When a defendant argues that the prosecution failed to make a submissible case, but did not preserve the issue for appeal, the appellate court considers the issue under the doctrine of plain error. It is manifest injustice for a trial court to submit a case to the fact finder on evidence that is insufficient to make it a submissible case.
The prosecution's burden in a case based on allowing a child under 17 to dance in a club, was to show that defendant actually was aware that the child was under 17, which was a heavier burden than showing that there was a "high probability" that defendant was aware that the child was under 17. At best, the facts showed that defendant did not know or refused to learn the child's age, that defendant was conscious of "a substantial and unjustifiable risk" that the child was under 17, and that defendant's disregard of the risk was a "gross deviation" from the norm, under Mo. Rev. Stat. § 562.016.4. Defendant contends the state failed to make a submissible case. Defendant failed to preserve this issue for review on appeal.
Can the defendant be discharged based on submissibility under the doctrine of plain error?
These facts simply show defendant was untruthful. Defendant could not have checked the child's identification, because the child had no identification with her the first day defendant "hired" the child. This does not prove that defendant knew the child was less than seventeen years old. At best, it proves defendant did not know or refused to learn the child's age. The latter is the best case for the state. But defendant's refusal to learn the age of this "young" child who was "dancing" "scantily clad" in her disco bar simply proves that defendant was "aware of high probability" that the child was under seventeen, or, stated otherwise, in the definitional language of our Criminal Code, proves that defendant was conscious of "a substantial and unjustifiable risk" that the child was under seventeen and that defendant's disregard of the risk was a "gross deviation" from the norm. See § 562.016.4. This, however, is not "knowledge" under our Criminal Code. It is "recklessness", nothing more. Having failed to prove defendant knew the child's age was less than seventeen, the state failed to make a submissible case.