State v. D.W.N.

MARK D. PFEIFFER, Judge.

D.W.N. appeals the trial court’s judgment of his conviction for the class B felony of child molestation in the first degree in violation of § 566.067, RSMo Cum. Supp.2006. On appeal, he presents two points in which he challenges: (1) the trial court’s failure to sua sponte prohibit a witness from testifying that he believed the victim; and (2) the trial court’s submission of Instruction No. 5, the State’s verdict director. We affirm.

In 2001, when the victim was five years old, her mother married D.W.N. in Georgia. In 2003, D.W.N. and the victim moved to Chillicothe, Missouri, to stay with her mother’s parents. Her mother planned on joining them after she was discharged from the military. At her grandparents’ house, the victim slept on a pull-out bed while D.W.N. slept on a couch in the same room.

One night, in March 2003, the victim was unable to sleep, so D.W.N. told her to get into bed with him. She complied and lay on the couch with him. D.W.N. reached into her underwear and touched her breasts and genital area. At this point, someone turned on a light in the house, so D.W.N. told the victim to go back to her own bed. The victim did not report the incident.

In February 2005, the victim’s mother and D.W.N. separated. A few weeks later, the victim told her mother that D.W.N. had abused her sexually. The victim told her that the abuse occurred elsewhere and did not occur in Missouri. During the subsequent investigation, the victim told her mother about the incident that occurred in Chillicothe. During this investigation, Tommy Capps, a criminal investigator with the State, also interviewed the victim.

The police arrested D.W.N., and the State charged him with one count of the class B felony of child molestation in the first degree in violation of § 566.067. At trial, the State called Tommy Capps, who testified that he interviewed the victim and believed that she was credible. D.W.N.’s counsel did not object to this testimony. At the close of the evidence, the trial court submitted Instruction No. 5, the State’s verdict director, to the jury. The verdict director informed the jury that D.W.N. was guilty of child molestation if he touched either the victim’s genitals or her breast. The jury returned a verdict in which it found D.W.N. guilty of the crime. The trial court entered judgment on the jury’s verdict and sentenced D.W.N. to ten years in the Missouri Department of Corrections. This appeal follows.

In his first point on appeal, D.W.N. claims that the trial court plainly erred in failing to sua sponte strike the testimony of Tommy Capps wherein he testified that he found the victim credible. D.W.N.’s argument of plain error is that this testimony invaded the province of the jury. Specifically, D.W.N. claims that Capps’ testimony invaded the province of the jury because the jury has the sole responsibility to make credibility determinations. D.W.N. concedes that he did not object to Capps’ testimony and requests plain error review pursuant to Rule 30.20.¹

Rule 30.20 grants us authority to consider “plain errors affecting substantial rights ... when [we find] that manifest injustice or miscarriage of justice has resulted” from the error. Under plain error review, we first examine the record to determine whether or not the appellant’s claim is one that, on its face, establishes grounds for believing that a manifest injustice has occurred. State v. Norman, 178 S.W.3d 556, 560 (Mo.App. W.D.2005). If our review of the record determines that plain error is facially established and such error establishes substantial grounds for believing that manifest injustice has occurred, only then do we review the record to determine whether or not a manifest injustice or a miscarriage of justice actually occurred. Id. Conversely, in the absence of such a determination, appellate courts should decline to exercise discretion to review for plain error under Rule 30.20. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). “The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review.” State v. Houston, 139 S.W.3d 223, 227 (Mo.App. W.D.2004). “ ‘Plain error is evident, obvious, and clear error.’ ” Norman, 178 S.W.3d at 560 (quoting State v. Bailey, 839 S.W.2d 657, 661 (Mo.App. W.D.1992)).

In child molestation eases, there are typically two types of expert testimony: generalized and particularized. State v. Churchill, 98 S.W.3d 536, 539 (Mo. banc 2003). An expert gives generalized testimony when he describes the general behaviors and characteristics commonly found in children who have been abused. Id. This type of evidence is admissible. Id. On the other hand, an expert gives particularized testimony when he gives testimony regarding the specific victim’s credibility. Id. This type of evidence is inadmissible because it usurps the jury’s province to determine the credibility of witnesses. Id.

In this case, the State called Tommy Capps, a criminal investigator for the State Technical Assistance Team, who testified that he interviewed the victim and found her credible:

Q. Now, you said you’ve done over 500 interviews. For more than nine years you’ve been working with children. Do you think you’re a pretty good judge of when children are telling the truth and when they’re lying?

A. Yes, I think I’m a pretty good judge of it, because not only do you have to pay attention to what they’re telling you but you have to pay attention to body language.

Q. Okay. And what sort of body language do you look for when a child is lying?

A. It depends on the child, but most generally they have a hard time looking at you when they’re lying, or they’ll look down, generally to the — generally to the left if they’re going to be lying to you. They’ll put their hands up in front of their face. They’ll look away. Sometimes they just get real white. There’s — there’s just about as many different signs for that as there is kids.

Q. You say you’re pretty good at picking up those signs?

A. I’m pretty good at picking up those signs.

Q. Did you pick up any of those signs of lying with [the victim]?

A. No.

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Q. ... [I]n this matter, do you think [the victim] was telling the truth?

A. Yes.²

Finally, during redirect examination, Capps again testified that he believed the victim:

Q. Okay. And you’ve had — you’ve experienced children who are lying?

A. Yes.

Q. And you’ve experienced children

who are coached?

A. I have.

Q. Did you find [the victim] to be

either one of those things?

A. No.

Capps’ testimony that he believed that the victim was telling the truth about the perpetration of a crime was, if properly objected to, inadmissible because it invaded the jury’s province to determine the victim’s credibility. State v. Churchill, 98 S.W.3d at 539. If D.W.N.’s counsel would have objected to the testimony, the trial court would have been obligated to entertain curative relief proposed by D.W.N.’s counsel. D.W.N.’s counsel, however, did not object to the testimony. Thus, the issue is whether or not this was such an evident, obvious, and clear error that the trial court should have sua sponte interrupted Capps’ testimony to prohibit him from testifying that he believed the victim. Historically, Missouri courts reject invitations to criticize trial courts for declining to sua sponte take action on behalf of a party during witness examinations. State v. Roper, 136 S.W.3d 891, 902 (Mo.App. W.D.2004) (“Uninvited interference by the trial judge in trial proceedings is generally discouraged, as it risks injecting the judge into the role of participant and invites trial error.”); State v. Drewel, 835 S.W.2d 494, 498 (Mo.App. E.D.1992) (“We do not expect trial judges to assist counsel in the trial of a lawsuit.... They preside to judge a lawsuit. Sua sponte action should be exercised only in exceptional circumstances.”).

In support of his argument that the trial court should have sua sponte interrupted Capps’ testimony, D.W.N. points to State v. Williams, 858 S.W.2d 796 (Mo.App. E.D.1993). D.W.N. is correct that, in Williams, the appellate court did determine that the circuit court plainly erred in failing to sua sponte interrupt a medical doctor’s testimony that he found the victim credible:

The [witness’s] statements that ‘very rarely do children [sexually abused children] he,’ that the ‘incidents of lying among children is very low, less than three percent,’ that if the child was not asked leading questions, then the child’s spontaneous response ‘declares who it was [who sexually abused her],’ and that the ‘physical findings and the behavioral indicators can only support what the child says,’ went beyond admissible testimony concerning general, behavioral characteristics of sexually abused children. Vouching too much for the victim’s credibility, these statements supplied improper verisimilitude on the issue of whether the appellant was guilty....

... The danger was too great that the jury accepted the doctor’s testimony as conclusive of appellant’s guilt without making an independent determination of the victim’s credibility. The doctor’s statements amounted to an impressively qualified stamp of truthfulness on the victim’s story, and a miscarriage of justice will result from a refusal to reverse for plain error.

Williams, 858 S.W.2d at 801.

The Williams court, however, did not create a per se rule that the trial court commits plain error anytime it fails to sua sponte prohibit any witness from vouching for the victim’s credibility. And, in fact, the Williams court admitted that “[a] determination of whether plain error exists must be based on the consideration of the facts and circumstances of each case.” Id. at 798.

Based on the Williams court’s concession that this determination must be done on an individual basis, other courts have considered the issue and determined that the trial court did not plainly err in failing to sua sponte prohibit a witness from vouching for the victim’s credibility. See State v. Collins, 163 S.W.3d 614, 621 (Mo.App. S.D.2005); State v. Hamilton, 892 S.W.2d 774, 781 (Mo.App. S.D.1995). These courts have distinguished their cases from Williams on the basis that it was apparent from the records that the respective defense attorneys did not object to the testimony of the witnesses, or withdrew objections, for strategic reasons. Collins, 163 S.W.3d at 623 (“Because Defendant used [the child advocacy interviewer’s] at-trial ‘idiosyncratic detail’ comments to support his defense strategy, we will not convict the trial judge of error, plain or otherwise, for not sua sponte excluding such testimony.”); Hamilton, 892 S.W.2d at 781 (“We find no case, and Appellant cites none, where an appellate court convicted a trial court of plain error in failing to exclude evidence after an accused withdrew his objection to it.”). These courts concluded that a trial court cannot be guilty of plain error for failing to prohibit testimony when the record shows that the defendant’s counsel strategically allowed the evidence to come in. Id. Thus, the issue becomes whether our record reflects a clear indication that D.W.N.’s counsel chose not to object to Capps’ testimony for strategic reasons.

In addressing the topic of trial strategy, we are mindful of the fact that jury trials do not occur in a vacuum. A trial counsel’s choice to object or not to object to the presentation of evidence must be analyzed in the context of the entire trial record, not bits and pieces of it. If an appellate court is going to convict a trial judge of failing to sua sponte take measures to usurp the role of trial counsel and voice its objection to the introduction of evidence that trial counsel may very well want in evidence for the purpose of exploiting such evidence, we must be firmly convinced that any other result would constitute a miscarriage of justice. To be clear, though, our country’s system of justice does not discourage jurors from exercising common sense and drawing upon their life’s experiences in fulfilling their role in a jury trial. In exercising their role as trial advocates in a trial by jury, our country’s system of justice does not discourage trial counsel from developing reasonable trial themes and strategies that are often based upon their own successes and failures in the trenches of previous courtroom battles. Finally, in fulfilling the role of an impartial gatekeeper of evidence in a trial by jury, our country’s system of justice does not discourage trial judges from relying upon their history and experience with the lawyers before them and their history and experience with prior jury trials in attempting to discern which trial themes and strategies are worthy of evidentiary latitude.

The reason the standard for plain error review is such a stringent appellate standard is that, in those rare circumstances that justify Rule 30.20 relief, we have no choice but to bleed the lines between the roles of judges, juries, and trial counsel, thereby disturbing the natural order of our country’s system of justice.³ In so disturbing the design of our country’s system of justice, we must determine whether the plain error complained of is evident, obvious, and clear and, if it is, whether manifest injustice has actually occurred. Norman, 178 S.W.3d at 560.

The entirety of the trial record in this case reflects a clear defense theme: if any crime was committed by the defendant, it did not happen in the State of Missouri! Of course, if no crime was actually committed in the county and state that so charged the defendant, no lawful conviction can occur within said county and state. This trial theme of where abuse occurred versus whether abuse occurred is central to a reasoned analysis of whether D.W.N. can establish plain error in this case.

In the pre-trial conference, defense counsel presented an oral motion in limine regarding evidence relating to a forensic interview conducted by criminal investigator, Julie Donnell. In that pre-trial conference, defense counsel argued that the defense should be able to present the evidence of Donnell’s forensic interview in which the victim, on three occasions within that interview, denied that any sexual abuse by the defendant occurred in Missouri. The motion related to a requested ruling of the trial court that the prosecution should not be permitted to describe the entirety of that videotaped interview in which the victim describes the details of sexual abuse perpetrated upon her by the defendant in the states of South Carolina and Georgia. The motion was denied, and essentially, the trial court stated that if the defense wanted to use “the good evidence” from that interview, the defense would open the door to the entire context and substance of the Donnell interview, including the fact that the victim had detailed acts of abuse in South Carolina and Georgia. So, defense counsel was then presented with what was probably an anticipated trial strategy dilemma. In short, witnesses included two criminal investigators and a police officer: (1) Julie Donnell; (2) Tommy Capps; and (3) Officer Tony Kirk-endoll of the Chillicothe, Missouri, police department. To both of the criminal investigators, the victim had clearly and unequivocally made statements to each of them that the defendant sexually abused her, but not in Missouri. And, defense counsel also knew that she had a reasonably high probability of prevailing on an objection to the testimony of the police officer. With this background, defense counsel gave the following opening statement to the jury, in pertinent part:

‘Nothing happened in Missouri.’ That is what [the victim] told Julie Donnell of the child protection services in April of 2005.... Julie rephrased that, ‘So you’re telling me that it happened in South Carolina, it happened in Georgia, but nothing happened in Missouri?’ And [the victim] said, ‘Yes.’ Later, Julie said, ‘What about when you were living in Carrollton?’ And [the victim] very clearly said, ‘Carrollton is in Missouri, and nothing happened in Missouri.’

A few weeks later, May 13th of 2005, Tommy Capps went to [the victim’s] house.... Tommy pulled [the victim] aside and said, ‘Are you sure nothing happened in Missouri?’ And she said, Yes, I’m sure. Nothing happened in Missouri.’

... At the close of all the evidence ... I’m going to talk to you again and I’m going to ask you to believe [the victim], I’m going to ask that you believe her first statement, her second statement, her third statement, and her fourth statement, and the statement she continued to say for ten months, and I would ask that you find [the defendant] not guilty.

In the State’s case in chief, the victim’s mother testified first and provided eviden-tiary details regarding the background of her approximately four-year relationship with the defendant and his participation in the family unit that included the victim, her daughter from a previous relationship. The victim’s mother testified to statements of abuse that her daughter made to her after the mother was separated from the defendant, but the details of the sexual abuse of the victim were adduced via direct testimony by the victim. The trial record reflects that the victim, then twelve years old, withstood a difficult examination and cross-examination. She was testifying about horribly sensitive matters that happened when she was approximately seven years old, and she testified to every element of the crimes that the defendant was charged with. She admitted matters that she had to and had plausible explanations for inconsistencies. For example, the victim freely admitted that she had first told Julie Donnell and Tommy Capps that no abuse occurred in the State of Missouri. The victim’s testimony included some of the background of her interview with Julie Donnell in which the victim detailed acts of abuse to Donnell that occurred in South Carolina and Georgia, but staunchly denied to Donnell that anything inappropriate happened in Missouri. She also admitted that she first told Tommy Capps that she was certain nothing happened in Missouri. Her explanation for her denials of abuse in Missouri to Donnell and Capps was, in part, based upon the fact that she testified that she was scared for several reasons at the time of those interviews: (1) since the abuse in Missouri occurred at the home of her grandparents, she was afraid that her grandparents would somehow be in trouble if she told investigators of abuse that occurred at their home in Chillicothe, Missouri; and (2) the defendant had threatened to kill her. She provided credible testimony in support of the State’s case in chief. She certainly provided testimony that was sufficient, in and of itself, to support the jury’s verdict.

Next, investigator Tommy Capps testified. The trial record demonstrates that D.W.N.’s counsel was cognizant of the subject matter of Capps’ intended trial testimony. For example, the record shows that, during Capps’ direct examination, D.W.N.’s counsel objected to Capps’ testimony on an unrelated matter and, during cross-examination, subjected him to a vigorous examination. During cross-examination, D.W.N.’s counsel examined Capps on his assertion that he was a good judge of credibility:

Q. And you also testified that you’re pretty good at telling whether a child lies or not.

A. Yes. I’m pretty good at determining whether a child is lying to me or not.

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Q. So it is possible that if a child says everything happened and never changes her story, that child could be telling the truth; is that correct?

A. That’s correct.

Q. And if a child says, ‘This is what happened,’ and later recants, that child may or may not be telling the truth; is that correct?

A. That’s correct.

Q. And if a child says, ‘This happened,’ and then later adds to the story, that child could be lying, as well?

A. As long as you recognize the part that it’s adding — the child is adding to the story and not changing the story for a particular — for a particular reason.

Q. So if a child changes a story, then that would be an indication to you that the child is lying.

A. No.

Q. Would that be an indication the child is telling the truth?

A. That would be an indication to me that that child may be remembering a different event or a different portion of the same event and is — and is recounting that to me — giving that to me at the time.

D.W.N’s counsel used this testimony to argue in her closing argument that Capps was a self-contradictory witness:

And, quite frankly, I hate to use the word ‘voodoo science,’ but you heard me questioning him. And he says, “You know, it’s not uncommon.’ That’s the phrase they always use: ‘It’s not uncommon.’ Anything that you need to explain, they always say, ‘It’s not uncommon.’ When I tried to pin him down, ‘Is there a bright-line rule? I mean, does— does every child always disclose late? Does every child disclose this’ — ‘Well, no.’ I said, ‘If — if they disclose everything all upfront, are they lying?

‘Well, no.’

He said that it was uncommon for that to happen, but no. When I tried to ask him all those questions about, well, does that mean the child is lying, does that mean the child is lying, never said. So, basically, whether you disclose early, you disclose late, you disclose partial, apparently even if you recant, that does not prove that you are lying. It also does not prove that you’re telling the truth either.

Mindful of the trial theme, counsel also highlighted to the jury in closing argument that the victim had originally told Capps that no abuse occurred in Missouri,⁴ and D.W.N.’s counsel also artfully argued that the victim’s recollection of any alleged sexual abuse in Missouri would have occurred closer in time and, thus, fresher in her mind than any alleged abuse in another state (at the time of the victim’s initial denial of abuse in Missouri to Capps).

Investigator Julie Donnell was unavailable for trial; but as stated previously, defense counsel cross-examined the victim with reference to her multiple denials to Donnell that any abuse ever happened in the State of Missouri.

And, while defense counsel did not object to Investigator Capps commenting about the credibility of the victim, the record also demonstrates that counsel was aware of the well-established rule that a witness cannot vouch for the credibility of the victim. During the examination of the next witness, Lt. Tony Kirkendoll of the Chillicothe Police Department, which occurred immediately after Capps’ testimony without a trial recess, defense counsel made the following objection:

Q. Okay. And you, again, were present when [the victim] was giving a forensic interview to Tommy Capps?

A. Yes, I was.

Q. Okay. Do you believe she was being truthful?

Ms. Dunn: Your Honor, I’m going to object to this question. I don’t believe there has been a proper foundation laid for this witness to be an expert as to whether a child is telling the truth or not. I think it’s invading the province of the jury. It is for the jury to decide for themselves whether [the victim] was telling the truth, and I don’t believe that Officer Kirkendoll can assist in that.

Ms. Gibson: Your Honor, I’ll withdraw the question.

Interestingly, the “expert foundation” objection was not the appropriate objection. Instead, the “invading the province of the jury” objection was the relevant objection. The jury, however, did not know that. All they knew was that, in the State’s case in chief, the State called a uniformed police officer with, literally, a badge of authority; that the first words out of defense counsel’s mouth in front of the jury were that this police officer has no “expertise” to assist in this case and, shortly thereafter, the police officer is excused, having given virtually no substantive testimony. So, was it a mistake on defense counsel’s part to lead with an objection to the police officer’s testimony on the grounds that he has no expertise, or was it a planned strategy to object in that fashion so the jury would hear that objection? The totality of the trial record indicates that the articulation of this objection was part of trial counsel’s overall trial strategy.

In any event, from this record, it is clear that D.W.N.’s trial counsel was aware of both the governing law and the ramifications of Capps’ testimony versus the weight and deference that may have been given to the police officer’s testimony on the issue of the victim’s credibility. From this record, the trial court had before it clear indications that D.W.N.’s counsel had a strategic reason for objecting to the police officer’s (Lt. Kirkendoll) testimony while choosing not to object to Capps’ improper vouching for the victim’s credibility. If this is true then, pursuant to Collins and Hamilton, the trial court could not have plainly erred in failing to sua sponte prohibit Capps’ testimony. Collins, 163 S.W.3d at 621-23; Hamilton, 892 S.W.2d at 781. Conversely, counsel’s objection to Lt. Kirkendoll’s testimony occurred after Capps’ testimony. Thus, it is theoretically possible or conceivable that, although she was cognizant of Capps’ testimony, counsel did not realize, at the time Capps testified, that his victim credibility testimony was impermissible.⁵ If this is true (albeit a theoretical stretch of logic), then pursuant to Williams, D.W.N. would have a stronger argument that the circuit court plainly erred in failing to sua sponte prohibit Capps from testifying that he found the victim credible. Williams, 858 S.W.2d at 800-01. Thus, the only issue for us to decide is whether or not a circuit court can be guilty of plain error for failing to sua sponte prohibit the admission of testimony when the totality of the circumstances reflect a clear indication that counsel strategically chose not to object to the introduction of the testimony.

A trial court does not plainly err when it fails to sua sponte prohibit the introduction of objectionable evidence when the totality of the surrounding circumstances reflect a clear indication that trial counsel strategically chose not to object to the evidence. To hold otherwise would put the circuit court in a no-win situation:

If the trial court received the evidence [and allowed a witness to testify that he or she found the victim credible], the accused could ... claim receipt of the evidence was plain error, requiring reversal. If the trial court [sua sponte ] excluded the evidence, the accused could contend on appeal that the trial court improperly interfered by barring evidence which the accused consciously chose to allow the jury to hear, thereby requiring reversal. To state the scenario is to expose its potential for mischief.

Hamilton, 892 S.W.2d at 781; see also State v. Valentine, 584 S.W.2d 92, 97 (Mo. banc 1979) (overruled on other grounds by Sours v. State, 593 S.W.2d 208, 210 (Mo. banc 1980)) (“Since counsel chose not to object but instead to exploit the alleged deficiencies at trial, appellant may not now be heard to complain of a chosen trial strategy. If it were otherwise the accused could trap the trial court with ‘error’ of the accused’s own making or in which he joined or acquiesced.”)

Applied to the present case, defense counsel had a client who chose to assert his right not to testify and a victim that provided compelling testimony of the crimes. So, the clear indication from the trial record reflects that defense counsel made a conscious choice to defend the case on the grounds that while the defendant may have committed crimes, no criminal acts occurred in the State of Missouri. D.W.N.’s counsel accepted the trial court’s ruling on her motion in limine and focused her closing argument on four statements of denial to two different criminal investigators. In closing, defense counsel argued, in pertinent part:

‘Nothing happened in Missouri.’ That is what [the victim] said not once, not twice, not three times, but four times she said, ‘Nothing happened in Missouri.’

... Do you like [D.W.N.] right now? Do you think something happened in another state? You are required to put that out of your mind. That is for another state to decide. That is for another jury to decide at a later date....

... You saw [the victim] today. She’s a young lady. She’s fairly bright, and she’s fairly articulate. She was just as clear in 2005 when she talked to [Julie Donnell], and when she talked to Tommy Capps she was just as clear, that nothing happened in Missouri. What do you do when somebody has told you two different stories of the same event? I would submit to you that that is reasonable doubt. You have no way of knowing which one is true. That is reasonable doubt, and that means ... you must do your duty and find [D.W.N.] not guilty.

When one considers the entirety of the evidence of this case, something this court gets to do with a transcript and months of deliberation while a trial court has it happening before its eyes and has seconds to consider the consequences of objections or the lack thereof, it can hardly be said that the trial court unreasonably declined to take action on its own motion on behalf of the defense when the clear indication of the actions of D.W.N.’s trial counsel reflected a conscious and deliberate choice not to object to Capps’ testimony. Accordingly, we find no error, plain or otherwise, with the decision of the trial court to refuse to interject itself sua sponte into the advocacy of one of the parties to this case below and, instead, conclude that the trial judge exercised appropriate evidentiary discretion and appropriate judicial restraint.

So that there is no confusion, our ruling today is not intended to suggest that if a trial court can conceive of a theoretical possibility for some sort of trial strategy, the trial court should decline to sua sponte intervene in witness examination. Instead, when the totality of the circumstances before the trial court reflect a clear indication that counsel’s actions in choosing not to object to otherwise objectionable testimony is guided by strategic considerations, the trial court should exercise judicial restraint with regard to sua sponte intervention. Our ruling today follows a long line of case precedent previously cited above. Under the totality of circumstances of this case, there is no plain error. There is no manifest injustice.

The defendant, of course, is not without an additional remedy because he can still file a Rule 29.15 motion in which he can request an evidentiary hearing for the purpose of demonstrating that his counsel provided him with ineffective assistance of counsel when she chose not to object to the admission of evidence. Rule 29.15(a). In that regard, Rule 29.15 provides a thorough procedure to determine if a trial counsel’s actions at trial were a part of his or her trial strategy and whether trial counsel’s conduct fell below the constitutional standards of assistance of counsel. See generally Rule 29.15; Butler v. State, 108 S.W.3d 18, 25 (Mo.App. W.D.2003).

Additionally, our ruling today does not disadvantage the defendant because the results of a successful Rule 29.15 motion and of a successful appeal pursuant to Rule 30.20 are the same: the court vacates the judgment of his conviction and remands his case for a new trial. See Butler, 108 S.W.3d at 28 (judgment reversed pursuant to Rule 29.15 and case remanded for new trial); Williams, 858 S.W.2d at 802 (judgment reversed pursuant to Rule 30,20 and case set for new trial). This rule, however, has the advantage of keeping the trial court out of evidentiary matters that reasonably could be a matter of trial counsel strategy while still affording the defendant an opportunity to show that his counsel should have objected to the evidence and that any such strategy to the contrary was simply unreasonable.

We take no position today on, whether or not, if D.W.N.’s trial counsel did have a strategic reason for choosing not to object, that strategy was reasonable. D.W.N., of course, is free to file a Rule 29.15 motion in order to determine whether or not his counsel had a reasonable strategy for choosing not to object to Capps’ testimony. Based upon the foregoing, we conclude that D.W.N.’s first point on appeal is without merit.

In his second point on appeal, D.W.N. claims that the trial court erred in submitting Instruction No. 5, the State’s verdict director, because the instruction’s language, which stated that D.W.N. was guilty of the offense if the jury found that he “touched the genitals or breast of [the victim]” -violated his right to a unanimous jury verdict.⁶ Specifically, D.W.N. claims that the instruction’s language violated his right to a unanimous jury verdict because it did not require the jurors to be unanimous on his guilty conduct.

Pursuant to Rule 28.02(c) “[w]henever there is an MAI-CR instruction or verdict form applicable under the law and Notes on Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form.” “The giving or failure to give an instruction or verdict form in violation of this Rule 28.02 or any applicable Notes on Use shall constitute error, the error’s prejudicial effect to be judicially determined....” Rule 28.02(f). D.W.N., however, concedes that he did not preserve his claim of instructional error and requests plain error review pursuant to Rule 30.20.

Instructional error seldom rises to the level of plain error. To show that the trial court plainly erred in submitting a jury instruction, a defendant must go beyond a demonstration of mere prejudice. In the context of instructional error, plain error results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury’s verdict, and eause[d] manifest injustice or miscarriage of justice. The defendant bears the burden of showing that plain error has occurred which resulted in manifest injustice or a miscarriage of justice.

State v. Beck, 167 S.W.3d 767, 778-79 (Mo.App. W.D.2005) (citation omitted). Hence, to succeed on his claim of instructional error, D.W.N. has the burden of not only proving that Instruction No. 5 clearly and obviously failed to properly instruct the jury but also that the error so affected the verdict that it caused him manifest injustice or a miscarriage of justice.

In this case, the trial court submitted Instruction No. 5 to the jury. Instruction No. 5, the State’s verdict director, stated that:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about March of 2003, in Livingston County, State of Missouri, the defendant touched the genitals or breast of [the victim], and

Second, that he did so for the purpose of gratifying his own sexual desire, and

Third, that [the victim] was then less than fourteen years old,

then you will find the defendant guilty of child molestation in the first degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

(Emphasis added.) D.W.N. is correct that this instruction’s use of the disjunctive was improper.

The Missouri Constitution provides “[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate!.]” Mo. Const, art. I, § 22(a). This right to trial by jury includes “all the substantial incidents and consequences that pertain to the right to jury trial at common law.” State v. Hadley, 815 S.W.2d 422, 425 (Mo. banc 1991). This includes the right to have the jury’s unanimous concurrence in the verdict. Id.

Prior cases have held that the disjunctive submission of an element of an offense in a single instruction runs afoul of a defendant’s constitutional right to a unanimous concurrence in the verdict. See State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003); State v. Oswald, 306 S.W.2d 559, 563 (Mo.1957); State v. Wilkins, 872 S.W.2d 142, 146 (Mo.App. S.D.1994); State v. Mackey, 822 S.W.2d 933, 936 (Mo.App. E.D.1991). This is because an instruction that submits a proof element in the disjunctive creates a situation where some of the jurors may have agreed that he was guilty of the offense because he committed one act while the other jurors believed that he was guilty because he committed another act. Oswald, 306 S.W.2d at 563.

The instruction given in this case, Instruction No. 5, illustrates the problem with instructions that submit proof elements in the disjunctive. By listing genitals and breast in the disjunctive, Instruction No. 5 created a scenario where, in theory, some of the jurors could have found D.W.N. guilty of the offense because he touched the victim’s genitals while the rest of the jurors could have found him guilty because they believed he touched her breast. This violated D.W.N.’s right to a unanimous jury. See Baker, 103 S.W.3d at 723 (State concedes that instruction that listed the items that he possessed in the disjunctive was error); Oswald, 306 S.W.2d at 563 (trial court erred in submitting instruction that stated that the defendant was guilty if he inserted his genitals in victim’s mouth or victim’s rectum); Wilkins, 872 S.W.2d at 146 (instruction that stated defendant was guilty if he touched her genitals or breasts violated defendant’s right to unanimous verdict); Mackey, 822 S.W.2d at 936 (error to submit instruction that stated defendant was guilty if he placed his mouth or hand on victim’s genitals). It is, therefore, clear from the record that the trial court failed to properly instruct the jury. Since our facial review of the record shows that the trial court committed plain error in submitting Instruction No. 5, we must then review the record to determine whether or not a manifest injustice or a miscarriage of justice actually occurred. Norman, 178 S.W.3d at 560.

In claiming that he suffered a manifest injustice, D.W.N. does not point to anything in the record to show that Instruction No. 5 affected the jury’s verdict. Rather, he claims that the court should consider this type of error to be a structural error that requires automatic reversal without the need for the defendant to show that he was actually affected by the error. D.W.N. argues that in State v. Goucher, 111 S.W.3d 915, 920 (Mo.App. S.D.2003), the court held that a trial court’s plain error in failing to submit an instruction based on MAI-CR3d 302.05, which would have informed the jury that its decision had to be unanimous, was a structural error that required automatic reversal. D.W.N. concedes that the trial court did give an instruction based on MAI-CR3d 302.05, but maintains that, since his claim touches upon the same issue of a defendant’s right to a unanimous verdict, the same automatic reversal standard should apply.

In making this argument, however, D.W.N. ignores the fact that the Missouri Supreme Court has already concluded that this type of error is not a structural error and is, instead, an error that the court must subject to a manifest injustice inquiry. See Baker, 103 S.W.3d at 723. We are bound to follow the latest Missouri Supreme Court precedent. State v. Aaron, 218 S.W.3d 501, 511 (Mo.App. W.D.2007). Thus, D.W.N.’s argument that we should apply a structural error standard to his case is without merit.

In that regard, the courts have concluded that trial court error in submitting an instruction in the disjunctive does not result in manifest injustice when: (1) the record contained sufficient evidence to find that the defendant committed both acts; and (2) the alleged acts took place in close proximity to each other. Mackey, 822 S.W.2d at 936; see also Baker, 103 S.W.3d at 723. In his brief, D.W.N. does not explain how, under this test, Instruction No. 5 resulted in a manifest injustice, and given the record, we cannot see how it could have resulted in a manifest injustice.

At trial, the State presented evidence that D.W.N. told the victim to get in bed with him. After she did, D.W.N. touched her genitals and breasts. Thus, the only evidence of sexual misconduct prosecuted by the State at trial, which was alleged to have occurred in Livingston County on or about March 2003, occurred during the same event. In support thereof, the State relied on the victim’s testimony in which she testified that, after she got in bed with D.W.N., he touched her genitals and breasts during one event in March 2003. Because the complained-of deviate acts of sexual misconduct occurred in one event, we conclude that D.W.N. has failed to demonstrate that the trial court so misdirected the jury that the instructional error affected the jury’s verdict and caused manifest injustice. See, e.g., Wilkins, 872 S.W.2d at 147 (the defendant could not prove manifest injustice because the two actions occurred simultaneously as one event); Mackey, 822 S.W.2d at 936 (because the alleged acts of sexual abuse took place on one day, the defendant did not suffer any manifest injustice from the submission of an instruction in the disjunctive). Consequently, D.W.N.’s second point on appeal is without merit.

We affirm the judgment of the trial court.

HAROLD L. LOWENSTEIN, JAMES M. SMART, VICTOR C. HOWARD, and JAMES E. WELSH, Judges, concur in majority opinion.

ALOK AHUJA, Judge, dissents in separate dissenting opinion. THOMAS H. NEWTON, Chief Judge, and JOSEPH M. ELLIS and LISA WHITE HARDWICK, Judges, concur in dissenting opinion.

1 . All rule references are to Missouri Rules of Criminal Procedure 2008, unless otherwise indicated.

2 . On appeal, the parties agree that Capps interviewed the victim twice. The parties also agree that during the first interview, she denied that D.W.N. performed sexual acts with her in Missouri, but, during the second interview, revealed that D.W.N. had done so in Missouri. A review of the trial record, however, establishes that Capps never actually testified to the victim’s description of sexual abuse to him during his second interview as being allegations of abuse attributable to abuse that occurred in Missouri. While the impetus for the second interview was due to the victim's mother contacting Capps to advise him of new allegations of abuse in Missouri, the location of the sexual abuse never comes up in trial testimony by Capps when he describes the victim’s statements to him in his second interview with the victim. This is particularly important in light of defense counsel's statement to the jury in her opening statement that the victim had told another forensic interviewer, Julie Donnell, that "it happened in South Carolina, it happened in Georgia, but nothing happened in Missouri.” Thus, while Capps explicitly states that he believes the victim's statement, he never actually states which of her statements (or both) he believes, and as far as the criminal venue issue is concerned, there is nothing inconsistent in Capps’ description of the victim’s statements to him in the two interviews that he conducted. Given this testimony, it is difficult to ascertain how this constitutes the sort of alleged prejudice that rises to the level of “manifest injustice,” the burden required of appellant in the present appeal.

3 . For example, if we were to entertain one of the suggestions of appellant’s counsel that the claimed trial error was so egregious that it deserved an immediate sua sponte declaration of mistrial by the trial judge, such a scenario may have had the practical effect of transforming the trial judge into judge, jury, and trial advocate in one fell swoop. For, if the trial court had taken such a course of action and declared a mistrial, that action might very well have had double jeopardy implications since prosecutorial conduct would have allegedly resulted in the sua sponte mistrial, such that the defense would argue that the underlying criminal charge and any subsequent prosecution would necessarily have to be dismissed (since the defendant would not have been the one requesting the mistrial).

4 . Capps testified that he first met the victim on May 23, 2005, and in reference to his conversation with the victim on that date, Capps stated at trial: "I asked her if she was sure that nothing had happened in Missouri, and she told me that nothing had happened in Missouri.” Presumably, defense counsel did not oppose testimony from Capps that the victim was "credible” when she made this statement to Capps.

5 . A review of the record, however, shows that D.W.N.'s counsel did not include this claim in her motion for new trial. It would be reasonable to assume that if counsel concluded after the trial (or after Capps’ testimony and before Kirkendoll’s testimony) that Capps' testimony was inadmissible and it was plain error for the trial court to permit the introduction of such evidence even without objection, she would have included the claim in her motion for new trial. The absence of dais claim in her motion for new trial supports the conclusion that counsel chose not to object for strategic reasons. Further, it is clear that defense counsel needed Capps’ testimony that Capps believed the victim was credible when she first told Capps that the abuse did not occur in Missouri. If this case revolved around a legitimate defense as to whether abuse occurred, instead of where it occurred, the circumstances might have warranted a different result. But, with venue as the cornerstone defense, counsel needed to exploit, not object to, the testimony of Capps, and it is this backdrop that the trial court had before it at the time of Capps’ testimony.

6 . We added the emphasis.