IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, ) ) Respondent, ) ) WD85165 v. ) ) OPINION FILED: ) May 16, 2023 CHUKWUEMEKA U. EMMANUEL, ) ) Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jennifer M. Phillips, Judge
Before Division One: W. Douglas Thomson, Presiding Judge, and Lisa White Hardwick and Karen King Mitchell, Judges
Chukwuemeka Emmanuel appeals, following a bench trial, his conviction of rape
in the first degree, § 566.030, 1 for which he was sentenced to twenty years’
imprisonment. Emmanuel raises two points on appeal. First, he asserts the trial court
plainly erred in accepting his waiver of jury trial and proceeding with a bench trial,
because the record does not establish that his waiver was knowing, voluntary, and
1 All statutory citations are to the Revised Statutes of Missouri, 2018 Supp. intelligent. Second, he argues the court erred in entering a conviction for first-degree
rape because there was insufficient evidence of penetration. Finding no error, we affirm.
Background
After Emmanuel was charged but well before trial, his counsel filed a Waiver of
Jury Trial and Request for Bench Trial. The waiver stated, “[a]fter consideration of the
matter and client input, too, the Defense requests a bench trial be set to hear the merits of
the case.” The waiver was electronically signed by counsel but was not signed by
Emmanuel.
At trial, Victim testified that, on June 15, 2019, she was a patient at Centerpoint
Medical Center, where she was being treated for a post-operative infection and receiving
morphine for pain. Emmanuel was working as Victim’s nurse. According to Victim, the
combination of the infection and the morphine made her “a little loopy,” “kind of
disassociated,” and “weak in certain areas.” 2
At some point during that day, Victim, who was bedridden and had a urinary
catheter, pressed her call button because she thought her catheter was leaking.
Emmanuel responded and began adjusting the catheter. Victim slipped in and out of
consciousness but, at some point, regained consciousness and discovered Emmanuel on
top of her in her bed. When asked to describe what she felt at that moment, Victim
2 One of Victim’s doctors at Centerpoint testified that morphine can decrease mental performance but does not cause an absolute inability to recall events. According to the doctor, Victim was able to function and interact with the medical staff. Hydrocodone, which has some of the same effects as morphine, was also administered to Victim.
2 testified, “There was vaginal penetration with his penis, and he proceeded to have sex
with me.” Victim told Emmanuel that he was hurting her, and she asked him to stop; he
did not, and she lost consciousness again.
When Victim awoke the next morning, her vaginal area was wet and sore. She
had flashbacks to Emmanuel adjusting her catheter, being on top of her, penetrating her
vagina with his penis, and hurting her. Victim notified hospital administration and the
police.
A fellow nurse, with whom Emmanuel was having an affair, testified that he
called her from the airport on his way out of the country and admitted to having had sex
with Victim but insisted it was consensual. 3 While the fellow nurse was later being
interviewed by police, Emmanuel called her again, and the police recorded their
conversation, during which Emmanuel again admitted to having sex with Victim.
A criminologist with the Missouri State Highway Patrol Crime Laboratory
testified that a stain on a white blanket collected from Victim’s hospital bed indicated the
possible presence of seminal fluid. The stain was then analyzed by a DNA criminologist
who testified, “The observed [DNA] mixture profile is approximately 2.429 septillion
times more likely to occur under the scenario that it originated from a mixture of DNA
from [Victim] and . . . Emmanuel as opposed to the scenario that it originated from a
mixture of DNA from [Victim] and another unknown, unrelated individual.” But
Although Emmanuel was talked out of leaving the country at that point, he did 3
travel to Nigeria, but returned to the United States and was arrested in Atlanta, Georgia.
3 Emmanuel’s DNA expert testified that the DNA evidence was inconclusive as to the
identity of the male contributor.
The court found Emmanuel guilty of first-degree rape and sentenced him to twenty
years’ imprisonment. Emmanuel moved for a new trial but did not allege error regarding
his jury trial waiver; the court denied the motion. This appeal follows. 4
Analysis
Emmanuel raises two points on appeal. First, he asserts the trial court plainly
erred in accepting his waiver of jury trial and proceeding with a bench trial because the
record does not establish that his waiver was knowing, voluntary, and intelligent.
Second, he argues the court erred in entering a conviction for first-degree rape because
there was insufficient evidence of penetration. We discuss each point in turn.
I. The trial court did not plainly err in accepting Emmanuel’s jury trial waiver.
Emmanuel acknowledges the claim he raises in Point I is not preserved for
appellate review and requests plain error review under Rule 30.20. 5 Rule 30.20 provides,
in pertinent part, “Whether briefed or not, plain errors affecting substantial rights may be
considered in the discretion of the court when the court finds that manifest injustice or
miscarriage of justice has resulted therefrom.” “Under plain error review, we must
determine whether the alleged error is ‘evident, obvious, and clear error’ [and] ‘facially
establishes substantial grounds for believing that manifest injustice or a miscarriage of
Additional facts will be provided in the analysis, as necessary, to address 4
Emmanuel’s claims. 5 All Rule references are to the Missouri Supreme Court Rules (2021).
4 justice’ has occurred.” State v. Ratliff, 622 S.W.3d 736, 745-46 (Mo. App. W.D. 2021)
(quoting State v. Campbell, 600 S.W.3d 780, 788-89 (Mo. App. W.D. 2020)). “The
defendant bears the burden of showing that an alleged error has produced . . . a manifest
injustice.” State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020) (quoting State v.
Oates, 540 S.W.3d 858, 863 (Mo. banc 2018)).
“The constitutions of the United States and Missouri both guarantee a defendant in
a criminal case the right to a jury trial.” State v. Hilbert, No. SC99747, 2023 WL
2586186, at *3 (Mo. banc Mar. 21, 2023) (citing U.S. Const. amends. VI, XIV; Mo.
Const. art. I, sec. 18(a), 22(a)). “A defendant may waive this right with the consent of the
court [provided] ‘such waiver by the defendant shall be made in open court and entered
of record.’” Id. (quoting State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006)). 6 “To
satisfy this standard, the waiver ‘must be knowing, voluntary, and intelligent.’” Id.
(quoting Baxter, 204 S.W.3d at 653). “[T]he law ordinarily considers a waiver knowing,
intelligent, and sufficiently aware if the defendant fully understands the nature of the
right and how it would likely apply in general in the circumstances.” United States v.
Ruiz, 536 U.S. 622, 629 (2002) (emphasis omitted).
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IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, ) ) Respondent, ) ) WD85165 v. ) ) OPINION FILED: ) May 16, 2023 CHUKWUEMEKA U. EMMANUEL, ) ) Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jennifer M. Phillips, Judge
Before Division One: W. Douglas Thomson, Presiding Judge, and Lisa White Hardwick and Karen King Mitchell, Judges
Chukwuemeka Emmanuel appeals, following a bench trial, his conviction of rape
in the first degree, § 566.030, 1 for which he was sentenced to twenty years’
imprisonment. Emmanuel raises two points on appeal. First, he asserts the trial court
plainly erred in accepting his waiver of jury trial and proceeding with a bench trial,
because the record does not establish that his waiver was knowing, voluntary, and
1 All statutory citations are to the Revised Statutes of Missouri, 2018 Supp. intelligent. Second, he argues the court erred in entering a conviction for first-degree
rape because there was insufficient evidence of penetration. Finding no error, we affirm.
Background
After Emmanuel was charged but well before trial, his counsel filed a Waiver of
Jury Trial and Request for Bench Trial. The waiver stated, “[a]fter consideration of the
matter and client input, too, the Defense requests a bench trial be set to hear the merits of
the case.” The waiver was electronically signed by counsel but was not signed by
Emmanuel.
At trial, Victim testified that, on June 15, 2019, she was a patient at Centerpoint
Medical Center, where she was being treated for a post-operative infection and receiving
morphine for pain. Emmanuel was working as Victim’s nurse. According to Victim, the
combination of the infection and the morphine made her “a little loopy,” “kind of
disassociated,” and “weak in certain areas.” 2
At some point during that day, Victim, who was bedridden and had a urinary
catheter, pressed her call button because she thought her catheter was leaking.
Emmanuel responded and began adjusting the catheter. Victim slipped in and out of
consciousness but, at some point, regained consciousness and discovered Emmanuel on
top of her in her bed. When asked to describe what she felt at that moment, Victim
2 One of Victim’s doctors at Centerpoint testified that morphine can decrease mental performance but does not cause an absolute inability to recall events. According to the doctor, Victim was able to function and interact with the medical staff. Hydrocodone, which has some of the same effects as morphine, was also administered to Victim.
2 testified, “There was vaginal penetration with his penis, and he proceeded to have sex
with me.” Victim told Emmanuel that he was hurting her, and she asked him to stop; he
did not, and she lost consciousness again.
When Victim awoke the next morning, her vaginal area was wet and sore. She
had flashbacks to Emmanuel adjusting her catheter, being on top of her, penetrating her
vagina with his penis, and hurting her. Victim notified hospital administration and the
police.
A fellow nurse, with whom Emmanuel was having an affair, testified that he
called her from the airport on his way out of the country and admitted to having had sex
with Victim but insisted it was consensual. 3 While the fellow nurse was later being
interviewed by police, Emmanuel called her again, and the police recorded their
conversation, during which Emmanuel again admitted to having sex with Victim.
A criminologist with the Missouri State Highway Patrol Crime Laboratory
testified that a stain on a white blanket collected from Victim’s hospital bed indicated the
possible presence of seminal fluid. The stain was then analyzed by a DNA criminologist
who testified, “The observed [DNA] mixture profile is approximately 2.429 septillion
times more likely to occur under the scenario that it originated from a mixture of DNA
from [Victim] and . . . Emmanuel as opposed to the scenario that it originated from a
mixture of DNA from [Victim] and another unknown, unrelated individual.” But
Although Emmanuel was talked out of leaving the country at that point, he did 3
travel to Nigeria, but returned to the United States and was arrested in Atlanta, Georgia.
3 Emmanuel’s DNA expert testified that the DNA evidence was inconclusive as to the
identity of the male contributor.
The court found Emmanuel guilty of first-degree rape and sentenced him to twenty
years’ imprisonment. Emmanuel moved for a new trial but did not allege error regarding
his jury trial waiver; the court denied the motion. This appeal follows. 4
Analysis
Emmanuel raises two points on appeal. First, he asserts the trial court plainly
erred in accepting his waiver of jury trial and proceeding with a bench trial because the
record does not establish that his waiver was knowing, voluntary, and intelligent.
Second, he argues the court erred in entering a conviction for first-degree rape because
there was insufficient evidence of penetration. We discuss each point in turn.
I. The trial court did not plainly err in accepting Emmanuel’s jury trial waiver.
Emmanuel acknowledges the claim he raises in Point I is not preserved for
appellate review and requests plain error review under Rule 30.20. 5 Rule 30.20 provides,
in pertinent part, “Whether briefed or not, plain errors affecting substantial rights may be
considered in the discretion of the court when the court finds that manifest injustice or
miscarriage of justice has resulted therefrom.” “Under plain error review, we must
determine whether the alleged error is ‘evident, obvious, and clear error’ [and] ‘facially
establishes substantial grounds for believing that manifest injustice or a miscarriage of
Additional facts will be provided in the analysis, as necessary, to address 4
Emmanuel’s claims. 5 All Rule references are to the Missouri Supreme Court Rules (2021).
4 justice’ has occurred.” State v. Ratliff, 622 S.W.3d 736, 745-46 (Mo. App. W.D. 2021)
(quoting State v. Campbell, 600 S.W.3d 780, 788-89 (Mo. App. W.D. 2020)). “The
defendant bears the burden of showing that an alleged error has produced . . . a manifest
injustice.” State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020) (quoting State v.
Oates, 540 S.W.3d 858, 863 (Mo. banc 2018)).
“The constitutions of the United States and Missouri both guarantee a defendant in
a criminal case the right to a jury trial.” State v. Hilbert, No. SC99747, 2023 WL
2586186, at *3 (Mo. banc Mar. 21, 2023) (citing U.S. Const. amends. VI, XIV; Mo.
Const. art. I, sec. 18(a), 22(a)). “A defendant may waive this right with the consent of the
court [provided] ‘such waiver by the defendant shall be made in open court and entered
of record.’” Id. (quoting State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006)). 6 “To
satisfy this standard, the waiver ‘must be knowing, voluntary, and intelligent.’” Id.
(quoting Baxter, 204 S.W.3d at 653). “[T]he law ordinarily considers a waiver knowing,
intelligent, and sufficiently aware if the defendant fully understands the nature of the
right and how it would likely apply in general in the circumstances.” United States v.
Ruiz, 536 U.S. 622, 629 (2002) (emphasis omitted).
6 See also Rule 27.01(b), which states,
The defendant may, with the assent of the court, waive a trial by jury and submit the trial of any criminal case to the court, whose findings shall have the force and effect of the verdict of a jury. In felony cases, such waiver by the defendant shall be entered on the record and made in open court in person.
5 “The best practice for a trial court is to question the defendant personally, on the
record, to ensure that the defendant understands the right, understands what is lost in the
waiver, has discussed the issue with defense counsel, and voluntarily intends to waive the
right.” Hilbert, 2023 WL 2586186 at *3 (quoting Baxter, 204 S.W.3d at 655). Here,
defense counsel filed a written waiver stating that the request for a bench trial was made
with Emmanuel’s input. After acknowledging the written waiver, the court engaged in
the following colloquy with Emmanuel:
[The court]: So you understand, Mr. Emmanuel, that you have the right to have a jury decide your guilt or innocence in this case?
[Emmanuel]: Yes, Your Honor.
[The court]: And you have made the determination you are going to have the Judge; meaning me, decide the guilt or innocence in this matter; is that right?
[The court]: You understand you have the right for the jury to make that determination?
[The court]: Have you spoken – without telling me what you’ve talked with [defense counsel] about, have you spoken with [defense counsel] about this decision?
[The court]: Do you believe you’ve had sufficient time to talk to [defense counsel] about it?
[The court]: Do you understand that, although [defense counsel] is able to give you advice whether or not to have a jury or a judge make the
6 decisions, ultimately it is your decision and yours alone; do you understand that?
[The court]: So is it your decision to waive your right to have a jury trial?
[The court]: And your decision is that you are waiving that right and I’m going to make the determination; do you understand?
...
[The court]: Do you have any questions for me about . . . your Waiver of Right to Jury Trial . . . ?
[Emmanuel]: No, Your Honor.
As is evident from the colloquy, the court repeatedly explained that Emmanuel
had a right to have a jury decide his guilt or innocence, and each time Emmanuel
affirmed his understanding of that right. He confirmed that he had spoken with counsel
about the decision to proceed with a bench trial. And Emmanuel affirmed his
understanding that the decision of whether to proceed with a jury or a bench trial was his
alone to make. He then confirmed his desire to have his case tried by the court rather
than a jury.
During closing arguments, Emmanuel’s attorney stated that the question of
whether to proceed with a bench trial “is one that is very pivotal, very important to the
attorney/client relationship.” Counsel continued,
One of the reasons that we sought out a bench trial in this case instead of a jury trial is we knew that the Court would be in the best position to think about the law, think about the rights that my client has, and look at the
7 evidence squarely and objectively, knowing full and well that there are those overarching rights.
Counsel’s remarks during closing argument also indicate that Emmanuel was fully
informed of his right to a jury trial and had discussed the topic with counsel.
In Hilbert, the Court found no plain error in the trial court’s acceptance of a jury
trial waiver that had less support in the record. 2023 WL 2586186 at *5. The waiver in
Hilbert was evidenced primarily by a docket entry indicating that the case was set for a
bench trial and a statement by defense counsel on the record in defendant’s presence that
he wanted a bench trial. Id. at *1. No written waiver was submitted in Hilbert, nor did
the trial court personally question the defendant on the record in open court. Id. at *1-2.
Thus, evidence that the waiver in Hilbert was knowing, voluntary, and intelligent was
less explicit than the evidence in this case; yet the Court still found no plain error.
The crux of Emmanuel’s claim is that his waiver was not knowing or intelligent
because the fact that a jury would have to reach a unanimous verdict was not explained to
him. 7 But “a waiver [is] knowing [and] intelligent . . . if the defendant fully understands
the nature of the right and how it would likely apply in general in the circumstances—
even though the defendant may not know the specific detailed consequences of invoking
it.” Ruiz, 536 U.S. at 629. “A defendant, for example, may waive . . . his right to a jury
trial . . . even if the defendant does not know . . . who will likely serve on the jury.” Id. at
7 “Perhaps most importantly, nothing in the record suggests that Mr. Emmanuel was aware of, or understood, that a jury, comprised of twelve, fair and impartial individuals, would have to reach a unanimous decision in order to find Mr. Emmanuel guilty or innocent.” App. Br., pp. 23-24 (emphasis in original).
8 629-30. Thus, the trial court did not plainly err in finding Emmanuel’s waiver of a jury
trial to be knowing and intelligent, even though the court may not have explained every
detail of the jury trial Emmanuel agreed to waive.
Our “sole focus must be upon whether the record established a defendant’s waiver
was knowing, voluntary, and intelligent and, therefore, constitutionally sufficient.”
Hilbert, 2023 WL 2586186 at *3 n.6. Here, the evidence established that Emmanuel
understood he was entitled to have his guilt or innocence determined by a jury and that,
by waiving that right, the court would decide his guilt or innocence. Emmanuel
confirmed that he discussed this issue with counsel and had sufficient time to do so. And
Emmanuel acknowledged that the decision was his alone. His waiver was knowing,
voluntary, and intelligent and, thus, constitutionally sufficient, and the trial court did not
commit plain error in accepting his waiver and proceeding with a bench trial. Point I is
denied.
II. The trial court did not err in convicting Emmanuel of first-degree rape because there was sufficient evidence of penetration.
In his second point, Emmanuel challenges the sufficiency of the evidence
regarding penetration. “Appellate review of the sufficiency of the evidence to support a
criminal conviction is limited to determining whether there is sufficient evidence from
which a reasonable [fact finder] could have found the defendant guilty beyond a
reasonable doubt.” State v. Gibbons, 629 S.W.3d 60, 92 (Mo. App. W.D. 2021). “In
making that determination, great deference is given to the trier of fact, and an appellate
court will not weigh the evidence anew.” State v. Bertrand, 636 S.W.3d 181, 186 (Mo.
9 App. E.D. 2020) (citing State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011)). “The trial
court is free to believe or disbelieve all, part or none of the testimony of any witness.”
State v. Canaday, 476 S.W.3d 346, 354 (Mo. App. W.D. 2015) (quoting Zink v. State,
278 S.W.3d 170, 192 (Mo. banc 2009)). “The fact-finder determines the credibility of
witnesses, resolves conflicts in testimony, and weighs the evidence.” Id. “All evidence
and inferences favorable to the State are accepted as true, and all evidence and inferences
to the contrary are rejected.” Gibbons, 629 S.W.3d at 92 (quoting State v. Porter, 439
S.W.3d 208, 211 (Mo. banc 2014)).
“A person commits the offense of rape in the first degree if he . . . has sexual
intercourse with another person who is incapacitated, incapable of consent, or lacks the
capacity to consent, or by the use of forcible compulsion.” § 566.030.1. “Sexual
intercourse” is defined as “any penetration, however slight, of the female genitalia by the
penis.” § 566.010(7). “‘Proof of penetration may be shown by direct or circumstantial
evidence,’ and ‘slight proof of penetration is sufficient.’” State v. Barbee, 568 S.W.3d
28, 31 (Mo. App. W.D. 2018) (quoting State v. Hill, 808 S.W.2d 882, 890 (Mo. App.
E.D. 1991)).
Victim testified that she lost consciousness while Emmanuel was adjusting her
catheter and, when she regained consciousness, he was on top of her in bed. She recalled
Emmanuel penetrating her vagina with his penis; she experienced pain and asked him to
stop. On cross-examination, Victim testified Emmanuel was “on top of me; he was
inside of me.” When asked whether her inability to maintain consciousness could have
created false imagery, Victim emphatically denied it, stating,
10 Because, when a woman has sex, there is a feeling in her vagina that is different from if somebody puts something foreign in your vagina. Whether it’s urine – it’s a different feeling. It’s sticky, there’s soreness. And that stickiness isn’t just on the outside. It feels that way all the way up. Because the way a woman’s body responds to sexual intercourse is different than a man’s. So no.
On redirect, Victim again said her memory was clear that Emmanuel put his penis in her
vagina without her consent.
Victim’s testimony was direct evidence of penetration. “Direct evidence is
testimony as to the existence or nonexistence of an element of the crime concerning
which the witness claims personal knowledge.” State v. Bewley, 68 S.W.3d 613, 617
(Mo. App. S.D. 2002) (quoting State v. Butler, 951 S.W.2d 600, 604 (Mo. banc 1997)).
“When confronted with direct evidence, the only function of the trier of fact is to weigh
the credibility of the witness.” Id. at 617-18. Here, the trial court factored witness
credibility into its verdict. And the court found credible both Victim’s testimony
regarding penetration and her physician’s testimony about Victim’s ability to recall
events, to function, and to interact with hospital staff. Moreover, Victim’s testimony was
buttressed by Emmanuel’s co-worker who testified that Emmanuel twice admitted to
having had sex with Victim.
This case is similar to Bewley in that the victim there testified that she felt
defendant’s penis go in her vagina, something she was able to identify because she had
knowledge and experience regarding sexual intercourse. Id. at 617. Based on the
victim’s testimony, the court concluded that there was sufficient evidence of penetration
and, thus, the defendant had engaged in sexual intercourse with the victim. Id. at 618.
11 Emmanuel attempts to undermine Victim’s credibility on the issue of penetration
by arguing that (1) her testimony showed that the combination of her infection and her
medications made her “a little loopy” and “kind of disassociated” and (2) there was no
DNA evidence of penetration. But Emmanuel’s arguments rely on evidence and
inferences that are contrary to the verdict and conflict with the court’s credibility
determinations; thus, we will not consider them. See State v. Millens, 648 S.W.3d 784,
788 (Mo. App. W.D. 2022) (refusing to consider arguments “rely[ing] on either evidence
or inferences adverse to the verdict”); see also Bewley, 68 S.W.3d at 618 (“While the
physical findings of the medical examination of [victim] may not support her testimony
of the assault, this fact standing alone does not negate the deference given by the trial
court to [her] testimony.”). Point II is denied.
Conclusion
Because the trial court did not plainly err in accepting Emmanuel’s jury trial waiver
and there was sufficient evidence to support his conviction, the trial court’s judgment is
affirmed.
___________________________________ Karen King Mitchell, Judge
W. Douglas Thomson, Presiding Judge, and Lisa White Hardwick, Judge, concur.