527 S.W.3d 865
Mo. Ct. App.2017Background
- Defendant Robert Earl Carlton Jr. was tried on two counts of first‑degree statutory sodomy; jury convicted him on two lesser‑included counts of first‑degree child molestation and sentenced to consecutive terms.
- Victim (a child) testified the defendant repeatedly forced her to touch his genitals with her hand over a span of years; she described multiple, similar incidents often occurring in the mornings while waiting for the bus and at other visits.
- The State presented CAC interviews and argued the abuse happened “many times”; defense denied the allegations and presented alibi‑type testimony about routine mornings.
- Jury instructions for both counts used identical, generic verdict directors for child molestation that did not single out particular incidents or require jurors to unanimously agree on the same specific act for each count.
- Carlton did not object at trial or in a motion for new trial; he raised a plain‑error claim on appeal under Celis‑Garcia (jury unanimity requirement when multiple acts are in evidence).
- The court found the case presented multiple distinct acts (albeit similar), the verdict directors were plainly erroneous for failing to ensure unanimity, and the error resulted in manifest injustice; judgment reversed and remanded for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether identical, generic verdict directors violated the constitutional right to a unanimous jury under Celis‑Garcia | Carlton: verdict directors failed to require jurors to unanimously agree on the same specific act(s); plain error requiring reversal | State: acts were undifferentiated repeated conduct so not a Celis‑Garcia multiple‑acts problem; jury unanimity not undermined | Court: This was a multiple‑acts case; identical verdict directors were plainly erroneous for failing to ensure unanimity and caused manifest injustice; reversal and new trial granted |
| When evidence shows repeated similar acts in same place/manner, must the State elect or the court modify instructions to secure unanimity? | Carlton: Celis‑Garcia requires election or a verdict director describing separate acts and requiring unanimity on at least one | State: where acts are indistinguishable, Celis‑Garcia does not apply because jurors cannot differentiate acts | Held: Each repeated touching is a distinct act; Celis‑Garcia applies; where acts are indistinguishable, trial courts/parties must adopt measures (election, specific descriptions, or modified unanimity instruction) to ensure unanimity |
Key Cases Cited
- State v. Celis‑Garcia, 344 S.W.3d 150 (Mo. banc 2011) (requires unanimity when multiple distinct acts could each support the charged offense; State must elect or instructions must list acts and require unanimous agreement)
- Hoeber v. State, 488 S.W.3d 648 (Mo. banc 2016) (reinforces Celis‑Garcia unanimity concerns in multiple‑acts sexual‑abuse cases)
- State v. Escobar, 523 S.W.3d 545 (Mo. App. W.D. 2017) (applies Celis‑Garcia to repeated abuse; examines when manifest injustice exists based on closing argument and instructions)
- State v. Watson, 407 S.W.3d 180 (Mo. App. E.D. 2013) (approves a modified verdict director requiring jurors to unanimously agree on which act was proved where victim could not distinguish acts)
- State v. Drake, 514 S.W.3d 633 (Mo. App. W.D. 2017) (finds manifest injustice where State failed to tie counts to particular incidents and instructions were non‑specific)