State v. Adams

571 S.W.3d 140
CourtMissouri Court of Appeals
DecidedDecember 4, 2018
DocketWD 80912
StatusPublished
Cited by16 cases

This text of 571 S.W.3d 140 (State v. Adams) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Adams, 571 S.W.3d 140 (Mo. Ct. App. 2018).

Opinion

Cynthia L. Martin, Judge

James Kevin Adams ("Adams") appeals his convictions of two counts of statutory sodomy in the first degree, and one count of child molestation in the first degree, following a jury trial. Adams argues that the verdict directors for these counts violated his constitutional right to a unanimous jury verdict because the verdict directors failed to identify a single criminal act in a manner sufficient to differentiate it from multiple similar acts described in the evidence. We affirm in part, and reverse in part.

Factual and Procedural Background

Adams does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the jury's verdicts, the evidence establishes that in April 2015, eight-year-old H.M. moved with her mother into a house where Adams lived. Adams resided in the basement of the house. During the summer of 2015, among other acts unchallenged here, Adams touched H.M. through *143her clothing on her "privates," a term H.M. used to reference her vaginal area; Adams removed his clothing and directed H.M. to use her hand to "go up and down" on Adams's "wee-wee;" and Adams "licked" H.M.'s vaginal area.

In August 2015, H.M. told her mother about Adams's conduct. Shortly thereafter, H.M. and her mother moved out of the house. Two forensic interviews were eventually conducted through a Child Advocacy Center. During those interviews, H.M. provided additional details regarding Adams's conduct. Adams was charged with three counts of statutory sodomy in the first degree, one count of child molestation in the first degree, and witness tampering.

At trial, recorded videos of the two Child Advocacy Center forensic interviews ("CAC interviews") were admitted into evidence. During those interviews, H.M. described two different incidents where Adams had H.M. masturbate him. The first incident occurred while H.M.'s mother was not home, and H.M. was on Adams's bed watching television. The second incident occurred while H.M. was sitting on Adams's couch in the basement with the television turned off. During the CAC interviews, H.M. also recounted one specific incident when Adams "licked" her vaginal area while lying on Adams's bed. And during the CAC interviews, in addition to providing generalized details about Adams's touching her vaginal area with his hand "more than one time," H.M. described one specific incident of hand-to-genital molestation that occurred during the summer while H.M. and Adams watched "God of Rings."

At trial, the State tendered five verdict directors that submitted three counts of statutory sodomy in the first degree, one count of child molestation, and one count of witness tampering. Relevant to this case, the verdict director for Count I (statutory sodomy) required the jury to find Adams "knowingly had H.M. touch the defendant's penis with H.M.'s hand while inside [ ] [Adams's] residence." The verdict director for Count III (statutory sodomy) required the jury to find Adams "knowingly licked the genitals of H.M." and that such conduct "constituted deviate sexual intercourse." The verdict director for Count IV (child molestation) required the jury to find Adams "touched the genitals of H.M. with [ ] [Adams's] hand."

The jury convicted Adams on all charged counts, including Counts I, III, and IV, which Adams challenges on appeal.1 The trial court sentenced Adams to twenty-years imprisonment on each count of statutory sodomy (Counts I, II, and III), to be served concurrently; ten-years imprisonment on the count of child molestation (Count IV); and seven-years imprisonment on the count of witness tampering (Count V). The child molestation and witness tampering convictions were to be served concurrently with one another, but consecutively to the concurrent statutory sodomy sentences.

Adams filed this timely appeal, which challenges his convictions on Counts I, III, and IV on the basis of instructional error.

Standard of Review

Adams raises three points on appeal, each claiming that defective verdict directors violated his constitutional right to a unanimous jury verdict. Adams concedes that he failed to object to the verdict directors at trial. Adams requests plain-error review.

*144Rule 30.202 provides that "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." The State urges us to decline plain error review of Adams's claims because Adams submitted converse instructions that mirrored the challenged verdict directors' description of Adams's criminal conduct. The State argues that the converse instructions constituted self-invited error precluding plain error review. We disagree.

It is well recognized that "a defendant cannot complain about an instruction given at his request." State v. Bolden , 371 S.W.3d 802, 806 (Mo. banc 2012) (citing State v. Leisure , 796 S.W.2d 875, 877 (Mo. banc 1990) ). Such self-invited error precludes plain error review. Id. Here, however, Adams is not complaining about an instruction given at his request. He is complaining about verdict directors submitted by the State. Though it is true that Adams submitted converse instructions which mirrored the State's verdict directors, converse instructions must reflect the language of the verdict director. MAI-CR 308.02, Notes on Use 4(B). The converse instructions do not constitute self-invited error of Adams's own making.

In addition, we find it difficult to distinguish the present case from our Supreme Court's holding in State v. Celis-Garcia , 344 S.W.3d 150 (Mo. banc 2011). In Celis-Garcia , the Court rejected the State's waiver argument, and reviewed for plain error an unpreserved claim that verdict directors violated the defendant's constitutional right to a unanimous jury verdict, even though the defendant failed to object to the State's verdict directors and submitted her own verdict directors that suffered from the same defect challenged on appeal. Id. at 154 n. 3. If a defendant's submission of verdict directors suffering the same defect as the State's verdict directors does not waive plain error review, we fail to see how the submission of converse instructions which mirror verdict directors as required waives plain-error review.3

Accordingly, we review Adams's claims of instructional error for plain error. Review for plain error is a two-step inquiry. State v. Escobar

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Bluebook (online)
571 S.W.3d 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-adams-moctapp-2018.