State v. Drake
514 S.W.3d 633
Mo. Ct. App.2017Background
- Victim, a girl, stayed multiple weekends a month at defendant Joseph Drake’s home from ages 6–9 and slept in his attic bedroom. Alleged abuse occurred during that period.
- Allegations included repeated touching of the victim’s genitals and chest (by hand and by penis), showing pornographic magazines, and attempted genital contact; some incidents described as occurring in the attic and at least one in the living room.
- Drake was charged with two counts of first‑degree statutory sodomy (Counts I–II), one count of first‑degree child molestation (Count III), and one count of enticement of a child (Count IV).
- At trial the jury convicted on all counts; Drake was sentenced and later resentenced to permit timely appeal. He appeals, arguing insufficiency of evidence as to Count III and instructional (unanimity) errors as to multiple counts.
- The appellate court affirmed Count III and Count IV, but reversed Counts I and II (statutory sodomy) and remanded for a new trial on those counts due to non‑specific verdict directors that risked nonunanimous juror agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Count III (child molestation — touching with genitals) | Evidence (forensic interview, victim’s diagram pointing between thighs/vaginal area, testimony about repeated touching) suffices for a reasonable juror to find genital touching beyond a reasonable doubt | Evidence is ambiguous; victim denied genital contact at trial and interview; State failed to prove genital touching | Affirmed: evidence sufficient to support conviction on Count III |
| Jury unanimity — Counts I & II (statutory sodomy verdict directors identical and non‑specific) | State relied on repeated acts; identical instructions permitted jury to choose different incidents, but not elect a single act | Instructions are constitutionally deficient in a multiple‑acts case because they did not identify specific acts or require unanimous agreement on one act | Reversed convictions on Counts I & II; plain error found; new trial ordered |
| Jury unanimity — Count III (child molestation verdict director specified genital touching) | State: instruction identified genital contact; jury could unanimously agree on that act | Drake: multiple‑act evidence (hand and penis touching) made instruction potentially ambiguous | Affirmed: instruction specific to genital touching; no unanimity error for Count III |
| Jury unanimity — Count IV (enticement by showing pornographic photos/discussing sexuality) | State identified period and described showing magazines/discussing sexuality; no evidence of repeated, distinct acts supporting multiple‑acts problem | Drake argued possible multiplicity but evidence did not show multiple distinct enticement events | Affirmed: not a multiple‑acts case as to enticement; instruction adequate |
Key Cases Cited
- State v. Warren, 304 S.W.3d 796 (Mo. App. W.D.) (standard for reviewing sufficiency of evidence)
- State v. Whalen, 49 S.W.3d 181 (Mo. banc) (insufficient evidence requires reversal to prevent manifest injustice)
- State v. Taylor, 504 S.W.3d 116 (Mo. App. E.D.) (single witness testimony can support conviction; credibility for jury)
- State v. Mullins, 140 S.W.3d 64 (Mo. App. W.D.) (plain error review under Rule 30.20)
- State v. Celis‑Garcia, 344 S.W.3d 150 (Mo. banc) (unanimous verdict requirement in multiple‑acts cases; State must elect or verdict director must specify acts and require unanimous agreement)
- Hoeber v. State, 488 S.W.3d 648 (Mo. banc) (verdict directors must identify specific incidents to avoid risk of nonunanimous juror selection in multiple‑acts sexual‑abuse cases)
- State v. Edwards, 365 S.W.3d 240 (Mo. App. W.D.) (when a verdict director plainly limits the charged act, additional specificity for unanimity may not be required)