Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County 15SL-CR00587-01
Honorable Kristine A. Kerr
Honorable Mary K. Hoff, Judge.
Holmsley (Defendant) appeals from the judgment upon his
convictions following a jury trial for two counts of sodomy
in the first degree and two counts of attempted sodomy in the
first degree, in violation of Section 566.060, RSMo
2000. The trial court sentenced Defendant to
five years' imprisonment on each count, to be served
concurrently. We affirm.
and Procedural Background
in the light most favorable to the verdict, the following
evidence was adduced at trial:
In August 2014, Principia High School ("Principia")
was hosting sports camps at the high school that members of
the boys' football and soccer teams were attending.
During the camps, the boys resided in the dorms at Principia.
evening of August 9, 2014, the football team went out to see
a movie. After the movie ended, the boys went back to the
dorms where they eventually went to sleep.
early-morning hours of August 10, 2014, Defendant, along with
four other rising seniors, went to the dorm rooms of four
underclassmen, entered each victim's room, held each
victim down, and attempted to sodomize or sodomized him.
that day, the dean of students and the principal received
information about an incident in the boys' dorm. The dean
of students and the principal testified that they conducted
an informal investigation into the incident, which included
meeting with the five alleged perpetrators, including
Defendant, who had been involved in the incident. The boys
all admitted that they were involved. However, the principal
testified that, at the meeting, Defendant did not say
anything; he seemed very "distraught, " and he
agreed only by nodding his head to what the other boys were
dean of students testified that after speaking with the boys,
she spoke with some of the alleged victims. After speaking
with two of the victims, she called the school's lawyer,
who then called police. The dean also testified that
Defendant gave apology letters to her that were addressed to
two of the four victims.
State charged Defendant and his other four teammates with
four counts of sodomy and two counts of attempted sodomy.
Defendant pleaded not guilty on all counts and the case
proceeded to trial.
the presentation of evidence, the jury found Defendant guilty
as charged. The trial court sentenced Defendant to five years
in prison for each count, to run concurrently. This appeal
follows. Additional facts will be included in the discussion
section below, as needed, to further address the points on
review a trial court's denial of a motion for new trial
for an abuse of discretion. State v. Kilgore, 505
S.W.3d 362, 366 (Mo. App. E.D. 2016). Under this standard, we
must determine whether the trial court's ruling
constituted an abuse of discretion because it clearly offends
the logic of the circumstances or was arbitrary and
unreasonable. Id. Therefore, an abuse of discretion
is found when reasonable persons could not differ as to the
propriety of the action taken by the court. Id.
Point I, Defendant argues the trial court erred in overruling
Defendant's motion for new trial based on juror
misconduct because the State failed to rebut the presumption
of prejudice. We disagree.
not disturb a trial court's ruling on a motion for new
trial based on juror misconduct unless the trial court abused
its discretion. State v. West, 425 S.W.3d 151, 154
(Mo. App. W.D. 2014); State v. Moore, 366 S.W.3d
651, 652 (Mo. App. E.D. 2012). We defer to the trial court
because, "[t]he trial court hears the evidence
concerning the alleged misconduct and is, therefore, in the
best position to determine the credibility and intent of the
parties and to determine any prejudicial effect of the
alleged misconduct." Mathis v. Jones Store Co.,
952 S.W.2d 360, 364 (Mo. App. W.D. 1997). The trial court
abuses its discretion when its ruling is clearly against the
logic of the circumstances then before it and is so arbitrary
and unreasonable as to shock the sense of justice and
indicate a lack of careful consideration. St. Louis City.
v. River Bend Estates Homeowners' Ass'n, 408
S.W.3d 116, 134 (Mo. banc 2013). "In reviewing a trial
court's order denying a motion for a new trial, the
evidence is viewed in a light most favorable to the trial
court's order." Id. Moreover, every case
rests upon its own particular facts and a great deal of
discretion is vested in the trial judge "who sits as an
intimate observer of the whole chain of events."
Mathis, 952 S.W.2d at 364.
during jury deliberations, the trial court received a note
from the jury stating that "[o]ne of our jurors has
stated that she would be unable to convict (vote guilty)
unless she knows what the sentence would be. She says she
doesn't believe a 17-year-old should be tried as an
adult. Wants to be able to petition the Court for
lenience." The court responded with a note that stated,
"[t]he jury will be guided by the evidence as they
recall it and the instructions of law as provided by the
an hour later, the bailiff alerted the trial court that one
of the jurors had opened the door of the jury room and tried
to leave. The trial court told counsel that it wanted to
bring the jurors back into the courtroom and inquire of the
foreperson whether further deliberations would assist the
jury. Following a short recess, the trial court received a
note from the jury that stated, "we are making progress
after a break and additional discussion." After
discussion with the parties, the court overruled
Defendant's request for a mistrial and for further
inquiry and decided to allow the jury to continue
deliberating. Shortly thereafter, the jury returned its
polling the jury, Defendant asked to inquire of the one juror
that attempted to leave the jury room. The trial court
refused, stating that it was "not allowed to question
the jurors separately and independently, and otherwise pierce
their verdict." Defendant then asked that the trial
court inquire of the bailiff under oath as to what happened
when the juror tried to leave. The trial court agreed to
inquire, and the parties agreed that the trial court would
ask the questions.
bailiff testified that "[t]he door opened, and the tall
Juror Number 12 said she had to leave, she couldn't do it
no more, she was being forced into something she didn't
believe in." The bailiff testified that the juror was
"crying, very upset[, ]" and "[s]he kept
walking past me. I kept. . . guiding her back with a little
hug." The bailiff also testified that when the juror
came back out again, "I told her that she needed to
remain with her group, that, you know, she needed to comply,
and work as a team." The bailiff testified that she
never told the jurors what kind of verdict they had to reach
or that they had to agree with each other.
argued that this interaction interfered with the jury
process. The trial court stated that it was a very
challenging situation for the bailiff because she was charged
with keeping the jury together.
hearing argument, the trial court denied Defendant's
request to further interview the bailiff, but found that
"there has been a rebuttable presumption of prejudice
created and that the burden has shifted to the State to
produce evidence which overcomes it."
August 31, 2016, the trial court held an evidentiary hearing
on the matter. Juror No. 12 testified that she tried to leave
the jury room, but she did not leave because the bailiff told
her she would go to jail. She also testified that the bailiff
did not discuss anything about the case with her and did not
influence her verdict.
cross-examination, Juror No. 12 testified that she wanted to
leave the jury room, but that the bailiff was standing in the
doorway when she opened the door. She also testified that she
had no physical contact with the bailiff. She then reaffirmed
that her interaction with the bailiff had no effect on her
Q. Do you recall if the bailiff ever said to you that you
needed to comply?
A. Comply with what?
Q. I don't know, I'm just asking if she-if you recall
her using those words at all?
Q. No, you don't recall?
A. No, I don't recall.
Q. Do you recall if the bailiff ever said to you that you
need to go back in and work as a team?
A. Something like that. I don't know if that was the
exact words, but that I needed to stay in the room and we
needed to work together.
Q. Okay. So what you recall is she said you need to go back
in there or you'll go to jail; right?
A. That's backwards.
Q. Okay. You tell me what you remember?
A. I said I wanted to get out of here, I was very, very
upset, and she said if you come out you will go to jail.
Q. When she said that to you-
A. Then I went back in the room.
Q. Okay. When she said that statement to you that you just
told me about going to jail, what did you understand that to
A. That you can't just walk out of a jury deliberation
room, if you do that you're breaking a law.
Q. At that point you said that you went back into the room?
Q. And joined the rest of your jurors, is that correct?
Q. The incident or the contact that you had with the bailiff,
[ ], do you have any knowledge as to whether any of the other
jurors observed that interaction?
A. I don't know, they were in the room and there was the
Q. Okay. When you went back into the jury room you continued
deliberations; is that correct?
Q. . . . Did the statement that [the bailiff] made to you
have any affect (sic) on your verdict?
Q. . . . [Juror Number 12], if-if the bailiff had not stopped
you and turned you around and made that statement to you
about going to jail ...