State v. Ralston

DON E. BURRELL, J.

I concur in points I and II of the principal opinion, that the Count III verdict-directing instruction was clearly erroneous, and that Defendant suffered no manifest injustice based on his double-jeopardy argument. I respectfully dissent only from the majority’s holding that Defendant also failed to prove that he suffered a *524manifest injustice based on a verdict unanimity problem.

In Celis-Garcia, after finding the challenged verdict-directing instruction clearly erroneous, our high court further found that the error resulted in a manifest injustice because even though the jury could have disbelieved the defendant’s evidence, “the fact that [the defendant] relied on evidentiary inconsistencies and factual improbabilities respecting each specific allegation of hand-to-genital contact ma[de] it more likely that individual jurors convicted [her] on the basis of different acts.” 344 S.W.3d at 159 (emphasis added). The defendant argued that different surrounding circumstances — such as one of the locations being visible to the public and another being situated away from the home on different property — made each event unlikely for its own reasons. Id. at 159. The Court distinguished such an argument from cases in which the defendant simply alleges that the victim has fabricated the entire story. Id. at 158.

In State v. LeSieur, 361 S.W.3d 458, 464 (Mo.App. W.D.2012), another case where the instructions failed to require the jury to consider specific acts, the western district of our court distinguished the manifest injustice finding in Celis-Garcia on that very ground, finding that LeSieur did not attack “any specific details of the separate incidents of statutory rape” but instead “argued generally that the [v]ictim had fabricated all of the allegations.” (Emphasis as stated in original.) Because the defense to the separate incidents did not vary in LeSieur, the court found “it unlikely that individual jurors convicted [the defendant] based on different acts.” Id. at 465.

Here, Defendant denied that he ever referred to his testicles as “baby brains” and exposed them to J.L. inside the residence. In contrast to that outright denial, Defendant admitted exposing his penis to J.L. on one specific occasion while urinating outside. His defense to that incident was not a claim that it did not occur; his defense was that the exposure was accidental. And defense counsel admitted in his closing argument that Defendant had inappropriately called J.L. a “cock gazer” when he realized that J.L. had observed him.

Defense counsel also pointed out to the jury that when J.L. had been previously interviewed, he made no allegation about “[Defendant] showing his genitals to [J.L.]” or anything “inappropriate like that.”20 That particular attack on J.L.’s credibility was, of course, relevant to all of J.L.’s claims. But defense counsel’s argument against the outdoor exposure claim was different. While admitting that Defendant’s statement about J.L. being a “cock gazer” was inappropriate, he argued that Defendant’s exposure of his genitals to J.L. on that single occasion was an accident that happened when Defendant “was outside in the yard doing work” and that the jury should consider the accidental nature of the exposure when deciding whether the State had proven the elements of the crime. Cf. State v. Beine, 162 S.W.3d 483, 486-87 (Mo. banc 2005) (where the Court found insufficient evidence of “alarm” or “affront” to support the convictions and — in finding a former version of section 566.083 to be unconstitutional— *525stated that an accidental exposure of genitalia by a man to boys in a public restroom without more egregious facts would constitute “constitutionally protected conduct”).

As a result, I reluctantly conclude that the unanimity problem present here prejudiced Defendant in the same manner found to have produced a manifest injustice in Celis-Garda. Because the Count III verdict director did not address the fact that different acts constituting indecent exposure had been alleged, I cannot say that the resulting verdict necessarily reflected a rejection of the “accidental” defense to the outdoor allegation. Given the evidence presented, and the language of the verdict director, one or more jurors could have discredited J.L.’s testimony about the “baby brains” incidents while believing that the outdoor exposure corroborated by Defendant had occurred. If they further believed that Defendant’s admitted use of the phrase “cock gazer” demonstrated an awareness that J.L. was likely to be affronted or alarmed, those jurors could rightly have convicted Defendant of sexual misconduct based on the outdoor incident. One or more of the other jurors could have accepted J.L.’s testimony that he saw Defendant’s genitals in both of the manners described, but they could have believed Defendant’s testimony that the only outdoor exposure that occurred was accidental — thereby voting to convict on the basis of the indoor incident(s) only. Such a split would result in the return of a guilty verdict on the instruction as presented, but that result would not satisfy the constitutional requirement that the jury unanimously convict Defendant based on the same event.

Because the Count III verdict director failed to address the indoor and outdoor incidents separately, the verdict returned cannot tell us whether all jurors agreed that the same qualifying offense took place. And because the defenses asserted to the indoor and outdoor events differed, I cannot conclude that all of the defenses asserted by Defendant were necessarily rejected by all of the jurors, thereby making it “more likely that individual jurors convicted [him] on the basis of different acts.” Celis-Garcia, 344 S.W.3d at 159.

Regarding the majority’s reliance on Barmettler v. State, 399 S.W.3d 523, 524 (Mo.App.E.D.2013), the fact that there is no indication in that case that the movant’s trial defenses varied according to the specific incidents alleged leads me to reject the suggestion that Barmettler is more analogous to the instant case than Celis-Garcia. And in contrast to what is reported in Barmettler, J.L.’s reference to “baby brains” was a particularly unique and memorable one — it was not a vague reference to “other uncharged and ongoing incidents of abuse.” Id. at 530. Finally, the State’s admittedly appropriate rebuttal closing argument reference to J.L.’s “baby brains” claim also served to remind the jury — immediately before it began its deliberations — that J.L. claimed Defendant had indecently exposed his genitals by the use of both the indoor and outdoor methods.

My reluctance in finding that the type of manifest injustice found in Celis-Garda also occurred here is based upon: (1) the difficulty of determining from a cold transcript what individual jurors were “more likely” to have believed in a particular case (without engaging in pure speculation); and (2) my fear that any perceived short-term gains produced by our attempts to peer inside the jury deliberation room will be outweighed by the resulting long-term harm it does to our justice system.

Nonetheless, we are the “error-correcting court,” not the “law-declaring court,” see State v. Freeman, 269 S.W.3d 422, 430 (Mo. banc 2008) (Wolff, J., concurring), *526and we are bound to follow the most recent applicable precedent of our supreme court, State v. Keightley, 147 S.W.3d 179, 184-85 (Mo.App. S.D.2004). I will not be disappointed if I am wrong, but I simply cannot see any meaningful distinction between the instant case and what was held to have produced a manifest injustice in Celis-Garcia. As a result, I would grant Defendant’s third point, affirm the judgment as to counts I and II, reverse and vacate the existing judgment, direct the trial court to enter an amended judgment imposing convictions and sentences only on counts I and II, and remand the Count III charge for further proceedings in a manner consistent with this court’s opinion.

. An "[(Intensive in-home specialist,” Cristin Martinez, testified for the defense that she had worked with this family for four weeks sometime near the time that all the rest of the children had decided to ... move to [their aunt's house], and during that time she spoke with J.L. She testified that J.L. told her that he did not want to live in the home because of Defendant’s drinking, "there was a lot of arguing,” and "the house stinks.” She did not recall J.L. having expressed any other concerns.