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State v. Watson

Court of Appeals of Missouri, Western District, Second Division

February 28, 2017

STATE OF MISSOURI, Respondent,
v.
ANTHONY J. WATSON, Appellant.

         Appeal 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

         Anthony 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.

         Factual and Procedural Background[1]

         In 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.

         Years 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.

         At 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 bunk bed.

         Later 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][2] Watson also stated that he tried to get Victim to perform oral sex on him.

         The 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 appeal.

         Analysis

         Watson 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.

         Watson 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. banc 2010)).

         Article 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 ...


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