Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin R.
W. SHEFFIELD, C.J.
Robert Gannaway, II, ("Defendant") appeals his
convictions, following a jury trial, for first-degree
statutory sodomy, see Section 566.062, and attempted
statutory rape, see Sections 566.032,
564.011. His first point claims his due process
rights were violated when the trial court allowed jurors to
submit questions to witnesses. His second point claims there
is not sufficient evidence to support his convictions.
Because his first point is not preserved for appellate
review, and sufficient evidence supports his convictions, we
One: Defendant's Constitutional Argument is Not
first point claims the trial court erred in overruling his
continuing objection to the process of allowing jurors to
submit questions, filtered through the court, to witnesses at
trial. Defendant does not argue that any specific question
was improper or prejudicial nor that any question solicited
improper or prejudicial information from a responding
witness. Rather, Defendant argues that the process
of allowing jurors to submit questions to witnesses in a
criminal case, by itself, violated Defendant's rights to
due process and equal protection of the law such that he was
deprived of a fair trial.
addressing the merits of Defendant's argument that the
process used by the trial court violated his constitutional
rights, it must first be determined whether the claims were
preserved for appellate review.
This Court has clearly set out that in order to preserve a
constitutional issue for appeal a party must (1) raise the
constitutional issue at the first available opportunity, (2)
specifically designate the constitutional provision claimed
to have been violated by express reference to the article and
section of the constitution or by quoting the provision
itself, (3) state the facts showing the violation; and (4)
preserve the constitutional question throughout for appellate
State v. Williams, 904 S.W.2d 103, 105 (Mo. App.
E.D. 1995) (internal quotations omitted); see also State
v. Knifong, 53 S.W.3d 188, 192 (Mo. App. W.D. 2001)
(applying standard to constitutional challenge of jury
Because an appellate court is not a forum in which new points
will be considered, but is merely a court of review to
determine whether the rulings of the trial court, as there
presented, were correct, a party seeking the correction of
error must stand or fall on the record made in the trial
court, thus it follows that only those objections or grounds
of objection which were urged in the trial court, without
change and without addition, will be considered on appeal.
State v. Davis, 348 S.W.3d 768, 770 (Mo. banc 2011)
(quoting State v. Thomas, 969 S.W.2d 354, 355 (Mo.
App. W.D. 1998)).
days prior to trial, the court advised both parties he
intended to allow jury questions. Then after voir
dire, Defendant objected to the juror questioning
procedure for a "couple" of reasons. First,
Defendant argued that the process was "a violation of
due process and a violation of [Defendant's] rights under
both the United States Constitution and the Missouri."
In support, Defendant argued that jurors could potentially
form negative inferences against Defendant if a question they
posed was not asked.
also claimed error because there was no "MAI approved
instruction for criminal procedure" that allowed jurors
to pose questions to witnesses. The court overruled
Defendant's objections reasoning that allowing jurors to
ask questions "increases their ability to remember the
evidence and follow the evidence."
argues now that he was exposed to various risks that other
defendants do not face as a result of this questioning, and
that the resulting "disparate treatment" violated
Defendant's rights to "procedural due process and to
equal protection of the laws as guaranteed by the
14th Amendment to the U.S. Constitution and
article I, Section 2 of the Missouri Constitution[.]"
several reasons, Defendant's constitutional challenge to
the process used by the trial court is not preserved for our
review. First, Defendant did not alert the trial court to the
particular constitutional provision that he claimed was being
violated by providing either citations to the specific
article and section or simply quoting the provision. See
Knifong, 53 S.W.3d at 193 (holding that a challenge as
to a verdict director being unconstitutionally vague was not
sufficiently specific where counsel argued the verdict
director "violates defendant's due process
rights" but did not discuss a specific provision of the
Missouri or United States Constitution); State v.
Tisius, 362 S.W.3d 398, 405 (Mo. banc 2012) (a
constitutional claim of error must include citation to a
specific constitutional section to be preserved for appellate
review). He merely ...