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State v. Escobar

Court of Appeals of Missouri, Western District, First Division

June 20, 2017


         Appeal 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.

          GARY D. WITT, JUDGE.

         Appellant 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, [1] and sentenced to nine years of incarceration on each count to be served concurrently. Escobar now raises five points on appeal. We affirm.

         Factual Background

         The 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.

         A.E. 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.

         Forensic 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.

         The 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 with Escobar.

         The 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.

         Standard of Review

         Each of 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[2] ("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).

         However, 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 error." Id.

         Points One and Two

         In 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 error.

         The 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 ...

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