STATE of Missouri, Plaintiff-Respondent, v. Jerry FOWLER, Defendant-Appellant.
No. 55199.
Missouri Court of Appeals, Eastern District, Northern Division.
Dec. 27, 1988.
Defendant does not challenge the sufficiency of the evidence. The evidence, viewed in the light most favorable to the verdict, established that the victim, E.B., was defendant‘s ten year old stepdaughter. During a visit with defendant on or around June 18, 1986, defendant took E.B. for a ride on a three wheel vehicle. He drove to a cornfield near his house. It was there that defendant performed the acts which constituted the basis of his conviction of sexual abuse. E.B. did not report the incident to her mother until June 26, 1986.
On voir dire, the prosecutor, over objection, asked if any member of the panel would tend to disbelieve a child “in a case involving the sexual abuse or the sexual touching of a child by one who was held in a position of trust, a family member or a stepfather, someone in the family, ... simply because of a delay in the reporting that action by that child....”
Defendant‘s sole point on appeal is that the trial court erred in permitting the State to ask that question during voir dire. Defendant asserts that the challenged question was “calculated to precondition the jurors’ minds to believe the testimony of [E.B.].”
Control of the nature and scope of questions on voir dire examination of veniremen is lodged in the discretion of the trial court, and an appellate court will interfere with the exercise of that discretion only when the record shows a manifest abuse of that discretion and a real probability of injury to the complaining party. State v. Hobby, 706 S.W.2d 232, 233 (Mo. App. 1986).
Here, the question posed by the prosecutor on voir dire did not purport to commit the members of the jury panel to an advance decision. Rather, the question explored the legitimate interest the State had in determining whether any prospective jurors harbored any prejudice against the witness E.B. because of her delay in reporting the incident of sexual abuse to her mother such that they would not fairly and impartially consider her testimony when offered. See Hobby, 706 S.W.2d at 233; see also State v. Gibson, 684 S.W.2d 413, 415 (Mo. App. 1984). There was no manifest abuse of the trial court‘s discretion in permitting the question during voir dire.
The judgment is affirmed.
REINHARD and CRIST, JJ., concur.
Thomas B. Burkemper, Burkemper & Brighoff, Troy, for defendant-appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
CRANDALL, Judge.
Defendant, Jerry Fowler, appeals from his conviction of sodomy following a jury trial. He was sentenced to imprisonment for five years. We affirm.
In his sole point on appeal, defendant claims that pattern instruction MAI-CR3d 320.08.2 is lacking an essential element. Specifically, defendant contends that the instruction is defective because it does not require a finding that the act of deviate sexual intercourse, the essential element of sodomy, be performed with sexual intent.
Defendant‘s claim of error was not included in his motion for new trial and, therefore, is not preserved for appellate review. Rule 29.11(d). Accordingly, our examination is limited to plain error. Rule 30.20. State v. Stevenson, 660 S.W.2d 236, 237 (Mo. App. 1983).
The standard for plain error review of instructions is that the trial court must have so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice. State v. Preston, 673 S.W.2d 1, 9 (Mo. banc 1984). Defendant does not argue that he innocently touched the victim. At trial, he denied any contact with the victim. He readily admits that he did not suffer any manifest injustice because of the alleged error. We find no manifest injustice resulting from failing to submit to the jury an element of the
Further, defendant concedes that the challenged instruction precisely follows the pattern instruction approved by the Missouri Supreme Court. We have repeatedly held that we are without power to declare approved pattern instructions erroneous. State v. Snyder, 748 S.W.2d 781, 785 (Mo. App. 1988). We find no prejudicial error, plain or otherwise.
The judgment of the trial court is affirmed.
PUDLOWSKI, C.J., concurs.
GRIMM, J., concurs in separate opinion.
GRIMM, Judge, concurring.
I concur, except as to the statement of the majority “that we are without power to declare approved pattern instructions erroneous.”
Although there are many cases supporting this “principle,” it is currently being questioned. State v. Gunter, 715 S.W.2d 576, 579 (Mo. App. S.D. 1986) (Crow, C.J., concurring); State v. Singer, 719 S.W.2d 818, 823 (Mo. App. W.D. 1986) (Dixon, J., dissenting); State v. Pendergrass, 726 S.W.2d 831, 834 (Mo. App. S.D. 1987) (Maus, J., concurring); and State v. Franklin, 752 S.W.2d 937, 942 (Mo. App. E.D. 1988) (Grimm, J., concurring). I continue to believe that this court has the authority to review claims of error in the pattern instructions for the reasons set forth in the cited cases.
Here, the pattern instruction is not erroneous, for it contains all of the essential elements. In paragraph First of MAI-CR 3d 320.08.2, the user is told to “Describe acts constituting deviate sexual intercourse.” A way to follow that direction, as applicable to the facts here, would have the latter part of paragraph First read “the defendant committed a sexual act involving his hand and the genitals of [name of victim].” By so doing, the instruction would contain all of the elements and acts consti