State v. Davis, 564 S.W.3d 649

Background

Ronnie Davis (56) cared for granddaughters M.D. (10) and E.D. (9) in June 2014; over a short period he allegedly made multiple contacts with M.D.'s breast (including one bite) and touched E.D.'s vaginal area.
M.D. and E.D. disclosed the incidents to their grandmother the same day; police and a forensic interviewer subsequently interviewed the girls.
State charged Davis with two counts of first-degree child molestation; trials occurred after a mistrial; at the second trial jury convicted on lesser-included offenses: two counts of second-degree sexual abuse.
Davis moved for judgment of acquittal and raised a jury-instruction objection at trial and in a new-trial motion; convictions led to consecutive one-year jail sentences; Davis appealed.
Majority affirmed: found evidence sufficient to infer sexual purpose and rejected instruction challenge as either not preserved or not prejudicial; dissent would reverse Count I for jury-unanimity error because multiple acts could have supported conviction.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Davis)	Held
Sufficiency of evidence to prove purpose to arouse/gratify	Evidence of repeated breast and genital contact by an adult on young children permits a reasonable inference of sexual purpose	Touches could be innocent (wrestling); intent cannot be inferred from acts alone (relying on juvenile cases)	Affirmed: evidence sufficient; adult’s repeated contact supports inference of sexual purpose
Jury unanimity / verdict director specificity (Count I)	Verdict director identified touching of M.D.'s breast in defendant’s bedroom — sufficiently specific to focus jury	Director ambiguous because multiple distinct incidents (different acts/locations) fit the instruction, risking non-unanimous verdict	Majority: claim not preserved; no plain error — verdict director sufficiently specific. Dissent: would reverse Count I for lack of unanimity
Preservation of instructional objection	State: Davis’ counsel objected to dates and court addressed unanimity concern at conference	Davis: argues that trial objections and new-trial motion preserved broader unanimity claim	Majority: objection at trial and new-trial motion focused only on dates, so broader argument not preserved; reviewed for plain error and denied
Whether a bite counts as "touch" for sexual contact	State treated biting as possible sexual contact; statute’s definition of sexual contact uses "touching"	Defense argued biting is distinct from “touching” such that it should not satisfy the verdict director’s wording	Majority: bite treated as distinct at trial and not used to satisfy the bedroom-touch element; no plain error. Dissent: bite was described as a "touching" in interviews and could have formed the basis for conviction, creating unanimity error

Key Cases Cited

State v. Botts, 151 S.W.3d 372 (Mo. App. 2004) (standard for reviewing sufficiency of evidence)
State v. Whalen, 49 S.W.3d 181 (Mo. banc 2001) (limits on reasonable inferences in sufficiency review)
State v. Bateman, 318 S.W.3d 681 (Mo. banc 2010) (rational trier of fact sufficiency standard)
A.B. v. Juvenile Officer, 447 S.W.3d 799 (Mo. App. 2014) (juvenile-touch cases: intent not inferred from act alone where ages/sexual knowledge lacking)
In re J.A.H., 293 S.W.3d 116 (Mo. App. 2009) (similar holding on limits of inferring sexual intent in juvenile context)
State v. Ganzorig, 533 S.W.3d 824 (Mo. App. 2017) (adult touching of vagina is inherently sexual and can support intent inference)
State v. Love, 134 S.W.3d 719 (Mo. App. 2004) (touching crotch and breasts of children can be non-innocent and support intent)
State v. Nash, 339 S.W.3d 500 (Mo. banc 2011) (fact-finder may accept or reject witness testimony)
State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011) (multiple-acts unanimity doctrine and remedies)
State v. Gilbert, 531 S.W.3d 94 (Mo. App. 2017) (avoid unanimity problems by election or specific verdict director)
State v. Rycraw, 507 S.W.3d 47 (Mo. App. 2016) (unanimity risk when elements can be satisfied by distinct acts)
State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014) (jury decides which testimony to believe)
State v. Carlton, 527 S.W.3d 865 (Mo. App. 2017) (plain-error reversal when verdict directors allow non-unanimous verdicts)