Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Jackson County, Missouri The
Honorable Kevin D. Harrell, Judge
Mark D. Pfeiffer, Chief Judge, and James Edward Welsh and
Alok Ahuja, Judges.
D. PFEIFFER, CHIEF JUDGE.
Jason Berry ("Berry") appeals from his convictions
for the class B felony of burglary in the first degree,
§ 569.160; the unclassified felony of rape in the
first degree, § 566.030; and the class B felony of
sexual abuse in the first degree, § 566.100, following a
jury trial in the Circuit Court of Jackson County, Missouri
("trial court"). Berry claims the trial court
plainly erred in instructing the jury and in sentencing. We
affirm Berry's convictions, vacate his sentence on Count
IV (first-degree sexual abuse), and remand with directions to
resentence Berry consistent with today's ruling as to
Count IV only.
and Procedural Background
was living with his girlfriend and their children in a house
about 200 feet from E.W.'s home in Kansas
City, Missouri. On the morning of May 23, 2014, when
Berry's girlfriend left to take their son to school at
8:00 a.m., Berry was home asleep. When she got back home at
9:25 a.m., Berry was gone, and the back door was unlocked,
which was unusual because she kept the doors locked. Berry
returned about 9:45 a.m.
same morning, E.W. returned home after taking care of her
elderly mother. She was sitting down to eat her breakfast
when she heard someone fiddling with the lock on the front
door. She went to the door and asked the person what he
wanted. The man, whom E.W. identified as Berry, opened the
door and entered the house. E.W. again asked Berry what he
wanted, and he told her, "I'll show you what I
want." Berry started pulling at E.W.'s clothing. She
tried pushing him and kicking him, but Berry pushed E.W. onto
the couch on her back and started taking off her pants and
underwear. Berry then penetrated E.W.'s vagina with his
penis, touched her breast with his mouth, and choked her with
his hands. Berry then told E.W. to lick his penis, and when
she moved her head out of the way, he started choking her.
Then, E.W. fainted.
E.W. woke up, Berry was gone. She called the police. Officer
Prough and another officer were dispatched to E.W.'s home
on a report of rape. When the officers arrived, Officer
Prough contacted E.W., and she told him that a man had forced
his way into her home and raped her. She described the man as
a black male with collar length hair and facial hair, and he
referred to himself as "Jason." E.W. related to
Officer Prough that Berry forced his way into her living
room, pushed her in, pulled off her clothes, made her insert
his penis into her mouth, kissed and sucked on her breasts,
choked her, and inserted his penis into her vagina. Officer
Prough observed that E.W. was "highly upset" and
lost consciousness multiple times while he was talking to
Prough observed that the screen door to E.W.'s home was
slit and the exterior handle appeared to be pulled away from
the door frame. Berry's fingerprints were recovered from
the exterior and interior sides of the storm door. E.W.'s
living room was in disarray. A pair of women's white
underwear was on the floor near the couch. There was a large
stain on one of the couch cushions.
was taken to the hospital. An examination revealed that she
had petechiae markings on the right and left side of her
neck. While E.W. was at the hospital, a detective presented
her with a photographic lineup, from which she identified
Berry as her assailant.
Prough had additional officers canvass the area to see if
they could find a male matching the description given by E.W.
Berry was interviewed by police and claimed that he was home
all day and had not left the house. Later, he said he left
the house the night before at 6:00 p.m. to take his uncle to
Kansas City police crime laboratory analyzed evidence that
had been collected during the investigation of the case.
E.W.'s vaginal, oral, and external genitalia were all
positive for a protein indicative of the presence of semen.
Tests run on E.W.'s right breast swab indicated the
presence of saliva. DNA testing on the right breast swab
revealed both E.W.'s and Berry's DNA were present.
The frequency of the DNA profile that matched Berry's was
one in forty-five quintillion unrelated individuals. Testing
of E.W.'s vaginal swab identified Berry's DNA
State charged Berry by indictment with one count of the class
B felony of burglary in the first degree, one count of the
unclassified felony of rape in the first degree, one count of
the unclassified felony of sodomy in the first degree, and
one count of the class C felony of sexual abuse in the first
degree. An information in lieu of indictment was subsequently
filed, charging Berry as a prior and persistent offender.
While Berry was in jail awaiting trial, he called his
girlfriend and told her that he needed her to testify that he
was with her when she took their son to school on the morning
of the assault.
testified at trial in his own defense and claimed that he did
not rape, sodomize, or sexually abuse E.W. He stated that he
was in E.W.'s house in 2012 but not on the day she was
jury found Berry guilty of burglary in the first degree, rape
in the first degree, and sexual abuse in the first degree,
and not guilty of sodomy in the first degree. The trial
court, having previously found Berry was a prior and
persistent offender, subsequently sentenced him to thirty
years' imprisonment on the burglary charge, seventy
years' imprisonment on the rape charge, and fifteen
years' imprisonment on the sexual abuse charge, to be
Point I - ...