STATE v. OSBORN, SD29677 (Mo.App.S.D. 5-27-2010)

STATE OF MISSOURI, Plaintiff-Respondent, v. JASON D. OSBORN, Defendant-Appellant.

No. SD29677Missouri Court of Appeals, Southern District, Division Two.
May 27, 2010

PER CURIAM.

In its motion for rehearing or to transfer to the Supreme Court of Missouri, the State argues for the first time that MAI-CR 3d 320.37 does not accurately reflect the elements of the enticement of a child offense, as provided in § 566.151. The State claims that § 566.020.3[1] shifts the burden of proof on the issue of a defendant’s knowledge of a person’s age from the State to the defendant as an affirmative defense to be raised by the defendant on an

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offense under § 566.151. The State’s argument assumes, without any explanation or citation to relevant legal authority, that the provisions of § 566.020.3 directed toward the criminality of conduct dependant “upon a child being under seventeen years of age,” subsumes the conduct proscribed under § 566.151 related to “any person who is less than fifteen years of age.”

While we question the State’s assumption, we need not address it because “[r]espondents in motions for rehearing or to transfer will not be heard on afterthoughts nor on propositions or complaints concerning the disposition of original appeals which were not raised or made in their briefs.” State v. Oliver, 520 S.W.2d 99, 101-02 (Mo.App. 1975) (citing Ackerman v.Globe-Democrat Publishing Co., 368 S.W.2d 469, 480(12) (Mo. 1963) cert. denied, 375 U.S. 949, 84 S.Ct. 353, 11 L.Ed.2d 276 (1963)). The State’s motion is denied.

[1] Section 566.020, RSMo 2000, provides:

1. Whenever in this chapter the criminality of conduct depends upon a victim’s being incapacitated, no crime is committed if the actor reasonably believed that the victim was not incapacitated and reasonably believed that the victim consented to the act. The defendant shall have the burden of injecting the issue of belief as to capacity and consent.

2. Whenever in this chapter the criminality of conduct depends upon a child being thirteen years of age or younger, it is no defense that the defendant believed the child to be older.

3. Whenever in this chapter the criminality of conduct depends upon a child being under seventeen years of age, it is an affirmative defense that the defendant reasonably believed that the child was seventeen years of age or older.

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