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DIVISION TWO
STATE OF MISSOURI, ) ED102163
J
Respondent, ) Appeal from the Circuit Court
) of Washington County
V. ) 13WA—CR00402—01
)
ERIC MCCURTAIN, ) Honorable Troy K. Hyde
)
Appellant. ) FILED: September 29, 2015

Introduction
Eric McCurtain (McCurtain) appeals from a sentence and judgment of conviction for
second-degree sexual misconduct. He asserts there was insufﬁcient evidence to support his

conviction, and he challenges the trial court’s exclusion of certain evidence. We affirm.

Background and Procedure

The State of Missouri (State) charged McCurtain with one count of the class B
misdemeanor of sexual misconduct in the second degree stemming from an incident in which he
exposed his genitals under circumstances in which he knew such conduct was likely to cause
affront or alarm. At trial, the following evidence was adduced.

Channon Chazelle (Chazelle) was employed as a counselor with the Missouri Department
of Corrections (DOC). McCurtain was an inmate at the Potosi Correctional Center (FCC) and

had requested a consent form to speak with a mental health professional. Chazelle brought the

consent form to McCurtain’s cell and slid it through an opening on the side of his cell door.
Mchtain was clothed when she ﬁrst arrived, but after taking the consent form to the back of his
cell, he turned around, pulled down his pants to expose his entire penis, and started masturbating
with one hand while still holding the form with the other. Chazelle told him that his behavior
was inappropriate, but he continued to masturbate while walking towards her. Chazelle repeated
that his behavior was unacceptable and left. She later returned to retrieve the form McCurtain
had dropped onto the ﬂoor outside his cell. Chazelle spoke with her supervisor about the
incident and reported that she felt uncomfortable with seeing McCurtain outside of his cell, such
as in an ofﬁce setting.

On cross-examination, counsel for McCurtain asked Chazelle if she had previously seen
another penis exposed while working at the PCC. The State objected on the grounds of
relevance and that rape shield protections prevented asking about prior sexual assaults. The trial
court sustained the objection stating, “[t]his is a single isolated charge and as a result of that I
feel that it would be irrelevant to go beyond what her experiences are in the situation.”
Chazelle further testiﬁed that after the incident with McCurtain she “felt caught off—guard and
uncomfortable, but not distressed like [she] was going to get hurt,” and that she felt he was trying
to intimidate her. She agreed she did not seek treatment after the incident and was not in any
emotional turmoil, other than speaking to her supervisor about not wanting to see McCurtain in
an office situation. She agreed that it could be “pretty crazy” in the PCC with inmates yelling.

The jury found McCurtain guilty of second-degree sexual misconduct. McCurtain ﬁled a
motion for acquittal or in the alternative for a new trial. The trial court denied his motion and
sentenced him to 30 days in jail, to be served consecutive to the sentence he was already serving

in the DOC. This appeal follows.

 

Discussion

Point I

 

In his ﬁrst point on appeal, McCurtain argues the trial court erred in overruling his
motion for judgment of acquittal and in imposing a sentence and judgment upon him, because
the State failed to present sufﬁcient evidence from which a reasonable jury could have found
McCurtain’s conduct was likely to cause affront and alarm, in that his conduct occurred in a
prison where such actions are commonplace and thus not likely to cause affront and alarm to
those who work there. We disagree.

We review challenges to the sufﬁciency of the evidence supporting a criminal conviction
by determining Whether the State presented sufﬁcient evidence at trial from which a reasonable

juror might have found the defendant guilty of all the essential elements of the crime. State v.

 

Gibbs, 306 S.W.3d 178, 181 (Mo. App. ED. 2010). We accept as true all evidence supporting

 

the jury’s verdict, inciuding all favorable inferences therefrom, and disregard all contrary
evidence and negative inferences. Li. We do not act as a super juror but will defer to the trier of
fact. State v. Nash, 339 S.W.3d 500, 559 (Mo. banc 2011).

The State is required to prove beyond a reasonable doubt each element of the offense
charged. State v. Danikas, 11 S.W.3d 782, 788 (Mo. App. WI). 1999). The State charged
McCurtain with sexual misconduct, which occurs when a person “exposes his or her genitals
under circumstances in which he 01‘ she knows that his or her conduct is likely to cause affi‘ont or
alarm.” Section 566.093.1(1), RSMO. (Cum. Supp. 2013). The statute does not provide a
deﬁnition for affront or alarm, but Missouri courts have deﬁned affront as “a deliberately
offensive act or utterance,” and alarm as “apprehension of an unfavorabie outcome  or

dangerous consequences; an occasion of excitement or apprehension.” State v. Moore, 90

S.W.3d 64, 67 n.6 (Mo. banc 2002) (internal quotation marks and citations omitted); State v.

Jeffries, 272 S.W.3d 883, 884-85 (Mo. App. SD. 2008).

 

To meet its burden on the second element, that “he or she knows that his or her conduct is
likely to cause affront or alarm,” the State is not required to prove the victim was in fact
affronted or alarmed but merely that the defendant knew the conduct was likely to cause affront
or alarm. State v. Kalter, 442 S.W.3d 124, 129-30 (Mo. App. SD. 2014). The focus is on the
defendant’s knowledge. State V. Edwards, 433 S.W.3d 494, 497 (Mo. App. SD. 2014).
Circumstantial evidence is sufficient to meet the burden of proof for the requisite mental state to
support a conviction for sexual misconduct. State V. Brown, 360 S.W.3d 919, 924 (Mo. App.
WD. 2012). The jury applies a “should have known” standard to a defendant’s conduct. I_d. at
923-24.

Here, the record contains sufﬁcient evidence to conclude that McCurtain was deliberately
offensive,1 and therefore knew or should have known his conduct was likely to cause affront or
alarm. _S_e_e limes, 272 S.W.3d at 884—85 (deliberately offensive acts constitute affront).
Chazelle did not happen upon him unaware; rather, he waited until Chazelle arrived at his cell
and was interacting with him before he exposed his genitals and started masturbating in full view
of her. Masturbating openly is likely to result in affront or alarm by anyone who sees the
defendant, and a jury can conclude simply from the conduct that the defendant was being
deliberately offensive. E m, 360 S.W.3d at 923-24. Moreover, he did not stop when

Chazelle told him his behavior was inappropriate, but rather continued to masturbate while

I McCurtain compares the facts in his case to those in State v. Beine, 162 S.W.3d 483 (Mo. banc 2005), to argue
Beine is controlling here. The Missouri Supreme Court reversed Beine’s conviction under Section 566.093, ﬁnding
that the State failed to show Beine knew his actions of incidentally (and necessarily) exposing his genitals while
urinating in the urinal in the boy’s restroom would be likely to cause affront or alarm. Q at 485-86. For McCurtain
to compare the facts herewf intentionally pulling down his pants to expose his penis and masturbate in full View of
Chazelle—to the facts in Beine is unreasonable on its face. Beine is not controlling.

4

walking towards her. See Edwards, 433 S.W.3d at 497 (failure to comply with requests to stop
conduct is evidence that defendant knew conduct was likely to cause affront or alarm). Chazelle
testiﬁed it seemed that McCurtain intended to intimidate her with his behavior, suggesting he not
only knew his conduct was likely to cause affront or alarm, but he actually intended to cause

affront or alarm. & Kalter, 442 S.W.3d at 13] (jury can make reasonable inferences from

 

record that defendant knew his conduct was likely to cause affront or alarm). Last, “{a}n adult is
presumed to know that certain behavior is criminal,” and thus the jury could reasonably infer that
McCurtain knew his conduct was criminal and thus likely to cause affront or alarm. SE

Edwards, 433 S.W.3d at 497 (citation omitted); see also Brown, 360 S.W.3d at 923 (claiming

 

ignorance that public masturbation is illegal is disingenuous).

McCurtain argues that because the conduct occurred in a prison setting, Chazelle should
not have been affronted or alarmed, as public masturbation is the type of standard conduct one
should expect to witness in prison.2 Ignoring the issue of whether that portrayal is accurate, the
standard is not what Chazelle should have expected, but what McCurtain knew or should have
known. See Q at 129-30. There was sufﬁcient evidence in the record here for a reasonable

juror to ﬁnd McCurtain knew his conduct was likely to cause affront or alarm. E Gibbs, 306

 

S.W.3d at 181.

Point denied.

Point II

 

In his second point on appeal, McCurtain argues the trial court erred in sustaining the

State’s objection to defense counsel’s question of whether Chazelle had previously seen a penis

2 Even if it is true, as alleged, that public masturbation occurs all the time in prisons, when used, as here, as a tool of
intimidation, this type of repugnant and threatening conduct is not acceptable simply because it happens to occur
inside the walls of a prison. White purely incidental to the issues on appeal, we acknowledge that prison ofﬁciais
have the right to maintain control of the prison enviromnent, and we are not willing to condone an atmosphere
where intimidation becomes sanctioned simply because it is common.

5

exposed while working at the PCC, because the question was relevant and not prohibited under
the rape shield law. We disagree.

We review a trial court’s decision to admit 01' deny evidence for an abuse of discretion
and will ﬁnd an abuse of that broad discretion only when the decision to exclude evidence is
“clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of
careful consideration.” State V. Winfrey, 337 S.W.3d 1, 5 (Mo. banc 2011). We will reverse for
evidentiary error only where the error was prejudicial, meaning there was a reasonable
probability the error affected the outcome of the trial and deprived the defendant of a fair trial.
I_d_.

Initially, we note that although McCurtain argues the trial court erred in sustaining the
State's objection on the grounds that the information was barred by the rape shield law, it does
not appear from the record that the trial court in fact sustained the objection on that ground. The
rape shield law was one of two grounds the State articulated for its objection; however, in
sustaining the objection, the trial court alluded only to relevance as the basis for its decision.
Thus, we discuss only the issue of relevance. Evidence must be both logically and legally
relevant to be admissible. State v. Taylor,  S.W.3d ---, 2015 WL 4627927, at >“3 (Mo. banc
Aug. 4, 2015). Evidence that is logically relevant tends to make the existence of a material fact
more or less probable, and evidence that is legally relevant has probative value that outweighs
any “unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or
cumulativeness” that may result from its admission. I_d.

We agree with the trial court that whether Chazelle had previously seen the penises of

other inmates of the PCC was neither logically nor legally relevant to the issue of whether

McCurtain knew his conduct—of not only exposing his penis but masturbating while walking

towards Chazelle—was likely to cause affront or alarm. McCurtain’s theory of defense was that
his conduct was so common in prison life so as to be unlikely to cause affront or alarm. As
discussed in the ﬁrst point on appeal, whether Chazelle actually experienced affront or alarm
does not prove or disprove that element of the offense. Rather, criminal liability existed if
McCurtain knew his conduct of exposing his genitals while masturbating in full view of Chazelle
was likely to cause affront or alarm. _S_§_e Section 566.093.1(1). The evidence of Chazelle’s prior
experience that McCurtain sought to admit would not make existence of his knowledge of the
likelihood of affront or alarm more 01' less probable, and thus it was not logically relevant. &
hm,  S.W.3d ---, 2015 WL 4627927, at *3.

In addition to not being logically relevant, the evidence was not legally relevant, in that
any probative value was outweighed by the potential for confusing the issues and misleading the
jury. E Q Chazelle’s prior experiences at the PCC were not relevant to McCurtain’s
knowledge of the effect of his conduct, and the trial court was correct in not allowing McCurtain

to attempt to combine the issues. Point denied.

Conclusion

The trial court’s sentence and judgment is afﬁrmed.

 

Philip M. Hess, P.J., concurs.
Angela T. Quigiess, J ., concurs.

 

 

