523 S.W.3d 545
Mo. Ct. App.2017Background
- Victim A.E., born 2000, testified that from ~Nov 2012 to Apr 2013 her step‑father Gemner Escobar repeatedly entered her bedroom and touched her breasts, thighs, and sometimes vagina under clothing; the conduct occurred almost every school morning until April 2013.
- A.E. reported the abuse to a school counselor in Dec 2013; DFPS and a forensic interview followed and recordings were played at trial.
- Escobar was charged with two counts of first‑degree child molestation (each alleging touching A.E.’s breast for sexual arousal) with separate date ranges: Count I (Nov 1, 2012–Feb 1, 2013) and Count II (Feb 2, 2013–Apr 30, 2013).
- The State argued in closing that Count I corresponded to the first incident A.E. could remember and Count II to the last incident she could remember, but the verdict directors themselves only alleged touching during the date ranges and did not identify specific incidents or instruct unanimity.
- Escobar presented no witnesses and defended generally, arguing A.E. fabricated the allegations; the jury convicted on both counts and sentenced Escobar to concurrent nine‑year terms.
- Escobar failed to object to the jury instructions at trial and appealed alleging plain error as to unanimity and omission of the victim’s sex as an element.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Escobar) | Held |
|---|---|---|---|
| Whether verdict directors in a multiple‑acts child‑molestation case violated right to unanimous jury by not specifying which incident supported each count | State contended it elected two incidents (first and last remembered) and clarified in closing; no instructional error warranted reversal | Escobar argued jurors could have convicted on different incidents for the same count, violating unanimity under Mo. Const. art. I, §22(a) | Court: Error in failing to describe acts in verdict directors existed but under plain‑error review Escobar failed to show manifest injustice because State focused on two incidents and defense was general denial; Points 1–2 denied |
| Whether trial court erred by not giving a sua sponte unanimity instruction in a multiple‑acts case | State: election approach obviated need for unanimity instruction | Escobar: sua sponte unanimity instruction required to ensure juror agreement on a specific act | Court: Unanimity instruction only required if State uses the second Celis‑Garcia option; here State elected particular incidents — even if error, Escobar did not show prejudice; Point 3 denied |
| Whether verdict directors omitted an essential element (that victim was female) for "breast" touching and thus relieved State of burden | State: Pattern MAI‑CR instruction given; victim’s sex was not disputed at trial | Escobar: Omission of "female" from instruction meant jury was not instructed on all elements | Court: No plain error — MAI pattern used, A.E.’s sex was never contested, and omission did not cause manifest injustice; Points 4–5 denied |
| Whether appellant preserved instructional objections and applicable standard of review | State: Escobar failed to object; claims reviewed only for plain error under Rule 30.20 | Escobar: Raised issues on appeal despite no trial objection, relying on plain‑error review | Court: Waiver for failure to object; appellant bears burden to show plain error affecting substantial rights and manifest injustice; did not meet burden |
Key Cases Cited
- State v. Celis‑Garcia, 344 S.W.3d 150 (Mo. banc) (unanimity requirement in multiple‑acts sexual‑abuse cases; State must elect an act or the verdict director must list acts and require unanimous agreement)
- Hoeber v. State, 488 S.W.3d 648 (Mo. banc) (unanimity/instructional error analysis in multiple‑acts statutory‑sodomy context)
- State v. Zetina‑Torres, 482 S.W.3d 801 (Mo. banc) (verdict director must include every element; plain error exists when an instruction omits an essential element and that element is seriously disputed)
- State v. Hunt, 451 S.W.3d 251 (Mo. banc) (plain‑error two‑step inquiry and defendant’s burden to show manifest injustice)
- State v. Baumruk, 280 S.W.3d 600 (Mo. banc) (definition of plain error in instructional context)
- State v. Miller, 372 S.W.3d 455 (Mo. banc) (instructional error is plain if it affected the verdict)
- State v. Riley, 440 S.W.3d 561 (Mo. App.) (jury presumed to follow written instructions, not prosecutorial closing statements)
- State v. Berry, 506 S.W.3d 357 (Mo. App.) (discusses "seriously disputed" standard and instructional omission claims)