State of Missouri v. Thomas A. Ess
2015 Mo. LEXIS 2
Mo.2015Background
- Thomas A. Ess was tried and convicted on multiple counts of statutory sodomy and attempted child molestation for alleged sexual acts against his stepsons between the mid-1990s and 2003; the jury convicted on five of six counts (one count acquitted).
- During voir dire a veniremember who became Juror No. 3 was asked repeatedly about preformed opinions; he gave no responsive answers.
- After a lunch recess a different venireperson (No. 26) later stated he overheard Juror No. 3 say the case was "open and shut"; Juror No. 11 testified he "shushed" Juror No. 3 in the hall.
- Ess moved for a new trial alleging juror misconduct by intentional nondisclosure of a prejudicial opinion; the circuit court held an evidentiary hearing, then denied the motion, finding insufficient evidence of intentional nondisclosure or bias.
- On appeal the Missouri Supreme Court (transferring the court of appeals decision) held the nondisclosure was intentional and material, reversed the judgment and ordered a new trial; it also found insufficient evidence for attempted first-degree child molestation (count V) and entered judgment of acquittal on that count.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ess) | Held |
|---|---|---|---|
| Juror nondisclosure / misconduct | Trial court properly exercised discretion; evidence was insufficient because no affidavit or testimony from Juror No. 3 and testimony was ambiguous | Juror No. 3 intentionally withheld that he had formed an opinion ("open and shut") despite clear voir dire questions; nondisclosure requires new trial | Court held nondisclosure was intentional and material; presumed bias and reversed for new trial (trial court abused discretion in denying new trial) |
| Timeliness of new-trial motion | Motion was filed late; only plain-error review should apply | Motion filing delayed by clerk’s refusal due to defective notary stamp; motion should be deemed timely | Court found motion timely (clerk should have accepted filing) and reviewed abuse-of-discretion standard |
| Sufficiency — Count II (1st-degree statutory sodomy of W.L.) | Argues evidentiary gaps on age/date | W.L. testified sexual acts began ~age 12 and at least one specific mouth-on-genitals incident; jury could infer timing | Court held evidence sufficient for conviction on Count II |
| Sufficiency — Count V (attempted 1st-degree child molestation of B.L.) | State argued placing B.L.’s hand over Ess’s penis through clothing was a substantial step toward skin-to-skin sexual contact | Ess argued no evidence of purpose to achieve skin-to-skin contact or of a substantial step; contact was over clothing | Court held evidence insufficient for attempted child molestation (conviction reversed; judgment of acquittal entered) |
Key Cases Cited
- State v. McFadden, 391 S.W.3d 408 (Mo. banc 2013) (defines intentional juror nondisclosure and presumption of bias)
- State v. Mayes, 63 S.W.3d 615 (Mo. banc 2001) (discusses proof required for juror nondisclosure claims and need for testimony/affidavits or other evidence)
- Saint Louis Univ. v. Geary, 321 S.W.3d 282 (Mo. banc 2009) (explains nondisclosure occurs only after an unequivocal voir dire question)
- Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623 (Mo. banc 2013) (standard that trial court may believe all, part, or none of testimony at evidentiary hearing)
- State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011) (jury-unanimity requirement where multiple distinct acts are charged in a single count)
- State v. Miller, 372 S.W.3d 455 (Mo. banc 2012) (double jeopardy bars retrial when conviction is reversed for insufficient evidence)