In the Missouri Court of Appeals Eastern District DIVISION TWO
STATE OF MISSOURI, ) ED110314 ) Respondent, ) Appeal from the Circuit Court ) of St. Louis County v. ) 19SL-CR00368-01 ) ADAM CRAFT, ) Honorable Joseph Dueker ) Appellant. ) Filed: June 13, 2023
Adam Craft appeals the judgment convicting him of statutory rape, four counts of statutory
sodomy, one count of child molestation, and one count of sexual misconduct. Craft asserts three
points on appeal claiming the circuit court erred by failing to grant a mistrial when the State
commented on his right to testify, excluding evidence and limiting his closing argument. Because
he has not demonstrated reversible error, we affirm the judgment.
Factual and Procedural Background
The sufficiency of the evidence is not in dispute. Viewed in the light most favorable to the
verdict, the record shows the following facts. When she was eleven years old, Craft’s daughter
(“Victim”) told her mother (“Mother”) Craft had been using his hands and penis to touch her
breasts, vagina, and bottom. Mother took Victim to the hospital, where she underwent a sexual
abuse examination. Victim told the examiner Craft had touched her breasts and vagina. The physical examination findings were normal, but the evidence showed this was common even in
cases involving vaginal penetration.
Several days later, a police detective interviewed Craft. Craft initially denied abusing
Victim. The next day, while in jail, Craft requested to speak with the detective again. In the
audiotaped interview that was played for the jury, he admitted he touched Victim’s vagina and
breasts, that he put his penis in her vagina and rectum, and that he put his penis in her mouth.
During the interview, Craft said he was sorry, that he was not mad at Victim, and that he was
disappointed with what he had done.
At trial, Victim testified Craft began abusing her when she was nine and that it happened
“quite often,” typically when her mother was not home. Consistent with Craft’s confession, she
testified he put his penis in her vagina and rectum. She testified Craft would usually stop when
Victim’s siblings entered the room where he was with Victim or when her mother returned from
work.
Craft testified at trial and denied all of the allegations. He testified he did not remember
the specifics of his confession because he was mentally compromised as a result of high blood
sugar caused by diabetes. Craft testified he “felt out of body” during the interview and “did not
understand a word [the detective] was saying.”
The jury acquitted Craft of one count of statutory sodomy but convicted him on all
remaining counts. Craft appeals.
Point I: Defendant’s Right Not to Testify
Craft claims the circuit court erred by failing to grant a mistrial when, during voir dire, the
State commented on his right not to testify in violation of his rights under the Fifth Amendment to
the United States Constitution and Article I, section 19 of the Missouri Constitution. The decision
2 to grant or deny a mistrial is “left to the discretion of the trial court, as it is in the best position to
determine whether the incident had a prejudicial effect on the jury.” State v. Blurton, 484 S.W.3d
758, 779 (Mo. banc 2016). “A trial court abuses its discretion to grant a mistrial only if its ruling
is clearly against the logic of the circumstances before it and when the ruling is so arbitrary and
unreasonable as to shock the appellate court’s sense of justice and indicate a lack of careful
consideration.” Id.
The Fifth Amendment and Article I, section 19 establishes a criminal defendant’s right not
to testify. State v. Neff, 978 S.W.2d 341, 344 (Mo. banc 1998). The defendant’s exercise of that
right shall not “be referred to by any attorney in the case[.]” Section 546.270; Rule 27.05(a). This
prohibition applies to the entire trial, including voir dire. State v. Chaddock, 280 S.W.3d 164, 166
(Mo. App. S.D. 2009). The purpose of the rule is “to avoid focusing the jury’s attention upon a
defendant’s failure to testify.” Neff, 978 S.W.2d at 344. While recognizing the defendant’s right
not to testify is fundamental, Missouri courts also recognize “[g]ranting a mistrial is a drastic
remedy and should be exercised only in extraordinary circumstances where the prejudice to the
defendant cannot be removed any other way.” State v. Davis, 533 S.W.3d 853, 863 (Mo. App.
W.D. 2017); see also State v. Boyd, 91 S.W.3d 727, 731 (Mo. App. S.D. 2003). Assessed against
these standards, the record shows the circuit court did not abuse its discretion by declining to grant
a mistrial.
During voir dire, the prosecutor told the panel the law allows the State to prove its case
beyond a reasonable based on the testimony of a single credible witness. The prosecutor also
stated he wanted to “make sure that everyone here is okay with that and can follow the Court’s
instructions on that.” The prosecutor further discussed the issue with two venirepersons, both of
whom stated they understood the State could meet its burden of proof with the testimony of a
3 single credible witness. When a third venireperson indicated he wanted further clarification, the
following exchange occurred:
[VENIREPERSON]: So if somebody comes in, and they testify for the prosecution, and they’re believable...
[STATE]: Uh-huh. Yes.
[VENIREPERSON]: And then the defendant testifies and is believable...
[STATE]: Yes. Yes. So that is where the jury will have to make a determination as to whether or not they find one witness more credible than the other. And if you have, let’s say some scenario like that happens, and you have reasonable doubts, the benefit of those doubts go to the defendant, all right, and then your verdict must be not guilty.
But let’s say -- sorry, not done with you yet. But let’s say that I put on a witness, and that witness, you know, leaves you firmly convinced as to each and every element, and there is not a reasonable doubt in your mind, would you be able to find the defendant guilty?
[VENIREPERSON]: I think so.
[STATE]: Think so?
[VENIREPERSON]: But you’re only giving us half of the picture.
[STATE]: He doesn’t have to do anything. The burden is on me, so I'm the one that has to present witnesses’ testimony and evidence. And, like I said, I anticipate more than one witness –
[VENIREPERSON]: So if the defense does nothing, then in that case, yes.
[STATE]: However, and I anticipate defense counsel will talk about this, as well, under the law, the defendant has the right not to testify –
[DEFENSE COUNSEL]: Your Honor, I’m going to object. Can we approach?
[THE COURT]: Yes.
(Emphasis added).
During the sidebar, defense counsel specifically objected to the prosecutor’s comment and
moved for a mistrial on grounds “the prosecution is never supposed to mention anything about the
4 defendant’s right not to testify[.]” The circuit court declined to grant a mistrial, noting the
venireperson raised the issue “and initiated any kind of context of the defendant’s right to testify
or not to testify.” The court then asked defense counsel if he wanted an instruction advising the
jury to disregard the comment or whether he wanted to ignore it and move on. After discussing
the matter with prosecutor and the court, defense counsel told the court “however you want to
handle it is fine with me” and agreed to clarify the issue during the defense voir dire.
Craft argues this case is indistinguishable from State v. Lindsey, 578 S.W.3d 903 (Mo.
banc 1978), in which the Court held the State’s direct comment during voir dire on the defendant’s
right not to testify required reversal. While conceding the prosecutor erroneously made a direct
comment on Craft’s right not to testify, the State argues Lindsey does not require reversal in every
case involving an erroneous direct comment on the defendant’s right not to testify. We agree.
In Lindsey, the prosecutor, during voir dire, stated: “Mr. Lindsey doesn’t have to go
forward with any evidence if he doesn’t wish to. He doesn’t have to take the stand if he doesn’t
want to.” Lindsey, 578 S.W.2d at 903. Lindsey held:
We believe and hold that the … language used by the Assistant Prosecuting Attorney was of such character that the jury would naturally and necessarily be influenced so as to deny appellant a fair trial. Conduct which naturally and necessarily has the effect of denying an accused a fair trial can never be harmless.
Id. at 904.
Craft’s argument the prosecutor’s comments in this case are indistinguishable from those
in Lindsey overlooks subsequent cases which further refine the analysis. In Neff, the defense
counsel moved for a mistrial after the prosecutor, while objecting to the defendant’s closing
argument in the presence of the jury, commented that the defendant “didn’t take the stand.” Neff,
978 S.W.2d at 342–343. Rather than declaring a mistrial, the circuit court admonished the jury to
disregard the comment. Id. at 344. The Court affirmed the judgment, prefacing its analysis by
5 emphasizing that section 546.270, first enacted in 1877, “does not mandate a mistrial in every case
where there is a reference, direct or otherwise, to a defendant's failure to testify.” Id. at 344. The
Court further observed it had never “held that a direct reference always requires a mistrial.” Id.
Thus, the Court concluded “[n]o sound historical argument, rooted in the statute or the precedent
of this Court, supports the sweeping claim that regardless of the circumstances, a direct reference
to the defendant’s failure to testify mandates a mistrial.” Id. at 344–45. Finally, the Court directed
appellate courts to “consider the comment in the context in which it appears” while recognizing
“[t]he prejudicial impact of such a statement is a matter within the sound discretion of the trial
court and a prompt instruction by the trial court to the jury to disregard the comment may cure any
error in a particular case.” Id. at 345.
Two years later, in State v. Barnum, 14 S.W.3d 587 (Mo. banc 2000), the Court again
addressed the issue of improper commentary on the defendant’s right not to testify. The Court
reiterated its observation in Neff that it “has never held that a mistrial is always required after a
direct reference by an attorney to a defendant’s right to testify.” Barnum, 14 S.W.3d at 592 (citing
Neff, 978 S.W.2d at 344–45). The Court further observed that whether “a particular improper
argument is so prejudicial under the facts in a particular case, as to necessitate a reprimand of
counsel or a discharge of the jury, is largely within the discretion of the trial court.” Id. With these
principles in mind, the Court analyzed the following comment made by the prosecutor during voir
dire:
The second term that we talk about probably endlessly and to the point that you're all tired of it is the burden of proof. And that’s the idea that it’s up to me to prove to you that the Defendant did what we charged. It’s not up to the Defendant to prove anything. The Defendant doesn't have to present any evidence, doesn’t have to testify, and that’s our legal system. That’s the way it works in our legal system.
6 Id. at 592. The Court concluded “[t]hese remarks did not pertain to Appellant’s failure to testify
but were merely restatements of the law and general comments concerning the rights of any
defendant in a criminal trial” and held the circuit court did not plainly err in denying the
defendant’s motion for a mistrial. Id. Critically, the Court further observed “Lindsey should not
be read to imply that any general statement of the law, such as occurred here, must always be
considered prejudicial to a defendant.” Id. 1
Considered in light of the Court’s more recent decisions in Neff and Barnum, the
prosecutor’s comments in this case, while erroneous, do not constitute reversible error. First,
similar to Barnum, viewing the comments in context shows the prosecutor referred to the right not
to testify while explaining the State’s burden of proof and asking whether the panel could conclude
the State met its burden with a single credible witness. A venireperson answered “if the defense
does nothing, then in that case, yes” he could find the State met its burden of proof with a single
credible witness. This answer implied the venireperson was prepared to draw an adverse inference
if Craft declined to testify. It was only then that the prosecutor stated “I anticipate defense counsel
will talk about this, as well, under the law, the defendant has the right not to testify.” As in Barnum,
these comments when viewed in context were “restatements of the law and general comments
concerning the rights of any defendant in a criminal trial.” Barnum, 14 S.W.3d at 592.
1 This Court recognizes the manifest injustice standard applied in Barnum imposes a higher bar for reversal than in cases involving a preserved claim of error. See State v. Morgan, 366 S.W.3d 565, 582 (Mo. App. E.D. 2012) (noting manifest injustice is “a higher bar than prejudice”). Thus, the fact Barnum held there was no plain error means it cannot be absolutely dispositive in this case. Nonetheless, Barnum is still instructive because whether reviewed for plain error or prejudice, the defendant’s right not to testify remains the same and this Court must analyze the prosecutor’s comments in the context of the case to determine if a mistrial was warranted. Neff, 978 S.W.2d at 345. Further, the fact Barnum reviewed the record through the lens of plain error had no bearing on the Court’s unequivocal recognition that neither Lindsey nor any other provision of Missouri law requires a mistrial in all cases. Finally, the application of plain error review does not lessen the similarity between the prosecutor’s statements in this case and those in Barnum, which the Court characterized as “restatements of the law and general comments concerning the rights of any defendant in a criminal trial.” Barnum, 14 S.W.3d at 592. Therefore, while Barnum is not dispositive in this case, it is nonetheless highly relevant to the analysis.
7 Second, relying exclusively on Lindsey, Craft argues a mistrial is the only option while
overlooking binding precedent holding “the prejudice from such comments can normally be cured
by an instruction to the jury.” Neff, 978 S.W.2d at 345 (internal quotation omitted). Although
defense counsel requested a mistrial, the record shows that during the sidebar discussion the circuit
court offered to “advise the jury to disregard.” Defense counsel did not accept this invitation and,
after additional discussion told the court “however you want to handle it is fine with me” before
agreeing to clarify the issue during the defense voir dire. “The fact that a defendant limits his
request for relief to that of a mistrial rather than making a request for a less drastic corrective action
cannot aid him.” State v. Eaton, 563 S.W.3d 841, 846 (Mo. App. E.D. 2018) (internal quotation
omitted); see also State v. Salazar, 414 S.W.3d 606, 620 (Mo. App. S.D. 2013) (noting granting
“a mistrial is a drastic action that should only be taken in those circumstances where no other
curative action would remove the alleged prejudice suffered by the defendant”).
Third, consistent with counsel’s decision to forego a curative instruction or admonition, he
asked venirepersons during the defense voir dire whether they would hold Craft’s failure to testify
against him. No juror indicated they would. The fact each juror acknowledged under oath they
would not use a decision not to testify against him is a relevant factor. See State v. Davis, 533
S.W.3d 853, 864 (Mo. App. W.D. 2017) (noting the defense voir dire may mitigate prejudice).
Considered in context, Craft has not shown the circuit court abused its discretion by
declining to grant a mistrial based on the prosecutor’s brief, isolated comment. The foregoing
analysis is not an endorsement of the prosecutor’s comments. If the circuit court had made no
effort to remediate the situation, then the result may have been different. Neff, 978 S.W.2d at 347.
On this record, however, “we cannot say the trial court acted capriciously or without careful
8 consideration in deciding to address the disputed remarks as it did.” Id. The circuit court did not
abuse its discretion under the circumstances of this case. Point I is denied.
Point II: Offer of Proof
Craft claims the circuit court abused its discretion by excluding his father’s testimony
regarding his observations of Craft’s diabetic symptoms. Craft argues his father’s testimony would
corroborate Craft’s testimony that his diabetes caused him to falsely confess to sexually abusing
Victim after initially denying the allegations.
The circuit court’s decision to admit or exclude evidence is reviewed for abuse of
discretion. State v. Taylor, 466 S.W.3d 521, 528 (Mo. banc 2015). “Evidentiary error is reviewed
for prejudice, not mere error, and error is only prejudicial if the court’s error affected the outcome
of the trial with reasonable probability and deprived the defendant of a fair trial.” Id. (internal
quotation omitted).
Prior to trial, the circuit court ruled Craft could not present his father’s testimony regarding
his diabetic symptoms. During the trial, Craft made an offer of proof with his father’s testimony.
Craft’s father testified Craft was diagnosed as a diabetic at age 23 and he had witnessed the diabetic
symptoms three or four times. He testified Craft would become lethargic, glassy-eyed, and
uncooperative as if “he’s not there almost.”
Evidence is admissible if it is both logically and legally relevant. Taylor, 466 S.W.3d at
528. “Evidence is logically relevant if it tends to make the existence of a material fact more or
less probable.” Id. (internal quotation omitted). “Logical relevance is a very low threshold.”
Kappel v. Prater, 599 S.W.3d 189, 193 (Mo. banc 2020) (internal quotation omitted). “Once
logical relevance is established, legal relevance weighs the probative value of the evidence against
9 its costs—unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of
time, or cumulativeness.” Id. (internal quotation and brackets omitted).
Here, the offer of proof meets the low threshold of logical relevance. Craft’s argument
centers on a disputed factual assertion his diabetic symptoms compromised him mentally, leading
to a false confession. His father’s testimony that on three or four occasions, he observed Craft
become lethargic, glassy-eyed, and uncooperative as if “he’s not there almost” is evidence of
symptoms that could be associated with decreased mental acuity. Of course, the testimony
indicating Craft would become uncooperative cuts against his argument his diabetic symptoms
caused him to cooperate with the police to such an extent that he gave a false confession to charges
he repeatedly sexually abused his own daughter. Nonetheless, even to the extent it is unfavorable,
his father’s testimony had at least some minimal tendency “to make the existence of a material fact
more or less probable.” Taylor, 466 S.W.3d at 528.
Nonetheless, even if the offer of proof was also legally relevant, the State has demonstrated
the circuit court’s exclusion of the testimony was not prejudicial. The State’s rebuttal witness, Dr.
Miller, testified mental confusion from diabetes-induced high blood sugar typically occurs when
the patient is in a medical crisis. She testified Craft’s blood sugar reading at the jail was 212,
which is in the normal range for a diabetic. Further, Craft’s medical intake form indicated he had
normal mental functioning. Most importantly, the jury heard the audio recording of Craft’s
confession in which he communicated with no apparent problem, answered questions fully, and
corrected the detective when he believed she misspoke. On this record, there is no reasonable
probability the circuit court’s exclusion of the testimony in the offer of proof would have materially
affected the outcome and deprived Craft of a fair trial. Taylor, 466 S.W.3d at 528.
10 Point III: Closing Argument
Craft claims the circuit court erred by prohibiting him from using the State’s Exhibit 5
during closing argument to argue that while Victim testified she showered before her sexual assault
examination, the report generated from that examination indicated she had not showered. He
argues he was prejudiced by the circuit court’s decision because he was prevented from contesting
the DNA evidence and attacking Victim’s credibility.
The circuit court retains broad discretion to control closing arguments. State v. Perkins,
656 S.W.3d 285, 299 (Mo. App. E.D. 2022). “Although courts are to be careful to refrain from
unduly restricting closing arguments, they have the power to confine the arguments to issues raised
by the pleadings and the evidence.” Id. (internal quotation omitted). “Closing argument grants
each side the opportunity to highlight the evidence that was presented.” State v. Walter, 479
S.W.3d 118, 125 (Mo. banc 2016). It follows that “[a] party may argue inferences justified by the
evidence, but not inferences unsupported by the facts.” Perkins, 656 S.W.3d at 299. A closing
argument requires reversal only if it amounts to prejudicial error. Id. When a claim regarding
closing argument is preserved, the circuit court’s ruling is reviewed for an abuse of discretion and
reversal is warranted only if the “defendant was prejudiced to the extent that there is a reasonable
probability that the outcome at trial would have been different if the error had not been committed.”
State v. Deck, 303 S.W.3d 527, 540 (Mo. banc 2010).
At the close of evidence, and prior to closing arguments, defense counsel indicated he
intended to argue Victim’s testimony she showered prior to undergoing the sexual assault
examination was inconsistent with the rape kit report included in the State’s Exhibit 5.
Specifically, the rape kit report indicated Victim urinated, but did not indicate she showered, thus
creating a potential inconsistency between Victim’s testimony and the report. The State objected,
11 asserting that although Exhibit 5 was admitted into evidence, it was never published to the jury
and neither party elicited any testimony regarding whether the report indicated Victim had not
showered prior to the examination. The circuit court sustained the State’s objection and prevented
Craft from using Exhibit 5 in closing argument to address Victim’s testimony she showered prior
to the examination.
Craft’s argument fails because he cannot demonstrate prejudice. First, Craft notes he
presented evidence showing two vaginal swabs failed to detect male DNA but an external genital
swab showed the presence of male DNA. He asserts, with no additional detail, that these results
would be “expected had Victim showered” before the examination but “would be unexpected had
she not showered.” The import of this assertion appears to be that the evidence Victim did not
shower, combined with the fact his DNA was not detected, tends to show his innocence. However,
Victim never testified Craft ejaculated in her vagina. Moreover, in his audiotaped confession,
Craft effectively corroborated Victim’s testimony by stating he did not ejaculate in the victim’s
vagina. Given this record, whether Victim showered was not likely to impact the jury’s verdict.
Second, Craft asserts his closing argument would have cast serious doubt on Victim’s
credibility by allowing the jury to contrast her testimony she showered before the examination
with the information contained in Exhibit 5 that she did not shower. Craft’s argument is
speculative at best. Since Craft did not cross examine any witness about the inconsistency between
the contents of the rape kit report and Victim’s testimony and did not establish that Victim provided
inconsistent testimony, we cannot find the circuit court abused its discretion by disallowing
defense counsel from arguing in closing argument the rape kit report included in State’s Exhibit 5
was inconsistent with Victim’s trial testimony. Given the record before us, Craft has not shown
12 and we do not find the circuit court committed prejudicial error by limiting his closing argument.
Because we find that the circuit court did not abuse its discretion, Point III is denied.
Conclusion
We affirm the circuit court’s judgment.
_____________________________ Renée Hardin-Tammons, Judge
Lisa P. Page, P.J. and Thomas C. Clark, II, J., concur.