557 S.W.3d 408
Mo. Ct. App.2018Background
- Derry Beck was convicted by a jury of three counts of first-degree statutory sodomy and one count of first-degree child molestation based on sexual abuse of his daughter A.O. between ages 5–13. He was sentenced to concurrent prison terms (20 years on sodomy counts; 15 years on molestation).
- A.O. testified to multiple distinct incidents over several years: oral, anal, and genital contact at different ages and locations in her grandmother’s home; a videotaped forensic interview (CPC) also described multiple incidents.
- The State amended the information twice; the operative second amended information charged each count as occurring “on or between November 18, 2005 and November 17, 2012.”
- At trial the State elicited specific testimony about one incident for each charged count but also played A.O.’s CPC interview that contained multiple detailed incidents. Beck testified and asserted alibis for various periods; introduced limited documentary dive-log evidence.
- On appeal Beck raised seven points: (1) verdict directors failed to ensure unanimity (multiple-acts problem); (2) second amended information was vague; (3) prosecutor misconduct during defense closing; (4) State’s closing improperly called grandmother an “enabler”; (5) admission of physician’s diagnosis that A.O. was sexually abused; (6) exclusion of cross-examining A.O. about alleged abuse by her brother (rape-shield); and (7) alleged juror misconduct (possible recognition of juror as jail pod officer).
Issues
| Issue | Beck's Argument | State's Argument | Held |
|---|---|---|---|
| Jury unanimity / verdict directors (Counts I, II, IV) | Multiple distinct acts were proven but verdict directors were generic, so jury may not have unanimously agreed on the same act | Jury focused on single incidents in closing; verdicts should stand | Reversed Counts I, II, IV; verdict directors plain-error: failed to ensure unanimous verdict in multiple-acts context; new trial ordered for those counts |
| Sufficiency / vagueness of second amended information | Time window (broad dates) and lack of specific location made charges vague and prejudiced defense | Information adequately pleaded elements and gave notice; defendant showed no actual prejudice | Denied: information was sufficient under Parkhurst standard; no actual prejudice shown |
| Prosecutor conduct during defense closing (alleged gestures) | Assistant prosecutor made negative gestures behind defense counsel that prejudiced trial; new trial warranted | Court saw no prejudicial conduct; credibility for witnesses denying it | Denied: trial court credited that conduct did not occur or was not prejudicial; no abuse of discretion in denying new trial |
| State's rebuttal calling grandmother an "enabler" | No evidence to support that label; prejudicial | Argument was permissible inference from testimony (grandmother’s inaction, living arrangements) | Denied: prosecutor had latitude to draw inferences; comment not plainly erroneous or decisively prejudicial |
| Admission of physician's diagnosis (Killough) that A.O. was sexually abused | Diagnosis (based partly on A.O.'s statements) improperly bolstered victim's credibility and was prejudicial | Expert may give medical diagnosis based on history and exam; did not vouch for defendant's guilt | Denied: admission not plain error; expert did not opine on guilt or vouch for veracity; no manifest injustice shown |
| Exclusion of cross-exam on alleged brother abuse (rape-shield) | Impeachment through prior inconsistent statements about abuse by brother was relevant to credibility, not sexual history | Such questions implicate rape-shield statute; prior specific sexual instances are barred absent statutory exception | Denied: exclusion proper under §491.015 and controlling precedent (Madsen/Smith); court did not abuse discretion |
| Alleged juror misconduct (Juror No. 1 recognized as pod officer) | Juror may have known Beck from jail and could have influenced others; relief and juror interview/hearing required | Juror disclosed detention employment during voir dire; defendant did not timely question or challenge juror; juror was dismissed before deliberations | Denied: no abuse of discretion; defendant had opportunity during voir dire and failed to timely raise issue; presumption jurors followed admonitions |
Key Cases Cited
- Celis-Garcia v. State, 344 S.W.3d 150 (Mo. banc 2011) (multiple-acts unanimity rule; State must elect or instructions must identify acts)
- Rycraw v. State, 507 S.W.3d 47 (Mo. App. 2016) (jury presumed to follow instructions; unanimity concerns in multiple-acts cases)
- Drake v. State, 514 S.W.3d 633 (Mo. App. 2017) (defining multiple-acts case and unanimity analysis)
- Escobar v. State, 523 S.W.3d 545 (Mo. App. 2017) (closing argument cannot cure defective verdict directors; review for manifest injustice)
- Hoeber v. State, 488 S.W.3d 648 (Mo. banc 2016) (defense type is relevant but not dispositive in unanimity/plain-error analysis)
- Carlton v. State, 527 S.W.3d 865 (Mo. App. 2017) (overly generalized verdict directors can create juror free-for-all and manifest injustice)
- Parkhurst v. State, 845 S.W.2d 31 (Mo. banc 1992) (when raised post-verdict, charging instrument insufficient only if it fails to charge by any reasonable construction or prejudices defendant’s substantial rights)
- Madsen v. State, 772 S.W.2d 656 (Mo. banc 1989) (rape-shield bars impeachment by prior sexual conduct statements unless statutory exceptions apply)