State v. Germany
2010 Mo. App. LEXIS 1449
| Mo. Ct. App. | 2010Background
- Germany was convicted of fifteen counts of sexual contact with a student by a teacher, counts I–XIX originally charging multiple victims on school property.
- Evidence showed B.L. (about 16) and Germany, a 53-year-old teacher's assistant, had repeated sexual contact on school grounds, often in the art room, from Oct 2006 to Apr 2007.
- R.K. (15–16) and A.K. (17–18) also testified to touching or attempted touching by Germany; the acts occurred while they were Lakeside residents.
- The State amended count X during trial to reflect the period between Sept 1, 2006 and Apr 30, 2007; the court granted over Germany's objection.
- The jury found guilty on counts I–XV and not guilty on XVI–XIX; Germany was sentenced to a total of thirteen years with varying concurrent/consecutive terms.
- Germany appealed alleging instructional error from disjunctive verdict directors and insufficiency of evidence, including that butt contact does not equal anus contact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disjunctive verdict directors were proper | Germany argues improper instructions without support for all prongs. | Germany asserts multiple theories of guilt required unanimity. | Plain error not shown; verdicts upheld given overwhelming evidence for some prongs and no manifest injustice. |
| Sufficiency of evidence for butt contact under 566.086 | Goes beyond butt to genitals or breasts; butt alone is insufficient. | There is sufficient evidence of touching genitals or breasts through clothing. | Sufficient evidence for several counts; butt alone not required, verdicts supported by touching through clothing and other evidence. |
| Remand re Count XI sentencing | Count XI supported by evidence; no alternate issue. | Inconsistent verdicts warrant review/sentencing adjustment. | Count XI reversed and remanded for resentencing. |
Key Cases Cited
- State v. Nylon, 311 S.W.3d 869 (Mo. App. E.D. 2010) (view evidence in light most favorable to verdict)
- State v. Wadsworth, 203 S.W.3d 825 (Mo. App. S.D. 2006) (double jeopardy does not arise when multiple offenses arise from same facts)
- State v. Flenoy, 968 S.W.2d 141 (Mo. banc 1998) (double jeopardy limitations for multiple punishments)
- State v. Gibbs, 306 S.W.3d 178 (Mo. App. E.D. 2010) (sufficiency review: reasonable juror could find essential elements)
- State v. Fitzpatrick, 193 S.W.3d 280 (Mo. App. W.D. 2006) (unanimity required for ultimate issue, not each means)
- State v. Haynes, 158 S.W.3d 918 (Mo. App. W.D. 2005) (plain-error standard requires manifest injustice)
- State v. Davison, 46 S.W.3d 68 (Mo. App. W.D. 2001) (disjunctive verdict director scrutiny in some contexts)