169 S.W.3d 132, 134 (Mo. App. E.D. 2005) (citing State v. Naucke,
829 S.W.2d
445, 461 (Mo. banc 1992)). We will not disturb a trial court’s ruling on this issue absent an
abuse ofthat discretion. State v. Williams,
427 S.W.3d 259, 264 (Mo. App. E.D. 2014). ’i``he
trial court retains such broad discretion because it is best positioned to determine a juror’s ability
9
to hear the case effectively. l_c_l_. A trial court abuses its discretion only when the ruling is clearly
against the logic of the existing circumstances, and is so arbitrary and unreasonable as to shock
the sense of justice and indicate a lack of careful consideration State v. Peeples,
288 S.W.3d
767', 775 (Mo. App. E.D. 2009).
B. No Abuse of Discretion
In considering whether the trial court abused its discretion, our opinion in Williams is
instructive In Williams, defense counsel requested a sidebar and informed the trial court that a
juror was “substantially nodding of .” 427 S.W.Sd at 263. Defense counsel noted at least ten
times during testimony where thejuror had “closed his eyes and his head went down and then he
stumbled.” l_d. After closing arguments, defense counsel moved to replace the juror, and the
trial court examined the juror. § Thejuror admitted to nodding off, but he reported that
anotherjuror had nudged him once or twice and that he had not fallen asleep. § Thejuror also
stated that he had heard all the evidence and would be capable of proceeding in the case. §
After the examination, the trial court denied defense counsel’s rnotion. § at 264. The trial
court acknowledged that it had noticed thejur‘or nodding off, but also found that the juror was
asleep “no more than an instant. Second or two. It certainly wasn’t of any length and then_
and then he--he was up.” l_d_L
On appeal, this Court found no abuse of discretion. I_d. We noted the trial court’s finding
that the juror would almost immediately recover after nodding off and that the juror otherwise
appeared to be attentive. id We also acknowledged thejuror’s belief that he had not fully fallen
asleep and that he had not missed the presentation of any evidence. _l,dma Thus, we deferred to the
trial court’s determination because the trial court was in a “far better position than this Court to
gauge the attentiveness of the juror.” §§ at 265
10
We see no convincing reason to depart from Williams. As there, defense counsel here
noted that Juror Washington was dozing during testimony. The trial court then examined the
juror. Juror Washington admitted that she had “dozed off,” but insisted that she dozed for only
two or three seconds before anotherjuror nudged her. Jur'or Washington apologized, said she
“didn’t miss a lot,” and explained that she had taken notes about the evidence. The trial court
accepted Juror Washington’s explanation The trial court also noted that Juror Washington could
view during deliberations any portion of the CAC interview she might have missed.
While in Williarns the trial court personally witnessed thejuror dozing; here, the trial
court relied on Juror Washington’s report about the occurrence While someone who has nodded
off might not realize lrow long he or she was asleep, Juror Washingtorr reported that another
juror said she was only sleeping a few seconds. The prosecutor also acknowledged seeing Juror
Washington’s eyes closed, but noted that Juror Washington also scratched herself during that
time So it Was unclear whether she was sleepingl Finally, Juror Wasirington told the trial court
that she “caught herself” falling asleep as she heard herself ‘snorting’ as she dozed off. The
record before us suggests the trial court could reasonably conclude that Juror Washington was
briefly asleep, as in Williams, but for no more than a few seconds.
Following a thorough inquiry, the trial court was confident that Juror Washington had
missed limited portions of the CAC interview, which she could view in deliberations, and that
she was capable of continuing The trial court is best positioned to determine a juror’s ability to
hear the case effectively, which is why we afford the trial court such broad discretion Williams,
427 S.W.3d 264. With facts so similar to Williams, we are not persuaded that the trial court’s
actions were so arbitrary and unreasonable as to shock our sense of justice and indicate a lack of
ll
careful considerationl
Peeples, 288 S.W.3d at 775. Thus, the trial court did not abuse its
discretion in refusing to remove Juror Washington from the jury. Point One is denied.
II. Points Two and Three_Evidentiary Issues
Rycraw asserts that the trial court erred in excluding evidence under the rape shield
statute (Point Two) and under a general relevance theory (Point Three). As evidentiary issues,
we address both points together.
A. Standard of Review
The trial court wields broad discretion to admit and exclude evidence at trial. §M
SLith, 314 S.W.Bd 802, 807 (Mo. App. E.D. 2010). A trial court abuses its discretion only when
the challenged ruling is “clearly against the logic of the circumstances and is so arbitrary and
unreasonable as to shock the sense of justice and indicate a lack of careful corrsideration.” §
Further, we review for prejudice in addition to error. State v. Zink,
181 S.W.3d 66, 73
(Mo. banc 2005). Thus, we “will reverse only if the error was so prejudicial that it deprived the
defendant of a fair trial.” ida (quoting State v. Mlddleton, 995 S.W.Zd 443, 452 (Mo. banc
1999)). “Trial court error is not prejudicial unless there is a reasonable probability that the trial
court’s error affected the outcome of the trial.”
M, 181 S.W.3d at 73.
B. Point Two_Rat)e Shield Statute
Rycraw argues that the trial court erred in not allowing evidence at trial that Victim had
engaged in sexual intercourse with a third party. We disagree
The rape shield statute, found in Section 491.015, creates a presumption that a victim’s
prior sexual conduct is not relevant to sex-crime prosecutions State v. lohnson,
479 S.W.3d
12
762, 766 (Mo. App. E.D. 2016). Scction 491 .015.1 states, “evidence of specific instances ofthe
complaining witness’ prior sexual conduct is inadmissible,” unless a listed exception applies.4
lf one of the exceptions is met under subsection 1, the evidence is admissible only to the
extent that the evidence is also “relevant to a material fact or issue.” Section 491.01 5.2; §LQLQ_L
lones,
716 S.W.2d 799, 800 (Mo. banc 1986). Generally, evidence is not independently
admissible under the relevance test in Section 491 .015.2; thus, an express exception under
subsection l must be met before proceeding to the relevance analysis under subsection 2. M,
7l6 S.W.2d at 800.
However, we also note that the rule stated in Jones cannot be so strictly applied “as to
deprive the defendant of the fair trial comprehended by the concept of due process.” w
Douglas, 797 S.W.Zd 532, 535 (Mo. App. W.D. 1990). For example, in Douglas, the State
presented evidence of Victim’s lack of hyrnenal tissue, suggesting that the alleged crime caused
the absence of hymenal tissue. ld_. at 534. The Western District held, "To allow the State to
show that [victim’s] hymen was absent, with the clear and calculated implication that its absence
was caused by intercourse with the defendant, then to forbid defendant to show that [victim] had
had intercourse with another, was violative of defendant’s right to a fair trial.” § at 535-36.
Courts have applied the rationale of Douglas in situations where the State emphasized the
victim’s unusual sexual knowledge, noting that it would violate a defendant’s due process rights
to prohibit evidence that the victim may have obtained the unusual sexual knowledge from
another source. State v. Samuels,
88 S.W.3d 71, 82 (Mo. App. W.D. 2002).
Rycraw posits that evidence of Victim’s alleged intercourse with a person other than
Rycraw was admissible under a third exceptiorr, as “[e]vidence of immediate surrounding
4 The exceptions to the rape shield statute are listed in Section 491 .015.1(1)-(4).
13
circumstances of the alleged crime.” Section 491.015.1(3). The third exception is very similar
to the theory of res gestae. State v. Smith,
157 S.W.3d 379, 383 (Mo. App. E.D. 2005). Broad|y
speaking, res gestae “includes circumstances, facts, and declarations incidental to the main fact
or transactiorr, and necessary to illustrate its character, and acts, words, and declarations which
are so closely connected to the main fact or transaction as to constitute a part of it.” ld_. (citing
29A Am.Jur.Zd Evidence § 860 (1994)). Thus, acts shown under res gestae are admissible where
they “precede the offense immediately or by a short interval of time and tend, as background
inforrnation, to elucidate a main fact in issue.”
SLith, 157 S.W.3d at 383 (citing w
Sherman,
637 S.W.2d 704, 706 (Mo. banc 1982)).
For example, in Srnith, the State charged Srnith with forcible
rape. 157 S.W.3d at 380.
Under the State’s theory, Smith, the victirn, and victim’s boyfriend were all at Srnith’s house. §
The victim and her boyfriend had consensual sex in a bedroom. _l_d_. When the boyfriend left the
room, Srnith entered and raped the victim. § Under Smith’s contradictory theory, the three had
consensual sex together. ld”. The boyfriend first taped the victim masturbating. The victim and
the boyfriend then had consensual sex, and their Srnith joined _I_cL At trial, Smith attempted to
introduce the tape of the victim masturbating. Ll~. at 381.
This Court considered whether the third exception to the rape shield statute allowed the
admission of the masturbation video into evidence at trial. Ld. at 383. We held that the third
exception applied because the videotaping, the consensual sex, and the alleged crime all occurred
on Srnith’s bed in the same evening. Ld. We found the masturbation video relevant to the
charged crime because it was filmed a short time prior to the alleged crime and was “intertwined
with the events that night.” Ld. Because the video provided the factfinder with a complete and
coherent picture of Srnith’s version of events, the video should have been admitted into evidence
14
as part of the res gestae. § Accordingly, we found an abuse of discretion and reversed § at
383-84.
Rycraw argues that the same exception applies here. Rycraw maintains that the alleged
intercourse with Rycraw’s nephew was immediately surrounding the alleged crimes because the
alleged intercourse occurred within the timeframe charged in the State’s indictmentl The flaw in
Rycraw’s argument is that Rycraw was charged with committing his crimes between May 7,
2010, and May 7, 2012, a two-year period. Rycraw suggests that evidence of Victim’s alleged
intercourse with his nephew was “immediately surrounding” the crime because the incident fell
“within the [two-year] charged time period.” Rycraw’s argument fails. There is no evidence in
the record that Victim’s alleged intercourse with the third person occurred on the same day or at
any time close to the time of Rycraw’s alleged abuse. The record does not support a finding that
Victim’s alleged intercourse with Rycraw’s nephew was “intertwined” with the events
surrounding the charged crimes, nor did it “precede the offense immediately or by a short
interval of time.”
Snrith, 157 S.W.3d at 383. Thus, the evidence of alleged intercourse was not
admissible under Section 491 .015.1(3).
Rycraw next contends that evidence of Victim engaging in sexual intercourse with the
third party would have shown an alternative source of Victim’s sexual knowledge This
argument is unavailing for several reasons. First, an alternate source of sexual knowledge does
not fall under any of the explicit exceptions to the rape shield statute. E Section 491 .01 5.1(1)-
(4). Further, the record does not suggest that the State argued Rycraw’s acts were the only
source of victim’s sexual knowledge C_f.
Samuels, 88 S.W.3d at 82. Nor did the State argue
that Victim suffered an injury solely due to Rycraw’s sexual abuse. §§
Douglas, 797 S.W.2d at
15
534»35. Thus, applying the rape shield statute would not violate Rycraw’s constitutional right to
a fair triai.5
Because the evidence of Victim having intercourse With a third person was not
admissible under the protections mandated by the rape shield statute, the trial court did not abuse
its discretion in excluding the evidence. Point Two is denied.
C. Point Three_Evidence of Victim Viewing Pornographv
Rycraw next argues that the trial court abused its discretion by precluding evidence that
Victim had previously viewed her brother’s pornographic video. Specifically, Rycraw asserts
that the evidence did not fall within the rape shield statute, and the evidence was therefore
admissible because it was relevant On appeal, Rycraw provides two theories of relevance T he
first theory of relevance is that Victim’s prior viewing of pornography was relevant to her
credibility with respect to all of the charged offenses because the evidence provided an alternate
source of Victim’s knowledge of idiosyncratic sexual details. For example, Victim’s testimony
about the characteristics of semen and her demonstration of the hand-to-penis contact might have
derived from the pornographic content rather than her personal experience with Rycraw.
Rycraw’s second theory of relevance is that the evidence provided an alternate source_other
than Rycl'aw-of the pornography furnished to Victim. The presence of an alternate source of
pornography was relevant to defend against Rycraw’s charge of furnishing pornography to a
minor (Count VI).
However, Rycravv only presented this second theory of relevance to the trial court.
During the pretrial motion in limine, defense counsel argued, “l think it’s relevant because one of
5 Rycraw also asserts that this evidence was relevant to the sexual-misconduct charges to show that Victim would
not have been alarmed by seeing Rycraw’s genitals. This argument is also meritless The relevance of such
evidence does not matter, as discussed above, unless the evidence first falls within an exception to the rape shield
statute under Section 491.015.1. Thus, we do not reach the relevance analysis under Section 491.015.2.
16
the charges is that my client is charged with furnishing pornographic materials to a minor.”
Defense Counsel did not argue that the evidence was relevant to Victim’s credibility. Defense
counsel relied on the same argument When the issue was raised again at trial. An appellant
cannot broaden the scope of his objections beyond the grounds relied upon at trial. weigh
M)n,
207 S.W.3d 24, 43 (Mo. banc 2006); State v. Driskill,
459 S.W.3d 412, 426 (Mo. banc
20]5). Thus, Rycraw is limited to this second theory of relevance on appeal.
Even assuming arguendo that trial-court error occurred, Rycraw suffered no prejudice
Rycraw was acquitted on Count Vl-the only count charging Rycraw with furnishing
pornography to Victim. Given Rycraw’s acquittal on the only count for which the evidence was
purportedly relevant, there is no reasonable probability that any error affected the outcome of the
trial.
Z_in_k, 181 S.W.3d at 73. Accordingly, we find no prejudice Point Three is denied.
III. Point Four_Jul'y Instructious
Rycraw asserts that the trial court erred in submitting verdict directors for the separate
charges of first~degree statutory sodomy (Counts I, III, and V) and the separate charges of sexual
misconduct (Counts ll and IV). Relying on our Supreme Court’s decision in State v. Celis-
GL'cia,
344 S.W.3d 150 (Mo. banc 201 l), Rycraw contends that the general allegations of sexual
misconduct set forth in the verdict directors allowed jurors to possibly base their decision on
separate and distinct acts, and as a result, failed to ensure that the jury rendered a unanimous
verdict.
A. Standard of Review
We review de novo, as a question of law, whether the jury was properly instructed St_ate
v. Richards, 300 S.W.Bd 279, 281 (Mo. App. W.D. 2009); State v. Murray,
428 S.W.3d 705, 709
(l\/[o. App. E.D. 2014). However, we only reverse a jury’s verdict based on a faulty jury
instruction if the defendant has suffered prejudice
Richards, 300 S.W.3d at 281. “If the giving
17
of [an] instruction is error, it will be held harmless only when the court can declare its belief that
it was harmless beyond a reasonable doubt.” I_d_. (quoting State v. Erwin,
848 S.W.2d 476, 483
(Mo. banc 1993)). “A defendant need not establish that the jury was more likely than not to have
misapplied the instruction lt is sufficient that there is a ‘reasonable likelihood that the jury has
misapplied the challenged instruction’ in a way which violates the defendant’s constitutional
rights.”
Er_win, 848 S.W.2d at 483 (quoting Boyde v. California,
494 U.S. 370, 380 (1990)).
B. Constitutional Requirement of Jurv Unanimitv
Article l, Section 22(a) of the Missouri Constitution guarantees a criminal defendant the
right to a unanimous jury verdict.
Celis-Garcia, 344 S.W.3d at 155 (citing State v. Hadley,
815
S.W.2d 422, 425 (Mo. banc 1991)). The danger of a non-unanimous jury verdict often arises in a
“multiple acts” case
Celis-Garcia, 344 S.W.3d at 155-56. A “multiple acts” case occurs “when
there is evidence of multiple, distinct criminal acts, each of which could serve as the basis for a
criminal charge, but the defendant is charged with those acts in a single count.” §
ln “rnultiple acts” cases, the threat to unanimity exists when the verdict director generally
lists the elements of the offense and those elements could be satisfied by differing and distinct
acts of the defendant introduced into evidence State v. Watson,
407 S.W.3d 180, 184 (Mo. App.
E.D. 2013). in this situation, the possibility exists thatjurors would carefully follow the trial
court’s instructions, yet base their vote to convict a defendant on differing conduct. § Because
individual jurors could rely upon differing conduct to base their finding of guilt under the
instructions, the possibility exists that the jury of twelve might agree on a finding of guilt, but not
unanimously agree upon the conduct supporting the defendant’s conviction. ldH. Again, We are
principally concerned that the jury’s verdict reflects unanimous agreement upon the same act or
acts upon which the alleged crime is based. §§
Celis~Garcia, 344 S.W.3d at 156.
18
The concern with “multiple acts” cases is illustrated by the facts of Celis~Garcia, where
the evidence considered by thejury suggested that the defendant committed at least seven
separate acts of statutory sodomy against two victims at different times and in different
locations.
344 S.W.3d at 156. The victims alleged that acts of sodomy occurred on the back porch, in the
bedroom, in the bathroom, and in an outside shed. _l~_dh., The verdict directors included broad
language, allowing the jury to convict the defendant if it believed “that between [specifled dates]
the defendant or [hcr boyfriend] placed her or his hand on [the victim’s] genitals. . ..” I_cL
Importantly, under the verdict director, a jury could have convicted the defendant of sodomy
resulting from hand-to-vagina contact if the jury believed that the incident occurred in the
bedroom, or on the back porch, or in the shed, or in the bathroom ld_. Thus, the verdict director
impermissibly allowed a conviction for any hand-to-vagina contact for any of the defendant’s
actions, rather than ensuring unanimous juror agreement that a specific act at a specific location
occurred. l_dl at 158.
Celis-Garcia identified two alternative solutions to remedy a “muitiple acts” problem in a
way that protects a defendant’s constitutional right to a unanimous
verdict. 344 S.W.3d at 157.
First, the State can identify a particular criminal act to support each individual charge and
submit that individual charge with its own verdict director. _I_d_.; MAI-CR 3d 304.02, Note on Use
7. An example of this election occurred in State v. Edwards, where the trial evidence depicted
“multiple, distinct acts of sodomy, each of which could have served as the basis for a criminal
charge.”
365 S.W.3d 240, 247 (Mo. App. W.D. 2012). The State identified the specific act of
sodomy by specifying in the verdict director that the sodomy was penis-to-anus contact. §
Because there was only once instance of penis-to~anus contact in evidence, “this specificity in
19
the verdict director prevented the jury from finding Edwards guilty of any sodomy not involving
penile to anal contact.” I_d_.
A second means of addressing the instructional challenge in a “multiple acts” case allows
the State to charge that a defendant engaged in multiple acts under one count of statutory
sodomy. However, in such cases, the verdict director must specifically describe those individual
criminal acts, and require the jury to agree unanimously on the act or acts that occurred Qelis;
M, 344 S.W.3d at 157; MAI~CR 3d 304.02, Note on Use 7; MAl-CR 3d 304.16. “The key
to juror unanimity is a finding that encompasses the same criminal conduct and the same singular
event.” MAI-CR 3d 304.02, Note on Use 7.
C. Analysis
Applying the above doctrine, we consider Rycraw’s claims that the jury instructions
violated his right to a unanimous verdict. Rycraw argues that we should reverse Counts l-V.
Counts l and ill allege separate instances of Rycraw’s hand touching Victim’s genitals. Counts
ll and IV allege separate instances of Rycraw exposing his genitals to Victim. Finally, Count V
alleged that Rycraw forced his penis to touch Victim’s mouth. We will address Rycraw’s
arguments in turn.
1. Counts I and III: Hand-to-Vagina Contact
The conduct at issue in Counts l and III is Rycraw’s alleged sodomy by touching
Victim’s vagina with his hand on two separate occasions lnstruction Nos. 5 and 7 are the
verdict directing instructions for the charges of first-degree statutory sodomy set forth in Counts
l and IlI. These instructions state, in relevant parts:
Instruction No. 51 As to Count 1, if you find and believe from the evidence
beyond a reasonable doubt: First, that the defendant knowingly placed his
hands on [Victini’s] genitals
20
lnstruction No. 7: As to Count III, if you find and believe from the evidence
beyond a reasonable doubt: First, that tiie defendant knowingly placed his
hands on [Victiin’s] genitals o second time (Emphasis added.)
Rycraw notes that the only distinction in the verdict directors between Counts land Ill is
the language “a second tiine,” and suggests that this modifier fails to describe the alleged crimes
with enough detail to ensure that “the jury unanimously convicted [him] of the same act or acts.”
Celis-Garcia, 344 S.W.3d at 156.
Conversely, the State argues that the words “a second time” sufficiently distinguish
between Counts I and ll because the phrase alerted the jury to whether the charge pertained to
the first incident of hand~to~vagina sodomy in the bedroom or to the second incident, which
occurred in the bedroom at a later date The State correctly notes that the verdict directors mirror
the language “first time” and “second time” as used by the Victim to distinguish between the two
acts, and further notes that the prosecutor stressed this distinction in closing argument
lmportantly, the record presents evidence of only two possible instances of hand-to-
vagina contact, both of which occurred at different times in Rycraw’s bedroom. The first
incident occurred while Victim was watching television in the bedroom. The second act of halid-
to~vagina contact occurred at a different time in Rycraw’s bedroom after Rycraw allegedly lured
Victim into his bedroom by asking her to bring the cat. The verdict directors for Counts l and IIl
follow the guidance of Celis~Garcia by charging Rycraw with two separate counts, one for the
first act (Count I) and one for the second act (Count III) and describing the separate acts with
sufficient clarity so as require juror unanimity to render a conviction on both counts. We see no
potential for juror confusion by limiting the modifei' in Iiistruction 7 to the phrase “a second
time” because the evidence presented the jurors with only two acts of sodomy, the first and then
the second. Point 4 is denied with regard to Counts I and lll.
21
2. Counts II and IV: Genital Exposure
Rycraw asserts that the verdict directors for Counts ll and IV also violated his right to a
unanimous july verdict We agree
lnstructions Nos. 6 and 8 are the verdict directing instructions for the charges of sexual
misconduct set forth in Counts 11 and lV. The conduct at issue in Counts ll and IV was
Rycraw’s alleged exposure of his genitals to Victim on two separate occasions The verdict
directors for Counts ll and IV were patterned in the same way as those in Counts land lll. The
verdict directors for Counts ll and lV of sexual misconduct state, in the relevant parts:
lnstructions No. 6: As to Count II, if you find and believe from the evidence
beyond a reasonable doubt: First, that the defendant exposed his genitals
instructions No. 8: As to Count IV, if you find and believe from the evidence
beyond a reasonable doubt: First, that the defendant exposed his genitals a
second time (Emphasis added.)
The circumstances of these sexual-misconduct verdict directors are distinguishable from
the hand-to~vagina sodomy allegations set forth in Counts l and ill above The evidence relating
to Counts land lIl suggested only two acts of hand-to-vagina sodomy, which were charged as
two counts. Similarly, the State charged Rycraw in Counts II and IV with committing two
distinct acts of sexual misconduct as a result of exposing his genitals to Victim. But the evidence
presented to the jury suggests three distinct and separate instances where Rycraw is alleged to
have exposed his penis to Victim: (1) the first time in the bedroom where hand-to-vagina contact
allegedly occui'red, (2) in the bathroom where hand-to~penis contact allegedly occurred, and (3)
the second time in the bedroom where hand-to-vagina contact allegedly occurred.
The challenge presented with this scenario is that the jurors were not required to
unanimously agree on the specific acts of genital exposure in order to render a guilty verdict iii
either Counts ll or IV. instruction No. 6 (Count ll) requires the jury to find only that the
22
defendant exposed his genitals. lnstruction No. 8 (Count lV) requires the jury to find only that
the defendant exposed his genitals a second time What act must the jury conclude provides the
basis for conviction uirder Instruction 6-the first exposure in the bedroom or the exposure in the
bathroom? What act nrust the jury conclude provides the basis for conviction under lnstruction
8»-the second exposure time in the bedroom or the exposure in the bathroom? Without greater
specificity in the verdict directing instructions as mandated by Celis-Garcia, we have no way of
knowing if the jury unanimously agreed upon which of these three acts provided the basis for the
two convictions rendered under lnstruction Nos. 6 and 8. Uiilike the verdict-directing
instructions for Counts l and lll, the evidence suggests the possibility of three separate acts of
genital exposur'e, which is orie more than the number of acts described in the verdict directing
instructions. This circumstance is markedly dissimilar from the facts presented in Counts l and
lll, which presented no opportunity for a non-unanimous verdict. There, the two acts of hand-to-
vagina sodomy set forth in the verdict directing instructions matched the only two possible acts
of hand-to-vagina sodomy presented by the evidence
A hypothetical allocation of juror votes illustrates the possibility of non~unanimous
verdicts with regard to Counts ll and lV. Assuming all other elements are met, the following
presents a hypothetical breakdown of jurors on the issue of whether Rycraw exposed himself to
Victim:
lurors 1~3Mwlui'ors4-6luiois 7-9 Jurors 10~12
First Time ln Bedroom Guilty Guilty Guilty Not Guilty
ln Bathroom Guilty Guilty Not Guilty Guilty
Second Tiine ln Bedroom Guilty Not Guilty Guilty Guilty
ln this hypothetical, only nine jurors (Jurors l-9) believed that Rycraw exposed his perils to
Victim in the first bedroom incident, only ninejuror's (lurors 1~3 and 7-12) believed that
Rycr‘aw exposed his penis to Victim in the bathroom, and only nine jurors (Jurors 1-6 and 104
23
12) believed that Rycraw exposed his perils to Victim in the`` second bedroom incident.
lrnpoi'tantly, none of the specific acts of genital exposure received a unanimous twelve-member
guilty vote
However, the verdict directors for Counts ll and lV would nevertheless allow our
hypothetical jury to render guilty verdicts for both counts. Under the verdict director for Count
ll, the jury could convict if it believed that Rycraw “exposed his genitals” to Victim. Our
hypothetical jury would have found guilt because all twelve jurors believed that Rycraw
“exposed his genitals” at least once Likewise, under the verdict director for Count lV, a jury
could convict if it found that Rycraw exposed his genitals to Victim “a second tinie.” Our
hypothetical jury would have convicted because all twelve jurors believed that Rycraw exposed
his genitals twice-or, “a second time.”
But our hypothetical jurors did not unanimously agree that any specific act occurred;
instead, each act of alleged exposure received only nine guilty votes. Tlitis, “the possibility
exists that jurors follow all instructions, yet individually choose differing instances of the crime
on which they base the conviction.”
M, 407 S.W.3d at 184. Accordingly, the verdict
directors for Counts ll and lV constituted instructional error.
Having found instructional error, we must consider whether this instructional error
constituted prejudice to Rycraw. Here, the evidence suggested at least three distinct instances of
genital exposure_the first time in the bedroom, the bathrooin, and the second time in the
bedroomebut the State only charged two counts Thus, unlike the facts in Counts l and lll
above, twelve jurors possibly could believe that Rycraw exposed his genitals to Victim and that
Rycraw exposed himself to Victim “a second time,” without reaching unanimous agreement on
24
any specific act. Our hypothetical above supplies one of many ways a jury could reasonably
reach two guilty verdicts without unanimous agreement on any specific act.
The State argues that Rycraw’s “right to a unanimous verdict was protected when the
State during closing argument identified each specific act borne out by the evidence and attached
each act to a specific count.” We recognize that the State went through each count and assigned
a specific act to each count Specifrcally, the State argued that Count ll occurred the first time in
Rycraw’s bedroom and that Count lV occurred the second time in Rycraw’s bedi'oom. We see
no misstatements of the evidence or any attempt to confuse the jurors given the various charges.
l"Iowever, to find no prejudice beyond a reasonable doubt, we would be required to assume that
the jury followed the prosecutor’s argument We cannot We presume the jury followed the
instructions given by the trial court, State v. McFadden,
369 S.W.3d 727, 752 (l\/lo. banc 2012),
not the prosecutor’s closing argumentsl Not only does the plain language of the verdict directors
allow iron-unanimous verdicts on Counts ll and lV, but lnstruction No. 16 specifically tells the
jury that closing arguments are not evidence lnsti'uction No. 16 also tells the jury, “lt is your
duty, and yours alone, to render such verdict under the law and the evidence as in your reason
and conscience is true and just.” Given these instructions_that we presume were followed~»-we
cannot conclude beyond a reasonable doubt that the jury disregarded the plain language of the
verdict directors (for Counts ll and IV) and the other instructions, and decided instead to follow
the prosecutor’s argument
We do not know the specifics of the jury deliberation, nor can we pretend to know What
happened in that jury room. But a reasonable likelihood,6 as shown in the above hypothetical, of
6 We note a difference in our standard of review from Celis-Garcia, where the instructional error was unpreser'ved
and reviewed under our plain-error
standard 344 S.W.3d at 158~59. Thus, we found that the instructional errors
misdirected the jury in a way that affected the verdict, resulting in manifest injustice lgL Here, we are dealing with
preserved error; Rycraw’s burden to show prejudice is less. Rather than showing that error affected the verdict in a
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non-unanimous guilty verdicts on Counts ll and lV precludes us from finding that the trial
court’s error was harmless beyond a reasonable doubt. Point 4 is granted wth regard to Counts Il
and lV.
3. Count V: Penis-to-Mouth Contact
Rycraw asserts that the verdict director for Count V violated his right to a unanimous jury
verdict. We are not persuaded
The verdict director for Count V of first-degree statutory sodomy stated, in the relevant
patt: “As to Count V, if you find and believe from the evidence beyond a reasonable doubt: First,
that the defendant knowingly put his penis in [Victim’s] mouth ....”
Rycraw maintains that the State presented evidence of multiple acts of penis-to-mouth
contact and that the single verdict director failed to specifically identify which act supported the
conviction for statutory sodomy. Our review of the record shows that the State introduced
evidence of a singular incident of mouth-to-penis contact. ln her videotaped interview, Victim
stated that Rycraw made her put her mouth on his “balls” during the second time with Rycraw in
the bedroom. ln her testimony at trial, Victim testified that Rycraw made her “suck [h]is
front area” and that her “lips touched it a little bit.” Victim’s trial testimony was sparse on
details in comparison to her CAC interview, which was conducted in a private room with a
single interviewer Defendant argues that the variations in Victim’s testimony suggested that
Victim identified two separate acts of pcnis-to-mouth contact. We find this argument
unpersuasive
lmportantly, unlike the allegations of hand-to-vagina contact and genital exposure,
nothing in the record suggests that evidence was presented to the jury describing multiple,
way that caused manifest injustice, Rycraw must only show a “reasonable likelihood” that thejury misapplied the
faulty instruction to deprive him of his constitutional right. Erwin, 848 S.W.Zd at 483.
26
distinct events of penis-to-mouth contact; rather, Victim testified at trial to the same individual
act that she described in the CAC interview. To the extent that Victim’s characterization or
description of the act in the CAC interview was inconsistent or conflicting with her testimony at
trial, the jury was entitled to reject Victim’s testimony. w State v. Kuehnlein, 456 S.W.Bd 510,
514 (Mo. App. E.D. 2015). However, our record does not suggest that the State introduced
evidence as two “distinct criminal acts” of penis-to-mouth contact. E
Celis-Garcia, 344
S.W.3d at 155.
Because the evidence supports the occurrence of only one instance of penis-to-mouth
contact, the specific requirement of penis~to-mouth contact in the verdict director prevented the
july from finding Rycraw guilty of Count V for any act not involving penis-to-mouth contact.
w
Edwards, 365 S.W.3d at 247. Rycraw’s right to a unanimous verdict was guaranteed under
the verdict director for Count V because the jury could only convict Rycraw of Count V if it
unanimously agreed that the single act of penis-to~mouth contact occurred.
ln conclusion, we grant Rycraw’s point in part. With respect to lnstruction Nos. 5, 7, and
9 we find no error. With respect to Instruction No. 6 and 8, we find instructional error that
prejudiced Rycraw’s constitutional right to a unanimous verdict. Accordingly, we reverse
Rycraw’s convictions under Counts ll and lV for second-degree sexual misconduct
Conclusion
Thejudgment of the trial court is reversed with respect to Counts ll and lV. The
judgment is affirmed in all other respects. The case is remanded to the trial court for further
proceedings consistent with this opinion.
Ktttnr s. oDENWALD, fudge
lames M. Dowd, P.J., concurs.
Gary M. Gaertner, Jr., J., concurs.
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