State v. Payne

414 S.W.3d 52, 2013 WL 6170605, 2013 Mo. App. LEXIS 1418
CourtMissouri Court of Appeals
DecidedNovember 26, 2013
DocketNo. WD 75666
StatusPublished
Cited by5 cases

This text of 414 S.W.3d 52 (State v. Payne) 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. Payne, 414 S.W.3d 52, 2013 WL 6170605, 2013 Mo. App. LEXIS 1418 (Mo. Ct. App. 2013).

Opinion

KAREN KING MITCHELL, Presiding Judge.

Phillip Payne appeals his conviction for one count of statutory sodomy, entered pursuant to section 566.062,1 for which he was sentenced, following a jury trial, to twenty-five years’ imprisonment. Payne argues that the trial court plainly erred in submitting the verdict director, which he alleges failed to sufficiently distinguish for the jury which of the three acts of sodomy [54]*54described by,the victim was at issue, thus violating Payne’s right to a unanimous jury verdict. But because Payne’s defense was a general denial and not an incident-specific defense, he has failed to demonstrate a manifest injustice resulting from the allegedly erroneous instruction. Therefore, we affirm his conviction and sentence.

Factual and Procedural Background

In the spring and summer of 2004, Payne was an over-the-road truck driver, and he would occasionally visit his brother and his brother’s family (consisting of Payne’s sister-in-law, his niece, and his nephew (Victim)) when his route took him through Kansas City. During some of Payne’s visits, he would babysit his niece and Victim while their parents went out for the evening. At the time, Victim was eleven years old and was finishing fifth grade.

On three of Payne’s visits, Payne sodomized Victim. Victim testified that the circumstances surrounding the three incidents were nearly identical. After Victim’s parents went out, Victim went to the basement to sit in the recliner and watch cartoons. Payne then went to the basement and directed Victim to remove his own clothing and position himself on his hands and knees on a futon located in the same room. While Victim faced the television, Payne approached Victim from behind and placed his penis inside Victim’s anus. After five or ten minutes, Payne pulled his penis out of Victim’s anus, zipped up his pants, and went back upstairs. After Payne went upstairs, Victim moved back into the recliner, covered himself with a blanket, and continued to watch cartoons. During the first incident, before Payne went upstairs, he warned Victim not to tell his parents, or Payne would kill them and make Victim watch. During the second and third incidents, Payne reminded Victim of the earlier threat. Although Victim was scared of Payne, he tried not to give any outward indications of his fear in order to protect his family from Payne’s threats.

On Payne’s next visit, he was again left alone with the children. After dinner, Payne looked at Victim, smiled and laughed, and told Victim he should go downstairs. Victim got up, went into the kitchen, and retrieved a knife. Victim then walked up to Payne, put the knife to Payne’s throat, and told Payne “to leave and never come back, and if [Victim] saw him, [Victim] would slit his throat with no hesitation.” Victim then went downstairs to watch television, and Payne remained upstairs. When Victim went back upstairs to go to bed, he passed by Payne, but that was the last time Victim saw him. Payne left sometime in the middle of the night before Victim’s parents returned. When Victim’s parents returned, they woke Victim and asked where Payne was. Victim told his parents that Payne got called away for work earlier than he had anticipated; Victim did not mention anything about the sodomies or his threat towards Payne. Payne never visited Victim’s family again.

Because he wanted to keep his friends and family safe, Victim did not reveal what Payne had done to him until Victim was in high school. Victim had tried to block the events from his memory, but in the spring of 2010, Victim came across a picture of Payne on his cousin’s Facebook page, and the memories came back. On March 8, 2010, Victim told his school counselor about the sodomies.

Payne was charged as a prior offender with a single count of first-degree statutory sodomy. Payne’s defense at trial was that Victim fabricated the allegations, allegedly to receive attention from both his parents and friends, and that nothing inappropriate ever occurred between Payne [55]*55and Victim. During the instructions conference, Payne announced that, other than a general objection to the case being given to the jury at all, he had “no objection” to the form of any of the instructions, including the verdict director. In the verdict director, the jury was instructed to find Payne guilty if it found beyond a reasonable doubt:

First, that between April 1, 2004 and August 31, 2004, in the County of Clay,
State of Missouri, [Payne] knowingly touched [Payne’s] genitals with [Victim’s] anus,[2] and
Second, that such conduct constituted deviate sexual intercourse, and
Third, that at that time [Victim] was a child less than fourteen years old[.]

The verdict director also defined “deviate sexual intercourse.”

The jury found Payne guilty, and the court sentenced him to twenty-five years’ imprisonment. Payne appeals.

Standard of Review

Payne’s only challenge on appeal is to the form of the verdict director. But at trial, as noted, when asked if he had any objections to any of the instructions, Payne affirmatively stated that he had “no objection” to “the actual form” of any of the instructions. Rule 28.03 provides: “No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Nevertheless, “[u]npreserved claims of plain error may still be reviewed under Rule 30.20 if manifest injustice would otherwise occur.” State v. Wurtzberger, 40 S.W.3d 893, 898 (Mo. banc 2001).

“Plain error review is a two-step process. First, we determine whether or not the claimed error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. Error is plain if it is evident, obvious, and clear. If we do not find plain error on the face of the claim, we should decline to exercise our discretion to review the claimed error under Rule 30.20. If we do find plain error on the face of the claim, we have the discretion to proceed to the second step to consider whether a manifest injustice or a miscarriage of justice will result if the error is left uncorrected.”

State v. Brightman, 388 S.W.3d 192, 204 (Mo.App.W.D.2012) (quoting State v. Fincher, 359 S.W.3d 549, 553-54 (Mo.App.W.D.2012)).

Analysis

Payne argues that the trial court erred in submitting the verdict director to the jury because the instruction failed to sufficiently distinguish among the three incidents of sodomy described by Victim at trial. Thus, he argues, his right to jury unanimity pursuant to the Missouri Constitution 3 was violated, resulting in a manifest injustice. We disagree.

In State v. Celis-Garcia, 344 S.W.3d 150, 155-56 (Mo. banc 2011), the [56]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Nathan S.
Connecticut Appellate Court, 2025
PAUL R. ROSE, JR. v. STATE OF MISSOURI
522 S.W.3d 287 (Missouri Court of Appeals, 2016)
Phillip G. Payne v. State of Missouri
509 S.W.3d 830 (Missouri Court of Appeals, 2016)
Edward L. Hoeber v. State of Missouri
488 S.W.3d 648 (Supreme Court of Missouri, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
414 S.W.3d 52, 2013 WL 6170605, 2013 Mo. App. LEXIS 1418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-payne-moctapp-2013.