Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Jackson County, Missouri The
Honorable Bryan Round, Judge.
Before: Gary D. Witt, Presiding Judge, Alok Ahuja, Judge and
Edward R. Ardini, Jr., Judge.
D. WITT, JUDGE.
Gemner Escobar ("Escobar") appeals from his
convictions following a jury trial before the Circuit Court
of Jackson County. Escobar was accused by his stepdaughter of
repeated acts of molestation. Escobar was found guilty of two
counts of first-degree child molestation, section 566.060,
sentenced to nine years of incarceration on each count to be
served concurrently. Escobar now raises five points on
appeal. We affirm.
victim, A.E., was born in the year 2000 and since her birth,
Escobar, her stepfather, has been the father figure in her
life. In 2012, A.E.'s mother was working as a nurse's
assistant at night. At this time, A.E. was twelve years old,
and Escobar was responsible for waking up A.E. in the morning
to get ready for school because A.E.'s mother was still
at work. A.E. testified that, beginning in November of 2012,
Escobar entered her bedroom and got into bed with her each
morning. He got under the comforter and touched A.E. under
the clothing she wore to bed, touching her breasts, thighs,
and sometimes her vagina with his hands. The touching would
last for about fifteen minutes until A.E. was told to get up
and get ready for school. A.E. testified this touching
repeatedly occurred thereafter, almost every morning that she
had school, and continued until Escobar's sons moved into
the home with them in April of 2013.
first reported this abuse to a counselor at her school,
Alesha Roberson ("Roberson") in December of 2013.
A.E., who was then in seventh grade, told Roberson she was
being abused by her step-father. She told Roberson about the
abuse in the mornings and said that it also occurred at
night. A.E. was afraid to tell her mother about the abuse
because Escobar and her mother already fought and she did not
want her mother to be hurt. A.E. also explained that she did
not report the abuse because she did not want to be
responsible for breaking up the family. A.E. agreed with
Roberson, however, that she would tell her mother. Roberson,
as a mandated reporter, called the Division of Family
Services and informed them of the abuse.
Examiner Erin Waterson ("Waterson") interviewed
A.E. regarding the abuse. A.E. also told Waterson that
Escobar came into her bedroom in the mornings and would rub
her breasts and thighs. The interview was recorded, and the
recording was played for the jury at trial.
defense presented no witnesses or evidence. Escobar did argue
in closing that A.E.'s allegations were not credible.
Escobar's theory in closing argument was that A.E. lied
because she wanted to get her mother out of her relationship
State submitted to the jury two counts of first-degree child
molestation. Counts I and II were based on the identical
allegation that Escobar touched A.E.'s breast for the
purpose of arousing or gratifying his sexual desire. Count I
was for the time period between November 1, 2012 and February
1, 2013. Count II was for the time period between February 2,
2013 and April 30, 2013. The jury found Escobar guilty on
both counts, and Escobar was sentenced to nine years of
imprisonment on each count to run concurrently. Escobar now
appeals. Additional facts will be presented in the analysis
section below as necessary.
Escobar's five points on appeal raise allegations of
plain error regarding the instructions submitted to the jury.
Escobar failed to object at trial to any of the instructions
he now claims on appeal were deficient. The failure by
Escobar to object to a jury instruction constitutes a waiver
of that claim of error. See Rule 28.03 ("Counsel
shall make specific objections to instructions or verdict
forms considered erroneous. No party may assign as error the
giving or failure to give instructions or verdict forms
unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter objected
to and the grounds of the objection [ . . . ]. The objections
must also be raised in the motion for new trial in accordance
with Rule 29.11"); see also State v. Vaughn, 11
S.W.3d 98, 105 (Mo. App. W.D. 2000).
Rule 30.20 provides that "plain errors affecting
substantial rights may be considered in the discretion of the
court when the court finds that manifest injustice or
miscarriage of justice has resulted therefrom."
In applying plain error review, this Court frequently uses a
two-step inquiry. First, the Court must determine whether the
claimed error is, in fact, "plain error[ ] affecting
substantial rights." Rule 30.20. Substantial rights are
involved if, facially, there are significant grounds for
believing that the error is of the type from which manifest
injustice or miscarriage of justice could result if left
uncorrected. Id. An error is plain if it is
"evident, obvious, and clear." State v.
Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). In the
realm of instructional error, plain error exists when it is
clear that the trial court has so misdirected or failed to
instruct the jury that manifest injustice or miscarriage of
justice has resulted. State v. Ousley, 419 S.W.3d
65, 75 (Mo. banc 2013). Instructional error is plain error
when it is apparent the error affected the verdict. State
v. Miller, 372 S.W.3d 455, 470 (Mo. banc 2012). Second,
if plain error affecting substantial rights is found, the
Court determines whether the error actually did result in
manifest injustice or a miscarriage of justice.
Baumruk, 280 S.W.3d at 607-08.
State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014).
The defendant bears the burden to prove that instructional
error has produced manifest injustice. State v.
Berry, 506 S.W.3d 357, 362 (Mo. App. W.D. 2016).
"Instructional error seldom rises to the level of plain
One and Two
Points One and Two on appeal, Escobar argues that the trial
court plainly erred, in violation of his right to a unanimous
jury, under Article I, section 22(a) of the Missouri
Constitution, because this was a multiple-act case and Jury
Instructions 7 (Count I) and 11 (Count II) allowed the jury
to find Escobar guilty of first-degree child molestation
without unanimously agreeing on a specific incident of abuse,
thereby resulting in a miscarriage of justice. Related to
this claim, in Point Three Escobar argues that the trial
court also erred in failing to submit to the jury a unanimity
instruction. As no objections to these claimed errors were
raised at trial, the claims can only be reviewed for plain
trial court submitted Instruction 7 to the jury, which read:
As to Count I, if you find and believe from the evidence
beyond a reasonable doubt: First, that between and including
November 1, 2012 and February 1, 2013, in the County of
Jackson, State of Missouri, the defendant touched the breast
of A.E., and
Second, that defendant did so for the purpose of arousing or
gratifying the defendant's own sexual desire, and
Third, that A.E. was a child less than fourteen years old,
then you will find the defendant guilty under Count I of
child molestation in ...