Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Jackson County, Missouri The
Honorable Jack R. Grate, Judge
Before: Cynthia L. Martin, Presiding Judge, Lisa White
Hardwick, Judge and Alok Ahuja, Judge
CYNTHIA L. MARTIN, JUDGE
Watson ("Watson") appeals his conviction of
statutory sodomy in the first degree following a jury trial.
Watson argues that the verdict director violated his right to
a unanimous jury verdict because it failed to specify a
particular incident of sodomy. We affirm.
and Procedural Background
2003, Victim was four years old and lived in Independence,
Missouri with her mother, siblings, and other relatives.
Watson was fourteen years old and lived in the same house.
During and about this time period, multiple sexually-related
incidents occurred between Watson and Victim.
later, Victim shared these incidents with a counselor and
then the police. Watson was eventually charged by indictment
for one count of statutory sodomy in the first degree (Count
I) and one count of attempted statutory sodomy in the first
degree (Count II). Count I charged that Watson placed his
hand on Victim's genitals, and Count II charged that he
pushed Victim's head towards his genitals.
trial, Victim testified that on multiple occasions, when the
kids of the house were going to bed, Watson would ask Victim
if she was "going to stay up for [him]" or if she
was "going to be up later." Victim testified that
this occurred more than ten times and "seemed like every
night." Victim described these occurrences similarly.
Later in the night, Watson would bring Victim out to the
couch in the living room, and take off his and her pants.
Victim would lay on the couch with her back to Watson's
chest, and they would have a blanket over them and the
television on in front of them. Victim would not be able to
see what Watson was doing behind her but remembered that it
hurt. Victim testified that she did not know what part of her
body Watson penetrated, and that she was unsure whether
Watson was using his penis or his finger. Victim also
testified that, on another occasion, Watson showed Victim his
penis and had her lick it. Victim knew this occurred on a red
in the trial, the jury watched a video interview between
Watson and Detective Jason Clancy. At some point during the
interview, Watson admitted to inserting his finger into
Victim's vagina one time. [Appellant's Brief, p. 7;
Respondent's Brief, p. 7] Watson also stated that he tried
to get Victim to perform oral sex on him.
verdict director for Count I required the jury to find that
Watson "knowingly placed his finger in [Victim's]
vagina." The verdict director for Count II required the
jury to find that Watson pushed Victim's head toward his
penis. The jury convicted Watson on Count I, but acquitted
him on Count II. The jury recommended a sentence of
twenty-five years imprisonment. The trial court sentenced
Watson to ten years imprisonment. Watson filed this timely
raises one point on appeal. Watson claims that the trial
court plainly erred in submitting the verdict director for
Count I to the jury because it failed to specify a particular
incident of alleged statutory sodomy after the State
presented evidence of multiple incidents of sodomy. According
to Watson, this made it possible that the jury failed to
unanimously find that the same incident of sodomy occurred,
which violated his right to a unanimous jury verdict.
concedes that he failed to object to the verdict director and
requests plain error review. "An unpreserved claim of
error can be reviewed only for plain error, which requires a
finding of manifest injustice or a miscarriage of justice
resulting from the trial court's error." State
v. Celis-Garcia, 344 S.W.3d 150, 154 (Mo. banc 2011).
"For instructional error to constitute plain error, the
defendant must demonstrate the trial court 'so
misdirected or failed to instruct the jury that the error
affected the jury's verdict.'" Id.
(quoting State v. Dorsey, 318 S.W.3d 648, 652 (Mo.
I, section 22(a) of the Missouri Constitution guarantees the
right to a unanimous jury verdict. Celis-Garcia, 344
S.W.3d at 155. "For a jury verdict to be unanimous,
'the jurors must be in substantial agreement as to the
defendant's acts, as a preliminary step to determining