the facts demonstrating contacts between the parties are explained as follows. From 2012 to 2015, Simmons printed and distributed catalogs in the State of Arkansas, and purchased newspaper advertising in Arkansas newspapers, as well as television advertisements. Importantly, Simmons hosted a contest that targeted Arkansas residents for the largest deer harvested in Arkansas. Simmons circulated a total of 483,700 print advertisements and a total of 1,696,704 copies of the catalog. However, the relation of the cause of action to the contacts is weak. This cause of action arises out of a premises-liability suit that occurred in Louisiana; it is not directly connected to Simmons's advertisements. As discussed above, however, the proper question is not where the plaintiff experienced a particular injury or effect, but whether the defendant's conduct connects him to the forum in a meaningful way. Walden [v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) ]. Moreover, Arkansas does have a strong interest in providing a forum for its residents, particularly for those residents who act in response to <mask> from outside states. Lastly, Simmons is located roughly thirty miles *193away from the forum, so the argument regarding an inconvenient forum is weak. Id. at 7, 511 S.W.3d at 887-88 (footnote omitted). Accordingly, we held that even though the relationship between Simmons's contacts with Arkansas and the cause of action was weak, the other four factors weighed in favor of exercising specific jurisdiction over Simmons.


The court’s determination of credibility and weight of the evidence are supported by the record (see Jones v Hart, 233 AD2d 297 [1996]). The major credibility dispute in this action was the propriety of <mask> of the agreement and the authenticity of the contract documents. The court was entitled to credit Gilbert’s testimony that the agreement was solicited within legal hours and that he complied with the written and oral cancellation notice requirements. The Marengas themselves testified that NACO had performed services pursuant to the contract. Furthermore, on the basis of Gilbert’s testimony to an extensive search of his office’s files and premises, the court properly admitted a disputed copy of the contract into evidence (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639 *39[1994]). It then properly determined, on the basis of its credibility determinations and the weight of the credible evidence (id. at 646), that the contract was valid.


Fred Avery was also convicted of a violation of the same ordinance in that he was accused of soliciting contributions for the Patrolman’s Benevolent Association, Inc., of Long Beach, L. I., in that defendant did cause one Edward G. Charleton to solicit contributions from one Robert H. Delafield in premises 61 Broadway, Manhattan, for the aforesaid Patrolman’s Benevolent Association, Inc., of Long Beach, L. I., without having a license. The facts alleged in this complaint have been amply proven but the court *571feels that the violation of this ordinance occurred not in the county of New York but in the county of Kings where the appellant Avery had his office and from which his <mask> for funds emanated. The court, therefore, reverses this judgment for lack of jurisdiction with the suggestion that proceedings be brought against the appellants in the county of Kings.


The plaintiff, M Co., which had obtained a judgment in California against the defendants, J and G, sought to enforce that judgment in Connecticut and to recover damages in connection with a home staging services and lease agreement between the parties. Pursuant to the agreement, M Co., a California corporation, was to provide design and decorating services, including the delivery and installation of rental furniture and décor, for the purpose of making the defendants’ Connecticut residence more attractive to potential buyers. J was the sole signatory to the agreement, but M Co. negotiated the agreement exclusively with G. The lease required an initial payment and had an initial term of four months. If the residence was not sold within that term, the lease would continue on a month-to-month basis at a monthly rate. One provision of the agreement contained both a choice of law clause, providing that Califor- nia law governed the agreement, and a forum selection clause, which vested courts in Los Angeles, California, with jurisdiction over disputes arising under the agreement and provided that the parties consented to the jurisdiction of that court. Beneath that provision, G amended the choice of law clause, writing in that, ‘‘[s]ince this is a contract for an agreement taking place in the state of Connecticut, Connecticut laws will [supersede] those of California.’’ Additionally, although G did not sign the agreement, he signed an addendum to the agreement authorizing M Co. to charge his credit card for the initial payment. G made the initial payment to M Co., which then delivered and installed the rental furniture and décor. Thereafter, the defendants defaulted on their pay- ment obligations. The defendants denied M Co. access to the premises when it attempted to repossess its furniture and décor, which ultimately remained in the residence for approximately three years. M Co. filed an action in California Superior Court, which rendered a default judgment against the defendants after they failed to appear. When the default judgment remained unsatisfied, M Co. filed the present action, seeking enforcement of the California judgment and alleging breach of contract and quantum meruit. As to the claim seeking enforcement of the Califor- nia judgment, the trial court concluded that the California court lacked personal jurisdiction over J, but not over G, and that the California court’s judgment was entitled to full faith and credit as to G. As to the breach of contract claim, the court found that J had breached the home staging services agreement. In doing so, it rejected J’s special defense that the agreement was unenforceable because it failed to comply with certain provisions of the Home <mask> Sales Act (§ 42-134a et seq.) (HSSA). The court specifically determined that a home staging agree- ment, which involves the use of goods and services to facilitate the sale or rental or real property, was excluded from the purview of the HSSA, which exempts transactions ‘‘pertaining to the sale or rental of real property’’ from its requirements. Accordingly, the trial court rendered judgment for M Co. and against G in connection with the enforcement of the California judgment and awarded M Co. the full amount of that judgment. In connection with the breach of contract claim, the court rendered judgment for M Co. and against J, and awarded M Co. damages for the conversion of M Co.’s furniture and décor, as well as for the associated rental loss of that inventory. Having done so, the court declined to address M Co.’s quantum meruit claim as to J. Thereafter, M Co. withdrew the breach of contract and quantum meruit claims as to G, and the defendants appealed. Held: 1. The trial court correctly concluded that the California court had personal jurisdiction over G, G having consented to jurisdiction in California by virtue of the agreement’s forum selection clause, and, accordingly, the trial court properly found that the California judgment was enforceable against G: although a nonsignatory to a contract generally is not bound by a forum selection clause contained therein, under the ‘‘closely related’’ doctrine, a nonsignatory may be bound by that clause if he was so intimately involved in the negotiation, formation, execution, or ratifica- tion of the contract that it was reasonably foreseeable that he would be bound by it, considering factors such as the nonsignatory’s relation- ship to the signatory and whether the nonsignatory received a direct benefit from the agreement; in the present case, the defendants did not dispute that the forum selection clause in the agreement was valid and enforceable, and G was so closely related to the agreement that he was bound by its forum selection clause, especially when G was married to J and lived in the residence she owned, in which they wrongfully used M Co.’s inventory for three years; moreover, in addition to receiving a direct benefit under the agreement, only G, and not J, participated in the negotiations, he made a substantive change to the agreement prior to its execution, notably amending the choice of law clause while leaving the forum selection clause in that same provision untouched, and he executed an addendum to the agreement, pursuant to which he author- ized the sole payment made to M Co. that prompted M Co.’s full perfor- mance of its contractual obligations. 2. The defendants could not prevail on their claim that the home staging services agreement was unenforceable due to M Co.’s noncompliance with certain provisions of the HSSA, as the trial court correctly con- cluded that the transaction between the parties was not a ‘‘home solicita- tion sale,’’ as defined therein, and, therefore, was outside the purview of the HSSA: the provisions of the HSSA apply only to ‘‘home solicitation sale[s],’’ the statutory (§ 42-134a (a) (5)) definition of which excludes any transaction ‘‘pertaining to the sale or rental of real property’’; moreover, although a narrow construction of that language that applied only to contracts for the sale or rental of real property was inconsistent with the dictionary definitions of the phrase ‘‘pertaining to,’’ this court none- theless concluded that it would yield absurd results to construe the real property exception as applying to all transactions for goods and services that relate to, or are an adjunct or accessory to, the sale or rental of real property; accordingly, this court turned to extratextual sources, including legislative history, the federal regulations on which the real property exception was based, and sister state precedent, and, consistent with the liberal construction afforded to remedial statutes such as the HSSA, concluded that a ‘‘home solicitation sale’’ is not strictly limited to the sale or rental of real property but, instead, includes a limited category of consumer goods and services that may be excluded under the real property exception; in the present case, the sale of the residence was the stated purpose of the agreement, the duration of the agreement was defined by how long it took for the property to sell, and the sale of the property delimited the agreement’s various terms by, for example, allowing M Co. to remove the furniture and décor if the defendants’ residence was not listed for sale within a prescribed period of time, such that the terms of the agreement were so intertwined with the sale of the defendants’ property that the agreement was inextricably related to, or an integral adjunct or accessory to, the sale of the home. 3. There was no merit to the defendants’ claim that the award of damages was improper insofar as the trial court awarded M Co. double damages by rendering judgment against both G and J for the same loss and included the conversion value of the furniture and décor in the amount of damages for which J was liable in connection with the breach of contract claim; although a party may recover just damages for the same loss only once, it was undisputed that M Co.’s loss was wholly unsatisfied when the trial court rendered judgment in its favor on the claim against G concerning the enforceability of the California judgment and on the breach of contract claim against J, and the trial court was not foreclosed from rendering judgment in favor of M Co. against both defendants, jointly or separately, for injuries for which each is liable; moreover, the trial court’s award of damages for the conversion value of the furniture and décor was not clearly erroneous in light of the fact that J caused M Co.’s total loss of that inventory by keeping and using it in her personal residence for three years, as M Co.’s loss of the furniture and décor was a reasonably foreseeable consequence of J’s breach of the home staging services agreement. (Two justices concurring in part and dissenting in part in one opinion) Argued September 8, 2020—officially released September 22, 2021* Procedural History


Finally, prostitution is said to offend public sensibilities. Individual members of the public may indeed be offended by the public conduct associated with prostitution: they may be solicited on the street by prostitutes, embarrassed by the advances of streetwalkers, or find their path on the sidewalks or thoroughfares blocked.27 Such conduct may, indeed, be a harm legitimately of interest to the State should it constitute public disorder. This court will not decide the question of who has a right to be on the public streets. However, the court will point out that this public conduct is not caused in fact by the act of engaging in sexual relations for a fee. This harm, if any, is caused by the <mask> aspect of prostitution. The public aspect of prostitution, solicitation, must be distinguished from its private aspect, the performance of consensual sexual relations for a fee in private. Street solicitation is a method of advertising the business of commercial sex. It is separable from the underlying activity. In Nevada and Great Britain, for example, prostitution has been legalized, but street solicitation is proscribed by public order, breach of the peace — type statutes. Advertising is unoffensively and effectively accomplished through the use of discreet newspaper advertisements. (See Atlantic Monthly, supra.)


*278Again, tlie order, as a whole, is res adjudícala in this court. The same questions have been argued and decided. In hostility to the Erie and at the <mask> of the Lackawanna, we have held the report and order to be just and proper. It is true, the power bf the commissioners to make certain conditions was not directly passed upon, but we have no doubt of its existence. (Matter of Lockport and Buffalo R. R. Co., 19 Hun, 38.) Such power seems to be a necessary incident to the duty of providing for a crossing. However, if the question is not res adjudicata in this court, and if the commissioners had no power or authority to make the requirements inserted in their report and confirmed by the order, the Lackawanna company can make such objections by answer and upon trial in-the action for a specific performance.


Here, the loss of a customer was the likely harm to result from a breach of the noncompete, nondisclosure, and non<mask> provisions. Soliciting a customer would naturally mean Capps (or anyone on whose behalf he made the solicitation) stood to directly take away a customer from Cybertron. Similarly, if Capps violated the noncompete agreement, it was also reasonably likely Cybertron could lose one or more customers. Capps had been employed by Cybertron; therefore, he knew, or very likely would have known, among other things: (1) The identity of Cybertron's customers; (2) Cybertron's service, pricing, and business models; and (3) the types of products and services Cybertron provided to its various customers and their individual business needs. Armed with this information, Capps could easily enable a competitor to take away one or more of Cybertron's customers.


A reasonable construction of these words taken with their context and with a view to according them a meaning that will carry out the general purposes of the law is to regulate the conduct of those engaged in the sale of tickets on or near the highway. The primary purpose is to compel them to stay off the streets and to prevent the <mask> of their business in such a manner as not to annoy or offend pedestrians. Boisterous calling and invitation even from private premises is a violation; but a sign painted on a show window of a store or attached to the outside of the same window, provided it does not interfere with the rights of the public in going to and fro surely is not, in my opinion, that sort of “ other means ” as is made criminal. Ticket agencies openly advertise, as to the theatre proprietors, the sale of admission tickets and the prices therefor. If the defendant were to be held responsible under the Criminal Law, cardboard signs and advertisements in windows, railroad cars, and even in the daily newspapers might be the subject of successful criminal prosecution. Such a construction would be manifestly unjust and strained; and, instead of furthering the objects of this law it would surely *99defeat the very worthy purpose of the law. Advertisements, printed announcements, signs and placards are permissible provided that they do not violate the ordinances with respect to the placing and maintenance of signs, etc., in the City of New York.


Although as a general rule an employer may bar nonemployee union organizers from his property as trespassers, a union may gain a right of access if it can show either that it has no other reasonable means of communicating its organizational message to the employees or that the employer’s access rules discriminate against union <mask>. (Sears, Roebuck, 436 US at 205; see also Lechmere, Inc. v National Labor Relations Bd., 502 US 527 [1992]; National Labor Relations Bd. v Babcock & Wilcox Co., 351 US 105 [1956].) It has been held that an employer’s no-solicitation policy is discriminatory where it allows pro-employer information to be disseminated in the workplace while prohibiting comparable distribution of pro-union information. (See Cleveland Real Estate Partners v National Labor Relations Bd., 95d 457, 465 [6th Cir 1996]; but cf. Sandusky Mall Co. v National Labor Relations Bd., 242d 682, 689-692 [6th Cir 2001].)


The campaign resulted in subscriptions aggregating approximately $400,000 including the $50,000 paid by decedent. However, no funds were solicited from other persons for the chapel and no other funds were allocated to the cost of erecting the chapel. But funds were solicited and obtained from persons other than the decedent for furnishing the chapel. Originally, the <mask> was by the Vestry of Holy Trinity until the incorporation of the claimant.


Plaintiff initiated this action on November 4, 2010, and filed its first amended verified complaint on January 14, 2011. On March 1, 2012, plaintiff filed its second amended verified complaint alleging various causes of action for breach of contract for “illegal termination,” “illegal use of confidential information,” breach of the non-<mask> provision, breach of fiduciary duties, “tortious interference with plaintiff-customer relations,” and misappropriation of trade secrets against defendants Conti and Kobakhidze individually. Against B&S, plaintiff asserts causes of action for unjust enrichment, misappropriation of trade secrets, and “tortious interference with plaintiff-customer relations.” By notice of motion dated April 24, 2013, defendants Conti and B&S moved for partial summary judgment declaring the agreements void, and by notice of motion dated May 24, 2013, defendant Kobakhidze moved to dismiss the complaint on the basis that the contracts are illegal.


In Bedford-Stuyvesant Real Estate Bd. v. Lomenzo (39 A D 2d 742) a special proceeding to enjoin the Secretary of State from issuing blanket non<mask> orders “ prohibiting solicitation by licensed real estate brokers and their salesmen, for listing of homes for sale in two certain areas in Brooklyn, New York” (supra p. 742) the court pointedly said, when affirming the judgment of the court below dismissing the petition on the ground of lack of standing to sue: “ We have not reached the merits, but had we done so, we would have affirmed ” (supra, p. 742).


While it is true that mere <mask> of business for out-of-State concerns is not enough to constitute doing business in this State (Miller v. Surf Properties, 4 N Y 2d 475), and there must be additional activities to render the corporation subject to jurisdiction (Tauza v. Susquehanna Coal Co., 220 N. Y. 259), the court cannot from the conflicting affidavits submitted determine whether the third-party defendant is actually doing business within the State to be amenable to service of a summons upon it nor can it be determined, assuming that the defendant is doing business within the State, whether the person served falls within the provisions of section 229 of the Civil Practice Act.


To be sure, the employment agreements toll the duration of the twelve-month-long non-compete and employee non-<mask> covenants for as long as “the [e]mployee is found to have been in violation of such restriction[s].” But it is undisputed that the men were terminated from Elegance on October 12, 2020. And Vital concedes that “the record does not establish whether [the men have] been employed in violation of [their] restrictive covenant[s] since that date.” On the current record, then, the twelve-month pe- riod of the non-compete and employee non-solicitation covenants in Alfieri’s and LaRocca’s agreements came to an end no later than October 2021. Because “the effective time period of the injunction has passed,” the appeal of the partial denial of preliminary relief is moot. Brooks, 59 F.3d at 1119. Vital argues that the cross-appeal “is not moot, because [Vi- tal] is entitled to the benefit of its contractual agreement.” That is, if Vital succeeded on its cross-appeal, “the one-year restrictive pe- riod” in Alfieri’s and LaRocca’s agreements “should begin after the Court issues its decision.” In support, Vital relies on the holding of a Florida court that, “[w]here there has been a delay in the entry of a non-compete injunction . . . , the party seeking to enforce the non-compete clause is entitled to receive the benefit of its bargain, which is the enforcement of the full non-compete period specified in the agreement between the parties.” Anakarli Boutique, Inc. v. Ortiz, 152 So. 3d 107, 109 (Fla. Dist. Ct. App. 2014). We rejected the same argument in Tropicana Products Sales, Inc. v. Phillips Brokerage Co., another appeal involving the USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 13 of 34


As noted above, the exception set forth under Transportation Law § 151 authorizes a municipality with a population under 1,000,000 to adopt its own ordinance relating to registration and licensing of taxis or liveries, pursuant to General Municipal Law § 181 (1). That statute states, in pertinent part, that municipal officers in cities may adopt ordinances regulating the registration and licensing of taxicabs and may limit the number of taxicabs to be licensed (see also People v Cassese, 43 Misc 2d 869 [1964]). Counsel for defendant Bobnick argues that Vehicle and Traffic Law § 498 (1) restricts local regulation of taxis and liveries to cities where the population is 1,000,000 or more. However, as clearly set forth in Transportation Law § 151 (11) and General Municipal Law § 181 (1), home rule as to regulations regarding taxis and liveries is available to smaller cities such as Ithaca. In fact, it is considered to be well-settled law that a municipality may regulate and license a taxicab business for the purpose of maintaining order, enforcing laws, protecting property, and caring for the safety, health, comfort, and general welfare of the inhabitants and visitors to the city (People v Chimino, 39 Misc 2d 555 [1963]; see also 17 NY Jur 2d, Carriers § 32). At the same time, courts have made distinctions between statutory regulation of taxicabs or “hacks” on the one hand, and livery or coaches on the other. In one such case, the court held that a livery is a vehicle hired by personal contract and without <mask> on public streets (see People v Sullivan, 199 Misc 524 [1951]). Similarly, in the case of People v Ethridge (29 Misc 2d 215 [1961]), the court held that a vehicle not plying for hire but rather operating solely in response to previous engagements, need not be licensed (see also 17 NY Jur 2d, Carriers § 101). However, the Village Court of the Village of Westbury upheld a village code provision that required a license for the mere picking up of a passenger within the village, regardless of the passenger’s destination (People v Jabaar, 163 Misc 2d 1045 [1994]). The court in Jabaar distinguished the holding in Ethridge on the grounds that the law in the Ethridge case required a taxicab license for a driver transporting passengers *861through the village. The rule sought to be applied in Ithaca is not as restrictive as that in Jabaar; rather, it resembles the ordinance for the city of Yonkers set forth in People v Cassese (43 Misc 2d 869 [1964]). The Yonkers ordinance defined taxicab as a vehicle in the business of carrying persons for hire, whether operated by radio/telephone or electronic equipment of any type, “for the purpose of receiving and relaying designated proposed passenger information, whether the same is operated from a street stand or . . . subject to call from a garage, office or other place of business” (at 871). As indicated above, the court in Cassese held that a private limousine service that did not cruise the streets of the city soliciting business or obtained requests for service by telephone was not subject to the statute. In the case at bar, it does not appear to be disputed that the vehicles referred to by the defendants as livery vehicles were dispatched from an office or garage to pick up fares within the city of Ithaca for delivery at another location within the city. It is even possible that in one or more instances, a vehicle was stopped by someone on a city street, requesting transportation to another location within the city. There is no evidence that any of the vehicles in question transported their passengers pursuant to any private contract.


That the decedent complained of his treatment by his wife is abundantly shown by all the proofs, after he left his home in December; but so far as I can discover, his dissatisfaction related chiefly if not entirely to her want of attention, and coolness—that he was not allowed a Are in his room, and the house was too crowded. The reasonable answer to these charges was, that he had been living in the same house, with his brother-in-law, nearly five years; that his mother-in-law, with whom he had spent two summers, at Fishkill, without paying any board, was spending the winter with him, at his own <mask> ; that he was not allowed fire in his sleeping room by the express directions of his physician; and that, in the language of the Doctor, “ he was very well attended to and cared for, and very pleasantly situated at home.” His wife was delicate, and had the charge of a young babe, but his mother-in-law assisted in attending him; and she testifies *494that she herself dressed the abscess in his back “ twice a day nearly for a year.” As to the state of feeling between him and his wife, a number of witnesses show, so far as such a point can be established, that it was harmonious, tender, and affectionate, I mean externally. Mrs. Boyce says, “ He never had any difficulty with the other members of his family, that I know. He never had any serious difficulty with his wife. Their intercourse was apparently as affectionate as in other cases of man and wife. The greatest fault he had with her was that she was too economical.” Mr. Morgan, who was about the same age as-the decedent, and was on intimate terms with him, states, that towards the 1st of December Mr. Darley, in a conversation at his house in Macdougal-street, said, “ that he had a great deal to be thankful for; he had a comfortable home; that his wife was very attentive, did everything for him that he wished, and she had no time to do anything else but wait on him. She did everything for him, and what she could not do, her sister did.” “ Previous to this, I had often heard him speak of his wife in terms of the highest commendation. I.never heard him speak otherwise of her, until after he went to Brooklyn.” The witness mentions several circumstances tending to corroborate his opinion of the affectionate character of their relations. Mr. Martin was intimate with Mr. Darley, and heard him, during his sickness, say how well he had been treated. Mr. Shook testified that the decedent frequently spoke to him before he went to Brooklyn “ in the highest terms of his family, and of his wife in particular,” and he “ never heard him speak otherwise than in commendation of her.” Mrs. Clearwater, who was well acquainted with the decedent and his wife, and visited at their house, characterizes their intercourse as harmonious, and says, “he always spoke of her with perfect kindness; I repeatedly heard him say that the family treated him too well; they had done too much for him; he never could repay them for it—they were always ready to wait upon him.” Mr. Clearwater testifies that he heard the decedent say “ his wife was not in very good health, and the *495family, together with her and Mrs. Boyce, had done too much for him; they were always ready to run for him at any time. The intercourse between him and his wife was perfect harmony ; he always spoke of her in the highest terms to me.” The Bev. Mr. Shaw visited in the family, but never heard any complaint from the decedent until he visited him in Brooklyn. Catharine Dreger, who had charge of Mr. Darley’s youngest child, says, “ he never complained about not having fire; almost all of them waited upon him; he never complained that he was not well waited upon,” and she “ never heard of any trouble between him and his wife, while he was there. . . The abscess in his back was dressed twice a day,” by his wife and his mother-in-law, Mrs. Boyce. Dr. Green thought “ he was very well attended to and cared for, and very pleasantly situated.” He “ never knew of his being neglectednor heard any complaint of his wife “ previous to his going to Brooklyn, and they were not very definite then,” but “ all fancy,” in his opinion.


Under New York City Charter § 363, the provision which governs the award of City franchises, the initial determination of need for a particular type of franchise is made by the head of the City agency responsible for the particular activity, in this instance the Department of Information Technology and Telecommunications (see, NY City Charter § 363 [b] [DoITT]). Once such a determination is made, the agency (with the advice of, inter alia, the Corporation Counsel) must prepare a proposed authorizing resolution which is then submitted to the Mayor (NY City Charter § 363 [b]). The proposed authorizing resolution is required to set forth the nature of the franchise, the public service to be provided, the terms and provisions of the franchise, the method by which proposals shall, be solicited, and, the criteria to be used in evaluating the proposals submitted in response to a <mask> (see, NY City Charter § 363 [b]). The Mayor may thereafter submit the proposed authoriz*233ing resolution to the Council which may approve, modify or disapprove it (see, NY City Charter § 363 [c]). The Mayor may veto any modification or disapproval of the authorizing resolution, but the Council may vote to override the veto (see, NY City Charter § 363 [c]). Once an authorizing resolution has been adopted, it is referred to the responsible agency (again, in this instance, DoITT) which may issue requests for proposals (see, NY City Charter § 363 [e]). The selection of a franchisee is subject to the review and approval of the City Franchise and Concession Review Committee (FCRC) (see, NY City Charter § 363 [f]). After local governmental approval, the franchise agreements are required to be submitted to the PSC for review (see, 9 NYCRR 591.3). New York City Charter § 363 (d) contains the following provision: “No authorizing resolution or other action of the council may provide for any involvement by the council or any member of the council in the selection of a franchise pursuant to such resolution.”


This Court reviews the evidence in the light most favorable to the jury's verdict. State v. McCauley , 528 S.W.3d 421, 423 (Mo. App. E.D. 2017). The State charged Armstrong with two counts of attempted first-degree <mask>, in violation of Sections 566.032 RSMo (2000)1 and 564.011; seven counts of first-degree statutory sodomy, in violation of Section 566.062; six counts of attempted first-degree statutory sodomy, in violation of Sections 566.062 and 564.011; and six counts of first-degree child molestation, in violation of Section 566.067. The case proceeded to a jury trial.


An examination of the cases urged by each of the parties in support of their mutually exclusive positions demonstrates the continuing viability of the teaching of Morissette (supra) that there is no precise delineation or a fixed formulation of "comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static.” (Supra, at 260.) This amorphous state of the law leads to incongruous results that are not easily reconciled. For example, in People v Dozier (72 AD2d 478) the crime of <mask>, a class E felony, was held to be a strict liability offense insofar as knowledge by the male defendant that the female was under 17 was not an element. In contrast, in People v Cooper (24 NY2d 877) an Administrative Code of the City of New York provision making it a misdemeanor to fail to file a city sales tax return was held to contain a scienter element that the failure to file was willful, rather than merely an innocent failure to file.


That being said, we may enter a conviction for first-degree child molestation.6 "A person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact." § 566.067.1. "Sexual contact" means "any touching of another person with the genitals or any touching of the genitals ... of another person ... for the purpose of arousing or gratifying sexual desire of any person." § 566.010(3). "A person cannot engage in 'sexual intercourse' ... with another person without one of those persons engaging in 'sexual contact' because the former act[ ] involve[s] the 'touching of another person with the genitals' and 'touching of the genitals ... of another person....' " State v. Miller , 372 S.W.3d 455, 470 (Mo. banc 2012) (quoting § 566.010(3)). Accordingly, first-degree child molestation is a lesser-included offense of first-degree <mask>.7


Like the victim in the hypothetical referenced in the Celis-Garcia footnote, B.W. and N.G. testified to repeated, identical sexual acts committed at the same location during a particular time span, and they were unable to testify to specific acts on specific dates. Consequently, the verdict directors for B.W. and for N.G. focused on a single month, and any evidentiary fact that could possibly distinguish one incident of rape from another for each victim was included in the verdict directors. The factual findings required by each verdict director rendered it impossible for the jurors to differentiate between the repeated, identical acts of <mask> that fell within each of the verdict directors. For example, the verdict director for the statutory rape count involving B.W. required the jury to find that Walker had sexual intercourse with B.W. in "May 2014" in "defendant's bedroom in Burlington Junction."1 With the factual restrictions contained in this verdict director, there was no further basis upon which the jurors could possibly distinguish one act of statutory rape from another. Because the jurors had no evidentiary basis upon which to differentiate between these repeated acts, Walker's right to a unanimous verdict was not at risk of being violated. Cf. State v. Carlton , 527 S.W.3d 865 (Mo. App. 2017) (holding that the defendant's right to a unanimous verdict was violated when the court submitted identical verdict directors on two counts of statutory sodomy, because the record contained evidence that would have allowed the jury to differentiate between the multiple, repeated acts of sodomy allegedly committed during the charged time period).


In People v Bouton (50 NY2d 130), defendant was convicted of sodomy and sexual abuse. During the course of their deliberations the jury viewed exhibits not admitted in evidence including “two versions of defendant’s confessions from which reference to uncharged sexual activity had not been redacted * * * hearsay laden psychiatric medical records of the <mask> complainant and welfare records of her mother.” (Supra, p 137.) In view of the prejudicial nature of this material, the court held that the error could not be excused as harmless and a new trial was ordered.


While this court may be reluctant to depart from the law laid down in prior decisions of our courts which are directly in point in favor of a later ruling which can be arrived at only by implication, we think the implications of the later decisions to be so irresistible that they become self-evident. If, therefore, there may be incest arising from proof of a <mask> with a relative within the prescribed line of consanguinity, there may be incest arising from proof of first degree rape with such a relative. There is consent in neither. There is force, either actual or implied in law in both. The jury was, therefore, justified in returning a verdict of guilt as to both rape and incest and the charge was proper;


Here, Balbirnie choked Victim while engaging in sexual intercourse with her. It is reasonably foreseeable that choking a person could cause that person's death. And, by Balbirnie's own words and theory on appeal-supported by the medical examiner's testimony at trial, his act of choking Victim was the likely cause of Victim's death. In other words, had Balbirnie not engaged in sexual intercourse with Victim, he would not have had occasion to choke her, and she would not have died as a result. Accordingly, the evidence was sufficient to support the jury's determination that Victim died "as a result of the perpetration" of second-degree <mask>.


See State v. Walker , 549 S.W.3d 7 (Mo. App. W.D. 2018) (holding there was no unanimous verdict violation when the verdict directors identified an act of <mask> occurring in a specific location over a period of time -- "on or about May 2014 ... the defendant knowingly had sexual intercourse with [victim] in defendant's bedroom in [town] every time her Mom went to Wal-Mart ," -- and evidence was offered of repeated, identical sexual acts committed at the same location during that particular time span, because the factual restrictions contained in the verdict director proscribed jurors from relying on evidence that would differentiate between the repeated acts.); State v. Armstrong , ED 105771, 560 S.W.3d 563, 2018 WL 3977548 (Mo. App. E.D. 2018) (holding that there was no unanimous jury verdict violation).


Our decision in Kennedy v. State , 411 S.W.3d 873 (Mo. App. S.D. 2013), controls the resolution of this appeal. In Kennedy , the trial court granted Kennedy's petition to have his name removed from Missouri's sexual offender registry in connection with two convictions for <mask> in the second degree under section 589.400.3(4) and .7. Id. at 874-75. Although not specifically addressed in the opinion, it appears that Kennedy's requirement to register under federal law for these two convictions had expired. Id. at 878 n.6 ("Both parties concede that Kennedy was required to register as a sex offender under federal law for his convictions of second-degree statutory rape.... In fact, Kennedy specifically acknowledged 'since [he] was previously required to register as a sex offender under federal law for his convictions of statutory rape in the second degree, he is required to register as a sex offender [under section] 589.400.1(7).' "). In reversing the trial court, we stated:


Treta contends that his convictions and sentences for two counts each of <mask> and forcible rape for two single acts should be vacated because his guilty plea was not knowing, voluntary, and intelligent because the convictions and sentences were duplicative in violation of his constitutional right to be free from double jeopardy. Specifically, Treta asserts that "there was no indication of legislative intent an accused can be convicted on both forcible/non-consensual and statutory sex crimes arising from a single act, since statutory sex crimes are a specific type of forcible sex crimes, and, thus, convictions and sentences for both forcible/non-consensual and statutory sex crimes arising from a single act are prohibited, § 556.041(3)[.]"


Lutes was charged in this case with two counts of child molestation in the first degree for touching the vagina of his six-year-old granddaughter with his hand, and for forcing the victim to touch his penis with her hand. The First Amended Information alleged that the acts occurred "on or about February 12, 2014." Over Lutes' objections, the State was permitted to introduce evidence at trial of three prior felony convictions Lutes had (each resulting from a guilty plea): (1) a 2004 conviction for <mask> in the second degree, for having sexual intercourse in 2001 with a female victim who was less than seventeen years old; (2) a 1994 conviction for two counts of sexual assault in the first degree for having sexual intercourse with a fourteen- or fifteen-year-old victim; and (3) a 1993 conviction for sexual assault in the first degree for having sexual intercourse with a fourteen-year-old victim.1


Our presumption is that the legislature does not intend to perform a useless *412act in enacting statutes or in amending statutes, but rather it intends such act to have some effect or accomplish some legislative purpose. Walker , 352 S.W.3d at 391. By making the changes it did in 1994, separating forcible rape into a separate statutory section from <mask> and creating separate punishment provisions for each, the legislature intended that forcible rape and statutory rape be separate and distinct crimes with separate punishments. Id. We perceive no reason to accept the notion rejected by the Walker court "that the legislature changed the statutory scheme in such a manner, yet intended that there be only one offense for which an offender could be convicted for a single act." Id. at 391-92. To do so would render the legislature's acts meaningless. Id. at 392. "The statutes protect against separate and distinct evils: (1) the use of force to compel sexual intercourse; and (2) the exploitation of children." Id. In raping the young victim here, Treta violated two different prohibitions that the legislature codified as separate criminal offenses: "[h]e forced his victim to engage in sex against her will, and he chose a victim to whom the legislature afforded additional protection because of her age." Id.


counsel had a reasonable basis for not presenting the witnesses’ testimony to establish [Van Horn]’s character. During the PCRA hearing, Attorney Minotti testified that he did not call character witnesses because he believed that they would be cross-examined concerning [Van Horn]’s prior convictions for burglary and <mask>. We conclude that this was a reasonable trial strategy, and counsel was not ineffective on this basis.


*1086Traditional English practice permitted the introduction of a child into evidence for the jury to determine whether it resembled the putative father. It was an affirmation of the validity of the physiological principle that a child will resemble his parent. (See 1769 Lord Mansfield, C.J., in the Douglas Peerage Case — 2 Hargr Collect Jurid 402 [1 Wigmore, Evidence (3d ed), § 166].) Some United States jurisdictions permit this practice (see, e.g., State v Johnson, 361 Mo 214 [<mask> prosecution]). Wigmore cautions that the better rule would be to prohibit the introduction of this evidence, however presented (i.e., whether in the form of testimony or by presentation to the jury), unless the child has, in the opinion of the trial court “settled features.” (Flores v State, 72 Fla 302 [exhibition of child not yet three months old on an issue of paternity was erroneous].)


<mask> as defined by the Penal Law of the State of New York prior to April 1, 1950 provided: “ a person who perpetrates an act of sexual intercourse with a female, not his wife, under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree ”.


For this court to perpetuate the holding in People v. Harriden (supra), requires the formulation of a ruling that the cases recognizing <mask> as a predicate for an incest conviction are a mere exception to the principle there enunciated. It would seem that if the Court of Appeals intended a mere exception it would have said so. Instead, the effect of its ruling is quite to the contrary of People v. Harriden (1 Parker Cr. Rep. 344, supra), in that not only did it recognize the validity of an incest conviction where mutual consent to intercourse was lacking but it parted absolutely with the principle that a conviction for incest is improper where the crime proved is also rape.


. An act of sexual intercourse with a minor 14 years old or less is classified as <mask> in Texas (Texas Penal Code § 22.011). The plaintiffs behavior is consistent with that of a victim of predatory or abusive sexual relationships, who often displays promiscuity, depression, self-harm and susceptibility to revictimization (Michelle Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 Buff L Rev 703, 729-730 [2000]). The same author commented that, by discounting the importance of the statutory age limits, “modern criminal law has turned girls from ‘jail bait’ into ‘fair game’ without considering the nature and meaning of consensual sexual activity” (Michelle Oberman, Turning Girls into Women: Re-evaluating Modern Statutory Rape Law, 85 J Grim L & Criminology 15, 21-22 [1994]).


"A person commits the crime of <mask> in the first degree if he has sexual intercourse with another person who is less than fourteen years old." § 566.032.1. "Sexual intercourse" is defined as "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." § 566.010(4). "The female sexual organs include a woman's vulva and external genitals." State v. Dunn , 7 S.W.3d 427, 430 (Mo. App. W.D. 1999).


Movant appeals to this Court for the fourth time based on his conviction for second-degree <mask> and incest arising from an evening in February 2007 where Movant had non-consensual sex with his then 16-year-old daughter. The three prior appeals include: (1) a direct appeal in which we affirmed Movant's convictions via an unpublished opinion, State v. Mercer , SD29114 (per curiam ); (2) an unsuccessful appeal of the denial of his Rule 29.15 motion, Mercer v. State , 330 S.W.3d 843 (Mo. App. S.D. 2011) ; and (3) an appeal from the denial of a previous § 547.035 motion in which this Court dismissed his appeal due to the lack of a final judgment. Mercer v. State , SD33779, 2015 WL 9481403 (Mo. App. Dec. 29, 2015). That dismissal was transferred by a dissenting judge via Rule 83.03 to our supreme court, where it held that the denial of a § 547.035 motion was not subject to Rule 74.01(a)'s denomination requirement. Mercer v. State , 512 S.W.3d 748, 752 (Mo. banc 2017). Accordingly, our supreme court held that the docket entry denying Movant's § 547.035 motion was an appealable order, but reversed and remanded the cause "due to the circuit court's failure to issue findings of fact and conclusions of law as required by section 547.035.8." Id. at 754.


In 2014, McClure was charged with first-degree statutory sodomy, child molestation, and attempted <mask>, pursuant to Sections 566.062.1, 566.067, and 566.032, respectively.1 At trial, the prosecution submitted as evidence the 2007 CAC interview. McClure objected to the exhibit, arguing there was potentially a lack of foundation, materials subject to motions in limine, and improper bolstering. The objection was overruled, and the jury found McClure guilty on the sodomy and molestation charges but acquitted him of the attempted statutory rape charge. The court ordered McClure to serve two consecutive life sentences.


At the conclusion of trial, the trial court instructed the jury on the twenty-one counts charged. Armstrong did not object to the instructions as offered at trial. Nor did Armstrong raise instructional error in his motion for new trial. The jury found Armstrong guilty on all counts. Armstrong was sentenced to fifteen years for each count, with the sentences for the counts of attempted <mask>, statutory sodomy, and attempted statutory sodomy to run consecutively, for a total of two hundred and twenty-five years' imprisonment. This appeal follows.2


Let us analyze the implications of this holding in the light of the situation presented by this case. The theory of the law creating a <mask> is that any act of intercourse with a female under the age limit, however accomplished, is without her consent and against her will. In other words, it is declared rape to have intercourse with a female under eighteen years of age whether such intercourse be voluntary on her part or not (Colly v. Thomas, 99 Misc. 158; Penal Law, § 2010). The law ‘ ‘ offers resistance for them. It deals with the case as rape, not as a mere statutory offense ” (People v. Gibson, 232 N. Y. 458, 461).


We find no error, plain or otherwise, in the use of Victim's date of birth as the proper means for calculating her age under the statutes for statutory sodomy and <mask> here. Both statutes require the State to prove that the victim was "less than seventeen years of age." Section 566.034, RSMo. (Supp. 2016) (statutory rape); Section 566.064, RSMo. (Supp. 2016) (statutory sodomy). The incident here took place on March 19, 2016. Victim testified her date of birth was June 1, 1999, and that she was 16 years old on March 19, 2016. Defendant does not dispute the accuracy of either date.


Nor was this rule limited to prior criminal acts between the defendant and the victim. See, e.g., State v. Jenks , 126 Kan. 493, 268 P. 850, 851 (1928) (explaining evidence of a <mask> committed upon another girl would be admissible to prove the defendant's "lustful disposition" to commit the offense with which he was charged) (citation omitted); Bracey v. United States , 142 F.2d 85, 88-89 (D.C. Cir. 1944) (observing the "better reasoned cases in other jurisdictions" allowed admission of evidence of other sexual offenses committed against other minors to prove defendant's "emotional predisposition or passion" to commit the offense with which he was charged); 1 George E. Dix, et al., McCormick on Evidence § 190 (K.S. Broun & R.P. Mosteller eds., 7th ed. 2013 & Supp. 2016) ("[M]any jurisdictions now admit proof of other sex offenses with other persons, at least as to offenses involving sexual aberrations.") (footnotes omitted).


It can do so by a specific declaration that certain participants in a crime are not accomplices. Thus, section 1308-a. of the Penal Law declares that the thief is not an accomplice to the receiver. It can do so by specific language of a penal statute. Thus by the specific wording of the abortion statute (Penal Law, § 80) the woman upon whose body the abortion is performed cannot be guilty of aiding and abetting, even if a willing participant. She may only be guilty of a violation of section 81 of the Penal Law. (People v. Blank, 283 N. Y. 526.) And, in the <mask> section (Penal Law, § 2010), the Legislature has declared that a female under the age of 18 is incapable of consenting to an act of sexual intercourse. Such a female cannot be an accomplice to the crime of statutory rape. (By analogy, the Court of Appeals has held that a female under the age of 18 is incapable of consenting to the crime of incest. People v. Gibson, 301 N. Y. 244.) By statutory declaration, she is made a “ victim ” and not an “ accomplice ”.


In his colloquy with the plea court, Treta admitted that on January 29, 2013, he knowingly exposed his genitals to Victim for the purpose of gratifying his sexual desire, and further admitted that on the same day, he had sexual intercourse with Victim by the use of forcible compulsion and that Victim was less than twelve years old. Treta also admitted that on the same day, he committed the crime of <mask> by having sexual intercourse with Victim who was less than twelve years old. Treta admitted that on January 19, 2013, he had sexual intercourse with Victim by the use of forcible compulsion and that Victim was less than twelve years old. Finally, Treta admitted that on the same day, he committed the crime of statutory rape by having sexual intercourse with Victim who was less than twelve years old.


the felonies of rape in the first degree, forcible rape, rape, <mask> in the first degree, sodomy in the first degree, forcible sodomy, sodomy, statutory sodomy in the first degree, or an attempt to commit any of the preceding crimes, or child molestation in the first, second, third, or fourth degree, sexual abuse, sexual abuse in the first degree, rape in the second degree, sexual assault, sexual assault in the first degree, sodomy in the second degree, deviate sexual assault, deviate sexual assault in the first degree, or the act of abuse of a child involving either sexual contact, a prohibited sexual act, sexual abuse, or sexual exploitation of a minor, or any felony offense that contains elements substantially similar to the offenses listed above. Section 632.480(4) (emphasis added).


Like the victim in the hypothetical referenced in the Celis-Garcia footnote, B.W. and N.G. testified to repeated, identical sexual acts committed at the same location during a particular time span, and they were unable to testify to specific acts on specific dates. Consequently, the verdict directors for B.W. and for N.G. focused on a single month, and any evidentiary fact that could possibly distinguish one incident of rape from another for each victim was included in the verdict directors. The factual findings required by each verdict director rendered it impossible for the jurors to differentiate between the repeated, identical acts of <mask> that fell within each of the verdict directors. For example, the verdict director for the statutory rape count involving B.W. required the jury to find that Walker had sexual intercourse with B.W. in "May 2014" in "defendant's bedroom in Burlington Junction."1 With the factual restrictions contained in this verdict director, there was no further basis upon which the jurors could possibly distinguish one act of statutory rape from another. Because the jurors had no evidentiary basis upon which to differentiate between these repeated acts, Walker's right to a unanimous verdict was not at risk of being violated. Cf. State v. Carlton , 527 S.W.3d 865 (Mo. App. 2017) (holding that the defendant's right to a unanimous verdict was violated when the court submitted identical verdict directors on two counts of statutory sodomy, because the record contained evidence that would have allowed the jury to differentiate between the multiple, repeated acts of sodomy allegedly committed during the charged time period).


In March 2013, the State charged McIntosh with first-degree statutory sodomy *421and first-degree <mask> based on allegations that he had licked his nine-year-old cousin's vagina and anus. McIntosh waived his right to a jury trial in exchange for the State's agreement that he would not be sentenced to more than twenty years' incarceration if found guilty. The case proceeded to a bench trial in January 2016. Viewed in the light most favorable to the verdict,2 the evidence at trial showed the following:


The jury convicted Defendant of one count of <mask>, two counts of statutory sodomy, and one count of incest. The trial court sentenced Defendant as a persistent misdemeanor offender to seven years on each of the first three counts, two of them to run concurrently and both consecutively to the third, and then the four-year sentence to run consecutively to the other counts, for a total of 18 years. This appeal follows.


. Former Florida Statutes § 800.04 (3) (1984 Fla Laws, ch 84-86, § 5; 1990 Fla Laws, ch 90-120, § 1), provided that any person who “[c]ommits an act defined as sexual battery under s. 794.011 (l)(h) upon any child under the age of 16 years . . . commits a felony of the second degree.” Florida Statutes § 794.011 (1) (h) states that “ ‘[slexual battery’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.” Accordingly, the Florida crime is akin to a <mask> charge.


In State v. Noltie, 116 Wn.2d 831 (1991), the jury convicted Frederic Noltie of one count of <mask> and one count of indecent liberties. On appeal, Noltie complained about the information, not jury instructions. Noltie criticized the information as charging him with two counts of statutory rape without sufficiently distinguishing the two alleged criminal acts. The Supreme Court rejected the argument because the information, instructions, testimony, and jury argument established that the State charged Noltie with two different instances of statutory rape and did not seek to impose multiple punishments for the same offense. The court cited the principles that, when reviewing allegations of double jeopardy, an appellate court may review the entire trial record. The count emphasized that the trial court gave separate “‘to convict’” instructions relating to the two counts of statutory rape. The instruction for the second count read, in part, that the jury must find that Noltie engaged in sexual intercourse in an incident separate from and in addition to any incident that the State may have proved in court one. During closing argument, the prosecuting attorney recognized the jury instructions provided only the “bare bones” of the elements of each count. State v. Noltie, 116 Wn.2d at 849 (1991). Nevertheless, the State’s attorney stressed that the jury must find that Noltie engaged in sex with the child twice to convict on the second charge.


James Braddy was found guilty of one count of first-degree <mask> under *908section 566.032, RSMo Supp. 2006.1 The circuit court found him to be a persistent sexual offender under section 558.018, RSMo Supp. 2006,2 and sentenced him to seven years in prison. He successfully completed the Missouri Sex Offender Program, and the department of probation and parole recommended him for early release.3


This casé arises from an August 12, 2000 sexual encounter between the then 15-year-old plaintiff and defendant Barsky. Barsky had been plaintiffs social studies teacher at a New York City public school during the preceding school year. Although Barsky and plaintiff met frequently in school outside of class, there is no evidence of any inappropriate contact prior to the subject encounter. Plaintiff spent the 2000 summer vacation at her grandmother’s home in upstate New York. Barsky, who was supposedly planning to see his mother in Massachusetts, detoured to visit plaintiff. Plaintiff and Barsky arranged to meet, but plaintiff did not tell her grandmother about her plans. Plaintiff and Barsky met, drove around for a while, and then went to a hotel, where they had sexual intercourse. Although plaintiff acknowledges that the tryst was “consensual,” she was legally incapable of consent. Barsky was charged with <mask>, and eventually pleaded guilty. He is no longer a teacher.


In State v. Cannafax , 344 S.W.3d 279, 291 (Mo. App. S.D. 2011), the Southern District held that "a modification to the definition of 'dangerous felony' that limits [an inmate's] opportunity for early release may lawfully be applied to him [regardless of] whether ... sufficient evidence showed the offenses were committed after the 2003 amendment." In that case, the defendant argued that his crimes of first-degree <mask> and first-degree statutory sodomy were not part of the definition of "dangerous felony" at the time of his offenses and, because they were not added until the 2003 amendment, the 85% rule could not be applied to him. Id. at 290-91. In State v. Tivis , 933 S.W.2d 843, 848 n.3 (Mo. App. W.D. 1996), however, this court held that "the amended definition of 'dangerous felony' which occurred after [commission of] the underlying offense [may not be used] for the purpose of determining whether or not [an inmate] is subject to sentencing enhancement." Here, we need not decide whether the current definition of "dangerous felony" applies to Hill's sentences, as we have concluded, in accordance with the holding in Mann v. McSwain , 526 S.W.3d 287 (Mo. App. W.D. 2017), that his offenses constituted dangerous felonies as defined at the time of their commission.


As to the CANRA violation, Doe asserts Arnold knew Doe was under 18 at the time she became pregnant and was informed that the father was her boyfriend, who was over 18. As a result, she was required to report the <mask>. Even if Arnold was required to report the incident, there is no evidence the failure to report was a proximate cause of Doe's injury as the injury had already occurred by the time she asserts it should have been reported. Indeed, Doe fails to identify what injury resulted from the failure to report, except to state that she "was left to deal with her adult pursuer for an additional three and a half weeks." Beyond this statement, however, Doe does not assert, much less cite to evidence, that Dwayne continued to pursue her during those three and a half weeks, or that she even had contact with him during that time. Again, there is insufficient *76evidence of causation to allow a jury to find in her favor on her claims against the County.


Balbirnie raises two points on appeal. In his first point, Balbirnie challenges the sufficiency of the evidence to support his felony murder conviction, arguing that Victim's death did not come about "as a result of the perpetration" of second-degree statutory rape-the underlying felony. In his second point, Balbirnie argues that the State bore the burden and failed to prove that Balbirnie knew Victim was under the *708age of 17, as required to support his conviction for second-degree <mask>.


Balbirnie reads the phrase "another person is killed as a result of the perpetration ... of such felony" to mean that the death must result from one of the elements of the underlying felony. He notes that the elements of second-degree <mask> are: (1) a person age twenty-one or older; (2) having sexual intercourse; (3) with a person who is less than seventeen years old. See § 566.034.1. He then reasons that neither of the participants' ages can cause death, so, for him to be guilty of felony murder, Victim's death must have resulted from the second element-sexual intercourse. And, here, because there was no evidence that Victim's death was caused by the penetration of her vagina by Balbirnie's penis, the evidence was insufficient to support his conviction. We disagree.


Movant was charged with one count of first-degree <mask>, one count of second-degree statutory rape, three counts of first-degree statutory sodomy, and two counts of second-degree statutory sodomy. The charges all related to allegations that Movant engaged in multiple acts of sexual conduct at his home with a child under the age of fourteen between August and October of 2011. Following a jury trial, Movant was found not guilty of first-degree statutory rape, and guilty of all other charges. The court sentenced Movant to a total of twenty-five years in prison.


Memorandum: Defendant appeals from an order classifying him as a level two sex offender stemming from his 1996 conviction in Virginia for the <mask> of a 14-year-old female "without the use of force." Defendant was 18 years old at the time of the offense, which the Board of Examiners of Sex Offenders characterized as an "isolated incident." Defendant successfully completed both sex offender treatment and substance abuse treatment, and he has not been convicted of any other sex crime. Under these circumstances, we agree with defendant, in the exercise of our own discretion, that his presumptive level two classification overestimates his "dangerousness and risk of sexual recidivism" (People v Gillotti, 23 NY3d 841, 861 [2014]; see People v Carter, 138 AD3d 706, 707-708 [2d Dept 2016]). We therefore modify the order by determining that defendant is a level one risk (see People v George, 141 AD3d 1177, 1178 [4th Dept 2016]; see also People v Brocato, 188 AD3d 728, 728-729 [2d Dept 2020]; People v Fisher, 177 AD3d 615, 615-616 [2d Dept 2019]). Defendant's remaining contention is academic in light of our determination.


That being said, we may enter a conviction for first-degree child molestation.6 "A person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact." § 566.067.1. "Sexual contact" means "any touching of another person with the genitals or any touching of the genitals ... of another person ... for the purpose of arousing or gratifying sexual desire of any person." § 566.010(3). "A person cannot engage in 'sexual intercourse' ... with another person without one of those persons engaging in 'sexual contact' because the former act[ ] involve[s] the 'touching of another person with the genitals' and 'touching of the genitals ... of another person....' " State v. Miller , 372 S.W.3d 455, 470 (Mo. banc 2012) (quoting § 566.010(3)). Accordingly, first-degree child molestation is a lesser-included offense of first-degree <mask>.7


The girl now seeks the return of her child, and prays that her instrument of surrender be set aside. After a plenary hearing, the following facts emerge: During her confinement in the foundling hospital her family rarely visited or comforted her. Her mother, who was most sensitive to the girl’s predicament, came infrequently and displayed nothing but recrimination towards her daughter. In fact, the mother’s implacable hostility towards the natural father of the infant in question resulted in his arrest for <mask> and completely cut off any possibility of a marriage between him and the girl. It seems that this mother, married for many years to an invalid, and having been forced to work in order to preserve her household, had unfortunately become embittered in many of her *964relationships, particularly with reference to her youngest daughter, the petitioner herein. Yet, she was and is a good woman, iron-willed and well intentioned.


Shortly after its decision in Tucker (supra), the Court once more returned to the issue of use of prior void convictions. In Loper v Beto (405 US 473 [1972]), upon taking the stand in his own defense, the defendant’s general credibility was impeached with his prior convictions. Loper was charged with the <mask> of his eight-year-old stepdaughter who was the sole witness against him. The defendant, conversely, was the only witness for the defense. The Court set forth the question presented in Loper as follows: “Does the use of prior, void convic*205tions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case?” (Id., at 480.)


While the evidence for each victim in Celis-Garcia showed that multiple acts of sodomy occurred at different, specified locations over an extended time period, the evidence for each victim in this case showed that multiple acts of <mask> occurred in an identical manner in the same location approximately every other day over a period of time. Id. at 11-12. The Western District likened its case to the hypothetical referenced in the Celis-Garcia footnote, as the victims testified to "repeated, identical sexual acts committed at the same location during a particular time span, and they were unable to testify to specific acts on specific dates." Id. at 12. As such, the verdict directors focused on a single month, and any evidentiary fact that could distinguish one incident of rape from another was included in the verdict directors.9 The Court concluded that "[t]he factual findings required by each verdict director rendered it impossible for the jurors to differentiate between the repeated, identical acts of statutory rape that fell within each of the verdict directors." Id. Accordingly, the defendant's right to a unanimous jury verdict was not violated because the jurors had no evidentiary basis upon which to differentiate between the repeated acts. Id. Notably, as to the first count, the Court concluded the fact that sexual acts on different dates within the month of May "could theoretically have been relied on by the jurors in finding [the defendant] guilty cannot demonstrate a violation of the right to a unanimous verdict when the record contains no evidentiary basis for the jurors to distinguish between those acts." Id.


What constitutes prejudice to the defendant? In People v Bouton (50 NY2d 130), the defendant was convicted of sodomy and sexual abuse. During the course of their delib*1087erations, the jury viewed “two versions of defendant’s confessions from which reference to uncharged sexual activity had not been redacted * * * hearsay laden psychiatric medical records of the <mask> complainant and welfare records of her mother” (p 137). The Court of Appeals in Bouton (supra) found this material prejudicial and a new trial was ordered.


Hamber did not object to these statements in the PSIR. As part of the factual basis during the plea hearing, Hamber admitted that he purchased the firearm in North Little Rock in October 2018 for approximately $130. During the sentencing hearing, Hamber backtracked from his previous admissions and claimed that he purchased the gun in September 2019. Hamber was indicted by the grand jury for being a felon in possession of a firearm and eventually entered an open plea of guilty to the charge. Before sentencing, the government filed a motion seeking an upward variance to 72 months on the grounds that Hamber’s rape conviction was more aggravated than simple <mask>, that Hamber admitted he obtained a firearm days after he was released from state custody, and that his long history of violence posed a risk to the community. At sentencing, the district court calculated the advisory guideline range and advised Hamber that he faced a 10-year statutory maximum term of imprisonment. Hamber sought a sentence within the advisory range of 12 to 18 months.


The People assert that Meloon v Helgemoe is bad law, poorly reasoned and unconvincing; that it has been specifically rejected in at least two very recent State decisions: State v Brothers (384 A2d 402 [Del]) and People v McKellar (81 Cal App 3d —, 146 Cal Rptr 327). Defendant argues that the proof of the unconstitutionality of the New Hampshire statute is that New Hampshire changed its sex law in 1975, to make it sexually neutral. The court in People v Davoli (95 Misc 2d 402, 405 [Onondaga County, Cunningham, J.]) makes an interesting comment: "Finally, the over-all impression given by the Meloon decision is that it was tailor-made to deal with an ill conceived and particularly heavy-handed statute. That is, the New Hampshire <mask> offense was designated a class A felony, and this extreme penalty could be enacted even 'in the scenario of an adolescent love tryst of a 16 year old boy and a 14 year old girl’ (Meloon, supra, p 608).”


The practice of polygamy, in particular, often coincides with crimes targeting women and children. Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, <mask>, and failure to pay child support. See Richard A. Vasquez, Note, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern Constitutional Jurisprudence , 5 N.Y.U. J. Legis. & Pub. Pol'y 225, 239-45 (2001). Moreover, the closed nature of polygamous communities makes obtaining evidence of and prosecuting these crimes challenging. See Id. at 243 ("Given the highly private nature of sexual abuse and the self-imposed isolation of polygamous communities, prosecution may well prove impossible. This wall of silence may present a compelling justification for criminalizing the act of polygamy, prosecuting offenders, and effectively breaking down the wall that provides a favorable environment in which crimes of physical and sexual abuse can thrive.").28 *710This alone provides a rational basis for drawing the distinction between married and unmarried offenders within the sexual assault statute. Indeed, without such a legislative classification, the statute would not be effective at its intended purpose of punishing more severely an individual who commits sexual assault pursuant to a bigamous or polygamous relationship.29 When dealing with the offenses of bigamy or polygamy, drawing a line between married and unmarried offenders is inevitable.


In applying the pregnancy prevention rationale to sustain the constitutionality of a California <mask> provision (age limit 18), under the Reed standard, the court in People v MCKellar (81 Cal App 3d —, —, supra, 146 Cal Rptr 327, 331) stated: "most of the problems encountered by the female when pregnant do not accrue to the male, minor or adult, who engages in sexual intercourse. The sexes are not similarly situated; therefore, the argument of appellant, ante, that males receive unconstitutional unequal treatment for the reason stated lacks merit. * * * Today’s newspapers, almost daily, contain stories of the problems to society caused by the many pregnant unmarried minor females. The selection of the female age factor is clearly for the Legislature. [Citation omitted.] We conclude [the statute] represents a proper exercise of the Legislature’s police power and the classification is reasonable and bears a genuine and substantial relationship to the object of the legislation.”


It can do so by a specific declaration that certain participants in a crime are not accomplices. Thus, section 1308-a. of the Penal Law declares that the thief is not an accomplice to the receiver. It can do so by specific language of a penal statute. Thus by the specific wording of the abortion statute (Penal Law, § 80) the woman upon whose body the abortion is performed cannot be guilty of aiding and abetting, even if a willing participant. She may only be guilty of a violation of section 81 of the Penal Law. (People v. Blank, 283 N. Y. 526.) And, in the <mask> section (Penal Law, § 2010), the Legislature has declared that a female under the age of 18 is incapable of consenting to an act of sexual intercourse. Such a female cannot be an accomplice to the crime of statutory rape. (By analogy, the Court of Appeals has held that a female under the age of 18 is incapable of consenting to the crime of incest. People v. Gibson, 301 N. Y. 244.) By statutory declaration, she is made a “ victim ” and not an “ accomplice ”.


*781The Attorney General claims that Juror 11's statements "resemble" those used by a defense attorney in People v. Williams, supra, 25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209. We are not persuaded. In Williams , the defendant was charged with multiple crimes, including unlawful sexual intercourse with a minor as lesser included offenses to the charges of rape. Defense counsel argued in closing about the misdemeanor "statutory rape" charges: "Law as you know is not uniformly applied.... Mores, custom[s] change. Times change. And the law must be applied fairly. So if the law is not being applied fairly, that's why you need fair jurors." ( Id . at p. 445, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) Defense counsel then purported to quote from a U.S. Supreme Court case (but actually quoting the dissent) that " ' "a jury may, at times, afford a higher justice by refusing to enforce harsh laws." Please understand.' " ( Id. at p. 446, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) On the first day of deliberation, the foreperson sent a message to the trial court that a juror refused to adhere to the trial court's instruction on <mask> because he believed the law is "wrong." The juror in question then told the trial court that he was not willing to follow the judge's instruction on this charge because he did not believe statutory rape should be a crime (although he would follow the other instructions for the rest of the charges) and that he was not willing to follow his oath as a juror. Not surprisingly, this juror was discharged. In affirming the judgment, the Supreme Court reaffirmed the "basic rule" that a juror must determine facts and render a verdict in accordance with the trial court's instructions, and failure to do so constitutes failure to perform one's duty as a juror under Penal Code section 1089. ( Id . at p. 463, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) But Williams is not this case. Juror 11 said he was following and would follow *378the trial court's instructions. He did not express a view that any of the charges against defendant here should not be a crime, and there was not substantial evidence in this record to suggest otherwise.


Nor was this rule limited to prior criminal acts between the defendant and the victim. See, e.g., State v. Jenks , 126 Kan. 493, 268 P. 850, 851 (1928) (explaining evidence of a <mask> committed upon another girl would be admissible to prove the defendant's "lustful disposition" to commit the offense with which he was charged) (citation omitted); Bracey v. United States , 142 F.2d 85, 88-89 (D.C. Cir. 1944) (observing the "better reasoned cases in other jurisdictions" allowed admission of evidence of other sexual offenses committed against other minors to prove defendant's "emotional predisposition or passion" to commit the offense with which he was charged); 1 George E. Dix, et al., McCormick on Evidence § 190 (K.S. Broun & R.P. Mosteller eds., 7th ed. 2013 & Supp. 2016) ("[M]any jurisdictions now admit proof of other sex offenses with other persons, at least as to offenses involving sexual aberrations.") (footnotes omitted).


As to Count 2, if you find and believe from the evidence beyond a reasonable doubt: First, that on or about January 2011, in the County of Nodaway, State of Missouri, the defendant knowingly had sexual intercourse with N.G. in defendant's bedroom in Burlington Junction every time her Mom went to Wal-Mart, and Second, that at that time N.G. was a child less than twelve years old, then you will find the defendant guilty under Count 2 of <mask> in the first degree. However, unless you find and believe from the evidence beyond a reasonable *11doubt each and all of these propositions, you must find the defendant not guilty of that offense. The issue of jury unanimity may be implicated in cases such as this, which are commonly referred to as "multiple acts" cases. Id. "A multiple acts case arises when there is evidence of multiple, distinct criminal acts, each of which could serve as the basis for a criminal charge, but the defendant is charged with those acts in a single count." Id. at 155-56. The evidence in this case was that Walker had sexual intercourse with B.W. and N.G. in the same manner and same location approximately every other day over a period of time, yet he was charged with only one count of statutory rape for each victim. The count for each victim specified the month in which the act of statutory rape occurred but did not specify a particular act of statutory rape on a particular date. Walker argues that, by not specifying a particular act of statutory rape in each count, the verdict directors ran afoul of the Supreme Court's opinion in Celis-Garcia , 344 S.W.3d 150.


Although the United States Supreme Court has never spoken with respect to the level of analysis to be applied to statutes of the type which New York presently has concerning <mask>, it is clear that a higher level of scrutiny is appropriate than the traditional rational basis equal protection test when dealing with gender-based classifications. In Craig v Boren (supra, p 197) the court applied the standard of the court in Reed v Reed (404 US 71) and subsequent cases: "To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” (Emphasis supplied.) In Me-loon v Helgemoe (564d 602, 604, supra) the United States Court of Appeals noted the heightened level of scrutiny which is appropriate to gender-based classifications: "The statute at issue in this case is a classification based on sex. As such it requires more heightened scrutiny than would be applied to completely non-suspect legislation, but less stringent scrutiny than is typically applied to racial classifications, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Frontiero v. *500Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Moreover, since a criminal statute is involved, the standards governing gender classification must be applied with special sensitivity.”


Walker also contends the verdict directors violated his right to be free from double jeopardy because "there is no way of knowing exactly what act of <mask> the jury used for its verdict of guilt" and, therefore, the State could later charge him with another act of statutory rape during the charged time period. Walker did not object to the verdict directors on this basis at trial and did not include this argument in his motion for new trial. Therefore, review, if any, is for plain error. Plain error will be found only where the alleged error "demonstrates on its face substantial grounds for believing that manifest injustice or miscarriage of justice has occurred." State v. Biggs , 170 S.W.3d 498, 503 (Mo. App. 2005). Walker's allegation of error does not meet this standard. Because it was impossible to distinguish between each act of statutory rape during the charged time period, the verdict director for B.W. encompassed every act of statutory rape that Walker committed against her in his bedroom in May 2014, while the verdict director for N.G. encompassed every act of statutory rape that Walker committed against her every time her mother went to Walmart in January 2011. Walker cannot be successively prosecuted or punished for the acts of statutory rape encompassed by the verdict directors.


Defendant Taylor is also charged with 4 counts of forcible rape and all are alleged to have taken place during the period of December 1 to December 31, 1986. He is also charged with 4 counts of <mask> and the court has again assumed that these counts relate to the same incidents which form the basis for the forcible rape counts. The end result is that the indictment as it reads today charges each defendant with 4 counts of rape in the first degree.


The opinion of this court is that this decision is not binding upon us and that undue importance must not be attached to it. In State v Brothers (384 A2d 402, 406 [Del]) the Delaware Superior Court declined to follow Meloon v Helgemoe (supra) saying that that case "placed an undue burden on the State of New Hampshire to justify the long-standing classification of offenses found in many statutes defining <mask>.”


In People v. Thompson (212 N. Y. 249), the court held that in cases of adultery, seduction, <mask> and incest, even acts subsequent to the act charged in the indictment are relevant to show a continuity of the lascivious disposition. In People v. Thau (219 N. Y. 39, 42), evidence was received of the defendant’s visit to the complaining witness on a prior occasion two weeks before the assault alleged in the indictment. His threatening manner and vicious conduct at that time were held relevant to establish motive, common scheme or plan and identity. There the court said: “ * * * where the evidence is relevant the trial court should not hesitate to receive it notwithstanding the fact that it tends to prove the defendant guilty of another offense. * * * ‘ * * * A party cannot by multiplying his crimes diminish the volume of competent testimony against him.* * * ’”.


“ While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions * * * Whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element * * * This has not, however, been without expressions of misgiving.” (Morissette v. United States, 342 U. S. 246, 254-256; Clark & Marshall, A Treatise on the Law of Crimes [7th ed.], § 5.10; Packer, The Limits of the Criminal Sanction, ch. 6, pp. 111-127 [citing the crimes of <mask> and bigamy as examples of strict liability offenses without mens rea]; People *431v. Nelson, 309 N. Y. 231; Tenement House Dept. v. McDevitt, 215 N. Y. 160; People v. Buddensieck, 103 N. Y. 487; People v. Polstein, 184 App. Div. 260, affd. 226 N. Y. 593; United States v. Dotterweich, 320 U. S. 277; and most recently again upheld by the Court of Appeals in People v. Transamerican Frgt. Lines, 24 N Y 2d 727, 731 [June, 1969].)


In State v Brothers (384 A2d 402, 405, supra), the court points out that rape and <mask> statutes have come under equal protection attack in many jurisdictions in recent years. Citing numerous case authority, the court says (p 405): "It is apparent that in almost every instance the distinctions made in the statutes have been upheld”. The Delaware Court also referred to the court in Meloon as applying the "strict scrutiny” test to the statute, and with respect to the pregnancy rationale of Meloon: "It was almost as if the Court was requiring the legislature to build into its statutory scheme a definition of how far was too far and how much was enough”. (State v Brothers, supra, p 406.)


again. The district court denied a permanent injunction and granted summary judgment in favor of the Sheriff. After review and with the benefit of oral argument, we conclude that the Sheriff’s warning signs are compelled government speech, and their placement violates a homeowner’s First Amendment rights. Thus, we vacate the district court’s judgment in favor of the Sheriff and remand for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY A. The Plaintiffs Plaintiffs Reginald Holden, Corey McClendon, and Christopher Reed are residents of Butts County and are required to register as sex offenders under O.C.G.A. § 42-1-12, et seq. The Georgia statute not only requires individuals with certain convictions to register as sex offenders, but also requires Georgia to classify registrants based on whether they pose an increased risk of recidivism. Id. § 42-1-14. None of the three plaintiffs have been classified as posing an increased risk of recidivism. In 2004, Holden was convicted of lewd and lascivious battery in Pinellas County, Florida. He has been a homeowner in Butts County since May 2017. He lives by himself and works as a warehouse coordinator. In 2001, McClendon was convicted of <mask> of a minor in Butts County. He lives with his daughter and his parents, USCA11 Case: 21-10092 Date Filed: 01/19/2022 Page: 4 of 21


James Braddy was found guilty of one count of first-degree <mask> under *908section 566.032, RSMo Supp. 2006.1 The circuit court found him to be a persistent sexual offender under section 558.018, RSMo Supp. 2006,2 and sentenced him to seven years in prison. He successfully completed the Missouri Sex Offender Program, and the department of probation and parole recommended him for early release.3


Treta was charged by indictment with sexual misconduct involving a child, section 566.0833 (Count I);4 two counts of *409forcible rape, section 566.030 (Counts II and IV); and two counts of <mask> in the first degree, section 566.032 (Counts III and V). The charges arose from Treta's having sexual intercourse with Victim, a child under twelve years old, by the use of forcible compulsion on January 19, 2013, and January 29, 2013.


The manifest purpose of the <mask> legislation is to *981protect the morals of young girls. (People v Marks, 146 App Div 11.) The State has an interest in protecting young girls even from their own immature indiscretions. The Supreme Court of Wisconsin (Flores v State, 69 Wis 2d 509, 510-511) in upholding a similar statutory rape statute wrote: "One obvious, adequate justification for focusing upon sexual intercourse between males and minor females is the possibility of pregnancy. Moreover, the legislature could rationally have concluded that the danger of sexual exploitation by adult males of minor females and the resulting stigma and shame attendant on such activity in our society were so severe that this activity should be specially proscribed in a separate statute.”


. Defendant may be sentenced for the most serious crime but not for ingredient-offenses committed in “successive steps” toward the major crime; contra, as to “distinct offenses” not necessarily involved in the latter. Thus, since <mask> and bastardy are distinct crimes separate sentences may be imposed therefor but not on the fornication conviction on which the bastardy adjudication rests (Commonwealth ex rel. Roberts v. Keenan, 170 Pa. Super. 282). Acquittal of fornication will bar judgment on common-law rape, but not for assault, etc., with intent to ravish (Commonwealth v. Moss, 173 Pa. Super. 367); acquittal of adultery does not bar later prosecution for assault with intent to rape (Commonwealth v. Moon, 151 Pa. Super. 555).


An examination of the cases urged by each of the parties in support of their mutually exclusive positions demonstrates the continuing viability of the teaching of Morissette (supra) that there is no precise delineation or a fixed formulation of "comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static.” (Supra, at 260.) This amorphous state of the law leads to incongruous results that are not easily reconciled. For example, in People v Dozier (72 AD2d 478) the crime of <mask>, a class E felony, was held to be a strict liability offense insofar as knowledge by the male defendant that the female was under 17 was not an element. In contrast, in People v Cooper (24 NY2d 877) an Administrative Code of the City of New York provision making it a misdemeanor to fail to file a city sales tax return was held to contain a scienter element that the failure to file was willful, rather than merely an innocent failure to file.


Balbirnie raises two points on appeal. In his first point, Balbirnie challenges the sufficiency of the evidence to support his felony murder conviction, arguing that Victim's death did not come about "as a result of the perpetration" of second-degree statutory rape-the underlying felony. In his second point, Balbirnie argues that the State bore the burden and failed to prove that Balbirnie knew Victim was under the *708age of 17, as required to support his conviction for second-degree <mask>.


In the opinion of this court, the foregoing statute entails no shifting of the burden of proof on any element of the crime to the defendant, for in order to obtain a conviction under Penal Law § 263.16, the People are required to prove each of the following elements beyond a reasonable doubt: (1) that the defendant had a “performance” in his possession or control; (2) that *256the performance included “sexual conduct”; (3) that the defendant “kn[ew]” the “character and content” of the performance; and (4) the child engaging in the sexual conduct was “less than sixteen years of age”. The “age” element as thus expressed imposes a significant burden upon the People, as the children who appear in these performances are likely to be anonymous and incapable of identification. This is in direct contrast to, e.g., a case of <mask>, where the People have a live witness with a verifiable date of birth. Moreover, once the People have met this significant burden of proving that the unknown child performer was less than 16 years of age, the defendant is given an opportunity to escape liability by showing his good-faith reasonable belief that the child depicted was 16 years of age or older. (Penal Law § 263.20 [1].) As with all affirmative defenses in New York, defendant’s burden of proof in this area of the operation of his mind is by a preponderance of the evidence. (Penal Law § 25.00 [2].) The affirmative defense does not, therefore, dilute or water down or shift the People’s burden of proving each and every element of the crime charged (including the age of the child) beyond a reasonable doubt, for if there is a reasonable doubt as to the age of the child, the defendant is not criminally liable.


Movant appeals to this Court for the fourth time based on his conviction for second-degree <mask> and incest arising from an evening in February 2007 where Movant had non-consensual sex with his then 16-year-old daughter. The three prior appeals include: (1) a direct appeal in which we affirmed Movant's convictions via an unpublished opinion, State v. Mercer , SD29114 (per curiam ); (2) an unsuccessful appeal of the denial of his Rule 29.15 motion, Mercer v. State , 330 S.W.3d 843 (Mo. App. S.D. 2011) ; and (3) an appeal from the denial of a previous § 547.035 motion in which this Court dismissed his appeal due to the lack of a final judgment. Mercer v. State , SD33779, 2015 WL 9481403 (Mo. App. Dec. 29, 2015). That dismissal was transferred by a dissenting judge via Rule 83.03 to our supreme court, where it held that the denial of a § 547.035 motion was not subject to Rule 74.01(a)'s denomination requirement. Mercer v. State , 512 S.W.3d 748, 752 (Mo. banc 2017). Accordingly, our supreme court held that the docket entry denying Movant's § 547.035 motion was an appealable order, but reversed and remanded the cause "due to the circuit court's failure to issue findings of fact and conclusions of law as required by section 547.035.8." Id. at 754.


People v. Flaherty, 162 N. Y. 538, is not an authority against this rule. There the act charged was <mask>. Evidence of several acts of intercourse was given, and the court said tliis was proper to show the disposition of the parties and as a circumstance of corroboration; hut it was not proper* to charge in the indictment any hut one act. The reason of this is plain, and that the act in itself constituted the crime, and, therefore, only one act could he charged. The case in principle is not parallel.


As to Count 1(a), if you find and believe from the evidence beyond a reasonable doubt: First, that on or about May 2014, in the County of Nodaway, State of Missouri, the defendant knowingly had sexual intercourse with B.W. in defendant's bedroom in Burlington Junction, and Second, that at that time B.W. was a child less than fourteen years old, then you will find the defendant guilty under Count 1 of <mask> in the first degree. However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense. The verdict director for the first-degree statutory rape count involving N.G. was Instruction No. 9, and it read:


. Former Florida Statutes § 800.04 (3) (1984 Fla Laws, ch 84-86, § 5; 1990 Fla Laws, ch 90-120, § 1), provided that any person who “[c]ommits an act defined as sexual battery under s. 794.011 (l)(h) upon any child under the age of 16 years . . . commits a felony of the second degree.” Florida Statutes § 794.011 (1) (h) states that “ ‘[slexual battery’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.” Accordingly, the Florida crime is akin to a <mask> charge.


Another line of cases further buttresses this view. In People v Thompson (212 NY 249, 251, citing People v Molineux, supra) it was stated that evidence of criminal offenses other than that charged in the indictment4 is admissible where it *482has a "natural tendency” to establish the fact in controversy and "to corroborate or supplement admitted direct evidence.” The court held that in cases of <mask> upon one under the age of consent (and other selected cases not here relevant, except that the application of the rule was extended to statutory sodomy by People v Porcaro, 6 NY2d 248, 258, supra; see Richardson, Evidence [10th ed], § 182), evidence of other similar crimes both before and after the act charged in the indictment, by and between the same parties, was admissible, on the theory that it shows a course of lascivious conduct and predisposition to the commission of the act charged: "In State v. Schueller (120 Minn. 26), a case of statutory rape, the reception of similar evidence was approved on the theory of disclosing the relationship between the parties, opportunity and inclination to commit the act complained of, and as corroborative of the specific charge. The reasoning and conclusion of such decisions have our approval.” (People v Thompson, 212 NY 249, 252-253, supra.)


Treta contends that his convictions and sentences for two counts each of <mask> and forcible rape for two single acts should be vacated because his guilty plea was not knowing, voluntary, and intelligent because the convictions and sentences were duplicative in violation of his constitutional right to be free from double jeopardy. Specifically, Treta asserts that "there was no indication of legislative intent an accused can be convicted on both forcible/non-consensual and statutory sex crimes arising from a single act, since statutory sex crimes are a specific type of forcible sex crimes, and, thus, convictions and sentences for both forcible/non-consensual and statutory sex crimes arising from a single act are prohibited, § 556.041(3)[.]"


"Attempted <mask> in the first degree occurs where a subject, with the purpose of committing the [completed] offense, takes a substantial step towards having 'sexual intercourse with another person who is less than fourteen years old.' " State v. Smith , 330 S.W.3d 548, 555 (Mo. App. S.D. 2010) (quoting § 566.032.1 and citing § 564.011.1). Here, it is unclear from the evidence what Barbee's purpose was in causing contact between his penis and Victim's genitals. In other words, he may have accomplished all the contact he sought at the time or he may have meant to do more but did not do so for unknown reasons. But even if we can reasonably infer that his purpose was to engage in sexual intercourse, the problem remains that the jury was never tasked with making such a finding. To convict a defendant of attempt, the jury must find that his conduct constituted a "substantial step" toward completion of the underlying crime. See Blair , 443 S.W.3d at 685. Because the jury was never tasked with making such a determination, we cannot enter a conviction for attempted first-degree statutory rape.