for plain error unless an appellant facially demonstrates that there is a "plain error affecting substantial rights" and "manifest injustice or miscarriage of justice has resulted." State v. Jones, 725 S.W.3d 577, 583 (Mo. banc 2025) (quoting Rule 30.20). This is a two-step process. First, the appellant must facially establish that a "plain error affecting substantial rights"

2 While McCoy did object when this testimony was introduced, he failed to renew that objection in his motion for a new trial. As such, McCoy concedes that this objection is unpreserved, and can only be reviewed for plain error. See Rule 30.20; State v. Campbell, 147 S.W.3d 195, 205 (Mo. App. S.D. 2004) ("In order to preserve an error in the admission of evidence at trial, it is necessary to object to the evidence at trial and to assert the error in the motion for new trial.").

5 has occurred. 3 Id. By definition, such an error is "plainly erroneous, inherently self- evident, discernible, and undeniable, affecting the basic rights of a litigant." Id. Then, we must assess wither the claimed error actually resulted in manifest injustice or a miscarriage of justice. Id. Analysis "Evidence must be logically and legally relevant to be admissible." State v. Harmon, 719 S.W.3d 158, 161 (Mo. App. E.D. 2025). "Evidence is logically relevant if it tends to make the existence of a material fact more or less probable." Id. (internal quotation omitted). Evidence is legally relevant when its probative value outweighs unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness. Id. (internal quotation omitted). Prejudice outweighs probative value if the inevitable tendency of the evidence is to raise a legally false presumption of guilt in the minds of the jurors. State v. Clover, 924 S.W.2d 853, 856 (Mo. banc 1996). McCoy argues that E.M.'s statement, which came in through Victim's forensic interview, was improperly admitted as evidence of a prior bad act of sexual misconduct. McCoy correctly asserts that evidence of prior bad acts must have some relevant purpose beyond a tendency to show propensity to commit such crimes. See State v. Jensen, 524 S.W.3d 33, 41 (Mo. banc 2017); see also State v. Williams, 922 S.W.2d 845, 852 (Mo.

3 An error affects "substantial rights" if "facially, there are significant grounds for believing that the error is of the type from which manifest injustice or miscarriage of justice could result if left uncorrected." Jones, 725 S.W.3d at 583 (emphasis in original) (quoting State v. Johnson, 524 S.W.3d 505, 513 (Mo. banc 2017)). Thus, any error that resulted in manifest injustice or a miscarriage of justice must, definitionally, affect substantial rights.

6 App. E.D. 1996) ("[E]vidence of prior misconduct may be admissible" if it has "a legitimate tendency to directly establish the defendant's guilt for the crime charged."). But that limitation only applies to prior bad acts—i.e., crimes and misconduct. State v. Ponder, 950 S.W.2d 900, 911–12 (Mo. App. S.D. 1997). E.M.'s statement was not presented as an allegation, and the act described is neither criminal nor inherently wrong; E.M. said only that when her father tickled her, she remembered him getting "really close to [her] butt." McCoy cites to State v. Kitson, 817 S.W.2d 594 (Mo. App. E.D. 1991) for the proposition that a prior bad act need not be a crime to be inadmissible. In Kitson, this Court held that evidence of the defendant's consensual sexual acts with his wife were, though not criminal or even wrongful, inadmissible because the State introduced the evidence to show Kitson's "disposition . . . for [a specific] type of sexual activity" similar to the one he was charged with. Id. at 598. The Kitson court reasoned that introducing such evidence (even though it was not criminal) was a "plain, direct and focused attack on defendant's character—a possible 'sodomizer' or 'pervert'; therefore, a bad character who, because of his bad character, must have committed the crime charged." Id. E.M.'s statement is not analogous. The act described was not similar to McCoy's charged crime, nor did the prosecution make any attempt to leverage the statement against McCoy as occurred in Kitson. Further, even if E.M.'s statement had been inadmissible, McCoy cannot show that he suffered a manifest injustice or miscarriage of justice from its admission. The prosecution responded to McCoy's objection outside the hearing of the jury, explaining

7 that E.M.'s statement was only introduced for its relevance to Victim's credibility. If Victim were falsely trying to incriminate McCoy, the prosecution argued, she could have embellished E.M.'s statement, so the lack of embellishment speaks to her credibility. After introduction, the State did not emphasize or argue the statement at all, severely limiting any possible prejudice. See, e.g., State v. Ratliff, 622 S.W.3d 736, 746 (Mo. App. W.D. 2021) (finding appellant did not facially establish substantial grounds for believing manifest injustice occurred where the inadmissible evidence was traced to "a single question" and the State did not "emphasize or refer to the [] testimony at any other time"). The notion that E.M.'s brief declaration—that McCoy did not, in fact, sexually assault her, too—prejudiced the jury against him strains credulity. Finding McCoy has failed to facially establish grounds for plain error or manifest injustice, we decline to conduct plain error review. See Jones, 725 S.W.3d at 585. Point One is denied. Point Two: Sufficient Evidence McCoy "Solicited" Victim In his second point on appeal, McCoy argues that the trial court erred by denying his motion for a judgment of acquittal on Count II because there was insufficient evidence to support an inference that McCoy "solicited" Victim to perform a sex act. McCoy argues that his alleged behavior constituted a "demand" or "threat," which is distinct from "solicitation" or "enticement." Finding this contention utterly without merit, we affirm.

8 Standard of Review Claims regarding the sufficiency of evidence to sustain a criminal conviction are always preserved for appellate review. Rule 29.11(d); State v. Claycomb, 470 S.W.3d 358, 361 & n.3 (Mo. banc 2015). Our review of the sufficiency of the evidence "is limited to whether the State has introduced sufficient evidence for any reasonable juror to have been convinced of [defendant's] guilt beyond a reasonable doubt." State v. Bateman, 318 S.W.3d 681, 686-87 (Mo. banc 2010) (internal quotation omitted). We do not assess whether we believe the evidence at trial established guilt beyond a reasonable doubt, but whether, in light of the evidence most favorable to the State, any rational fact- finder "could have found the essential elements of the crime beyond a reasonable doubt." Id. at 687 (internal quotation omitted). We accept as true "all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregard[] all evidence and inferences to the contrary." Id. (internal quotation omitted). Analysis Count II charged McCoy with enticement of a child. The information alleged McCoy "solicited" Victim to put her mouth on his penis, and that he did so for the purpose of engaging in sexual conduct with a person less than fifteen years of age. McCoy contends that the evidence does not support his conviction on Count II, which required a finding that he induced Victim to engage in sexual conduct by soliciting her to do so through any words, actions, or communication. See section 566.151. The statute does not include a definition for "solicit," and so, to determine legislative intent, we rely on the language used, "ascertain[ing] its plain and ordinary

9 meaning from the dictionary." State v. Sears, 298 S.W.3d 561, 564 (Mo. App. E.D. 2009). "Solicit" is defined as "to make petition to," "to move to action," and "to strongly urge (as one's cause or point): insist upon." WEBSTER'S NEW INT'L DICTIONARY 2169 (3d ed. 2002); 4 see also Sears, 298 S.W.3d at 565. Victim testified McCoy told her to put her mouth on him, which she refused. McCoy then repeated the command with increasing urgency and eventually grabbed Victim's head and forced her to perform the act. McCoy argues that telling Victim to perform a sex act does not fall under the umbrella of solicitation, characterizing his behavior as a demand "with the aid of coercion, duress, and physical force." But "A sexual solicitation does not require a defendant to use magic words[.]" State v. Sigmon, 517 S.W.3d 653, 661 (Mo. App. E.D. 2017). McCoy, in initially telling Victim to place her mouth on his penis, strongly urged her to perform a sex act, only applying force when she had refused. McCoy insists this does not meet the definition of solicitation. We disagree, and find no merit to this sort of cynical wordplay. McCoy relies on Sigmon to support his premise, but Sigmon's facts are not remotely comparable to this case. Sigmon had been arrested and, while in the back of a police vehicle, told one of the officers he knew she had a "pretty little blonde girl that plays outside." Id. at 656. Sigmon went on to describe a violent sex act he intended to

4 "Webster's Third New International Dictionary is this Court's institutional dictionary of choice." Hershey v. Curators of Univ. of Mo., 719 S.W.3d 915, 920 n.2 (Mo. App. E.D. 2025) (internal quotation omitted).

10 perform on the officer's daughter, and taunted that he would be out of jail in 24 hours, threatening to kidnap the girl after his release. Id. Sigmon was charged with second degree sexual misconduct, a solicitation offense. Id. at 661. This Court overturned Sigmon's conviction on that count because Sigmon's statements were a threat, not a solicitation; he intended to frighten or intimidate the officer, not convince the officer's daughter to perform a sex act. Id. McCoy did not inform Victim of something he planned to do, but rather sought to convince her to perform an act on him. The fact that he eventually resorted to force does not negate his initial urging nor take it outside the realm of solicitation. McCoy counters that his statements did not involve a request, or seeking permission or consent. But, as this Court explained in Sears, "solicit" includes "to urge (as one's cause) strongly." 298 S.W.3d at 565. Solicitation does not require a polite request; it requires only attempting to convince someone to perform an act. McCoy's demand to Victim, regardless of whether he followed it with force, clearly qualifies. Point Two is denied. Conclusion For the foregoing reasons, we affirm the judgment of the trial court.

_________________________ Virginia W. Lay, Judge Michael S. Wright, Presiding Judge, concurs. Philip M. Hess, Judge, concurs.