A similar issue was addressed by the Southern District in State v. Patton, 229 S.W.3d 631 (Mo.App. S.D.2007). In Patton, the defendant was charged with first-degree child molestation by touching the vagina of a child less than fourteen years of age with his hand.
State v. Kelso, 391 S.W.3d 515, 520 (Mo.App.W.D.2013) (citing State v. Potter, 747 S.W.2d 300, 306 (Mo.App. S.D.1988) ). “[T]he crime can only be committed in one way: touching with the purpose to arouse or gratify sexual desire.” Id. (citing State v. Patton, 229 S.W.3d 631, 637 (Mo. App. S.D.2007) ). “Thus, there must be some evidence from which the juvenile court could find beyond a reasonable doubt that Juvenile intended to do the act for the purposes of sexual arousal or gratification.” J.A.H., 293 S.W.3d at 120 (emphasis added).
is defined as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person[,]" [s]ection 566.010(3) (emphasis added)[, t]he type of touching, whether through or underneath the clothing, is inconsequential. State v. Patton, 229 S.W.3d 631, 637 (Mo. App. S.D. 2007). Id.
“[T]he crime can only be committed in one way: touching with the purpose to arouse or gratify sexual desire.” Id. (citing State v. Patton, 229 S.W.3d 631, 637 (Mo. App. S.D.2007)). “Thus, there must be some evidence from which the juvenile court could find beyond a reasonable doubt that Juvenile intended to do the act for the purposes of sexual arousal or gratification.”
The type of touching, whether through or underneath the clothing, is inconsequential. State v. Patton, 229 S.W.3d 631, 637 (Mo.App. S.D. 2007). Thus, it is clear after reviewing G.B.'s testimony regarding what transpired at the Compton address that Appellant's touching did not rise to the level of deviate sexual intercourse.