State of Missouri, plaintiff                                                  )
            v.                                                                         ) Case No.: 398CM1214
Robin C. McDermott, defendant                                        )

COMES NOW Robin C. McDermott, defendant and moves the court to enter its judgement of acquittal in the above-captioned case. For her motion, defendant offers the following:

The State of Missouri, by and through its assistant prosecuting attorney, Robert Asperger, did present its case to this Court on 20 September 1999, including the testimony of witnesses for the State as well as a full presentation of State's evidence as to the crime charged against defendant. The State having apprised both the Court and the defendant of the entirety of the State's case against defendant has utterly failed to present evidence that proves each and every element of the crime charged against defendant as required by law.

Specifically, as to the element of knowingly. The State has failed to prove beyond a reasonable doubt that defendant knowingly committed the crime charged.

As to the four elements of attempt as cited in relevant part from Black's Law Dictionary, 6th edition, West publishing Co., 1990, p 127,

Criminal law. An intent to commit a crime coupled with an act taken toward committing the offense. An effort or endeavor to accomplish a crime, amounting to more than mere preparation or planning for it, which if not prevented, would have resulted in the full consummation of the act attempted, but which, in fact, does not bring to pass the party's ultimate design. The requisite elements of an "attempt" to commit a crime are: 1.  An intent to commit it,

The State has failed to offer any credible proof of the intent of defendant to commit the crime charged. Motive, while used interchangeably in common practice, does not constitute intent, and the intermingling of the two terms is given proper and appropriate cautions and distinctions.

Given the circumstances presented at trial surrounding the events of the night in question, it is reasonable that any person could have acquired motive for the charged act. However, the possibility, probability, or even the likelihood of acquiring motive to commit such a crime, does not prove the intent to commit the crime charged and the intent has not been proved beyond a reasonable doubt . The fact that defendant had opportunity to have contact with eight other officers within the same hour who have neither reported nor testified to any attempt by defendant to have physical contact with them makes the proposition that defendant singled out this one officer to attempt such contact less than credible.

2.  An overt act towards its commission,

The State has failed to prove beyond a reasonable doubt that there was any overt act, nor any substantial step, made or taken by defendant toward the commission of the crime charged. The State has failed in its burden to prove that the described action of defendant turning her head and opening her mouth are anything other than the involuntary response of startle reflex that is associated with fear of falling and crying out in pain and fear.

3.  Failure of consummation,

The State has not alleged that any contact initiated or caused by defendant took place. The State having failed to prove the first two requisite elements of attempt fails to establish that there was, in fact, an attempted act to have failed in consummation. This point is moot.

4.  The apparent possibility of commission,

The court has seen by demonstration that the crime charged against defendant had no possibility of being committed, based upon the State's chief witness's testimony. Even if every word of the State's chief witness's testimony were true, the fact is that a person in handcuffs held seated in a chair by hands placed upon the back of the person's shoulders makes it a physical impossibility to bite the hands holding the person's shoulders.

The State has proved only that John A. Smith was a law enforcement officer employed by the City of Springfield acting in his official capacity on the night in question.

Wherefore, defendant prays this Court be moved to enter its order for judgment of acquittal of defendant on this charge against defendant and that these proceedings against defendant be terminated with prejudice and to enter all other orders that are deemed lawful and appropriate to the court.

    Respectfully submitted in truth,


    Robin C. McDermott, defendant


    SO ORDERED: ______________________________

                                      Date _9/20/99_________________
                            The Honorable Don Burrell, Judge