Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Carlton

Court of Appeals of Missouri, Eastern District, First Division

September 5, 2017

STATE OF MISSOURI, Respondent,
v.
ROBERT EARL CARLTON, JR., Appellant.

         Appeal from the Circuit Court of St. Francois County Honorable Troy K. Hyde

          KURT S. ODENWALD, Judge

          Introduction

         Robert Earl Carlton, Jr. ("Carlton") appeals from the trial court's judgment, entered after a jury convicted him on two counts of first-degree child molestation. On appeal, Carlton argues that the trial court plainly erred in submitting verdict directors that did not comply with State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011), thereby failing to ensure his constitutional right to a unanimous jury verdict. Because the verdict directors, as given, did not ensure juror unanimity as to the criminal conduct supporting Carlton's convictions, his constitutional right to a unanimous jury verdict was violated. Accordingly, we reverse the trial court's judgment and remand the case for a new trial.

          Factual and Procedural History

         The State charged Carlton, as prior offender, with two counts of first-degree statutory sodomy. Both charges alleged that Carlton forced Victim to "touch his penis with her hand." The case proceeded to a jury trial.

         At trial, Victim testified that she considered Carlton a part of her extended family. Victim recalled that, when she was seven years old, Victim's mother sent her and her older brother to Carlton's apartment every day before school. While waiting for the bus, Carlton would instruct Victim's brother to go outside and watch for its arrival. Carlton and Victim always remained in the living room.

         Carlton would then try to grab Victim's blanket and pull her onto the couch. Victim remembered that, on the couch, Carlton "would grab my wrist and put it where he shouldn't have." Victim explained that Carlton made her touch his "downstairs, " that he moved her hand up and down while moaning, and that the touching was outside of his clothing. According to Victim, this happened every morning. To Victim, the encounters made her feel "very uncomfortable, " and she "didn't like it at all." Victim stated that the first instance of abuse "didn't feel right and I was kind of confused why he was doing it." Victim also testified that Carlton forced her to "go on the inside of the clothing, probably once or twice." The touching always stopped when the school bus arrived and Victim's brother came back inside. Victim claimed that both Carlton's wife and young daughter were home sleeping in a separate room while the touching occurred.

         Victim's mother testified that Victim and her older brother waited for the bus at Carlton's apartment from January 2012 to May 2013, when Victim first informed her about the purported abuse. Victim's mother then brought Victim to the Children's Advocacy Center ("CAC"). Victim was interviewed twice, and the State presented both of the CAC interviews to the jury.

          The first interview was conducted shortly after Victim's family reported the allegations. In the interview, Victim stated that Carlton had made her touch him on his "junk" several times. Victim relayed that this touching happened "way more than one" time and that the touching probably started when she was five or six, and ended when she was seven. According to Victim, these encounters occurred in the mornings while she waited for the school bus. However, Victim also claimed that Carlton forced her to touch him at other times when she would visit Carlton's apartment to play with his young daughter, while Carlton's wife was at work. Victim clearly stated that no touching occurred beneath Carlton's clothes.

         In the second interview, which occurred a few months before trial, Victim reiterated that the abuse on the couch happened "many, many times." Victim then stated that the abuse happened in the mornings before school. Victim clarified that Carlton would pull down his shorts before the touching occurred.

         Carlton testified in his own defense. Carlton denied all allegations of abuse, testifying that Victim never touched his penis. Carlton recalled that Victim and her brother were often at his apartment and that he babysat them frequently. According to Carlton, he did not order Victim's brother to stand outside and sometimes everyone waited outside for the bus together. Carlton also remembered that both his wife and young daughter were often present in the mornings before school, as his wife was sometimes awake to care for their young daughter. During the twenty-minute wait for the bus, Carlton would prepare for work, dress, play video games with Victim's brother, and eat breakfast.

         The State called Victim's brother in rebuttal, who testified that he always waited outside for the bus, while Carlton and Victim remained indoors. Victim's brother stated that, after seeing the bus approach, he would knock on the door and enter the living room. Although never seeing "anything bad going on, " Victim's brother remembered that, more often than not, Victim and Carlton would be together on the couch.

         The trial court instructed the jury on two counts of first-degree statutory sodomy. The trial court also instructed the jury on the lesser-included offense of first-degree child molestation for each count. For Count I, the jury was instructed, in part, that:

[a]s to Count I, if you find and believe from the evidence beyond a reasonable doubt: First, that on or about 2012 to 2013 ... the defendant knowingly placed [Victim's] hand on defendant's genitals, and Second, that such conduct constituted deviate sexual intercourse, and Third, that at that time [Victim] was a child less than twelve years old, then you will find the defendant guilty under Count I of statutory sodomy in the first degree.[1]

         For the lesser-included offense of first-degree child molestation, the jury was instructed, in part, that:

[a]s to Count I, if you do not find the defendant guilty of statutory sodomy first degree as submitted [in the instruction above], you must consider whether he is guilty of child molestation first degree under this instruction. If you find and believe from the evidence beyond a reasonable doubt: First, that on or about during 2012 and 2013 ... the defendant caused [Victim] to touch his genitals with her hand, and Second, that he did so for the purpose of arousing or gratifying his own sexual desire, and Third, that [Victim] was a child less than twelve years old, then you will find the defendant guilty under Count I of child molestation in the first degree.[2]

         For Count II, the jury was instructed with a nearly identical pair of verdict directors on first-degree statutory sodomy and first-degree child molestation. The verdict directors for Count II only differed as to the count and instruction numbers. Nothing else distinguished the verdict directors on Count I from those on Count II.

         Carlton did not object to the instructions as offered at trial. Nor did Carlton raise instructional error in his motion for a new trial. The jury found Carlton guilty of first-degree child molestation on both counts. The trial court then sentenced Carlton to thirteen years in prison on each count, to run consecutively. This appeal follows.

         Point on Appeal

         Carlton's sole point on appeal charges the trial court with plain error for submitting the child-molestation verdict directors because the verdict directors failed to specify a particular incident or instruct the jurors that they must unanimously agree upon the same incident in order to convict, thereby violating Carlton's constitutional right to a unanimous jury verdict under Celis-Garcia.

         Standard of Review

         Carlton did not object to the instructions at trial pursuant to Rule 28.03[3] and did not raise instructional error in his motion for a new trial as required by Rule 29.11 (d). Carlton concedes that his failure to do so resulted in a waiver of his claim. See State v. Oudin, 403 S.W.3d 693, 696-97 (Mo. App. W.D. 2013). Because Carlton failed to preserve his claim ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.