Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis Honorable
Philip D. Heagney.
S. ODENWALD, JUDGE
Antonio Rycraw ("Rycraw") appeals from the judgment
of the trial court entered after a jury trial. The jury
convicted Rycraw on four counts of statutory sodomy and two
counts of sexual misconduct against Victim, who was between
five and eight years old when the incidents occurred. The
jury acquitted Rycraw on one count of furnishing pornography
to Victim. Rycraw argues that the trial court erred in four
respects: (1) in refusing to replace a juror who "dozed
off during evidence; (2) in precluding evidence that Victim
had sexual intercourse with a third party; (3) in precluding
evidence that Victim had viewed pornography with her brother;
and (4) in submitting multiple-act verdict directors for
Counts I-V, which deprived Rycraw of his constitutional right
to a unanimous jury verdict.
no trial-court error on Rycraw's first three points. The
record shows that the trial court properly questioned the
juror and reasonably concluded that the juror could fulfill
her duties. The trial court also did not abuse its discretion
in prohibiting evidence that Victim had intercourse with a
third party or viewed pornography because the admission of
such evidence was prohibited by the rape shield statute and
was not prejudicial. With respect to Rycraw's fourth
point, the trial court properly submitted the jury
instructions for Counts I, III, and V, but erred in
submitting the jury instructions for Counts II and IV because
the verdict directors for those counts failed to ensure a
unanimous jury verdict. Accordingly, we reverse the trial
court's judgment with respect to Counts II and IV, but
affirm in all other respects.
and Procedural History
lived in a one-story home with three bedrooms, one bathroom,
and a basement. In 2009, five-year-old Victim moved into the
home with her mother, father, and siblings. Victim shared one
bedroom with her two sisters, while Rycraw had his own
bedroom. Rycraw's sister (who also lived in the home) had
a relationship with Victim's mother, and Victim referred
to Rycraw as "Uncle Tony."
years later, then eight-year-old Victim attended a school
program that taught students about inappropriate touching.
After the program, Victim reported that Rycraw had touched
her inappropriately and the school nurse called the
a forensic interviewer from the Child Advocacy Center
conducted a videotaped interview with Victim (“CAC
interview"). Victim described several inappropriate
incidents involving Rycraw. Victim did not describe these
incidents chronologically in the video, but the forensic
interviewer pressed Victim to identify each act as the
"first time" in Rycraw's bedroom, the
"second time" in Rycraw's bedroom, or in the
regard to the first incident, Victim reported that she was
sitting fully clothed on the bed in Rycraw's bedroom
watching a movie. Rycraw and other children were in the
bedroom, but at some point the other children left. Victim
recalled that Rycraw, who was laying on the bed, unzipped his
pants and exposed his "private part." Rycraw reached into
Victim's pants and "pushed" on the inside of
her vagina; Rycraw's other hand grabbed his exposed
genitals. Victim ran away and told her parents about the
incident, but her parents simply told her to stay away from
Rycraw. According to Victim, Rycraw threatened to shoot her
in the head if she told anyone. Victim tried to stay out of
Rycraw's bedroom after that incident.
also reported a second incident that occurred in Rycraw's
bedroom. This time, Victim told the forensic interviewer that
she was sitting on the couch in another room in the house
when Rycraw "tricked" her into coming into his
bedroom by asking her to bring the cat into his
bedroom. Victim said that when she gave Rycraw the cat,
Rycraw dropped the cat, touched her vagina, and asked her if
she wanted to have sex. Rycraw then pulled out his
"private part" and put it in Victim's mouth.
Victim described an encounter that occurred in the only
bathroom in the home. Victim had to use the bathroom badly,
but Rycraw was showering at the time, so Victim closed her
eyes and entered the bathroom. While in the bathroom, Rycraw
allegedly showed Victim a "nasty video" on his cell
phone depicting pornography. Victim said that while she was
in the bathroom, Rycraw forced her to touch his
"balls" with her hand. Victim's manual
demonstration suggested that she was moving her hand up and
down on Rycraw's penis. Victim said she saw a "white
thing" come out in the shower and the encounter ended.
Victim was unclear whether the two acts (viewing of
pornography and hand-to-penis contact) occurred at the same
time or at different times, but said both acts took place in
the same bathroom.
State charged Rycraw with four counts of felony first-degree
statutory sodomy for the inappropriate contact (Counts I,
III, V, and VII), two counts of misdemeanor sexual misconduct
for genital exposure (Counts II and IV), and one count of
furnishing pornography to a minor (Count VI).
State moved in limine to prohibit the defense from eliciting
evidence that Victim allegedly viewed a pornographic video
with her brother. The prosecutor asserted that Victim did not
view any actual pornography, but only saw "the title
menu of the porn DVD." Defense counsel replied that the
evidence was relevant because Rycraw was charged with
furnishing pornographic materials to Victim. The trial court
granted the State's motion, reasoning that Victim's
viewing of a pornographic DVD menu was not relevant to what
Victim might have seen in the bathroom with Rycraw.
the protections of Missouri's rape shield statute, the
State also moved in limine to prohibit the introduction of
any evidence that Victim had sexual intercourse with a third
party. The trial court preliminarily granted the State's
motion in limine. Rycraw subsequently filed a written motion
under Section 491.015 urging the trial court to reconsider. The
trial court denied Rycraw's motion. Defense counsel
presented an offer of proof consisting of testimony from
Rycraw's brother, Leroy Rycraw
testified that, in May or June of 2011, he heard noise on the
side of the home. Leroy saw his nephew and Victim outside,
through a window. The nephew "had [Victim] bent over,
and he was humping on her." Leroy clarified that
"humping" meant intercourse. After Leroy's
offer of proof, defense counsel argued that Leroy's
testimony fell within the third exception in the rape shield
statute: evidence of immediate surrounding circumstances of
the alleged crime. The prosecutor responded that Leroy's
testimony would only tarnish Victim's reputation,
emphasizing that "the entire point of Section 491 is to
prevent that." The trial court precluded the testimony
from being admitted into evidence at trial.
was ten years old when she testified at trial. Victim's
trial testimony was scattered, and she did not express a
clear order of events. Victim recalled that Rycraw put his
hands in her pants and touched her "private area"
when she was in his room watching television. Victim next
testified about the bathroom incident. Rycraw was taking a
shower while Victim had to use the restroom. Victim entered
the bathroom to use the toilet. While in the bathroom, Rycraw
allegedly showed her pornography on his phone. Next, Victim
mentioned "the cat thing, " where Rycraw asked
Victim to bring him the cat. Victim testified that Rycraw
started touching her, and she ran. At the end of Victim's
testimony, the prosecutor asked Victim if Rycraw had touched
any other part of her body. Victim replied, "No, but he
made me touch something of his." Victim explained that
her hands touched Rycraw's "front area" and
that this contact happened in "the room." Victim
remembered moving her hand up and down until she saw
"white stuff." When the prosecutor asked if Victim
had touched any other part of Rycraw's body, she replied,
"He tried to make me suck it." Victim explained
that her lips touched Rycraw's "front area."
Victim did not explain where this penis-to-mouth contact
State also played the recorded CAC interview for the jury.
While the video was being played, defense counsel heard Juror
Washington snort aloud and saw another juror attempt to wake
Juror Washington with a slap. After the video was played,
defense counsel informed the trial court that Juror
Washington "was asleep for at least part" of the
CAC interview. Thus, defense counsel moved to replace Juror
Washington with an alternate juror. The prosecutor
acknowledged seeing Juror Washington's eyes closed and
requested that the trial court question the juror. Juror
Washington was questioned outside the presence of the rest of
[Trial court]: ... Ms. Washington, about when we were
watching that tape or the DVD this afternoon from the CAC,
and at one point it looked like you had dozed off. Had you?
[Juror]: Yes, sir.
[Trial court]: Okay. And do you know how much of the tape or
how much of the DVD you might have missed?
[Juror]: My fellow jurors said about two seconds. I was-I
work nights. I'm trying to get used to this being up.
[Trial court]: That makes it hard?
[Juror]: Yes, sir. I'm going to do better. I didn't
miss a lot. I got my notes and everything. I'm sorry.
[Trial court]: Okay. Thank you. And I just want to check with
you. Do you believe-and there is no right or wrong answer
We've got alternate jurors if we need somebody to step up
and fill in for you, but do you believe that you've been
able to pay attention to the evidence and to hear and see the
evidence that's been presented so far?
[Juror]: Yes, sir, I do believe.
[Trial court]: Okay.
[Juror]: Yes, sir, and yes, sir and yes, ma'am.
[Trial court]: And do you feel that given that you dosed
[sic] off for a little bit watching the CAC DVD that you have
the information you need to continue to serve as a juror or
you don't have that information?
[Juror]: I have that information. I have that information,
and I have that information over there, young man.
[Trial courts Okay. Let me just check and see.
[The prosecutor], do you have any questions that you want to
ask Ms. Washington?
[Prosecutor]: The other jurors said it was about two seconds?
[Prosecutor]: So you don't feel like you fell asleep for
like a couple of minutes?
[Prosecutor]: Nothing further.
[Defense counsel]: Ms. Washington, is it fair to say you
don't know how long you were asleep because you were
[Juror]: No, I don't think that's fair to say that,
because I know as soon as I did it, they touched me and I
kind of caught myself. ...