Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of the City of St. Louis. Hon. Steven R. Ohmer.
FOR APPELLANT: Gwenda R. Robinson, St. Louis, MO.
FOR RESPONDENT: Chris Koster, Attorney General, Richard A. Starnes, Asst. Attorney General, Jefferson City, MO.
KURT S. ODENWALD, P.J. and GARY M. GAERTNER, JR., J., concur.
ROBERT G. DOWD, JR., Judge.
Marcus Weaver appeals from the judgment entered on his convictions after a jury trial on three counts of statutory sodomy in the first degree, four counts of statutory sodomy in the second degree, one count of child molestation in the first degree, two counts of misdemeanor child molestation and four counts of incest. We affirm as modified, with correction of two clerical errors in the judgment and sentence.
The sufficiency of the evidence is not challenged on appeal. Viewed in the light most favorable to the verdicts, the evidence showed that Weaver repeatedly engaged in sexual misconduct in various ways with his step-daughter over the course of several years. When confronted with the allegations bye police, Weaver initially denied that he had ever touched the victim in a sexual way, but also admitted that he drank a lot and that, if it happened,
he did not remember it. Eventually, Weaver admitted to police that he had touched the victim's vagina and buttocks with his hand and licked her vagina. At trial, however, he testified that he had never touched the victim inappropriately and claimed he had falsely confessed.
In Point I, Weaver claims the State improperly referred to his criminal proclivities and speculated about his propensity to commit future crimes during the following portion of its closing argument:
Yesterday defendant told you that when he confessed to the police, that he made a false confession because he would do anything to save his family. This may surprise you, but in a way I agree with him. Defendant's confession may save his family because on your finding him guilty of the crimes that he perpetrated on a child, an innocent child, the family will be able to move on. [The victim] will remain safe. [Her sister] will be safe. And any future child whom defendant would have a sexual interest . . .
At this point, defense counsel objected that this was " improper argument," which was overruled. The court then admonished the jury that this was argument and they should be guided by the evidence as they recalled it and by the court's instructions. In Weaver's motion for new trial, the asserted basis for the objection changed to " inflammatory and irrelevant."
As the State points out, comments about the victim's and her sister's safety were permissible references to Weaver's stated reason for confessing to the crimes. As for the brief reference to Weaver's propensity to commit future criminal acts, the objection " improper argument" is not specific enough to preserve the issue for appellate review. State v. White,870 S.W.2d 869, 873 (Mo. App. W.D. 1993). Moreover, Weaver has not maintained the same grounds for the objection at trial, in his post-trial motion and on appeal. " The general rule with respect to preservation of error is that an objection stating the grounds must be made at trial, the same objection must be set out in the motion for new trial and must be carried forward in the appeal brief to preserve it." State v. Petty,967 S.W.2d 127, 140 (Mo. App. E.D. 1998). Thus, we can review only for plain error, which is rarely found in closing argument. State v. McFadden,369 S.W.3d 727, 747 (Mo. banc 2012). Reversal is required only if the comment had a decisive effect on the jury's determination. Id. The defendant bears the burden to prove the decisive significance of the comment, ...